By Sri. MOHANDASAN.K, PRESIDENT
1. Complainants are mother and son. They constructed a house in Kalikavu village of Nilambur Taluk, spending more than 20,00,000/- rupees. The house was insured with opposite party for Rs.20,00,000/-. The house met with natural calamity occurred in the state during 2018 August. On 08/08/2018 there was heavy rainfall and consequent flood as well as land sliding. There was landslip to the western side of his house and thereby caused crack to his house wall. There was collapse of the side of the hill near to the house of the complainants and so hint portion along with the mushy mud pushed to the rear side of the house. As a result, the entire structure of the house and the building stability has been affected. The house was almost immersed in the mud. The same was reported in newspapers along with photographs of the seen. The house situated in western ghat which is naturally eco fragile land. It is an area usually happening land sliding. Anticipating all these calamities, the complainant insured his house with the opposite party. The complainant approached the opposite party for insurance coverage after the calamity, but they allowed only 20,000/- rupees. The complainant had submitted all the documents to prove that his residential building sustained total damage. Hence the prayer of the complainant is to allow the entire insurance amount to reconstruct the residential building.
2. On admission of the complaint notice was issued to the opposite party and the opposite party entered appearance and filed version. The oppose party denied the averments and allegations in the complaint and it is contended that complaint is not maintainable, devoid of merit and is liable to be dismissed with cost.
3. The opposite party admitted that complainant had approached the opposite party and requested to issue “standard fire and special perils policy“for the residential building and they had issued policy conditions and subsequently complainant had accepted the policy conditions. The policy certificate was numbered as 442700/11/2016/124, which commence from 27/05/2015 to 26/05/2025. The opposite party submitted that the policy covers only flood and earth quake of the residential building.
4. On receipt of information from the complainant the opposite party had deputed Mr.Divakaran , the insurance surveyor, and he assessed the damages and reported that incessant and heavy showers lasting days together led to the water accumulation, inundation, overflowing of natural water outlets, subsidence and also land sliding. The natural calamity unleashed by the incessant rain and consequent flood led to the land slip to the neighboring areas and also to the insured building on the west side portions and due to collapse of the wide wall of the hill of hint portion along with mushy mud pushed the rear side wall leashing to developing slight cracks on the back side of the building and no structural stability has been found noticed nor was claimed but the complainant expect some minute cracks seen on the plastering of the walls which need to be clipped off and to be plastered by means of cement mortar and thereafter paint touch up work also required. He assessed Rs.12,000/- for slush / debris of marsh mud removals from the courtyard of residence, Rs.6,300/- for plaster damage portions and Rs.1,700/- for painting / polishing on super structure (only on repaired portions) and total loss assessed is Rs.20,000/-. The opposite party submitted that the depreciation and policy excess are not deducted from the said amount of 20,000/- . The opposite party on receipt of the survey report from the surveyor had settled the claim and Rs.20,000/- has been credited to the account of the first complainant and the same was intimated to the complainant.
5. It is denied that the complainant is entitled for insured sum of Rs.20,00000/-. The complainant had approached the office of the opposite party and submitted a claim form claiming Rs.20,000/- as actual loss and the opposite party had settled their claim as per the request of the complainant and all other allegations in the complaint regarding the loss/ damages of the house is absolutely false and in correct.
6. The opposite party had deputed Mr. Chandran.E, who is a retired Sub Inspector of police to collect the evidence regarding the extent of damages at the residence and he collected the evidence from the complainants and from the neighboring people and reported that complainants are residing in the same house and they are regularly making payment of electricity charges.
7. In the above facts and circumstances there is no cause of action for this complaint and the complainant is not entitled to get any relief as claimed in the complaint.
