Tamil Nadu

StateCommission

A/212/2018

The Regional Manager, The New India Assurance Co Ltd, and another - Complainant(s)

Versus

M.Peter S/o. Mr.Michael - Opp.Party(s)

M/s. S.Manohar

15 Feb 2022

ORDER

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present:   Hon’ble THIRU. JUSTICE. R. SUBBIAH                     :     PRESIDENT

                  Tmt. Dr. S.M. LATHA MAHESWARI                         :      MEMBER

 

F.A. No. 212 of 2018

(Against the order passed in C.C. No.325 of 2014 dated 11.05.2018 on the file of the D.C.D.R.F, Chennai (South).

 

Tuesday, the 15^th day of February 2022

1. The Regional Manager

    The New India Assurance Co. Ltd.,

    Regional Office No.710000,

    Spencers Towers, 3^rd Floor,

    770-A, Anna Salai,                                           

    Chennai – 600 002.

 

2.  The  Manager

     The New India Assurance Co. Ltd.,

     Divisional Office No.710800,

     Ratna Building,

     No.231, TTK Road,

     Alwarpet,

     Chennai – 600 018.                                                                                                            .. Appellants/ Opposite Parties

 

- Vs -

M. Peter

S/o. Mr. Michael

No.54, Cathedral Road

Chennai – 600 086.                                                                                                                     .. Respondent/ Complainant

    Counsel for Appellants /Opposite parties          : M/s. Elveera Ravindran

    Counsel for the Respondent /Complainant         : M/s.Vijayakumar

  

This appeal is coming before us for final hearing on 15.02.2022 and on hearing the arguments of the counsel for both parties and on perusing the material records, this Commission made the following :-

 

O R D E R

R.SUBBIAH J., PRESIDENT

1.        This appeal has been filed under Section 15 of the Consumer Protection Act, by the opposite parties as against the order dated 11.05.2018 passed in   C.C. No.325 of 2014 by the District Consumer Disputes Redressal Forum, Chennai (South), allowing the complaint, in part.

2.    The respondent is the complainant and the appellants are the opposite parties.  For the sake of convenience, parties will be referred to, as per their ranking in the complaint.

3.    The factual background culminating in this appeal is as follows:  It is the case of the Complainant that he is owning a house at No.2 Ennar Enclave, Ambarpuram, Kodaikanal.  He insured the said house with the opposite parties at Chennai, under Standard Fire and Special Perils Policy.  The said house is a residential house and he insured the same for a sum of Rs.88,00,000/- under the following heads :-

          Residential Building        ..  Rs.  60,00,000/-

          Compound Wall               ..  Rs.  20,00,000/-

          Servant quarters             ..  Rs.    8,00,000/-

 

The policy period was from 24.11.2011 to 23.11.2021.  On 28.01.2012, at around 04.30 p.m, the compound wall of the house fell down, due to land slide.  Hence, the complainant intimated the same to the insurer and requested them to inspect the property and assess the cost and damage to the wall by deputing a surveyor.  Since there was a delay in appointing a Surveyor, the complainant himself appointed an expert, who on inspecting the complainant’s premises, valued the damage as Rs.13,82,579/-.  The Village Administrative Officer had also issued a certificate confirming that the damage is due to land slide.  As the damage is covered under the insurance policy, the complainant submitted a claim petition on 30.01.2012 requesting for payment of damages.  In such a situation, the Insurer deputed a surveyor by name Mr.V.V.Subramaniam from their Madurai Office.  He visited the site after two months of the collapse of the compound wall and gave an adverse report stating that the compound wall had collapsed on account of the lateral load on the wall, from the excavation work and accumulated mud of the adjacent elevated plot.  It is the further case of the complainant that the land slide is quite common in Kodaikanal and it is known to everyone.  The Village Administrative Officer had also given a certificate that the collapse was on account of land slide.  The surveyor had visited the site after two months.  Had the site been visited by the Surveyor immediately after the collapse, he would have come to know about the real reason.   They took their own time and inspected the property, ultimately, it had resulted in filing an adverse report, in order to decline the claim of the complainant.  In fact, the complainant had insured the property as there is always danger for the property since it occurs often in Kodaikanal area.  Though the insurer had initially assessed the loss to a tune of Rs.5,04,560/- subsequently revised it to Rs.3,31,912/-.  It is not known as to how the said amount has been arrived at.  Furthermore, there is no dispute with regard to the age of the building as it is only 3 years.  The act of the opposite parties in denying the claim of the complainant is nothing but gross negligence and unfair trade practice.  Therefore, the complainant has come forward with the present complaint for the following reliefs :-

1. To direct the opposite party to pay a sum of Rs.13,82,579/- towards damages to the complainant along with interest, from the date of complaint till the date of realisation;
2. To direct the opposite party to pay a compensation of a sum of Rs.1,00,000/- towards mental agony; and
3. To pay a cost of Rs.25,000/-.

