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2003 DIGILAW 243 (JK)

National Insurance Co. Ltd. v. Ab. Ahad Rather

2003-08-19

SYED BASHIR-UD-DIN, V.K.JHANJI

body2003
Per : Syed Bashir-ud-din, J. (Oral) Jammu and Kashmir State Consumers Protection Commission, Srinagar in Complaint No. 47/99 awarded sum of Rs. 1,36,528.00 as damage to the house and Rs.30,000/- as compensation to house hold goods with interest @ 9% P.A. from the date of filing of the complaint. The house, and the house hold goods were covered by Insurance policy purchased from National Insurance Company, the respondents before the Commission. This order of July 2001 is under challenge in this Appeal. Some of the admitted facts which need to be taken note of are that the complainant before the Commission is respondent before this court. He took fire policy with terrorist cover for Rs.8.00 lacs in respect of his residential house and land there under and appurtenant thereto as title holder and possessor of the Premises, situated in Zeathyar Nishat Srinagar. Besides for house hold goods, Insurance Policy is valued at Rs. 2.50 lacs In all the property insured is Rs.10,50,000/-. The risk period is from 30.5.1998 to 29.5.99. During currency of the policy on 13.9.98 between 20.10 to 20.35 Hrs, due to impact of gusty winds, this two storied building collapsed and first floor structure slided in ground floor. resulting in total damage to the building. The house owner complainant filed complaint before the Commission. The respondents filed written statement. Parties had opportunity to lead evidence. On inquiry after recording evidence, the Commission finally awarded compensation of Rs.1,36,528/- towards damages to the house and Rs. 30,000/- as compensation towards damage to the house hold goods with 9% P.A. interest. The counsel for the apellant submits that the Commission has awarded excessive compensation when the Surveyor assessed the compensation to the damaged house as Rs. 76,011/- and did not recommend any compensation for house hold goods as the Surveyor came to the conclusion that there was no loss to the house hold goods. He further submits that having regard to the age of the building, 50% depreciation should have been allowed instead of 30%, on the loss assessed, when Surveyor found the building over four decades old. The counsel for respondents has contested this position in his submissions to say that there is no evidence, material / whatsoever before the Surveyor to conclude that the age of the house was about 50 years. The counsel for respondents has contested this position in his submissions to say that there is no evidence, material / whatsoever before the Surveyor to conclude that the age of the house was about 50 years. Therefore, the maximum limit of 50% depreciation suggested to be applied while assessing the value of the property for awarding damages in respect of the incident in question is misplaced. The counsel further submits that there is evidence to show that there has been damaged to house hold goods and the Suveyor has wrongly recorded that the complainant or any one on his behalf has admitted that all the household goods have been retrieved and removed from the spot and that there has been no damage to the house hold goods. We have considered thee respective submissions of the counsel and also perused the record. We find From record that the Surveyor Shri A.S.Ahanger Loss Assessor/Valuer has valued the loss to the building in all in the sum of Rs.3,02,584/- and after reducing it further on 50% depreciation basis, the loss is assessed at Rs.15129200/-. The further reduction of this amount on estimation on less available material used in the house appears to be just an exercise without any basis to further reduce the loss and the liability of the Insurance Coy, so as to bring it to the level of Rs. 76,011,00/-. The Commission has instead of applying 50% depreciation norm applied only 30% towards depreciation on the loss assessed by the Surveyor at Rs. 3,02,584/- and thereby assessed damage to the house as net loss of Rs. 136528/-. We also find from Surveyors report that the Surveyor has unequivocally stated that no evidence or material whatsoever has been brought before him as to the age of the building and that age of the building can not be determined. It is strange that when the Surveyor himself is not sure about the age of the building how come it that Syrveyor has reduced the loss by maximum figure of 50%. It be noted that for each year of age of the insured structure 1.5% is the rate applied as per Insurance manual to be counted towards depreciation as submitted by Mr. Kawoosa. In other words for a building of 32 to 33 years age or above, the 50% dereciation clause is applied. It be noted that for each year of age of the insured structure 1.5% is the rate applied as per Insurance manual to be counted towards depreciation as submitted by Mr. Kawoosa. In other words for a building of 32 to 33 years age or above, the 50% dereciation clause is applied. When the Surveyor has not determined age of the building and there is no material to that effect applying 50% depreciation clause is misplaced. Seen thus in the context of other circumstances and ocular evidence on record. We do not find that compensation awarded in respect of the house by allowing 30% depreciation is vitiated either on facts or in law. Rather even by allowing 30% depreciation, the appellant Insurance Company, in the facts and circumstances of the case is at an advantage. The submissions with regard to award of compensation in the sum of Rs. 30,000/- so far as damage to the house hold goods is concerned, there is some veidence, material and circumstances on record to sustain this portion of award. It is seen that the Commission has assessed the probabilities of the case and is alive to the fact that the upper floor of the house in question collapsed to slide in the ground floor and in such circumstances it cannot be said that the house hold goods would not suffer damage, may be damage to those items of the house hold goods which are fragile, brittle and delicate. It is not as if the gusty winds had put the house holder on notice in advance before it below to bring the house crumbling down. The circumstances that when after one month of the incident, Surveyor reached the spot, the Surveyor was allegedly told that the house hold goods were saved and out of which the appellant Insurance Company is trying to make out a case, is spoken in report of Surveyor as having been denied by concerned.The evidence, material and the circumstances, all do show that some damage were caused to the house hold goods. The Commission has restricted compensation on this count to Rs. 30,000/- when policy is taken for Rs. 2.50, on this count. Nothing is pointed to us or brought to our notice to impinge on the sum so awarded as compensation, as above. The Commission has restricted compensation on this count to Rs. 30,000/- when policy is taken for Rs. 2.50, on this count. Nothing is pointed to us or brought to our notice to impinge on the sum so awarded as compensation, as above. We find no reason on record to upset the finding and award of compensation by Commission on this count. In result, we dismiss the appeal.