8. The complainants and opposite party filed affidavit and documents. The documents on the side of complainant marked as Ext. A1 to A24. Ext. A1 is copy of Malayala Manorama News daily dated 30/08/2018. Ext. A2 is a photo copy of newspaper claimed to be dated 15/08/2018. Ext. A3 is copy of insurance policy number 442700/11/2016/124 covering from 27/05/2015 to 26/05/2025. Ext. A4 is copy of request of village officer, Kalikavu to the assistant Engineer LSGD Kalikavu grama Panchayat dated 10/08/2018. Ext. A5 is certificate issued by village officer, Kalikavu dated 05/09/2018. Ext. A6 is certificate issued by Neha sherin E.K licensed Engineer, department of urban affairs, government of Kerala. Ext. A7 is details of plan estimate, copy of insurance policy, No objection certificate from the grama panchayath, of the residential building etc. Ext. A8 is copy of rental agreement dated 18/09/2018. Ext. A9 is letter from the insurance company regarding settlement of claim dated 22/11/2018. Ext. A10 is receipt for Hitachi Rs.56,800/- dated 22/12/2018 Ext. A11 is a certificate issued by Sharafali.P.M, licensed building supervisor department of urban affairs, government of Kerala. Ext. A 12 is estimate cum extract of the proposed repair of residence and retaining wall for preventing land sliding. Ext. A13 is plan of the building (ground floor). Ext. A14 is plan of the building (first floor). Ext. A15 is sketch of the plan. Ext. A16 is copy of No Objection Certificate issued by Secretary Kalikavu grama panchayath dated 31/01/2014. Ext. A17 is online pass for transporting sand issued by secretary grama panchayat Kalikavu dated 23/12/2014. Ext. A18 is certificate issued by Raju, contractor, dated 24/01/2020. Ext. A19 is certificate issued by Sadh paint magic dated 30/01/2020. Ext. A20 is receipt issued by Hitachi Earth movers, Kurikkal earth moving company dated 22/12/2018. Ext. A21 is bill of supply issued by magna refrigeration and air condition 15/07/2020. Ext. A22 is bill of supply issued by magna refrigeration and air conditioner dated 18/07/2020. Ext. A23 is copy of newspaper (no date). Ext. A24 is CD and photographs of the damaged building. The documents on the side of oppose party marked as Ext. B1 to B4. Ext. B1 is policy copy of number 442700/11/2016/124, for the period 27/05/2015 to 26/05/2025. Ext. B2 is survey report of the surveyor K. Divakaran dated 01/11/2018. Ext. B3 is fire insurance claim form dated 20/09/2018. Ext. B4 is copy of investigation report issued by Chandran .E. (Nil date). Complainant side witness examined as PW1 Mr. Sharafali P.M, PW2 Mr. Aboobacker.
9. Heard both side, perused affidavit and documents and also the notes of arguments.
The following points arise for consideration:-
- Whether there was damage to the residential building of complainant and the extent of cost for repair work?
- Whether there is deficiency in service on the part of opposite party?
- Relief and cost?
10. Point No.1
The case of complainants is that they have got a house which was insured with the opposite party for 20,00,000/- rupees and it was damaged due to heavy rain falls and loud land sliding occurred on 08/08/2018. The particular period was the occasion the state witnessed heavy showers lasting days and resulted water accumulation, indentation, over flowing of natural outlets and also loud sliding. There was worst flood in state in a nearly a century and huge damage throughout state. The house of the complainant situates as part of Western Ghats which is a known ecologically fragile land area. On that particular day there was land sliding and over flowing and that resulted damages to the house of complainant. The fact was reported by all the medias including Malayalam news daily Malayala Manorama. The complainant produced a copy of newspaper Malayala Manaorama daily dated 30/08/2018 which is marked as Ext. A1. It is reported the incident along with photographs of the house and the land sliding occurred at the place of complainant’s residents. The report is as follows” കാളികാവ്. ജാര്ഖണ്ഡ¢v സി.