H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA

Appeal No. 144/2008.

Date of Decision 22.5.2009.

United India Insurance Company Limited, Divisional Office,

No. 503-504, Kailesh 5th Floor, Kasturba Gandhi Marg, New

Delhi, through its Divisional Manager, United India Insurance

Company Limited, Divisional Office, Divisional Office, Timber

House, Shimla, HP.

……..Appellant.

Versus



1. Shri Bir Singh son of Shri Deyee Ram Chauhan,

R/o VPO Dhar Chandana, Tehsil Chopal, District

Shimla, presently residing at Village Shanan, Shimla

Bye Pass Road, PO Sanjauli, Shimla-6.,



2. HUDCO the Hudco Niwas, 2nd Floor, 31-32, Sector 34-A,

Chandigarh through its Managing Director.,



3. Manager, HUDCO, Palika Bhawan, Talland, Shimla, HP.,



4. Mrs. Madhu Kapur, D.C. (Law), HUDCO Niwas, I.H.C.

Lodhi Road, New Delhi.

…….Respondents.

Hon’ble Mr. Justice Arun Kumar Goel, President.

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekher Sharma, Member.



Whether Approved for reporting? No.



For the Appellant. Mr. J.S. Bagga, Advocate.



For the Respondent No.1. None, though represented by

Mr. Naresh Sharma, Advocate.



For the Respondents No. 2 to 4. Mr. I.N. Mehta, Advocate.



O R D E R:







Justice Arun Kumar Goel (Retd.) President (Oral)



This appeal is directed against the order passed by District Forum Shimla, in Consumer Complaint No. 114/2005. By means of impugned order appellant has been directed to pay Rs. 43,646.47 paise with 9% interest from the filing of the complaint, i.e., 28.5.2005 till actual payment was made alongwith litigation cost of Rs. 2500/-. This amount has been ordered to be paid by the appellant to respondent Nos. 2 to 4 for adjustment of the loan account of the respondent No.1 within a period of 45 days from the date of receipt of copy of the impugned order under intimation to the respondent No.1.

2. Respondent No.1 had raised loan from respondent Nos. 2 to 4 in the sum of Rs. 2.60 lacs. For securing the loaned amount, respondents No. 2 to 4 had obtained insurance cover from the appellant for the sum insured.

3. Due to heavy rains in August, 2004 the insured house got damaged. Respondent No.1 informed the appellant, as well as respondents No. 2 to 4. He also lodged the FIR with the police. He intimated the appellant about the loss caused due to rain. Surveyor deputed by the appellant prepared his report and gave it to the appellant.

4. On the other hand by accepting the report of Mr. Umesh Kumar Sood Annexure R-1, and taking it to be a case of under insurance, appellant offered Rs. 19,676/- to respondents No. 2 to 4 and the claim disbursement voucher in this behalf is Annexure R-II.

5. In this background, Mr. Bagga learned counsel for the appellant submitted that District Forum below fell into error by ignoring the report of the surveyor who is appointed by the competent authority and is an independent person, besides being expert in the branch of assessment of loss. He also submitted that surveyor’s report has been ignored without any justifiable cause by the District Forum below. As per this report it stood clearly established beyond any shadow of doubt, that this is a case of under insurance and thus amount had been rightly paid by his client to respondents 2 to 4 for being appropriated in the loan account. Besides this, he also placed reliance on Annexure R-II, the claim disbursement voucher which according to him was in full and final settlement of the claim of loss as per surveyor’s report, Annexure R-1. Thus per Mr. Bagga on this ground also this appeal deserves to be allowed.

6. So far report of Mr. Umesh Sood Sood, Surveyor on which great emphasis was laid by Mr. Bagga i.e. Annexure R-1 is concerned, it needs to be ignored straightway. Admittedly loss to be assessed in this case was qua the civil works, whereas Mr. Sood is a mechanical engineer. For taking this view reliance is being placed on a decision of the National Commission in the case of United India Insurance Company Vs. M/s Hotel Woodrina, in Revision Petition No. 3591 of 2008, dated 24.4.2009. What was observed in this behalf and is relevant and material for the view that we have taken was in the following terms:-

“………………………………………………………………………………..Good reasons have been assigned by the State Commission for discrediting the report of Sh. Umesh Kumar Sood, surveyor appointed by the insurance company. The State Commission preferred to put credence on the survey report of Mr. Saini who was a Civil Engineer than the report of Mr. Sood who was obviously Mechanical Engineer.



One can taken notice of the fact that regard being had to the nature of the job which the surveyor was required to accomplish, the surveyor should have possessed expertise in the Civil Engineering………………………………..………………………………”



7. As such in our opinion no benefit can be derived by the appellant from the surveyor’s report, as he is not an expert in the branch in which he was called upon to opine.

8. Faced with this situation, Mr. Bagga submitted that the competent authority who appointed Mr. Sood as a surveyor was aware of his qualification, but despite this he has been authorized to examine and assess loss in cases of civil works as well. Therefore, according to him Annexure R-1 cannot be ignored from consideration and thus he prayed for accepting the same while allowing this appeal. In the light of the above extracted portion of the order of the National Commission, this plea is hereby rejected. Incidentally we may clarify here that in the case before National Commission the matter related to assessment of civil works, and the surveyor was a mechanical and is the same person, whose report is being relied upon by Mr. Bagga in this appeal before us.

9. So far plea based on Annexure R-II the voucher is concerned, it is likewise without merit. Reason being that firstly it does not indicate that the amount tendered by the appellant vide letter Annexure R-III, was in full and final settlement of the claim of respondent No.1 on account of loss caused to the building due to rains. Secondly respondent No.1 is not a privy to it. By its own acts, the appellant cannot bind down respondent No.1. In this behalf we shall go to the extent of holding that by any acts of respondents 2 to 4 also, the respondent No.1 is not bound.

10. No other point is urged.

In view of the aforesaid discussion we find no substance in this appeal which is accordingly dismissed, leaving the parties to bear their own costs.

All interim orders passed from time to time in this appeal shall stand vacated forthwith.

Learned counsel for the parties have undertaken to collect copy of this order from the Court Secretary free of cost as per rules.



Shimla.

22nd May, 2009. (Justice Arun Kumar Goel) Retd.

Karan* President.





(Saroj Sharma)

Member.



(Chander Shekher Sharma)

Member.