R.R. INTERNATIONAL Vs. NEW INDIA ASSURANCE CO.

JUDGEMENT

(1.) COMPLAINANT filed complaint on 28.1.2003 and alleged that complainant purchased two fire polices and other polices in regard to the various properties situated and located at various places from opposite party. It was further alleged that the dispute between the complainant and the opposite party pertains to two Fire policies, namely; (i) Fire Policy No. 1142180103474; and (ii) No. 1142180103476. First policy pertains to the building situated at Lakdi Fazalpur, Moradabad covering fire for a total sum of Rs.202.15 lakhs and second policy pertains to the building, etc. adjacent to old Maida Mill, Lakdi Fazalpur, Moradabad, also being a fire policy 'C ' extended to cover FSTI for a sum of Rs.182.70 lakhs. During the subsistence of the policy period, complainant suffered huge loss on 30.8.2000 on account of inundation occurred due to rains and caused a total loss in terms of building, stocks, FFF electrical fittings, etc. Complainant immediately intimated opposite party regarding this loss and opposite party appointed and deputed a Surveyor, Shri V.P. Maheshwari to assess loss suffered by the complainant. The Surveyor carried out detailed survey and submitted his report to the opposite party in respect of both the policies. Under the first policy, the complainant claimed a loss of Rs.31,77,584.16 and under second policy, the complainant claimed loss of Rs.10,09,071.09, as per details mentioned in para 7 of the complainant. The Surveyor took 1 1/2 year to carry out detailed survey and survey was carried out at the time when the building was ravaged and devastated and the report was an accurate and factual assessment of the losses suffered. Opposite party did not make good the loss suffered by the complainant and all of a sudden and in a most arbitrary manner with a view to completely defeat the lawful claim of the complainant appointed another surveyor M/s. Adarsh Associates on 16.3.2002. The second surveyor had no factual basis to proceed in evaluating the losses after two years. It was further alleged that complainant obtained polices on 25.4.2000 and opposite party sold fire policy under the old fire tariff which were not valid on the date of the policy as by a notification dated 29.3.2000 by the Regional Office which was effective from 31.3.2000 and the tariff rate of this policy was lowered to 1.25% inclusive of FSTI in place of the former rate of 2.25% and in this way, opposite party charged a sum of Rs.52,853.00 extra which amounts to criminal misappropriation and gross deficiency of service. It was further alleged that on the basis of second illegal and arbitrary survey report, opposite party evaluated the losses suffered by the complainant to the tune of Rs.7,40,825.31 and opposite party disposed of complainant 's claim for Rs.4,44,000.00. Complainant submitted grievances before the Hon 'ble Ombudman (Insurance) for the State of U.P. and Uttaranchal Regional but claim of the complainant was returned by Ombudman on the ground that the amount claimed was beyond their pecuniary jurisdiction, hence, complainant filed this complaint within limitation and prayed that claim of Rs.41,86,655.25 under both the polices may be allowed with interest @ 18% p.a. and excess premium charged by the opposite party may also be refunded.

(2.) OPPOSITE party submitted written statement and alleged that claim filed by the complainant is not maintainable as services of the opposite party have been hired for the commercial purposes and complainant is not a consumer. Complainant is estopped by his act and conduct to file the present complaint as the complainant had participated in the investigation and assessment of loss by the second surveyor along with the first surveyor without any protest and now complainant cannot agitate and say that the report is not acceptable to him. It was further alleged that necessity for the appointment of the second surveyor arose as the first surveyor had permitted extensive improvement which were carried out by the complainant in the existing building basically for waterproof treatment by laying Agra stones at complete flooring and upto the required heights in walls of basement as well as recasting of new RCC slab over Agra stone. It was further alleged that during the extensive discussions complainant agreed with the view that they are entitled only for reasonable costs of the building as per original specifications which the opposite party had offered to him. It was further alleged that first surveyor included such items which were not covered under the terms of the policy which necessitated appointment of second surveyor. It was further alleged that present case requires extensive evidence to reach the final conclusion as there is a huge difference of assessment in the report of both the surveyors. Every item claimed by the complainant is to be proved by bills and other material evidence which will require examination and cross -examination of number of witnesses and in such circumstances the Civil Court is the proper forum for adjudication of this complaint. It was further alleged that time consumed in assessment occurred due to delay on the part of complainant himself in not providing documents in time. However, it was admitted that Mr. Maheshwari inspected the building material after fire, but submitted that extensive improvements like Agra stone cannot be permitted by the opposite party when they were not in the original building at the time of insurance. Opposite party offered correct amount of Rs.4.41 lakhs after deducting the depreciation and deduction for uncalled items and prayed that complainant is not entitled to get amount more than Rs.4.41 lakhs after completion of the formalities and prayed for dismissal of complaint.

(3.) COMPLAINANT filed affidavit of Shri Premvir Singh in his evidence and opposite party filed affidavit of Shri Kamlesh Kumar Sangal in its evidence and parties also filed documents.