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Judgment
Dr. Inder Jit Singh, Presiding Member
The present Revision Petition (RP) has been filed by the Petitioner(s) against Respondent as detailed above, against the order dated 06.09.2018 of the State Consumer Disputes Redressal Commission, West Bengal (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No.A/705/2015 in which order dated 24.03.2015 of District Consumer Disputes Redressal Forum, Siliguri (hereinafter referred to as District Forum) in Consumer Complaint (CC) No.126/S/2012 was challenged, inter alia praying for setting aside the order passed by the State Commission.
While the Revision Petitioners (hereinafter also referred to Insurance Company) were Appellant and the Respondent (hereinafter also referred to as Complainant) was Respondent in the said FA No. A/705/2015 before the State Commission the Revision Petitioners were OPs and Respondent was Complainant before the District Commission in the CC No. 126/S/2012. Notice was issued to the Respondent on 07.12.2021. Parties filed Written Arguments/Synopsis on 19.01.2023 and 09.02.2023 respectively.
Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Commission and other case records are that the Respondent/complainant made a claim to the Insurance Company in respect of alleged damage to his house caused by an earthquake. The Insurance Company deputed surveyor to assess the loss. The Surveyor assessed the value for the building as Rs.13,38,000/- as against the sum insured of Rs.10,00,000/-. Accordingly, it was considered as an under insurance policy and the claim was decided for Rs.72,436/- which was offered to the respondent. The Respondent did not accept the same. The respondent filed consumer complaint before the District Forum.
Vide Order dated 24.03.2015 in the CC No. 126/S/2012, the District Forum allowed the complaint directing the OPs/Petitioners herein to pay Rs.10,00,000/- plus Rs.5,000/- as litigation cost and Rs.10,000/- towards mental torture with interest @10% p.a. if not paid within 45 days from the judgment.
Aggrieved by the said Order dated 24.03.2015 of District Forum, Petitioners/OPs appealed in State Commission and the State Commission vide order dated 06.09.2018 in FA No. A/705/2015 has dismissed the Appeal filed by the OPs/Petitioners herein with a cost of Rs.25,000/- being payable by the OPs to the Respondent and affirmed the order passed by the District Forum.
Petitioners have challenged the said Order dated 06.09.2018 of the State Commission mainly on following grounds:
(i) the impugned order passed by the State Commission is liable to be set aside as the order is against the law and facts of the case.
(ii) the State Commission failed to appreciate the record from a proper perspective and has gravely erred in passing the impugned order. The Respondent has made no effort to justify his claim and has not been able to bring on record any document/evidence to negate the assessment of the surveyor. The Fora below failed to appreciate that the surveyor had a plausible conclusion after checking and examining the matter in details. The survey report is an important piece of document and has to be given due weightage and consideration by the Court. The State Commission has committed a grave error in not following the set principle of law in this regard.
(iii) the impugned order clearly shows that the same is based on assumption and presumptions with nothing on record to support the findings. The State Commission is not justified in condemning the assessment as per the PWD schedule which is the accepted norm for assessing the cost of construction. The report of the surveyor has been wrongly rejected by the State Commission. The State Commission erred in not appreciating the survey report made by a qualified and experienced surveyor which cannot be brushed aside in the absence of very strong reasons. The State Commission has committed an illegality in not appreciating the assessment of loss has to be made after taking the depreciation value of the property as also the factum of under-insurance. The reasoning given by the State Commission in this regard is erroneous and perverse.
(iv) The amount awarded by the District Forum and upheld by the State Commission is not based on any legally acceptable evidence on record and the same is illegal and contrary to the materials on record.
Heard counsels of both sides. Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.
7.1 the petitioners contended that the insured made a claim for alleged damage to his house caused by an earthquate. The Petitioner appointed a surveyor, who assessed the value of the building at Rs.13,38,000/- against the sum insured of Rs.10,00,000/-. Applying the average clause the surveyor assessed the liability of the insurance company at Rs.1,12,108/- only. The assessment was made after considering the depreciation value @59.4% i.e. total for a period of 33 years from 1978 to 2011. The report was examined by the company and after application of mind on survey report and terms and conditions of the insurance company the claim was settled for Rs.72,436/-. The main dispute relates to the rate at which depreciation value is directed by this Commission vide order dated 24.01.2019. The petitioner was required to show rules for assessment and depreciation applied by the surveyor, the same were placed on record by the Petitioner alongwith IA/92599/2021. The perusal of the guidelines for valuation of immovable properties 2009 issued by Directorate of Income Tax clearly shows that the rate of depreciation applied by the surveyor comes to 2% per annum which is within the limits set by the said guidelines.