ആര് .പി .എഫ് ഉദ്യോഗസ്ഥനായ അടയ്ക്കാക്കുÙ® എഴുപതേക്കറിലെ പുണകാവിv വില്സണ് പി .ജോണിÊ വീടും തറവാട് വീടും മഴക്കെടുതിയിv തകര്ന്ന് വാസയോഗ്യമല്ലാതായി. വീടിന്റെ മേല്ക്കൂരയും ഭിത്തിയും തകര്ന്ന് ഏതുനിമിഷവും നിലം പൊത്താവുന്ന അവസ്ഥയിലാണ്. മാതാവ് പുണകാവിv ലൂസി ജോണി¨Ê പേരിv ഇതിനോട് ചേര്ന്നുള്ള തറവാട് വീടിന് മുകളിv മണ്ണിടിച്ചിv തുടരുന്നു . രÙ® കുടുംബങ്ങളും കഴിഞ്ഞ ദിവസം വാടക വീട്ടിലേക്കു താമസം മാറി..The concerned village officer wrote a letter to the Assistant Engineer LSGD requesting to assess the loss sustained to the complainant. The letter is as follows ‘” കാളികാവ് വില്ലേജിv അടക്കാക്കുÙ® - എഴുപതേക്കര് പ്രദേശത്ത് താമസിക്കും പുണകാവിv ലൂസി ജോണ് എന്നിവരും കുടുംബവും താമസിക്കുന്ന വീടിന് മുകളിലേയ്ക്ക് ഏകദേശം 25 അടി ഉയരത്തിv മണ്ണ് ഇടിഞ്ഞ് വീണ് വീടിന് ഭീഷണിയായി നില്ക്കുന്നതായി അറിയുന്നു . ഇടിഞ്ഞ് വീണ മണ്ണ് നീക്കം ചെയ്ത് വീടിന് പുനര്നിര്മ്മാണം നടത്തുന്നതിനാവശ്യമായ നഷ്ടം കണക്കാക്കി നല്കുവാu താല്പ്പര്യപ്പെടുന്നു . The letter of the village officer is marked as Ext.A4. The complainant produced Ext. A5 certificate from village officer to submit before insurance company stating that there are cracks to the walls as a result of heavy rain and land sliding. Ext. A6 is a certificate issued by Neha Sherin. E.K, Engineer, License issued by the department of urban affairs, government of Kerala and it has stated that the house of the complainant become unfit to occupy. It is further stated in the certificate that because of the certain cracks and damage happened in the plinth, walls, beams and roof slab due to the recent heavy land sliding, the protection wall infront of the house has also been damaged. Even if the already slide soil taken away there is still high chance for further land sliding and thereby the house may fully destroy. Mr. Sharafali .P.m , Licensed building supervisor issued a Ext. A11 document stating that at the time of visiting the site of incident with A Grade engineer Neha Sherin, the house of the complainant was found totally destructed condition and further land slide would cause fall of the building to the ground. The complainant produced Ext. A3 series of photographs along with CD. The photo graphs and CD reveals the averment of the complaint that house sustained extensive damage. The opposite party produced Ext. B2 report of surveyor Mr. K.Divakaran. Ext. B2 surveyor’s report also admit that there was damage to the house of complainant. So the perusal of documents and the averments in the affidavits of both complainant and opposite party substantiate that there was damage to the house of the complainant.
11. But the surveyor of the insurance company assessed the loss only up to Rs.20,000/-. The surveyor assessed expense of Rs.12,000/- for the removal of slush / debris of marshy mud from the courtyard of residence and plaster damage expense as Rs.6,300/-. The surveyor also assessed painting / polishing on super Structure (only on the repaired portion) Rs.1,700/. The surveyor also reported that the compound wall at the front portion constructed by means of RCC, pushed outwards and tilted slightly, warranting dismantling and re-construction work and no coverage has been taken for such a type of compound wall, hence not considered while assessing the loss.
