IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Wednesday the 10th day of November, 2021.
Filed on 17-01-2020
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. Sholy.P.R, B.A, LLB (Member)
In
CC/No.17/2020
between
Complainant:- Opposite party:-
Sri.Abdul Kareem Manager, Micro office
Kadavil Puthenveedu United India Insurance Co. Ltd.
Mannar, Alappuzha Karuvelil Building, Parumalakadavu
(Adv.Sri.P.O.Jose) Mannar, Alappuzha
(Adv.Sri.Thomas Pulthakidy)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.12 of the Consumer Protection Act, 1986.
Material averments briefly stated are as follows:-
Complainant constructed a house in his property and insured the same with the opposite party vide standard fire and special permits policy for a period of 10 years ie from 11.06.2009 to 10.06.2019 for Rs.10 lakhs. The house underwent heavy damage during the flood occurred on August 2018. Complainant filed a claim petition for damages. A surveyor deputed by the opposite party inspected the house and informed that insurance is payable only for minor repairs and painting etc. Complainant engaged a licensed engineer to assess the damage and she prepared an estimate for Rs.12,40,000/-
2. On 12.10.18 complainant intimated the opposite party regarding he estimate prepared by the engineer and informed that the surveyor had not assessed damage properly. Opposite party as per letter dated 19.12.2018 informed the complainant that the insurance claim was processed for Rs.75,700/- and requested to produce consent letter otherwise it will be presumed as no claim. Hence on 28.12.18 complainant filed a consent letter before the opposite party. The sum of Rs.75,700/- was to be accepted as part payment of total estimate.
3. On 09.01.2019 opposite party through a letter informed the complainant that the claim can be settled only on full and final payment basis. It was unilaterally instructed to close the claim without reserving right to claim rest of the estimate amount. Complainant filed a petition before the Taluk legal services Authority, Chengannur on 14.01.19 and it was closed due to non appearance of the opposite party. Meanwhile complainant reconstructed the house.
4. On 15-10-2019 complainant sent a letter to the Regional Manager, grievance cell United India Insurance Co. Ltd. However there was no reply. There is deficiency of service on the part of opposite party. Hence the complaint is filed for realizing an amount of Rs.10,00,000/- as damage covered under insurance policy and for Rs.25,000/- as compensation for deficiency of service.
5. Opposite party filed a version mainly contenting as follows:-
The house was insured with the opposite party for 10 years for Rs.10,00,000/- in 2009. It is true that owing to flood some damages had been sustained to the building during 2018. But the allegation that the house underwent heavy damage is denied. The claim raised by the complainant on the basis of the estimate prepared by the engineer for Rs.12,40,000/- is exorbitant. The said licensed engineer prepared the estimate for demolishing the damaged portion and reconstruction of various parts. Such a demolition and reconstruction is not envisaged under the policy of insurance.
6. The IRDAI licensed surveyor and loss assessor estimated the amount as Rs.75,700/- and it was intimated to the complainant. Opposite party processed the claim for Rs.75,700/- as full and final settlement amount. On 28.12.18 the claimant submitted consent letter and received Rs.75,700/- as full and final settlement vide letter dated 09.01.19. There is no cause of action to file the complaint. There is no deficiency of service. Complainant is not a consumer to file a complaint before this Commission. As per the terms of the policy if any difference or dispute arises and to the quantum to be paid under this policy the matter is to be referred to the arbitrator and arbitration shall be conducted in accordance with the provisions of the Arbitration and Conciliation Act 1996. It is not done. Hence the complaint may be dismissed with cost.
7. On the above pleadings following points were raised for consideration:-
- Whether there is any deficiency of service on the part of the opposite party as alleged?
- Whether the complainant is entitled to realize an amount of Rs.10,00,000/- as damage covered under the insurance policy as prayed for ?
- Whether the complainant is entitled to realize an amount of Rs.25,000/-as compensation for deficiency of service?
- Reliefs and cost?
8. Evidence in this case consists of the oral evidence of PW1 and PW2 and Exts.A1 to A10 from the side of the complainant and the oral evidence of RW1 and Ext.B1 and B2 from the side of the opposite party.
