KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACADU THIRUVANANTHAPURAM
APPEAL NO: 656/2005
JUDGMENT DATED:25..02..2011.
PRESENT
SRI. M.V. VISWANATHAN : JUDICIAL MEMBER
United India Insurance Company Ltd.,
T.M.Buildings, Bank Road,
Kayamkulam. R/by Senior Divl Manager, : APPELLANT
Francis Joseph, Divisional Office-1,
LMS Compound, TVPM.
(By Adv;Sri.Jagadishkumar)
Vs.
K.A.Shajahan,
Nediyamannil house, : RESPONDENT
Mangaram, Pandalam.
(By Adv.Sri.B.A.Krishnakumar)
JUDGMENT
SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER
Appellant was the opposite party and respondent was the complainant in OP.152/00 on the file of CDRF, Pathanamthitta. The complaint therein was filed alleging deficiency of service on the part of the opposite party in repudiating the insurance claim preferred by the complainant under policy No.101501/011/11-02785/1998 dated:15/1/99. The opposite party entered appearance and filed written version denying the alleged deficiency of service in repudiating the insurance claim. The opposite party justified their action in repudiating the insurance claim as the claim is not covered by the insurance policy. Thus, the opposite party prayed for dismissal of the complaint.
2. Before the Forum below the complainant was examined as PW1 and 2 other witnesses were examined on his side as PWs 2 and 3. Exts.P1 to P5 documents were also marked on his side. On the side of the opposite party, the Divisional Manager of the opposite party/United India Insurance Co. Ltd was examined as DW1 and the insurance surveyor who filed R3 survey report was examined as DW2. Exts.R1 to R4 documents were also marked on the side of the opposite party. On an appreciation of the evidence on record, the Forum below passed the impugned order dated:27/2/2004 directing the opposite party to pay a sum of Rs.60,380/- towards insurance claim with interest at the rate of 9% per annum from the date of the impugned order till realization. The opposite party is further directed to pay compensation of Rs.2000/- with cost of Rs.1,500/-. Aggrieved by the said order the present appeal is preferred by the opposite party therein.
3. We heard the learned counsel for the appellant/opposite party and the respondent/complainant. The counsel for the appellant submitted his arguments based on the grounds urged in the Memorandum of the present appeal. He much relied on R3 survey report submitted by the insurance surveyor (DW2) and argued for the position that the collapse of the car porch under construction occurred due to substandard bricks and materials used for construction of the car porch. It is further submitted that there was no land slide, flood, earth quake etc on the date of the collapse or in the nearby dates. Thus, the appellant justified their action in repudiating the insurance claim as the claim is not covered by the policy of insurance. On the other hand, the counsel for the respondent/complainant supported the impugned order passed by the Forum below. He relied on the testimony of PW2, the Civil Engineer who submitted P2 inspection report stating that the accident of collapse of car porch which was under construction was due to land slide. Thus, the respondent prayed for dismissal of the present appeal.
4. There is no dispute that the respondent/complainant took Ext.P1 Fire Policy-A insuring the building which was under construction. There is no dispute regarding issuance of the insurance policy covering the risk with respect to land and the building under construction. Ext.P1 Fire policy-A would make it clear that the said policy would cover the risks including subsidence and land slide (including rock slide) resulting collapse of the entire building or part there of. As per P1 Fire Policy-A 9 risks are covered and the 8th risk is the aforementioned subsidence and land slide (including rock slide) resulting in collapse of the entire building or part there of. We are concerned with the aforesaid risk enumerated as the 8th risk. The aforesaid Fire Policy-A was for the period from 15/1/1999 to 14/1/2000. Ext.P5 is copy of the aforesaid Fire policy schedule which was issued in the name of the respondent/complainant.
5. Admittedly, the car porch attached to the insured building was collapsed on 30/9/1999 at about 11.am. There is no dispute regarding the incident of collapse of the car porch which was under construction. The aforesaid incident or accident occurred on 30/9/1999. The complainant as PW1 has deposed that on the same day of the accident the complainant informed the Branch Manager of the State Bank of Travancore, Pandalam branch about the collapse of the car porch of the building. PW2, the Manager of the SBT, Pandalam branch has also deposed about the intimation received by the bank about the collapse of car porch and that the then branch manager issued P4 letter dated:4/10/1999 to the opposite party/insurance company about the aforesaid accident. The evidence of PWs1 and 2 would show that the complainant had availed a loan of Rs.2.lakhs from SBT, Pandalam Branch for constructing the insured building and P1 Fire policy-A was taken with a bank clause and the said policy was taken at the instance of the bank. The acceptance of P4 letter dated:4/10/1999 from the bank manager is admitted by DW1, the Divisional Manager of the opposite party/insurance company. There is also no dispute that the appellant/opposite party/ insurance company got intimation about the peril which occurred on 30/9/99. It is also an admitted fact that the complainant submitted R1 claim form and that the appellant/opposite party/insurance company deputed a surveyor to assess the loss and also to report about the accident which resulted in the insurance claim.
