Appeal No.985/08


Meena Tent House through Proprietor Asha Ram Meena(Died) and his LRs:

1.

Smt.Rangi Devi,Wife
2.

Hanuman Meena,son
3.

Mahendra Kumar Meena,son
4.

Dharan Singh Meena,son Appellants

V.

1.Sahakari Bhumi Vikas Bank Ltd.,Sawai Madhopur

2.National Insurance Co.Ltd.,Sawai Madhopur Respondents



Before:


Mr.Justice Sunil Kumar Garg-President

Mrs.Vimla Sethiya-Member


Shri S.N.Soorwal,counsel for the appellants

Shri Aashish Gautam,counsel for the res.no.1

Ms.Raj Sharma,counsel for res.no.2



Date of judgement: 17.3.2009

This appeal has been filed by the complainant appellants against the order dated 29.4.08 passed by the District Forum,Sawai Madhopur in complaint no.262/07,by which the complaint of the complainant appellants was dismissed.


It arises in the following circusmtances:

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That initially a complaint was filed on behalf of Meena Tent house on 27.7.07 through its Proprietor Shri Asha Ram Meena,who had died during the pendency of the complaint and thereafter his LRs were taken on record through amended complaint on 13.3.08, interalia stating that after taking the loan from res.no.1 bank,the tent house of the deceased complainant appellant was got insured with res.no.2 insurance company for the period 22.3.06 to 21.3.07 for a sum of Rs.2 lacs. It was further stated in the complaint that on the intervening night 25.2.07 a fire had taken place in the shop of Meena Tent House as a result of which the goods lying in the tent house were destroyed and the deceased complainant appellant had got the information on 26.2.07 from his servant Radhey Shyam and thereafter the matter was reported to the police station,Malarna Dungar on 26.2.07 bearing rapat no.743 and similarly the respondents no.1 & 2 were also informed and in that fire the deceased complainant appellant had suffered a loss to the tune of Rs.2,53,500/- and the assessment of the loss was also made by the Tehsildar on 1.3.07 and surveyor was also appointed by the res.no.2 insurance company and since the claim was not settled by the res.no.2 insurance company, the complaint was filed by the deceased complainant appellant claiming Rs.2,53,500/- as amount of compensation for the damage to the goods apart from other amount for mental agony.


A reply was filed by the res.no.2 insurance company before the District Forum,Sawai Madhopur on 1.11.02 admitting the fact that the fire policy was issued in favour of the deceased complainant but as per the survey report prepared by the surveyor, Apex Assessors Pvt.Ltd dated 7.8.07,the net loss which was assessed by the surveyor was to the tune of Rs.10,916/- and since that amount had been paid on 27.9.07,therefore,for rest of the amount the complaint was not maintainable admitting the fact that the actual loss assessed by the surveyor was to the tune of Rs.20,916/-,but a sum of Rs.10,000/- was deducted from that amount and thus the remaining amount of Rs.10,916/- were rightly paid to the

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complainant and it was prayed that the complaint be dismissed.


The District Forum after hearing both the parties through the impugned order had dismissed the complaint interalia holding that since the amount of Rs.10,916/- had been paid by res.no.2 insurance company to the complainant appellants as assessed by the surveyor,therefore,the complainant appellants were not entitled to further amount.


Aggrieved from that order,this appeal has been filed by the complainant appellants.


In this appeal,the main contention of the learned counsel for the complainant appellants is that making payment of Rs.10,916/- was not at all justified as the surveyor had assessed the loss to the tune of Rs.20,916/- and further since the bills had been produced for more amount,therefore,the amount more than assessed by the surveyor should have been ordered to be paid by the res.no.2 insurance company to the complainant appellants and thus the findings recorded by the District Forum are erroneous one and be quashed and set aside and appeal be allowed.


On the other hand,the learned counsel for the res.no.2 insurance company has supported the impugned order and argued that the appeal be dismissed.


We have heard the learned counsel for the parties and perused the record.


So far as the fact that the fire had taken place in the tent house of the complainant appellants on 25.2.07 is not in dispute and there is also no dispute on the point that the tent house in question was insured for the period 22.3.06 to 21.3.07 for a sum of Rs.2 lacs and the surveyor

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appointed by the res.no.2 insurance company had assessed the loss to the tune of Rs.20,916/- and out of that amount a sum of Rs.10,000/- were deducted as per terms of the policy and there is also no dispute on the point that a sum of Rs.10,916/- had been paid by the res.no.2 insurance company to the complainant appellants on 27.9.07.


In our considered opinion,the complainant appellants are entitled to a sum of Rs.20,916/- as assessed by the surveyor and deduction of Rs.10,000/- was not justified at all and since out of that amount a sum of Rs.10,916/- had been paid by the res.no.2 insurance company to the complainant appellants,therefore,the complainant appellant is entitled to a sum of Rs.10,000/- more with interest @ 9% p.a from the date of filing of the complaint till the payment is made alongwith cost of Rs.3000/-


So far as the argument that the complainant appellants are entitled more than the amount as assessed by the surveyor is concerned,for that the law laid down by the The Hon'ble National Commission in the case of Champalal V. Oriental Insurance Company reported in III(2008) CPJ 93 (NC) may be referred to where the Hon'ble National Commission has held that as per the law it is the report of the surveyor which has to be given due weightage and the District Forum could not go into the question of quantum dispute as it will involve a detailed investigation,which could not be held in the summary proceedings under the provisions of the C.P.Act,1986.


The Hon'ble National Commission has further observed that in such cases the complainant would be free to either approach the civil court or approach to IRDA under the provision of 64UM of Insurance Act,or to invoke the condition of the policy relating to reference to Arbitration in case of quantum dispute.


Apart from that this Commission is of the view that the report of

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the surveyor should be given due weightage.

Thus the complainant appellants are entitled to a sum of Rs.20,916/- as assessed by the surveyor and deduction of Rs.10,000/- was not justified at all and since out of that amount a sum of Rs.10,916/- had been paid by the res.no.2 insurance company to the complainant appellants,therefore,the complainant appellant is entitled to a sum of Rs.10,000/- more with interest @ 9% p.a from the date of filing of the complaint till the payment is made alongwith cost of Rs.3000/- and for more amount taking into consideration the law laid down by the Hon'ble National Commission in supra,the complainant appellants could seek the remedy in the appropriate court and time spent before the District Forum as well as before this Commission shall be set of by the concerned authorities where the proceedings for further compensation would be taken up as per provision of section 14 of Limitation Act as laid down by the Hon'ble Supreme Court in case of Laxmi Engineering Works V. PSG Industrial Institute reported in 1995(III) SCC 583.


For reasons as stated above,this appeal filed by the complainant appellants is partly allowed in the manner that the res.no.2 insurance company would pay a sum of Rs.10,000/- more to the complainant appellants with interest @ 9% p.a from the date of filing of the complaint till the payment is made alongwith Rs.3000/- as amount of cost of litigation. Further liberty is given to the complainant appellants to approach the civil court for claiming more compensation and for that the time spent before the District Forum as well as before this Commission could be sought to be exempted u/s 14 of the Limitation Act.




Member President