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2010 DIGILAW 83 (JK)

O. N. Koul v. New India Assurance Co. Ltd.

2010-02-23

B.L.Saraf, G.D.Sharma

body2010
Per Justice G.D. Sharma, J. 1. The appellant has felt aggrieved of the order dated 30.04.2008 passed by the learned Divisional Forum Jammu (hereinafter to be referred as a Forum) whereby and whereunder he was granted relief in the amount of Rs. 65,633/- alongwith interest @ 6% p.a from the date of filing of the complaint i.e. from 20.08.2006 till realization. He was also granted litigation expenses in the sum of Rs. 10,000/-. The brief facts of the case are that complainant owned pacca residential house bearing No. 875 situated at Ompora Housing Colony, Tehsil and District Budgam alongwith servant quarter, store room, compound wall and Iron Gate. They were insured with Respondents 1 and 2 covering a risk of Rs. 2.40 lacs for a period commencing from 06.11.2003 to 05.11.2004. He initially got this house insured with respondents 1 and 2 in the year 1991 and that policy is continuing till date. The building had suffered some loss in the year December 1991 for which the appellant was indemnified to the extent of Rs. 33,404/-. The present claim relates to the alleged loss which was suffered by him on 18.10.2004 because of the terrorist violence. He raised the claim on next date with respondents 2 and 3. FIR was also registered in the concerned Police Station. Immediately thereafter respondent 1 and 2 deputed respondent no.3 as a surveyor and loss assessor who assessed the loss to the tune of Rs. 26,633/-, and made it subject to the acceptance of liability by respondent no.1 and 2. When the case was in process of settlement, the appellant filed the complaint in the Forum. During the pendency of the complaint, the surveyor's report was received and placed in record. Offer was made by respondent 1 and 2 to the complainant to settle the claim on the amount assessed by the surveyor, namely respondent no.3, which however was refused by the appellant. The Forum after considering the report of the surveyor increased the assessed loss to the extent of Rs. 65633/- and the claim was granted in favour of the appellant as already stated above. The appellant is not satisfied with the award granted by the Forum in his favour, and has challenged it, inter alia, on the ground that actual loss suffered by him was of the total value of the property insured. 65633/- and the claim was granted in favour of the appellant as already stated above. The appellant is not satisfied with the award granted by the Forum in his favour, and has challenged it, inter alia, on the ground that actual loss suffered by him was of the total value of the property insured. He had got the amount assessed by a private expert namely, Mr. B.L.Raina, Jr. Engineer. His other contention is that the Government has granted ex-gratia grant to him in the sum of Rs. 2,00000/- and he got 50% of that in the sum of Rs. 1,00000/-. He has produced record to that effect. 2. Heard the arguments 3. The appellant pleads that the assessment made by respondent no.3 is on the lower side, and is of partisan nature, because he works under the authority of respondent 2 and 3. Not only that, even the learned Forum has not placed reliance on his assessment report. In rebuttal Mr. Jugal Kishore has contended that under the Insurance Act only the recognized authority to make the assessment is surveyor. In this case respondent no.3 had correctly assessed the loss which can be gathered from Annexure `M' attached with the complaint, which is a letter dated 28.12.2006 written by the appellant to respondent no.1 wherein an appreciation has been made about the honest and right assessment made by respondent no.3. Vide Annexure `O' filed with the complaint which is a letter dated 17.04.2006, the appellant has again appreciated the assessment made by respondent no.3. 4. We have considered the respective contentions of the counsel appearing for the parties and perused the record. The pleas advanced by the complainant are totally not legally tenable as the alleged assessments being made either by the concerned Deputy Commissioner or by Mr. Raina, J.E are not admissible under the Insurance Act. The only assessment which is legally admissible is the one made by respondent no.3. Though it has been increased by the Forum after application of mind but it is not challenged by the respondent nos. 1 and 2. Therefore, the impugned order has attained finality for respondents 1 and 2. In this view of the matter, we find no merit in this appeal which is dismissed but without any order as to cost. The appeal is consigned to records and the record of the Forum be returned at once.