West Bengal

Siliguri

CC/2012/126

CAP. DIP BAHADUR CHHETRI, - Complainant(s)

Versus

1) THE NEW INDIA ASSURANCE CO. LTD., - Opp.Party(s)

24 Mar 2015

ORDER

IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.

CONSUMER CASE NO. : 126/S/2012.                DATED : 24.03.2015.                 

BEFORE  PRESIDENT              : SRI BISWANATH DE,

                                                              President, D.C.D.R.F., Siliguri.

 

 

                      MEMBER                : SRI PABITRA MAJUMDAR.

 

COMPLAINANT                      : CAP. DIP BAHADUR CHHETRI,

                                                              S/O - Lt. Bikram Chhetri,

                                                              R/O – Harikrishna Pally,

                                                              P.O.- Bagdogra, Dist.- Darjeeling (W.B.),

                                                              PIN Code – 734 422. 

                                                           

 

O.Ps.           1.                 THE NEW INDIA ASSURANCE CO. LTD.,      

                                                             87, Mahatma Gandhi Road, Fort,

                                                             Mumbai – 400 001.

 

                                    2.                      THE BRANCH MANAGER,  

                                                             The New India Assurance Co. Ltd.,

                                                             Malhotra Towers, 2^nd Floor,

                                                             Hill Cart Road, P.O.- Pradhan Nagar,

 Dist.- Darjeeling (W.B.)

 

                                                                                                                                                                       

FOR THE COMPLAINANT         : Smt. Rima Sarkar, Advocate.

FOR THE OPs                                  : Sampita Sanyal Sarkar, Advocate.

 

JUDGEMENT

 

Hence, it is The case of the complainant in a nutshell is that complainant insured his whole four storied building situated at Aakash Deep, Rasik Gram, R.N. Sinha Road, Dhobi Tala, Darjeeling, under the New India Assurance Company Ltd. against the earthquake (fire and shock).  Insurance premium of Rs.5,250/- was paid.  On 18.09.2011 an earthquake damaged the insured building.  The complainant and his tenant vacated the building.  Loss was assessed at Rs.32,12,514/-.  The complainant submitted claim on 13.12.2011.  Latter on the Insurance

 

Contd......P/2

-:2:-

 

Company approved Rs.72,436/- against the insured amount of Rs.10,00,000/-.  The complainant again requested the insurance company on 11.07.2012.  On 20.07.2012, the complainant got reply and being aggrieved by the order of the insurance company, the complainant filed this complainant before this Forum. 

The insurance company appeared and contested the case by filling written version denying inter-alia all material allegations.

The positive case of the OP is that the building was insured to the tune of Rs.10,00,000/-, but the complainant has claimed  Rs.32,00,000/-. 

After receiving the claim, the OP issued to the complainant one letter stating net liability of Rs.72,436/- and that has been communicated by letter dated 23.05.2012.  The lawyer’s notice sent to the OP stating claim of Rs.32,12,514/-.  The complainant himself has violated the terms and conditions of the said policy intentionally and deliberately for suppressing the material fact for illegal gain.  Accordingly, the claim petition of the complainant should be dismissed.

To prove the claim the complainant has filed evidence-in-chief by way of affidavit.

The complainant has filed some documents :-

1.       Photocopy of insurance paper.

2.       Claim form submitted by the complainant

3.       Photocopy of the letter given by the insurance company to the complainant. 

4.       Photocopy of the grievance letter written by the complainant to the insurance company.

5.       Photocopy of the reply letter written by the Insurance Company to the complainant.

6.       Photocopy of the report made by the Engineer for construction of the damaged building.

 

Contd......P/3

-:3:-

 

Within those documents, there is no description of the evidence regarding actual manner of damage of the building or an actual destruction of the building to show how the building has been suffered by earthquake.  

In the complainant’s document name of the work estimated cost for the proposed four storied building of Sri Deep Bahadur Chhetri after dismantling the old dilapidated structure.

Moreover, complainant has filed some photocopies as per firisty dated 03.07.2013 and filed some case law. 

The OPs has filed some documents. 

1.       Original letter of intimation of net liability of Insurance Company.

2.       Original letter dated 20.07.2012.

3.       Original letter dated 23.05.2012.

4.       Original letter dated 16.01.2012 in respect of claims due to earthquake damaged on 18.09.2011. 

5.       Special claim report in original dated 21.05.2012.

6.       Photographs in 30 copies.

Apart from the above, both sides have filed their questionnaires.

Complainant also filed affidavit in chief, OPs also filed affidavit in chief. 

 

Points for consideration

 

1.       Whether there was earthquake ?

2.       Whether there was damage of the building?

3.       What was extend of the damage ?

4.       Is the complainant entitled to get relief as prayed for ?

 

Decision with reason

 

Issue Nos.1 to 3 are taken together for brevity of discussion as they are involved in common question and fact of law.

