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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Prem Narain, Presiding Member
V.K. Gupta & Associates
and Ors. —Complainants
versus
New India Assurance Co. Ltd. —Opp. Party
Consumer Case No.1435 of 2016
Decided on 18.1.2018
Held: In relation to the material kept in the store that has not been allowed by the Insurance Company, both parties have, in a way, not disagreed that this material does not conform to the record maintained by the BRO. This casts doubt on the existence of the material itself even though the loss for the same has been assessed by the surveyor. As every material entering the site is required to be noted and accounted for by BRO and as this material does not figure in their record, I do not find this to be a justified claim by the complainant and the insurance company has rightly deducted this amount from the assessment of the surveyor.
Coming to the question of 50% depreciation, I intend not to interfere with the assessment of the surveyor as the surveyor was a qualified and licenced surveyor and no aspersions have been cast against the surveyor by the complainants in this regard. As no counter technical report or any guidelines have been put up by the complainant, deficiency alleged by the complainant in this regard is without any basis and the same cannot be accepted.
Now finally the question of interest is to be taken up. The incident had occurred on 03.08.2012 and the surveyor report was finalised on 26.07.2014. Finally settlement amount of the claim has been credited to the account of the complainant on 04.09.2014. Hon’ble Supreme Court in the matter of Chengalrayan Cooperative Sugar Mills Vs. Oriental Insurance Co. Ltd. & Anr., (2000) 10 SCC 213 has modified the order of the National Commission wherein the interest was granted from the date of order of the National Commission to the effect that the interest shall be applicable from the date of filing of the claim before the National Commission. Law laid down has been summarised in the following head note:-
“B. Consumer Protection Act, 1986-Ss. 22, 18 and 14- Interest- Interest on the amount of compensation –Date from which should be awarded- Appellant filing claim before National Commission for compensation for insured gunnies destroyed in fire- National Commission, quantifying the compensation and awarding interest thereon @18 per cent from the date of its order- Supreme Court, while retaining the rate, directing the interest to be paid rather from the date of filing of the claim before the National Commission- Interest- Interest on compensation- Date from which to start.”
Accordingly, on the basis of the above principles laid down by the Hon’ble Supreme Court, no interest is payable on the amount of settlement, which was already paid before filing of the present complaint case. However, if any additional claim is allowed in the present complaint, same will carry interest from the date of filing of the claim.
Based on the above discussion, the present consumer complaint No.1435 of 2016 is partly allowed and the opposite party/Insurance Company is directed to pay Rs.8,18,077/- (Rupees eight lakhs eighteen thousand seventy seven only) to the complainant along with interest @ 7% p.a. from the date of filing of the complaint i.e. 01.09.2016 till actual payment. The opposite party Insurance Company shall pay Rs.20,000/- (Rupees twenty thousand only) to the complainant as cost of litigation. (Paras 20 to 24)
Result: Complaint partly allowed.
This complaint has been filed by the complainant, M/s. V.K. Gupta & Associates & Ors. against the opposite party.
2. The brief facts of the complaint are that the complainant, namely, M/s. V.K.Gupta & Associates, Engineers & contractors (hereinafter referred to as Complainant) is a partnership firm since 2001. The present case is regarding the work of construction of a bridge over Dundi nallah near Manali (HP) awarded by the Border Road Organisation (BRO). On 29.11.2011, the complainant took “Contractors All Risks Insurance” (CAR) Policy No.35230144110300000002 from the OP in lieu of the agreed premium. Unfortunately on 03.08.2012 at around 10.00 p.m. a flash flood caused by heavy intensity of cloud burst over the Dhundi Peaks flooded the Seri rivulet, a tributary to river Beas, caused havoc to the complainant’s undergoing project of pre-stressed bridge being constructed on Dhundi nallah. On 04.08.2012, immediately after receiving the information from the site, the complainant on lodged its insurance claim under the aforesaid policy with the respondent/OP. On 14.08.2012, the Regional Office of the OP appointed Mr.Baldev Singh Chawla- B-52, Shekhar Apartment, Mayur Vihar, Phase I, New Delhi as independent surveyor and loss assessor to assess the damage under the “Contractors All Risks Insurance” (CAR) Policy.
3. On the basis of the surveyor report Insurance Company settled the claim with the complainant for Rs.74,25,064/- and the Insurance Company transferred amount of Rs.59,11,032/- on 04.09.2014 by RTGS. The complainant first accepted the settlement and signed the discharge voucher later on he protested by writing letters to the Insurance Company and also filed the present consumer complaint. The complainant has alleged that first of all the total loss was more than Rs.3 crore, however, the surveyor vide his report dated 21.11.2013 assessed the loss at Rs.95,99,693/-. Later on the Insurance Company objected to this assessment and sought clarification from the surveyor vide its letter dated 09.05.2014 on various aspects including the loss assessed for contractors plant and machinery, which was roughly Rs.8,18,077/-. Later on surveyor submitted its revised report on 20.07.2014 wherein the loss was assessed at Rs.87,81,616/-. Even from this assessment the Insurance Company did not allow the loss in respect of “store materials loss (total) in use on ongoing civil constructions in progress”, which was for Rs.12,69,779/-. Ultimately the Insurance Company got the discharge voucher signed from the complainant for settlement of the claim wherein it was mentioned that the complainant accepts the settlement for Rs.74,25,064/- and after deducting Rs.15,14,032/- as balance premium amount, a sum of Rs.59,11,032/-was credited to the account of the complainant. It has been alleged in the complaint that the basis of deduction of the amount approved by the surveyor in respect of “store materials loss (total) in use on ongoing civil constructions in progress” is not clear and this material was physically stored and even the same has been recorded by the surveyor. Thus, this amount should not have been deducted.
4. It was further alleged by the complainant that the surveyor modified his report on the pressure from the Insurance Company and did not allow any amount against the loss of insured contractor’s plant and machinery. It has also been alleged that the balance premium of Rs.15,14,032/- has been arbitrarily deducted from the alleged settlement amount.
5. The opposite party appeared after notice and has filed written statement. The claim of the complainant has been denied on the ground that the contractors’ plant and machinery was not covered under the insurance as no separate premium was paid for this coverage. The balance premium of Rs.15,14,032/- was to be paid by the complainant as per the policy conditions and as per the rules of the Insurance Company. With respect to the “store materials loss (total) in use on ongoing civil constructi
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