JUDGMENT
D.P. Wadhwa, J. (President)
1. Petitoner-complainant still feeling aggrieved by the order of the State
Commission even though enhancing the amount of the compensation regarding his
insurance claim, has filed this petition. Petitioner alleged that he had go two houses in
Sringar (J & K) insured with the respondents -opposite parties, which were burnt in
terrorists violence. These were insured fro Rs. 4.50 lakhs and the period of insurance was
23.5.1991 to 22.5.1992. Petitoner said that he migrated to other parts of the country in
March, 1990 because of the terrorists violence against Hindus in Sringar. On the light
of 8th/9th, July, 1991 his houses were gutted by the terrorists and houses are now beyond
repairs. The first information report was also lodged. On claim being made with the
respondents for the insurance, the loss was assessed at Rs. 95,000/- only. The basis on
which loss was arrived by the respondent-insurance company at may be stated:
"Loss assessed by the Surveyor of the
respondent-company Rs. 2,10,858.00
Deduction on this assessed loss made by
the respondent-company
(i) Depreciation @ 50% Rs. 1,05,429.00
(ii) Salvage value as assessed by the
Surveyor of the company
Rs. 5,000.00
(iii) Unaccounted further deduction
made by the company RS. 5,429.00
---------------
Total Deductions Rs. 1,15,858.00
---------------
Loss assessed by the Surveyor
of the company Rs. 2,10,858.00
Minus
Deduction on this assessed loss
made by the company Rs. 1,15,858.00
---------------
Rs. 95, 000.00"
2. On a complaint filed by the petitoner District Forum enhanced the amount
of compensation so paid by Rs. 10,429/- with interest @ 12% on this amount from
25.5.1993 till payment. This date was one month after the survey report. Petitoner was
also awarded cost of Rs. 2,500/-
3. Not satisfied with the enhancement as directed by the District Forum,
petitoner filed appeal before the State Commission. It was submitted that the District
Forum should have awarded the whole of the loss as assessed by the surveyor appointed
by the insurer itself. State Commission partly allowed the appeal and enhanced the
amount of compensation by Rs. 63,143.50. This is how the State Commission considered
the matter:
“In the facts and circumstances we hold that the survey report dated
15.4.93, Annexure R-4 where 50% depreciation has been allowed does
not contain appropriate rebuttal of the claim of the complainant, especially
when the occurrence took place within six months of the commencement of
the Insurance Policy. The mere fact that the amount assessed by the
Insurance Company has been disbursed does not go against the appellant
in the circumstances of the case. The respondent was not justified in
reducing valuation by 50% especially where occurrence took place within
six months of the policy. We thus partly accept the appeal and hold that
only a depreciation of 25% should have been deducted and not more.
This brings us to the conclusion that a sum of Rs. 1,58,143.50 less
Rs. 95,000/- received by the complainant under protest should have been
allowed and not merely Rs. 10,429/- as ordered by the District Forum-II
and we hold accordingly. Thus we order that a sum of Rs. 63,143.50 is
payable by the respondent to complainant within two months failing which
the respondent shall be liable to pay interest @ 12% per annum from the
date of this decision Costs Rs. 1000/-. The appeal stands disposed of”
4. It was submitted before us that both the District Forum and State
Commission should have awarded compensation of the amount as assessed by the
surveyor. In support of his submission petitioner has referred to a decision of this
Commission in Sitha Vedanayagam v. New India Assurance Co. Ltd. & Ors. – (1995)
CPJ 41 (NC) where this Commission observed that when there was no allegation of
fraud in the pleading and there was no evidence to indicate that any fraud was practiced
by the complainant when he fixed the value of the property, insurance company was
precluded from contending that the market value of the boat as on the date of
occurrence of the loss which was a date very proximate to the date on which the contract
of insurance was entered into, was anything other than what was mentioned in the
contract of insurance. It was further observed that insurance company had not adduced
any evidence whatever to show that there was any variation or fall in the market value of
the boat. In these circumstances it is contended before us that in the present case there
was no justification to give depreciation of 50% or even 25% on the loss as assessed by
the surveyor. In the present case we are of the view that depreciation @ 10% will meet
the ends of justice. We hold accordingly. To this extent order of the State Commission is
modified. Rest of the order of the State Commission itself modifying the order of the
District Forum will hold good.
5. Revision petition is partly allowed with costs of Rs.1,000/-.