From the complaint, it appears that complainant had a four storied

 

Contd......P/4

-:4:-

 

building Aakash Deep, Rasik Gram, R.N. Sinha Road, Dhobi Tala, Darjeeling Pin-734 101.  The said building was insured under New India Assurance Company Ltd. against earthquake (Fire and shock) for the period from 21.07.2005 to 20.07.2020.  Total insured amount was Rs.10,00,000/-.  The complainant paid premium amount of Rs.5,250/- from time to time.  On 18.09.2011 there had been an earthquake in the whole of North Bengal.  The complainant’s building was badly damaged.  The complainant made an assessment of the damages by Sub-Assistant Engineer, Darjeeling Municipality, who gave a report that approximately a sum of Rs.32,12,514/- would be required for the construction of the damaged building.  The complainant submitted a claim form on 13.12.2011 in the New India Assurance Company Ltd. of the OP, along with required document an estimated amount of the loss of Rs.32,12,514/-.  The Insurance Company directed Mr. Jayanta Kumar Kaur for making assessment.  Then Insurance Company on 23.05.2012 informed the complainant regarding approval for Rs.72,436/-.  Being dissatisfied the complainant again requested the OPs to reconsider the assessed amount for which the OPs vide letter dated 20.07.2012 told that there had been no chance for further survey and that was settled damaged amount.  Accordingly, being displeased, the agreed complainant filed this petition before this Consumer Forum, Siliguri, for redressal as per prayer laid down in para 13 (a, b & c).

The OPs admitted the incident but only difference is that the complainant was paying premium a lesser amount which would be treated as under insurance policy.  It is admitted that building was insured to the tune of Rs.10,00,000/- but disputed this amount that complainant has claimed Rs.32,00,000/- which is excessive beyond the terms and conditions of the policy (vide para 15 of WV).

Furthermore, the OP appointed surveyor.  The OP submitted liabilities of Rs.72,436/-.  The damaged amount assessed by

 

Contd......P/5

-:5:-

 

Sub-Assistant Engineer, Darjeeling Municipality is Rs.32,12,514/-.  The valuation of the building at the time of making insurance policy was Rs.13,38,000/-.

It is not the case of the OP that there had been no damages of the insured building.  There is no whisper in the written version and evidence-in-chief regarding building, date of incident, date of policy, claim policy and others.  At the answer to question no.7 the complainant stated, “at the time of earthquake, I was residing in the building, and after the earthquake I could see the big cracks on my building, the broken walls and pillars, the walls in the titled position.  Seeing the condition of my building, any prudent man can understand that the building was in a collapsible state as a result of earthquake”.  Then complainant stated “feeling danger to my life and seeing the digesters condition of my building, my tenants and I was forced to vacate my said building”. And the complainant answered in question no.10 that “ the building is totally broken/damaged with big cracks on the walls and pillars as such there was every risk to life and property, hence I and my family members as well as the tenants left the building feeling danger to our lives.  However except photographs of the insured building and the certificate of the Darjeeling Municipal Corporation I have no other document to show that the said building is unfit for residential purpose”.  

It is a fact that OPs have expressed their willingness to make compensation to the complainant for Rs.72,436/-. 

The OPs have filed Exhibit-A to show the calculation of loss amount of Rs.72,436/-.  This Exhibit-A categorically admits the statement of complainant as quoted hereinbefore as per question put to the complainant by the OPs.  Very meticulous thinking on the document exhibit –A read with the answer quoted above shows the veracity of the claim and damage of the building of the complainant.

As per Exhibit-A valuation of the building was Rs.13,38,000/-,

 

Contd......P/6

-:6:-

 

sum insured was Rs.10,00,000/-.  The allowing of sum amount of damage categorically indicates admission of damages of the building. 

There had been no answer of the OPs why they are not allowing Rs.10,00,000/- which is sum insured or there is no answer or why the insured company are reluctant to allow the sum assured money. 

The ld advocate of the complainant advanced argument mentioning in the complaint and evidence of the complainant that the complainant is entitled to get the sum assured money, because contract has been made by the complainant and the OP.  In case of earthquake and firing, the assured building is entitled to get of loss to regenerate safe in the condition where it was and as such the value of contract is Rs.10,00,000/-. 

Ld advocate of the OPs also admits the damage but submits that the building was old, there is no sanction plan of municipality before this Forum, there is no other reliable document to establish the existency of the building.  But in the written objection the OPs did not take such averments which are being argued before this Forum rather they have admitted all the incidents advanced by complainant. 

During argument ld advocate of the complainant filed some judgments to substantiate that complainant is entitled to get claim of sum assured money as per Rule of Insurance Act.

