1. This appeal has been filed by the appellant against the order dated 5.6.2014 passed by the Sikkim State Consumer Disputes Redressal Commission, Gangtok (in short, ‘the State Commission’) in Consumer Complaint No. 02/2013 – Pave Infrastructure Pvt. Ltd. Vs. The New India Assurance Co. Ltd. & Anr. by which, complaint was allowed and OP was directed to pay Rs.38,14,278/- with 10% p.a. interest.
2. Brief facts of the case are that complainant/respondent a construction company obtained insurance policy from OP No. 1/appellant for a period commencing from 16.2.2010 to 15.6.2012. On 13.1.2011 on account of heavy landslide at the construction site on-going construction was damaged. FIR was lodged and intimation was given to OP No. 1. OP deputed surveyor for assessing loss. At the same time, complainant also engagedMr. Sunil Kumar Agarwal, surveyor. It was further submitted that inspite of repeated requests, OP-1 did not intimate complainant about the exact amount of loss assessed by its surveyor, but complainant submitted claim along with loss of Rs.40,70,531.29 assessed by Mr. Sunil Kumar Agarwal which was actual expenditure incurred by complainant in restoration of insured property damaged by landslide. It was further submitted that OP by letter dated 1.9.2012 offered a sum of Rs.1,01,274/- as full and final settlement against claim which was refused. Later on, OP by letter dated 19.9.2012 closed case of complainant as ‘no claim’. Alleging deficiency on the part of OP, complainant filed complaint before State Commission. OP resisted complaint and denied allegations made in the complaint. It was further submitted that on intimation from complainant, surveyor was appointed who visited spot on 25.1.2011 and 26.1.2011. It was further submitted that inspite of repeated reminders, complainant failed to furnish a number of documents requisitioned by surveyor. It was further submitted that surveyor engaged by complainant was not an IRDA approved and licensed surveyor and no prior written consent was taken from OP and in such circumstances, estimate prepared by complainant’s surveyor was not valid. It was further submitted that no request for joint survey was made by the complainant and prayed for dismissal of complaint. Learned State Commission after hearing both the parties allowed complaint as mentioned above against which this revision petition has been filed along with application for condonation of delay.
3. As there is delay of only 1 day in filing appeal, delay stands condoned.
4. Heard learned Counsel for the parties finally at admission stage and perused record.
5. Learned Counsel for the appellant submitted that learned State Commission has committed error in allowing complaint on the basis of assessment made by unauthorized surveyor and committed error in not giving due weightage to loss assessed by surveyor appointed by OP; hence, appeal be allowed and impugned order be set aside and loss may be awarded as per OP’s surveyors assessment. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, appeal be dismissed.
6. Perusal of record clearly reveals that Mr. Sunil Kumar Agarwal was granted licence by IRDA for Category ’C’ claims pertaining to fire. Admittedly, Mr. Sunil Kumar Agarwal was not authorized to conduct survey for assessing loss on the disputed site. As per Regulation 14 (4), every surveyor and loss accessor is eligible to carry on his work as a surveyor or loss accessor, as per the categorisation specified in the license and as per Regulation 15 (5), he will not accept or perform survey works in areas for which he does not hold a license. Admittedly, Mr. Sunil Kumar Agarwal was not granted license by IRDA for assessing loss at the disputed site on account of rain and in such circumstances, no weightage can be given to the assessment made by him.
7. Mr. Sunil Kumar Agarwal admitted in his cross-examination that he has not undertaken job of valuers/loss accessor in India so far and he has assessed loss as Civil Engineer following Civil Engineer’s principles. He also admitted that he has not followed SOR of NBCC or State Government and he also did not intimate to Insurance Co. while going on spot for assessment.
Firstly, Mr. Sunil Kumar Agarwal should not have gone on the spot without authorization by IRDA and secondly, he should not have assessed without intimation to Insurance Company. Not only this, he has not checked measurement book of complainant observing it to be irrelevant whereas, measurement book was most relevant for assessing loss because it was to be seen how much work had already been carried out by the complainant. While assessing loss, he was required to follow SOR of NBCC or State Government, but he has not considered any SOR and has given assessment as per prevailing market rates. In support of his assessment he has not placed any document on record showing market rates at the relevant time. In such circumstances, learned State Commission has committed error in allowing complaint on the basis of assessment made by Mr. Sunil Kumar Agarwal. Learned State Commission rightly observed that in the light of judgment of Hon’ble Apex Court in 2011 (7) RCR (Civil) 395 – New India Assurance Co. Ltd. Vs. Pradeep Kumar, surveyor’s report is not the last and final word and is not binding on insured as well insurer. Loss of assessment by approved surveyor can be discarded only on cogent reasons and learned State Commission has not given any cogent reasons for departing from surveyor’s report.
8. Learned State Commission while awarding damages for repairs considered vouchers submitted by complainant which were procured after the date of incident. Admittedly, contract awarded to complainant was to commence on 18.3.2010 and was to be completed by 8.12.2012. Loss was caused due to heavy landslide on 13.1.2011. In such circumstances, it cannot be said that vouchers on which learned State Commission placed reliance were pertaining to material required for repair of building which was damaged due to landslide and were not pertaining to construction work in progress.
9. Learned Counsel for the respondent submitted that if surveyor already assessed loss by 26.6.2011, there was no occasion for calling record on 19.8.2011. No doubt, once final survey report was prepared on 26.6.2011 there was no necessity to call some of the documents by letter dated 19.8.2011, but only on the basis of this letter final survey report dated 26.6.2011 cannot be brushed aside.
10. Perusal of final survey report reveals that there was damage firstly to road protection work with sheet and secondly to wall and foundation beam and footing under construction. Surveyor also observed that road protection work with sheet piling and housing property was not covered by the Insurance Company and Insurance policy covered only R.C.C. Civil construction of multi-level parking.
1. Complainant has not placed on record claim form by which it could have been observed that how much los
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s was sustained by complainant. In the absence of claim form and without any cogent reason for discarding surveyors report dated 26.6.2011, learned State Commission committed error in allowing complaint on the basis of loss assessed by Mr. Sunil Kumar Agarwal and appeal is to be allowed partly and complainant is entitled only to Rs.1,26,920/- as assessed by surveyor. 12. Consequently, appeal filed by the appellant is partly allowed and order dated 5.6.2014 passed by learned State Commission in Consumer Complaint No. 02/2013 – Pave Infrastructure Pvt. Ltd. Vs. The New India Assurance Co. Ltd. & Anr. is modified and compensation of Rs.38,14,278/- awarded by learned State Commission is substituted by Rs.1,26,920/- and rest of the order is upheld. Parties to bear their own costs.