Heard learned counsel for both sides.

2.      The captioned complaint is filed u/s 12 read with Section 17 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the “Act”) filed by the complainant claiming Rs.61,58,039/- towardsloss sustained and litigation cost due to mental agony faced by the complainant.

3.      The case of the complainant in nutshell is that the complainant has got an work order for construction of work i.e. Improvement  to road and C.D.Works including maintenance under PMGSY during 2007 – 08 and an agreement was executed to the tune of Rs.2,00,85,952/- only. Complainant has purchased the above policy for covering the risk for the period from 9.6.2008 to 8.6.2009. It is the case of the complainant that during the said period, the river embankment to Bhagabanpur was washed out due to heavy rain and flood came in river Keula which is branch river of Brahmani. Thereafter, claim was made by the complainant.  OPNo.1 – insurance company did not compute the loss whereas the OP No. 2 the Executive engineer has taken the stock to his possession. The surveyor did not believe the case and as such the machinery and labour were kept idle for 67 days from 25.9.2008 to 30.11.2008. Complainant has asked for settlement of the claim for Rs.51,58,030/-, but the surveyor computed the loss to the extent of Rs.4,87,450/-. Since the money spent by the complainant was not received by him from OP No.1 – insurer, the complaint case was filed.

4.      OP No.1 filed written version stating that complainant has purchased the policyfrom them. Further, it is contended that policy was for the period from 9.6.2008 to 8.6.2009. The policy was not being for PMGSY Package for that period. OP No.1 further averred that they admitted to have insured the work and being a Public Sector Undertaking deputed surveyorto assess the loss who submitted report on 11.12.2008. Accordingly, they found the loss at Rs.4,87,450/- and the complainant has accepted the same. There is no deficiency in service on their part.

5.      After considering the pleadings of both parties the following issues emerge for decision.

I)       Whether the complainant has proved the deficiency in service on the part of the OP - insurer?

II)      Whether the complainant is entitled to any compensation or not?

ISSUE NO.I

6.      Complainant in order to prove his case has examined himself by filing evidence affidavit. It is settled in law that the facts admitted need not be proved. In the instant case, the OP – insurer admitted the policy purchased by the complainant. It is revealed from the evidence on affidavit of the complainant that after purchase of the policy, he took up of the work from the Executive Engineer which was to be completed from 9.6.2008 to 8.6.2009. He has proved the work order vide Ext.I. However, on 18/19.9.2008, there was heavy flood in river Keula which is branch river of Brahmani and as such the complainant sustained loss of Rs.31,48,039/-. OP No. 1 did not assess the loss accordingly. However, surveyor has submitted report which is relied on by both the parties. According to surveyor’s report, the surveyor has computed the loss at Rs.4,87,450/-. When this amount has not been paid so far except the information to the complainant, we are of the view that there is deficiency in service proved by the complainant on the part of the OP – insurer. Issue No. I is answered accordingly.

ISSUE NO.II

7.      The next question arises whether the complainant is entitled to any compensation or not. The complainant has not adduced any witness to show the loss at Rs.31,48,039/- except filing of papers which to show that there is loss of Rs.20,10,000/- but they are not proved. When there is surveyor’s report and no other evidence is adduced by the complainant to rebute the estimate of the surveyor, we accept the surveyor’s report. However, it is clear that complainant has already sustained mental agony till now because it is the matter of 2009. In such circumstances, the surveyor’s report for the compensation while being awarded the complainant is entitled to compensation for mental agony and harassment is Rs.1,00,000/- would solve the purpose. Also Rs.25,000/- has been awarded for litigation cost.

8.      In view of the aforesaid discussion, we are of the view that the complainant is entitled to Rs.4,87,450/- as  insurance claim under the policy and further, he is entitled to Rs.1,00,000/- ascompensationtowards mental agony and harassment and also Rs.25,000/- as litigation cost. Issue No.II is answered accordingly.Hence order.

9.      In the result, the complaint is allowed on contest against OP No.1. OP No.1 is directed to pay Rs.4,87,450/- towards the insurance claim to the complainant. Further, OP No.1 is directed to pay Rs.1,00,000/- as compensation to the complainant towards mental agony and harassment. Moreover, the complainant is entitled to Rs.25,000/- as litigation cost from  OP No.1. All these payment should be made by OP within 45 days from today failing which all will carry interest at the rate of 12% per annum from the date of filing of the complaint till the date of payment.

         Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.