M/s Vicky Telecom, complainant has filed the present complaint U/s 12 of the Consumer Protection Act, 1986 against the The New India Assurance Company Ltd., seeking necessary directions to the opposite party to make the payment of amount of Rs.2,81,600/- to the complainant along with interest, litigation expenses and compensation for physical and mental harassment.

2.       That the case of the complainant in brief is that the complainant’s firm is insured by the opp. Party for a period from 19.11.2015 to 18.11.2016.The policy has been duly issued by the opposite party after receiving the premium. As per policy the fire loss has also been covered under the policy with insured amount of Rs.5,50,000/- alongwith other benefits. As such the articles lying in the shop were insured by the opposite party. It is alleged by the complainant that, during the period of policy i.e. on 27.02.2016 the fire took place in the shop at night time and all the goods lying therein totally destroyed. The DDR having no.40 Date 27.02.2016 has been duly registered at Police Station Dinanagar. The news regarding this also published in the newspaper. All the requisite formalities have been fulfilled by him and list of loss also submitted to the opposite party. It is further alleged that the insurance co. failed to make the payment of the claim amount. Even the legal notice has been duly sent in this regard but no avail. The opposite party is not making the payment and is delaying the matter. It is also alleged by the complainant that he has suffered loss of Rs.2,81,600/- which includes confectionary articles, karyana articles, cold drinks, recharge bucks, mobiles, fruits, vegetables, fittings etc. The list has already been provided to the insurance company. The complainant further mentioned that he has taken loan from State Bank of India, Branch Dinanagar for running the shop and he also submitted the statement of stock regularly. The photocopy of stock statement of 26.02.2016 was also attached which clearly shows that many goods/ articles were lying in the shop of the complainant when the fire took place. It is also alleged by the complainant that there is deficiency of services on the part of the opposite party as they failed to pay and settle the claim and the period of 1 year has already been elapsed, hence the complaint.

3.       Upon notice opposite party appeared through their counsel and contested by filing of written reply raising legal objections, it is submitted that after receiving intimation of loss the O.P. duly deputed Sh.Hardeep Singh Bedi, Surveyor, Loss Assessor and Valuer to assess of loss and he has inspected the spot and gave his detailed report on 28.08.2016. As per surveyor report the complainant failed to submit bills to the surveyor, affidavit and bank account etc. It has been pleaded by OP that, As per surveyor report the surveyor assessed the loss to the tune of Rs.23,750/- Accordingly the complainant was asked to furnish the bank account no. for NEFT payment of claim amount as per surveyor report vide letter dated 20.09.2016,but the complainant got issued legal notice to the opposite party in place for furnishing the bank particular and the opposite party duly replied the same on dated 09.11.2016 and further asked the complainant to furnish particulars by letter dated 22.11.2016. In compliance to the above mentioned letter, the complainant send the cross cheque no.702830 of SBI, Dinanagar having account no. 34226930812 and accordingly the opposite party paid the claim payment as per surveyor report to the complainant through NEFT. But SBI Dinanagar reversed the amount to the opposite party being account closed. The opposite party again demanded valid account from the complainant vide letter dated 10.01.2017 and 16.02.2017 but the complainant filed the present complaint in place of supplying valid account particulars. It has been further pleaded that the complainant failed to furnish the documents for suffering loss to the tune of Rs.2,81,600/- before the surveyor and avoided to submit relevant documents before the surveyor. There is no deficiency in service on the part of the opposite party. Other allegations of the complainant have been denied and prayer for dismissal of complaint has been made.

4.       In support of his complaint the complainant has tendered into evidence affidavit of Ajay Kumar dated 10.01.2018 (Ex.C-1) and Documents (Ex.C-2 to Ex. C-11).

5.       In order to rebut the evidence of complainant the opposite party has tendered into evidence affidavit of Shiv Lal dated 21.02.2018. (Ex.OP-1) and Documents (Ex.OP-2 to Ex.OP-15).

