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2011(3) CPR 168
JAMMU & KASHMIR STATE CONSUMER DISPUTES REDRESSAL COMMISSION, JAMMU
G.D. Sharma, President and B.L. Saraf, Member
Mohd. Ataullah Giri —Complainant
versus
United India Insurance Co. Ltd.
and Another —OPs
Appeal No. 2965 of 2008
Decided on 27.12.2010
Counsel for the Parties:
For the Complainant:Mr. C.J. Dhar, Advocate.
For the Ops:Mr. Vishnu Gupta, Advocate.
IMPORTANT POINT
The quantum of loss due to fire assessed by the surveyor cannot be reduced by the insurer without assessing any reason.
Headnote:Jammu and Kashmir Consumer Protection Act. 1987, Section 2 (g) and 17—Deficiency in service—Repudiation of insurance claim—Fire insurance policy covering residential house of complainant taken from the opposite parties—Insured house suffered damage due to fire resulting in total loss —Surveyor appointment by OPs assessed the loss at Rs. 2,24,314/- —OPs on their own reduced it to be Rs. 1,07,109/- —Another surveyor and loss assessor appointed by the OPs assessed the loss at Rs. 1,15,493/- —Complainant accepted cheque of Rs. 1,15,493/- —Complainant accepted cheque of Rs. 1,15,493/- —No proof that it was accepted in full and final settlement of the claim—No reason to show that loss assessed by first surveyor and loss assessor was doubtful—OPs directed to reimburse the complainant a sum of Rs. 2,24,314/- with interest @ 8% cost awarded at Rs. 5,000 (Para 7)
G.D. Sharma, President—The brief facts of the case are that the complainant, owned residential house in village Bankoot Post Office Banihal, District Ramban. He obtained Insurance Policy from the OPs which came into operation on 17.08.2006 and to expire on 16.8.2007. The perils of the Insurance Policy were regarding loss by fire. The risk insured was to the tune of Rs. 10 lac. It is alleged that during the intervening night of 15th/16th May 2007 said building suffered damage due to fire and it was a case of total loss. The incident was reported to OP No.1 as well as report was lodged in the Police Station. OPs appointed M/s. Alak Consultants to survey and assess the loss. The complainant had submitted all the documents to him such as copy of the Police report. Fire Brigade report, insurance particulars and premium receipt. The complainant received letter from the OPs that his claim had been settled for full and final settlement in the sum of Rs. 1,15,903/- which was repudiated on the plea as not acceptable. Thereafter, the complainant made many requests to the OPs to furnish him copy of the assessment report made by M/s. Alak Consultants loss surveyor and loss assessor but all efforts ended in vain on the plea that it was a secret document. He filed the complaint on 27.02.2008 and has claimed the following reliefs:-
a. Indemnification to the tune of Rs. 10 lac alongwith interest-@ 10% as it was case of total loss of the insured building.
b. Compensation for mental torture and agony in the sum of Rs. 10 lac.
c. Litigation charges in the sum of
Rs. 20,000/-.
2. The claim is resisted by the OPs. In their written version, preliminary objections are taken to the effect that the claim of the complainant stood fully and finally settled and he is stopped from filing the complaint. He is not a “consumer” falling within the definition as contained in the J&K Consumer protection Act. On facts; it is pleased that M/s. Alak Consultants visited the spot on 21.05.2007 and took photographs and conducted the survey. The surveyor assessed the loss vide his report dated 31.10.2007 to the tune of Rs. 2,24,314/- which was submitted to the OPs on 19.11.2007. According to the OPs; some defects/discrepancies were detected in the said report which were corrected and the claim was made payable at Rs. 1,07,109/-. The complainant was informed to settle the claim by submitting the discharge voucher by accepting the abovesaid amount. The complainant was dissatisfied and made application for re-consideration of the claim. On his representation the claim was referred to Mr. Shahid M. Peerzada surveyor for re-assessment who vide his report dated 10.01.2008 which was submitted tot eh OPs on 07.02.2008 assessed the loss in the sum of Rs. 1,15,493/-. Rs. 90/- were deducted from the said assessed amount towards the cost of the premium and cheque bearing no.165482 dated 27.02.2008 for Rs. 1,15,403 was sent to the complainant alongwith letter dated 03.03.2008 which was according to the IOPs for the full and final settlement of the claim. The cheque was accepted by the complainant. Since there was no denial of rendering service so the complaint in the present form is premature and deserves outright dismissal.
3. In support of the complaint, the complainant filed his affidavit, and he was cross-examined by OPs. On behalf of the OPs, Shahid M. Peerzada filed his affidavit and he was cross-examined. Mr. M.A. Makroo Divisional Manager of the OPs tendered his evidence on affidavit. The complainant in his affidavit has supported the allegation made in the complaint and stated that he constructed the insured building in the year 2001/2002. That it was a case of total loss and the risk covered was to the tune of
Rs. 10 lac. In cross examination, he stated that “I received Rs.1,15,403/- through a Bank cheque but no receipt for final settlement was issued by me. The amount was received after filing the complaint”. He categorically stated that he never received lette