6. DW2 was the insurance surveyor who submitted R3 survey report dated:26/11/1999. It would show that the surveyor conducted inspection of the accident spot on 16/10/99 and he was convinced about the accident/occurrence which occurred on 30/9/1999 at 11.am. The surveyor assessed the loss at Rs.66,380/-. He has also given the details of the loss assessed by him in his R3 survey report. The insurance surveyor has also reported that “It appears that the brick masonry pillars of the car porch constructed of sub-standard bricks, were unable to withstand the heavy load of the RCC structure over it, and as a result, the pillars crumbled resulting the total collapse of the RCC porch supported on the pillars”. It is further reported in R3 survey report that “It was seen that the bricks used for the pillar of the car porch were of poor quality. Major portion of the bricks used for the (collapsed) pillar was under-burned and of inferior quality”. It is based on the aforesaid opinion given by the insurance surveyor the opposite party/insurance company repudiated the insurance claim preferred by the complainant/insured.
7. The surveyor who submitted R3 survey report was examined before the Forum below as DW2. He deposed that the bricks used for construction of the pillars of the car porch were of poor quality. But the insurance surveyor had not conducted any scientific test to ascertain the weight bearing capacity of the bricks. It is to be noted that the quality of the bricks depends upon the weight bearing or load bearing capacity of the bricks. The aforesaid load bearing capacity can be ascertained by the conducting scientific test using scientific methods or procedures. But the insurance surveyor failed to conduct any such scientific test or method. So, the opinion given by the insurance surveyor regarding the quality of the bricks used for constructing the pillars of the car porch cannot be accepted. It is a well settled position that an expert is expected to give the material data in support of his opinion. It is the duty of the expert to give all the details in support of his opinion and thereby to assist the Court or the legal authority in adjudicating the disputed issue. But in this case, the expert viz. insurance surveyor failed to give the data or the relevant materials to support his opinion regarding the quality of the bricks. Admittedly, the insurance surveyor failed to conduct the necessary scientific test to ascertain the quality of the bricks used for constructing the pillars of the car porch. A perusal of R3 report would give a clear indication that the insurance surveyor was not sure about the quality of the bricks. He made only a superficial inspection of the bricks used for constructing the pillars of the car porch. It is reported that it appears that the bricks were of sub-standard and unable to withstand heavy load. The aforesaid opinion itself would make it abundantly clear that the said opinion is not based on any scientific test or laboratory test conducted to ascertain the quality especially, the load bearing capacity of the bricks. The aforesaid opinion given by the insurance surveyor can be considered as an opinion without any basis. So, the Forum below can be justified in not relying on the aforesaid opinion given by the insurance surveyor in his R3 survey report. DW2, the insurance surveyor could not give any acceptable reason or ground for not conducting the scientific or laboratory test in order to ascertain the quality especially, the load bearing capacity of the bricks. Thus, we have no hesitation to discard the aforesaid opinion given by the expert (insurance surveyor) about the quality of the bricks.
8. There is no dispute that the car porch of the insured building collapsed on 30/9/99 and as a result of the said incident of collapse of the car porch, the respondent/complainant (insured) suffered financial loss. Ext.P1 Fire Policy-A would make it clear that subsidence or land slide resulting in collapse of the building or part there of is covered by the said policy. The aforesaid risk is covered by P1 Fire policy-A. The definite case of the complainant is that there occurred land slide resulting in collapse of the car porch of the insured building. The appellant/opposite party/insurance company repudiated the insurance claim preferred by the respondent/complainant on the sole ground that the collapse of the car porch occurred due to the use of sub-standard bricks and building materials. But there is nothing on record to show that the materials used for the construction of the insured building were of inferior quality or sub-standard. The only case of the appellant/opposite party/insurance company is that the complainant/insured used poor quality or inferior quality bricks for construction of the pillars for the car porch. It is pertinent to note at this juncture that the remaining portion of the building did not sustain any damage. There is no case for the appellant/opposite party/insurance company or the insurance surveyor that the building materials including the bricks used for construction of the building other than car porch are inferior quality. The definite case of the complainant/insured is that he used good quality materials for constructing the entire building including car porch. There is no acceptable material available on record to show that the complainant used bad quality or inferior quality building materials for constructing his building including the car porch. The mere fact that the insurance surveyor reported that the bricks used for the pillars of the car porch were of sub-standard or under burned cannot be accepted as such without any supporting material. There is nothing on record to show the expertise of the insurance surveyor to ascertain the quality of the building materials used for the construction of car porch. R3 report would only show that DW2, Muhammed Ashraf is having the degree of BSc Engineering and he is a licensed surveyor and loss assessor. DW2 has only deposed that he is an approved insurance surveyor having BSc Engineering with 17 years service. But it is not deposed by DW2 that he is having the experience and service in Civil Engineering. The mere fact that DW2 is a BSc Engineer cannot be taken as a ground to hold that he is having the expertise and experience to determine the quality of building materials and the load bearing capacity of bricks. Nowhere it is stated that DW2, the insurance surveyor is an expert in the field of Civil Engineering. So, the expertise and competency of DW2 is also to be doubted. The manner in which, DW2 submitted R3 report regarding the quality of the bricks would give an indication that he is not having sufficient expertise and experience in the field of Civil Engineering to determine the quality of building materials. Thus, the Forum below has rightly not relied on the opinion given by the insurance surveyor regarding quality of the building materials especially, the bricks used for construction of the pillars of the car porch.
