K.SAMPATH, J. - (1.) The Opposite party in COP No.295/2003 on the file of the District Consumer Disputes Redressal Forum, Chennai (South) is the appellant herein. The case of the complainant was as follows :- The complainant, a manufacturer of steel tubes, had taken fire insurance policy from the opposite party for their factories situate at Pondicherry for a period of one year from 28/5/2001 to 27/5/2002 for a sum of Rs.7,43,00,000/- paying an annual premium of Rs.1,00,055/- to the opposite party. On 10/5/2001 at around 4 pm strong wind coupled with storm and heavy rain took place in and around the factory area as a result of which more than 100 asbestos sheets were blown off from the roofing of the factory building and truss of the mill section was also badly damaged. There was inundation. The opposite party was duly intimated and the complainant filed two claims one for Rs.50,000/- and the other for Rs.2,50,000/-. The opposite party appointed M/s. Crystal Surveyor, Pondicherry, who investigated the matter and filed a report. The preliminary report was not furnished to the complainant. Subsequently the opposite party appointed a second surveyor who inspected the whole area and sought the complainant to furnish an estimated cost of repair to the building, shed etc. Accordingly the same was also provided by the complainant. The complainant had done all works spending a sum of Rs.1,81,888/- towards the cost of material and Rs.66,746/- towards the cost of labour and the bills were submitted to the surveyor. The surveyor kept the claim pending. There was delay in furnishing surveyors report. Finally the opposite party forwarded the loss discharge voucher for a sum of Rs.37,624/- by their letter dated 21/3/2003 as against the claim of the insured at Rs.2,48,634/-. The said voucher was duly discharged and sent to the opposite party on 24/3/2003 calling upon them to furnish details of assessed loss made by their surveyor, but that the opposite party did not disclose about the survey report, however replied on 1/4/2003 stating that on the basis of the preliminary and final survey reports and the details provided by the factory representative the amount had been arrived at after applying the average clause and excess as per conditions of the policy. But there was no explanation as to how the opposite party arrived at the average clause. In these circumstances, the complaint came to be filed for a direction to the opposite party to pay Rs.2,11,014/- with 12% interest p.a. with compensation of Rs.25,000/- and cost of Rs.5,000/-.
(2.) The version of the opposite party was as follows: - The claim was settled in full as early as 24/3/2000 as per the policy. The opposite party, under statutory obligation, has conducted the survey in respect of claims in excess of Rs.20,000/-. Accordingly, one Mr.Jagadeeswaran, a licensed surveyor was appointed and the amount arrived at was paid to the complainant. The complainant had received it in full and final settlement. As per the report, the assessment was arrived at Rs.1,10,077/-. After deducting the under-insurance and policy excess, a sum of Rs.37,677/- was paid to the complainant. The surveyor had assessed the loss under two divisions i.e., tube division and flat division. The opposite party had found that under tube division valuation there was an under-insurance of 51.9% and under flat division valuation there was an under-insurance of 77.2%. When assessed together, it had come to Rs.47,592.39 and less the policy excess of Rs.10,000/- the final net amount payable was at Rs.37,592/- and it had already been paid to the complainant. There was no deficiency in service.
(3.) Before the District Forum, on the side of the complainant, Exs.A-1 to A-7 were marked while on the side of the opposite party Ex.B-1 series Survey report with enclosures were marked.;