12. PW1 Mr. Sharaf Ali.PM has issued Ext. A11. PW1 is licensed building supervisor and the authorized person to assess the loss occurred due to the calamity using re build Kerala App and Ext. A11 document issued by the PW1 as part of the same. Ext A1 document reveals the damage to plinth, walls, retail wall, beams and the roof slab. The house has irrecoverably damaged and has loss of more than 20,00,000/- rupees occurred in the calamity. He stated in Ext. A11 that during his visit at the sight of the incident with A grade Engineer Neha Sherin, the house was in a totally destructed condition and further land slide would cause fall of the building to the ground. He deposed before the commission also that he visited the place of incident on 08/08/2018 and the complainant had submitted complaint before the panchayat also. He deposed that “പാറ ഇടിച്ചതിനാv പ്രസ്തുത ചുമരിന് വിളലുÙ® പ്രസ്തുത ചുമരിലുള്ള വിള്ളലിലൂടെ വെള്ളം അകത്തു കയറിയതായി കÙ¤. Roof
ലും crack കÙ¤.. വീടി¨Ê മുu വശത്തെ retaining wall ലും വിള്ളലുÙ®. വീട് നില്ക്കുന്നത് കരിങ്കv തറയിലല്ല . ഈ മണ്ണും പാറയും ഒലിച്ചു വന്നതിനാv വീടിന് മൊത്തം ഒരു ഇളക്കം തട്ടിയിട്ടുÙ® “ . He also depose that “വീടിന് ബലക്ഷയം ഉÙ¡യിട്ടുÙ®. 2¡« നില ഈ സ്ഥിതിയിv പണിയാu സാധിക്കില്ല. So, the fact it is evident from the documents and the depositions that there was considerable extent of damage was caused to the building. The surveyor report, B2 totally ignored the gravity of the incident and nature of damage caused to the building and that too a residential building. The photo graphs produced by the surveyor do not even reveal the cracks caused to the building. According to him some minute cracks seen on the plastering of the walls, which need to be chipped of and to be plastered by means of cement mortar and thereafter paint touch up work. But CD as well as photographs produced by the complainant reveals the nature of damage caused to the house of the complainant. There are visible and considerable extent of cracks noticed in the photographs. So we do not find any merit in the finding of Ext. B2 document to the extent of damage caused to the building and the assessment made therein. The documents produced by the complainant and the deposition of government officials reveals reconstruction of the building for the residential purpose is required. So, we find that the extent of damage sustained to the building has necessitated reconstruction of the building for which the assessment made by the insurance surveyor is baseless and cannot be looked into.
13. The surveyor however reported that residential building is off a pucca single story R.C.C construction. He also reported that the super structure was made of laterite stones in cement mortar and properly plastered, white washed and necessary windows, doors were also provided. The building was properly electrified also. Ext. B4 is a report issued by one Chandran who claims to be a retired, Sub Inspector of Police. He prepared the report at the request of opposite party and he has reported that the complainant family is residing in the house at the time of his inspection and the house have no visible defects. He also reported that the complainant has remitted electricity bill for the period also. His opinion is that the house has constructed without foreseeing the chance of calamity considering the nature of surrounding. It can be seen prima facie itself, it is a cooked-up report on behalf of opposite party and we do not find any evidentiary value for Ext. B4 report.
14. The verification of documents it can be seen that the building was recently constructed as claimed by the complainant and as per the report of insurance surveyor. The concerned officials, village officer and Engineers attached to local self-government has categorically reported and deposed that the dwelling house has to be re constructed, since the calamity affected the stability of the residential building. The complainant insured the house for a sum of Rs.20,00,000/-. It is not expected to provide insurance coverage of Rs.20,00,000/ to the property without the proper evaluation by the opposite party. So, the insurance company is bound to provide insurance coverage to the complainant. The opposite party, insurance company has not assessed or evaluated the cost of the house in the case of re- construction. Ext. A12 is the detailed estimate cum abstract of the proposed repair of residence and retaining wall for the building and which is prepared by Sharafali .P.M, licensed building supervisor, department of urban affairs, government of Kerala. He has assessed 11,16,069/- rupees for the construction of retaining wall for preventing land sliding. He assessed and prepared a calculation for the repair work of the residence. As per his assessment the cost of repair work worth Rs.4,43,930/. Insurance surveyor has reported that the retaining wall has not covered by the policy. So the entitlement of insurance coverage is limited to the repair work of the residential building. Hence the complainant is entitled for Rs.4,43,930/ rupees towards the repair work of the residential building, we find the first point accordingly.