 

4.       The case of the complainant was resisted by the Insurance Company by filing a written version, it is false to state that the damage to the compound wall was due to land slide.  The damage was only due to the lateral load developed on the wall, due to excavation of earth and dumping of mud by the adjoining resident, who is constructing a bungalow.  It is denied as false that the Surveyor Mr.V.V.Subramaniam had visited the site after two months of the collapse, of the compound wall.  It is also equally denied that the surveyor had filed a false report.  Further, the complainant has got no proof to show that the damage of the wall was due to land slide.  On the date of occurrence, there was no report of land slide, heavy rain, flood or inundation, in Kodaikanal.   The photographs taken at the site would clearly show that the collapse of the wall was only due to excavation of earth and dumping of mud by the neighbouring resident, while carrying out construction in his plot.  The certificate issued by the Village Administrative Officer with regard to the damage of the compound wall is bogus.  Hence, absolutely there is no deficiency of service on the part of the opposite parties and sought for dismissal of the complaint.  

 

5.  In order to prove the claim, on the side of the complainant along with proof affidavit, 8 documents have been filed and the same were marked as Exhibits A1 to A8.  On the side of the opposite parties also, along with proof affidavits 8 documents were filed and the same were marked as Ex.B1 to Ex.B8.

 

6.       The District Forum, after analyzing the entire evidence on records, has come to the conclusion that there is a deficiency of service on the side of the Insurance Company, in settling the claim.  Hence, allowed the complaint by directing the opposite parties to pay a sum of Rs.13,82,579/- with 9% interest and also to pay a sum of Rs.25,000/- as compensation for mental agony, with a cost of Rs.5000/-. 

 

7.       The counsel appearing for the appellant / opposite parties submitted that the respondent herein owns a house at Kodaikanal.  He insured the said house with the opposite parties under Standard Fire and Special Perils Policy.  The policy period is from 24.11.2011 to 23.11.2021.  Whileso, he sent an intimation to the Insurance Company on 30.01.2012 stating that the compound wall of his house has got damaged due to land sliding and requested them to send Claim Form to enable him to apply for a claim, in respect of the same.  The counsel for the appellant had also submitted that the complainant himself has appointed an expert and he had assessed the damage to the tune of Rs.13,82,579/-.  Based on that, on 06.02.2012 the complainant submitted a Claim Form to the Insurance company claiming a sum of Rs.13,82,579/-.  But, the Insurance Company appointed one Mr.V.V.Subramanian, as a Surveyor, who inspected the premises and found that the fall of the compound wall is not due to land sliding but on account of the excavation work in the neighbour’s land and heaping of mud due to construction activity had led to the collapse of the compound wall.  Therefore, the complainant is not entitled for the claim.  The survey report of the Insurance Company was marked as Ex.B1. Based on Ex.B1, the opposite party has correctly rejected the claim.  Therefore, absolutely there is no deficiency of service on the part of the opposite parties. In this regard, counsel for the appellant further submitted that in order to substantiate the case, the complainant had filed a certificate issued by the Village Administrative Officer, which was marked as Ex.A3, wherein it has been stated that the compound wall of the complainant had fallen down on 28.01.2012 due to land sliding.  Attacking the said document, counsel for the opposite party submitted that the said certificate is a bogus certificate created for the purpose of the case.  But the District Forum by relying upon the expert opinion, which was annexed with the Claim form, marked as Ex.A4 as well as the Certificate issued by the Village Administrative Officer, has erroneously allowed the complaint.   Therefore, the order of the District Forum is liable to be set aside.