7.2 On the other hand on behalf of the Respondent (deceased) it is contended that the deceased during his lifetime had bought an insurance policy from petitioner on 21.07.2005 valid from 21.07.2005 to 20.07.2020 for his whole four story building/property situated at Rasik Gram, R.N. Sinha Road, Dhobi Tala, Darjeeling (West Bengal) for and against the unforeseen damage/destruction to the said building/house in event of any natural calamities such as earthquake, fire and shock for a sum insured of Rs.10,00,000/- for which the respondent had duly paid Rs.5250/- to the revisionist towards the premium of above noted insurance policy. Unfortunately on 18.09.2011, the state of North Bengal witnessed a severe earthquake of magnitude of 6.9 on the Richter Scale which brought about substantial damage to the said building of respondent rendering structure unfit for residing. The damage to the whole insured building by Sub-Assistant Engineer, Darjeeling Municipality in his report the damage was assessed to approximately Rs.32,12,514/- subsequently to which a claim was submitted before the revisionist on 13.12.2011. The Petitioner approved the claim for Rs.72,436/- only against the insured amount of Rs.10,00,000/-. Both the Fora below have allowed the complaint. It is contended that the Petitioner has filed the Revision Petition without any merits and grounds against the well- reasoned judgment of the State Commission. The contentions raised by the Petitioner in the grounds as question of facts and law are indeed misconceived and falsified as the claim of Respondent was limited to the sum assured of Rs.10,00,000/- towards the estimated loss/damage of Rs.32,12,514/- of insured’s building. The Revisionist has contended falsely to mislead the Commission regarding the claim of the Respondent. It is further contended that the Surveyor report is not binding on the insurer or insured as held in National Insurance Company Ltd. Vs. M/s Hareshwar Etnterprises (P) Ltd.) & Ors. (Civil Appeal No. 7033/2009) by the Hon’ble Supreme Court. The ground raised by the Petitioner regarding the PWD schedule for assessing the cost of construction is unwarranted and misleading. Firstly, such contention was never raised by the insurance company before the District Forum. Secondly, the State Commission has aptly discarded above mentioned contention of assessing the cost of construction as per the PWD schedule. Hence, the Revision Petition be dismissed being devoid of merits.
We have carefully gone through the order of State Commission. It has observed that there is no clause in the policy for making depreciation @59.4%, the claim has to be settled based on specified terms and conditions of the policy, none of the parties can deviate from the same. State Commission did not agree with the value of building as calculated by the Surveyor and observed the value of repairing cost as estimated by him was not in consonance with policy terms and conditions. The State Commission also did not agree with the cost of construction of house @Rs.850/-, stating that it was without any basis. Further State Commission disagreed with the estimates of renovation based on PWD schedule stating that general public cannot get such works done at PWD rates. The State Commission observed “In any case, it is not at all believable that an work for which the Respondent submitted an estimate of Rs.32,12,514/- could be done on payment of a sum of Rs.1,12,108/- only. The valuation made by the Surveyor was highly arbitrary and accordingly, we cannot accept the said report or the sum offered by the Appellant as settlement sum.”
The main contention of the Petitioner insurance company is that it is a case of under insurance. District Forum in its order has observed that damage amount assessed by Sub-Assistant Engineer, Darjeeling Municipality is Rs.32,12,514/-, the valuation of building as per Surveyor’s Report was Rs.13,38,000/- and surveyor assessed the amount payable as Rs.72,438/-. District Forum duly considered the contentions of OP and came to a conclusion that policy having been issued for Rs.10.00 lakhs, complainant is entitled to this amount and the damage amount was much higher.
Both the Fora below have concurrent findings on the assessment of loss and admissibility of the claim upto the sum insured. We do not find any reason to interfere with the findings of State Commission. As was held by the Hon’ble Supreme Court in Rubi Chandra Dutta Vs. United India Insurance Co. Ltd. [(2011) 11 SCC 269], the scope in a Revision Petition is limited. Such powers can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order. In Sunil Kumar Maity Vs. State Bank of India & Ors. [AIR (2022) SC 577] held that “the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity.”
We find no irregularity or material irregularity or jurisdictional error in the order of the State Commission, hence, the same is upheld. Accordingly, the Revision Petition is dismissed. Parties to bear their respective costs.
The pending IAs in the case, if any, also stand disposed off.