9. The complainant as PW1 has deposed that he used only good quality building materials for construction of the insured building. PW3 who submitted P2 inspection report has deposed that he verified the building materials used for construction of the insured building including the car porch. He was of the opinion that the building materials including the bricks used for construction of the insured building are of good quality. It is true that PW3 has also not conducted any scientific test to ascertain the load bearing capacity of the bricks used for construction of the building. PW3 inspected the insured premises on 1/10/99. He noted the movement of the earth towards East. It is reported in P2 inspection report that the plot where the insured building stands lies on a higher level of about 4 to 5 ft. at the East. It is further reported that the earth is found moved from the car porch portion to the east where there is a slanting. It is also reported that “in view of the above observation, I am of the opinion that the collapse of the portion of the building is due to land slide”. So, P2 inspection report and the evidence of PW2 would show that there occurred land slide which resulted in the collapse of the car porch. It is pertinent to note that PW3 is a Civil Engineer. He is having diploma in Civil Engineering. He is a qualified Civil Engineer and worked as the engineer employed in the panchayath. Thus, it can be seen that PW3 who submitted P2 inspection report is having the expertise in Civil Engineering and he is competent to submit P2 inspection report. It is true that PW3 inspected the accident spot at the instance and at the request of the complainant and without the consent or intimation to the opposite party/insurance company. But the evidence of PW3 would support the case of the complainant that there occurred land slide resulting in the collapse of the car porch of the insured building. So, the evidence of PW3 and P2 inspection report can be relied on. His evidence is more acceptable than that of DW2 and R3 survey report. The Forum below can be justified in relying on the testimony of PW3 and P2 inspection report.
10. Ext.P4 is copy of the letter dated:4/10/99 issued by the Branch Manager of State Bank of Travancore, Pandalam Branch to the opposite party/United India Insurance Co. Ltd. In P4 letter it is specifically stated that the portion of the insured building has been collapsed due to land slide. As per P4 letter, the branch manager of the bank had also requested for issuance of a claim form. It is also to be noted that the P1 fire policy-A was issued at the instance of the State Bank with a bank clause. Ext.R2 is the original of P4 letter dated:4/10/99. But in R2 the words “due to land slide” are seen struck off. But in P4 copy of the letter there is no such striking of the words “due to land slide”. PW2 has categorically deposed that the intimation was given and P4 is the true copy of the said intimation. This evidence would give an indication that the striking of the aforesaid words “due to land slide” was effected subsequently in order to avoid honouring of the Insurance claim preferred by the complainant/insured.
11. Ext.R1 is the insurance claim form submitted by the complainant. In R1 claim form also the cause of loss is shown as land slide, flood. But the word land slide is seen struck off. It is to be noted that P4 letter was issued by the Branch Manager of SBT, Pandalam branch on 4/10/99. R1 claim form was submitted subsequently ie, on 14/10/99. The claim form was submitted by the complainant/insured. But in both these documents the land slide is seen struck off. This circumstance would make it clear that the striking of the words “land slide” was made by the officials of the opposite party/insurance company in order to show that the risk is not covered by the insurance policy. It can very safely be concluded that in R1 and R2 documents the words land slide were struck off by the officials of the opposite party/insurance company without the knowledge and concurrence of the complainant and the branch manager of SBT, Pandalam branch. This is a strong circumstance to assess the conduct of the officials of the opposite party/insurance company. It would in turn give the inference that the officials of the opposite party/insurance company were very much interested in repudiating the insurance claim somehow or other. So, the issuance of P3 repudiation letter dated 5th January 2000 can be considered as an act of deficiency of service on the part of the opposite party/insurance company. The Forum below is perfectly justified in passing the impugned order dated:27/2/2004 making the opposite party/insurance company liable to pay a sum of Rs.60,380/- to the complainant/insured by way of the insurance claim. The Forum below can also be justified in awarding compensation of Rs.2000/- for the deficiency of service on the part of the opposite party/insurance company in repudiating the insurance claim without assigning any valid reason. Cost of Rs.1500/- ordered by the Forum below can be treated as very reasonable and so, the same is also liable to be upheld. The Forum below has only awarded interest on the amount of Rs.60,380/- at the rate of 9% per annum from the date of order till realisation. Thus, in all respects the Forum below has taken a very lenient view in awarding compensation, interest and cost. So, this State Commission is pleased to uphold the impugned order passed by the Forum below.
In the result the appeal is dismissed. The impugned order dated 27/02/2004 passed by CDRF, Pathanamthitta in OP152/00 is confirmed. As far as the present appeal is concerned, the parties are directed to suffer their respective costs.
M.V. VISWANATHAN : JUDICIAL MEMBER
VL.