The Ratio of principle as per 2012 CPJ 131 Gujrat State Consumer Disputes Redressal Commission, Ahmadabad, principle of law as propounded by their Lordship is that surveyor’s report cannot be considered as sacrosanct.  The report is neither binding upon the insurer nor insured.

The OP has also filed written argument on behalf of the OP Nos.1 & 2.  In para no.15 it has been argued that building was insured to the tune of Rs.10,00,000/- but the complainant has claimed Rs.32,00,000/- only before this OPs, which is excessive and beyond the terms and conditions of the policy. 

Contd......P/7

-:7:-

 

In para 13 OP argued that valuation of the building was Rs.13,38,000/- only, but the complainant was paying the premium in lesser amount which will be treated as “Under Insurance Policy”. 

Accordingly, save and except the averments above, no arguments have been advanced before this Forum by the ld advocate of the OPs why the insured building shall not get Rs.10,00,000/- for its re-habitation.  The cases germinated in the OPs averments and evidence as well as that the complainant is not entitled to get the sum assured money.

It is argued by the complainant that in such a case where the OPs have given policy to the complainant for Rs.10,00,000/- and have taken premium as per norms for Rs.10,00,000/- and terms therein the complainant is entitled to get assured sum.

In reply to the above fact, there is no answer of the OPs. 

OPs have merely stated “which is excessive and beyond the terms and conditions of the policy”.  Save and except this statement, there is no whisper within four corners of this record which prohibits OPs to allow assured sum in the policy. 

Accordingly, after deep deliberation over the materials on record, and as per prayer of the complainant, we are of opinion that the Consumer Case No.126/S/2012 succeeds on contest.

Now it is necessary to discuss regarding award and compensation. 

It is a fact that the house is situated in hill area, natural calamities such as earthquake and fire is very common in hill area and sea area and stormy area.  Natural calamities are very pruned here causing destruction of life, property, building and other necessaries.  To save the life from the attack of natural calamities or any other disturbance is a fundamental right of a living being and for that purpose to satiate the need the provisions of Insurance Act is to be invoked.  Otherwise life will be helpless.  Natural devastation shall ruin the existence of life in earth.  So, to prevent civilization and to prevent of life of man, the provisions of Insurance Act must be applied.

Contd......P/8

-:8:-

 

Here damage has been caused to the building and that building should be repaired by incurring expenditure, although expected amount is more than Rs.30,00,000/-.  If Rs.10,00,000/- is given to the complainant by the OP Nos.1 & 2, then the complainant shall incur the expenditure for repair the affected building. 

As per record, the incident took place on 18.09.2011.  The insured company would have duty to ameliorate the grievances of the complainant.  But the OP Nos.1 & 2 did not take that recourse, rather they have fixed the amount of Rs.72,436/- for legal amount to be paid to the complainant.  So, the grievances of the complainant were not redressed within the reasonable time.  Such situation compelled the complainant to move from door to door and at last he has come before this Forum for redressal.  Such moving of complainant undergone mental torture and harassment for which he prays compensation of Rs.10,000/-.

It is the act of the OPs, which has forced the complainant, to knock before this Redressal Forum praying for order to get expenses incurred in the correspondence postal legal expenses and miscellaneous charges to the tune of Rs.5,000/-. 

So, after the thread bear discussions over the complaint, and written objection, documents, questionnaire and other materials on record, this Forum is of strong conviction that the complainant is entitled to get whole of the insured amount of Rs.10,00,000/- for loss of his insured building by earthquake. 

The complainant is also entitled to get Rs.10,000/- for mental torture and harassment by the OPs.

The complainant is also entitled to get Rs.5,000/- for cost of litigation. 

Accordingly, it is

                                     O R D E R E D

that the Consumer Case No.126/S/2012 succeeds on contest.

Contd......P/9

-:9:-

 

The complainant Captain Deep Bahadur Chhetri is entitled to get Rs.10,00,000/- for his insured building from the OPs.  The complainant is also entitled to get Rs.10,000/- for mental torture and harassment from the OPs.  The complainant is further entitled to get Rs.5,000/- for cost of litigation from the OPs.

The OP Nos.1 & 2, who are jointly and severally liable, are directed to pay Rs.10,00,00/- by issuing an account payee cheque in the name of the complainant, for his insured building, within 45 days of this order. 

The OP Nos.1 & 2 also directed to pay Rs.10,000/- by issuing an account payee cheque, in the name of the complainant, for his mental torture and harassment, within 45 days of this order.

The OP Nos.1 & 2 further directed to pay Rs.5,000/- by issuing an account payee cheque in the name of the complainant for his cost of litigation, within 45 days of this order.

Failing which the amount will carry interest @ 9 % per annum from the date of this order till realization.

In case of default of payment as ordered above, the complainant is at liberty to execute this order through this Forum as per law. 

Copies of this judgment be supplied to the parties free of cost.

 

 

                              -Member-                         -President-