Per Mr.B.S.Wasekar, Hon’ble President

1)                The present complaint has been filed by the complainants u/s 12 of the Consumer Protection Act, 1986. According to the complainants, the property was insured under “Standard Fire and Special Perils Insurance (Material Damage) Policy” issued by the O.P. bearing Policy No.1001/56580704/01/000 for the period 2^nd April, 2010 to 1^st April, 2011. The policy covers risk to the building including to the compound wall for a sum of Rs.4,84,68,000/-.  It covers the loss due to subsidence and land slide including rock slide.  On 19^th August, 2010, there was heavy rain in Mumbai.  As per Regional Metrological Centre at Mumbai the rainfall was 51.0 mm as against the normal 18.2 mm.  Due to heavy rainfall, there was heavy and forceful gushing of water in nallah. Consequently, on 20^th August, 2010 at 02.00 A.M. there was landslide and thereby two trees got uprooted and the compound wall was subsided and collapsed.  The incident was reported to the O.P. who appointed Surveyor for inspection.  The repair work was entrusted to Vikas Construction Company who had given estimate of Rs.6,75,650/- for carrying out the work.  The O.P. vide letter dated 26^th October, 2010 refused to settle the claim on the ground that loss due to heavy rain is not covered under the policy.  Meanwhile, the complainant No.1 received the notice dated 26^th August, 2010 from B.M.C. directing to reconstruct the compound wall therefore the complainant No.1 got the compound wall reinstated at its own expenses through the said Vikas Construction Company. The work was carried out under the supervision of Doshi & Company, Chartered Engineers and Surveyors.  The bill of Vikas Construction Company was settled at Rs.6,75,000/- and Doshi & Company for Rs.33,090/- total Rs.7,08,090/-. The O.P. is liable to reimburse it. Therefore, the complainants have filed this complaint to direct the O.P. to pay sum of Rs.7,08,090/- with interest at the rate of 12% per annum.  They have also claimed compensation of Rs.30,000/- for harassment and cost of the complaint.

2)                The O.P. appeared and filed written statement.  The policy is admitted.  The claim was already repudiated vide letter dated 26^th September, 2010.  The Investigator/Surveyor was appointed. As per the Survey Report, compound wall was collapsed due to heavy rain and for non maintenance.   It does not cover under the policy.  Therefore, the opponent is not liable to pay compensation. 

3)                After hearing both the parties and after going through the record, following points arise for our consideration.

POINTS

REASONS

4) As to Point No. 1 & 2 :- The copy of policy is on record.  It is not disputed by the O.P.  The learned representative for the complainant has drawn our attention to the policy terms and pointed out that the policy is extended for loss due to landslide. According to him, there was heavy rain thereby there was heavy and forceful gushing of water in nallah due to which there was landslide and thereby two trees got uprooted and the compound wall was subsided and collapsed.  According to him, wall was damaged due to landslide.  As per policy, if there is damage due to landslide, the opponent is liable for the reimbursement.  On perusal of policy, the opponent is liable for reimbursement the loss due to landslide.  On the other hand, it is submitted by the learned advocate for the O.P. that there was no landslide but wall was collapsed due to heavy rain and non maintenance. The opponent is placing reliance on the Surveyor Report produced on record. It is pointed out by the learned Representative of the complainant that the said report is not signed by anybody.  The Surveyor has also not filed his affidavit to support the Survey Report on record.  On perusal of Survey Report, the Surveyor has not negatived the possibility of landslide due to heavy rain.  The Surveyor has admitted the heavy rain on that day and collapse of compound wall.  He has also admitted the fall of tree. 

5)                Thus, admitted position on record is that there was heavy rain.  The trees were uprooted and the compound wall was damaged.  The defence of the opponent about the damage due to non maintenance is not supported by any evidence.  On the other hand, the grievance of the complainant is supported by evidence on record.  Thus, there is sufficient evidence on record to show landslide and collapse of compound wall.  The policy covers the damage due to landslide.  Therefore, the opponent is liable to reimburse the loss of the complainant No.1. 

6)                According to the complainants, the complainant No.1 incurred expenses Rs.6,75,000/- and Rs.33,090/- total Rs.7,08,090/-. They have produced copies of receipts on record.  The same are not disputed by the opponent.  Therefore, the opponent is liable to pay it to the complainant No.1.  The opponent has wrongly repudiated the claim thereby the complainant No.1 was harassed.  The complainant No.1 was compelled to file this complaint therefore the complainant No.1 is entitled for the compensation and cost of this proceeding. The complainant No.1 has claimed compensation and cost of Rs.30,000/-. We think the compensation of Rs.10,000/- for mental harassment and cost of Rs.5,000/- towards this proceeding will suffice the purpose.  Hence, we proceed to pass the following order.

ORDER

1. Complaint is allowed.

2. The opponent is directed to pay Rs.7,08,090/- (Rs.Seven Lakhs Eight Thousand and Ninety Only) to the complainant No.1 with interest at the rate of 9% per annum from the date of filing of complaint i.e. 21^st September, 2012 till realization.

3. The opponent is also directed to pay Rs.10,000/- (Rs.Ten Thousand Only) to the complainant No.1 as compensation for mental harassment.

4. The opponent is further directed to pay Rs.5,000/- (Rs.Five Thousand Only) to the complainant No.1 towards the cost of this proceeding.

5. The above order shall be complied with within a period of one month from today.

6. Copies of this order be sent to the parties free of cost.

    

   Pronounced

   Dated 21^st May, 2014