Point No.2 &3
In this complaint, the complainant insured his residential building with the opposite party for Rs.2000000/-. The house was met with natural calamity and it is admitted by the opposite party and also established through producing documents by the complainant. But the opposite party instead of considering the exact extent of gravity of damage sustained to the complainant only provided Rs.20,000/ to the complainant. But the complainant produced document to show that he could spent more than 56,800/- rupees to remove slide mud and waste itself. So we find there is gross deficiency in service on the part of the opposite party in the matter. Complainant is entitled compensation for the deficiency in service from the opposite party. The complainant sustained inconvenience, hardship, mental agony and financial loss due to the deficiency in service on the part of opposite party. We allow 2,00,000/- rupees on account of deficiency in service on the part of opposite party in favor of complainant. The complainant also entitled for cost of the proceedings and the same is fixed as Rs.20,000/. In the light of above facts and circumstances we allow the complaint as follows: -
- The oppose the party is directed to pay Rs.4,43,930/- to the complainants towards the reconstruction cost of the house.
- The opposite party is directed to pay Rs.2,00,000/- towards the compensation on account of deficiency in service and there by caused inconvenience, hardship, mental agony and financial loss caused to the complainant.
- The opposite party is directed to pay Rs.20,000/- as cost of the proceedings.
The opposite party is directed to comply this order within one month from the date of receipt of copy of this order, failing which the compensation and cost will carry interest @9% per annum from the date of this order till realization.
Dated this 13th day of June, 2022.
Mohandasan . K, President
PreethiSivaraman.C, Member
Mohamed Ismayil.C.V, Member
APPENDIX
Witness examined on the side of the complainant: PW1 & PW2
PW1: Mr. Sharafali P.M, (licensed building supervisor department of urban
affairs, government of Kerala.
PW2: Mr. Aboobacker
Documents marked on the side of the complainant: Ext.A1 to A 24
Ext.A1: Copy of MalayalaManorama News daily dated 30/08/2018.
Ext.A2: Photo copy of newspaper claimed to be dated 15/08/2018.
Ext A3: Copy of insurance policy number 442700/11/2016/124 covering from
27/05/2015 to 26/05/2025.
Ext A4: Copy of request of village officer, Kalikavu to the assistant Engineer LSGD
Kalikavu gram Panchayat dated 10/08/2018.
Ext A5: Certificate issued by village officer, Kalikavu dated 05/09/2018.
Ext.A6: Certificate issued by Neha sherin E.K licensed Engineer, department of urban
Affairs, government of Kerala.
Ext.A7: Details of plan estimate copy of insurance policy, No objection certificate from
the grama panchayath, of the residential building etc.
Ext A8: Copy of rental agreement dated 18/09/2018.
Ext A9: Letter from the insurance company regarding settlement of claim dated
22/11/2018
Ext A10: Receipt for Hitachi Rs.56,800/- dated 22/12/2018
Ext.A11: Certificate issued by Sharafali.P.M, licensed building supervisor department
of urban affairs, government of Kerala.
Ext.A12: Estimate cum extract of the proposed repair of residence and retaining wall
for preventing land sliding.
Ext A13: Plan of the building (ground floor).
Ext A4: Plan of the building (first floor).
Ext A15: Sketch of the plan.
Ext.A16: Copy of No Objection Certificate issued by Secretary Kalikavu Grama
panchayath dated 31/01/2014.
Ext.A17: Online pass for transporting sand issued by secretary
Grama panchayath, Kalikavu dated 23/12/2014.
Ext A18: Certificate issued by Raju, contractors, dated 24/01/202
Ext A19: Certificate issued by Sadh paint magic dated 30/01/2020.
Ext A20: Receipt issued by Hitachi Earth movers, Kurikkal earth moving company
dated 22/12/2018.
Ext.A21: Bill of supply issued by magna refrigeration and air condition 15/07/2020.
Ext.A22: Bill of supply issued by magna refrigeration and air conditioner dated
18/07/2020.
Ext A23: Copy of newspaper (no date).
Ext A24: CD and photographs of the damaged building.
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party: Ext. B1 to B4
Ext.B1: Policy copy of number 442700/11/2016/124 period from 27/05/2015 to
26/05/2025.
Ext.B2: Survey report of the surveyor K. Divakaran dated 01/11/2018
Ext.B3: Fire insurance claim form dated 20/09/2018.
Ext.B4: Copy of investigation report issued by Chandran .E. (Nil date).
Mohandasan . K, President
Preethi Sivaraman.C, Member
Mohamed Ismayil.C.V, Member
VPH