6.       We have heard learned counsel for the parties and gone through record.

7.       We have given careful consideration to these submissions.

8.       Counsel for the complainant has argued that the opposite party had issued policy of insurance Ex.C2 for sum assured of Rs.5,00,000/-. It is further argued that during period of policy on 27.02.2016 a fire took place in the shop of the complainant and all the goods in the shop got totally destroyed. Complainant had got DDR Ex.C6 registered with police station Diannagar and claim was duly intimated to the opposite party but surveyor of the opposite party has not assessed the loss properly and assessed Rs.23,750/- against the loss of Rs.2,81,600/- suffered by the complainant which amounts to deficiency in service.

9.       On the other hand counsel for the opposite party had filed written arguments and has relied upon judgment of Hon'ble National Commission, New Delhi as per which it has been held that

          "Consumer Protection Act, 1986, Sections 2(1) (g), 19 & 21 (a) (ii) Insurance claim- Surveyor report- Held- It is an          established legal proposition that the report made by the  surveyor, who is professional in his filed, cannot be  disbelieved, unless there are cogent and convincing reasons to     do so. (Para 10) and has argued that complainant is entitled to receive Rs.23,750/- as per report of the surveyor but complainant had not provided correct account number to enable the opposite party to pay the said amount and is prayed for dismissal of the complaint.

10.     We have heard the Ld. counsel for the complainant and gone through written arguments submitted by the counsel for the opposite party. It is admitted fact that complainant had obtained policy of insurance from opposite party copy of which is Ex.C2 as per which fire is included with sum assured of Rs.5,50,000/- under section 1B of the policy. The only question in dispute before this Commission is regarding quantum of compensation being offered by the opposite party on the basis of report of surveyor.

11.     We have gone through the report of the surveyor as per which physical inspection of the premises was made by the surveyor who submitted his report Ex.OP-5 as per which the total loss due to fire as per observations of DDR report including furniture, fixture, fitting, refrigerator, invertors and ceiling fan etc. was assessed as  Rs.1,50,000/-. Surveyor has deducted Rs.85,000/- on account of furniture, fixture, fitting, refrigerator, invertors and ceiling fan as the same was not covered under the policy of insurance. Accordingly, we find that amount of Rs.85,000/- has rightly deducted by the surveyor. However, this Commission is of the view that assessment of payable amount as Rs.23,750/- by the surveyor was not justified by applying excess loss. Moreover, the surveyor has mentioned rate of items on his own without any supporting document which seems to be lesser side. This Commission of the view that report of surveyor is not last and final words and the insured is not bound by the same. Similar question arose before the Hon'ble Supreme Court of India in which it was held in case titled as "New India Assurance Co. Ltd. Versus Pradeep Kumar reported 2009 CPJ page 46 (SC) that

          "Insurance Act, 1938 -Section 64UM (2)- Insurance-    Assessment of loss-Pre requisite for settlement of claim- Surveyor's report not last and final word- It may be basis for  settlement of claim but neither binding upon insurer nor  insured- Complainant's claim accepted by Consumer Fora as  duly supported by original vouchers, bills and receipts- No interference required in appeal".

As such by relying upon the judgment of the Hon'ble Supreme Court of India this Commission findings that deduction of amount of Rs.16,250/- deducted by on account of not mentioning account books is unjustified. Accordingly, the present complaint is partly allowed and opposite party is directed to pay Rs.23,750/- + Rs.16,250/- to the complainant alongwith interest @ 9% P.A. from the date of filing of the complaint till realization. Since the complainant has definitely suffered harassment, mental tension as such is entitled to receive compensation of Rs.10,000/- and costs of litigation Rs.5,000/-. So, opposite party is also directed to pay this amount to the complainant.

12.     The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.

13.     Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record room.                                                                                                           

                               (Lalit Mohan Dogra)

                                                                        President.  

Announced:                                          (B.S.Matharu)

July 19, 2023                                                Member.

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