 

8.  Countering the submission made by the complainant, counsel appearing for the opposite parties submitted that the property was insured by the complainant, since there is always danger for landslide to occur and if on account of the landslide a portion of the property is damaged, then the complainant is entitled to claim from the Insurance Company.  In the instant case, on 28.01.2012, the compound wall of the complainant’s house had fallen down due to land slide.  Though the complainant had intimated the same to the Insurance Company, the Surveyor has visited the spot only after a delay of two months.  Had he visited the premises immediately after the intimation, he would not have gone wrong in his report.  On the side of the complainant, the certificate issued by the Village Administrative Officer to the effect that the damage to the compound wall is only due to land slide, was marked as Ex.A3.  The District Forum, relying upon the certificate as well as the expert opinion produced by the Respondent/ Complainant has correctly allowed the complaint. Since it is a well considered order and as there is no infirmity in the order passed by the District Forum, the order may be confirmed.

 

9.  Keeping in mind the submissions made by the counsel for the appellants and the respondent, we have carefully gone through the material available on record. 

 

10.  It is the main submission of the counsel for the appellants that as per the conditions of the policy, he is not entitled to the claim amount since the compound wall had fallen down due to the lateral load developed on the wall, due to excavation of earth and dumping of mud by the adjoining resident, who is constructing a bungalow, which is evident from the Surveyor’s Report, Ex.B1.  But the District Forum has allowed the complaint by placing reliance on the opinion of the expert engaged by the complainant, which is marked as Ex.A4 as well as the Certificate issued by the Village Administrative Officer, marked as Ex.A3.  In this regard, counsel for the appellants submitted that the expert opinion of the complainant is not done by an authorised surveyor, as such it cannot be relied upon.   On the other hand, counsel for the complainant submitted that the expert report of the complainant is a valid document since the inspection was done in the presence of the complainant wherein the expert appointed by the complainant had clearly stated that the damage was caused due to land slide.  Whereas, the surveyor appointed by the Insurance Company has inspected the property only after two months from the date of occurrence.  Hence, the District Forum has rightly rejected the surveyor report marked as Ex.B1 on the side of the opposite party and correctly placed reliance on Ex.A3 and allowed the complaint.  On perusal of the surveyor report, as contended by the counsel for the complainant, we find that no inspection report was given by the surveyor, in the report marked as Ex.B1.  Under such circumstances, this Court is left with no other option except to accept the submission of the complainant, that the surveyor has visited the property only after two months from the date of occurrence.  Had he visited the spot immediately on intimation, he would not have given a wrong report.  Further from the survey report we are at a loss to understand as to how the surveyor has come to the conclusion that the compound wall has fallen only due to excavation of earth and dumping of mud by the adjoining residence.  In fact, the report is silent as to whether he has examined the neighbours or people residing locally, before coming to such a conclusion.  Whereas, the Village Administrative Officer’s certificate clearly corroborates with the statement of the complainant.  Therefore, we do not find any infirmity in the conclusion arrived by the District Forum in awarding compensation amount for the damage caused to the complainant.  At the same time, we find that the sum of Rs.13,82,579/- based on a self surveyed document is not correct.  As per the surveyor’s report, the damage amount is Rs.5,04,560/-.  Hence, the amount of Rs.13,82,579/- awarded by the District Forum is reduced to Rs.5,04,560/- with interest at the rate of 9% p.a., from the date of filing till the date of payment and the opposite parties are directed to pay the amount within a period of two months, failing which the said amount will carry an interest of 12% p.a.  Similarly, the sum of Rs.25,000/- awarded by the District Forum towards compensation for mental agony is reduced to Rs.10,000/- but Rs.5000/- awarded as cost is hereby confirmed. 

 

11.   In the result, the Appeal is partly allowed, by reducing the amount granted towards damages from Rs.13,82,579/- to Rs.5,04,560/- with interest at the rate of 9% p.a., from the date of filing till the date of payment and the opposite parties are directed to pay the amount within a period of two months, failing which the said amount will carry an interest of 12% p.a, the sum of Rs.25,000/- awarded towards compensation for mental agony is reduced to Rs.10,000/- and Rs.5000/- awarded as cost is hereby confirmed.  Except this modification, the order dated 11.05.2018 passed in C.C. No.325 of 2014 by the District Consumer Disputes Redressal Forum, Chennai (South) is confirmed in all other aspects.  Consequently, the Appeal is partly allowed.

 

 

S.M.LATHA MAHESWARI                                                                                                                 R.SUBBIAH

         MEMBER                                                                                                                                    PRESIDENT

 

 

Index :  Yes/ No

 

AVR/SCDRC/Chennai/Orders/February /2022