9. Point Nos.1 to 3:-
PW1 is the power of attorney holder of the complainant. She filed an affidavit in tune with the complaint and marked Ext.A1 to A10.
10. PW2 is a B.Tech graduate and is A grade licensed engineer. She is having 4 years experience in civil field. Ext.A3 was prepared by her. Damage occurred to the house during the flood of August 2018. Damage occurred to the floor and there were cracks in the walls. Rs.75,700/- is insufficient to cure the defects.
11. RW1 is a licensed surveyor approved by a IRDAI having 25 years of experience. As directed by the insurance company on 14.09.18 he inspected the house and prepared Ext.B2 estimate. As per the estimate the amount required for repairs is Rs.75,700/-. Ext.B1 was marked by consent.
12. Complainant is the owner of house situated in Re. sy No. 650/88 of Kurattissery village, Mannar. He insured the same with opposite party for 10 years from 11/6/2009 to 10/6/2019 and the sum assured is Rs.10,00,000/-. The house got damaged during the flood occurred in August 2018. The matter was informed to the opposite party and a surveyor inspected the house and prepared a report. Mean while complainant engaged a licenced engineer and she assessed the damage as Rs.12,40,000/-. Opposite parties paid an amount of Rs. 75,700/- which was assessed by the surveyor. Dissatisfied with the amount the complaint is filed claiming an amount of Rs. 10,00,000/- as damage and Rs.25,000/- as compensation. Opposite party filed a version admitting the policy and they also admitted that the house sustained damage during the flood. However according to them the estimate prepared by the licenced engineer as Rs. 12,40,000/- is exorbitant. IRDA licenced surveyor deputed by them assessed damages as Rs. 75,700/- and it was paid to the complainant and voucher for full and final settlement was obtained on 9/1/2019. Hence according to them since they had already paid the amount assessed by the surveyor the complaint is only to be dismissed. Power of attorney holder of the complainant who is none other than his daughter was examined as PW1 and Ext.A1 to A10 series were marked. The engineer who prepared the estimate was examined as Pw2. The surveyor deputed by the opposite party was examined as RW1 and the survey report was marked as Ext.B2. The policy was marked as Ext.B1 by consent.
13. The fact that complainant insured the house for Rs. 10,00,000/- for a period of 10 years from 11/6/2009 to 10/6/2019 is admitted. It is also an admitted case that the house was damaged during the massive flood occurred in August 2018. Now the only dispute is with regard to the amount assessed by the surveyor and the amount assessed by the engineer appointed by the complainant. Ext.A3 is the detailed estimate for demolishing and reconstructing residential building of the complainant. In Ext.A3 there are 17 descriptions and the total estimate cost for ground floor is Rs.12,40,000/-. Ext.B2 is the survey report prepared by RW1 and the net loss assessed is Rs. 75,700/-. Now the only question to be looked into is whether Ext. A3 is to be accepted or Ext.B2 is to be accepted.
14. Ext.A3 was prepared by PW2 who is an A Grade licence engineer. She is a Btech Degree holder and having about 4 years experience in the civil field. The detailed estimate is seen given in Ext.A3 for each work. There are 17 descriptions and the amount required for each work is explained in detail. However in Ext.A3 the date on which it was prepared is conspicuously absent. Though the engineer was examined as PW2 none of the parties brought out in her evidence the date of preparation of Ext.A3. In cross examination PW2 admitted that the building requires reconstruction and Ext.A3 was prepared on the basis of assumptions. No scientific examination was done in the building. So it can be seen that Ext.A3 was prepared on an assumption that the building is to be reconstructed. Even in the heading of Ext.A3 shows that detailed estimate for demolishing and reconstructing residential building for the complainant. On a perusal of Ext.A2 (Ext.B1) the insurance coverage is to cure the damage occurred to the building and not for reconstruction. It is to be noted that the sum assured as per Ext.B1 policy is only Rs. 10,00,000/- whereas the amount prepared in Ext.A3 estimate is Rs.12,40,000/-.
15. Ext.B2 is the estimate prepared by RW1 who was deputed by the opposite party. He has assessed an amount of Rs.75,700/- for curing the defects. When examined as Rw1 the surveyor stated that he is a licenced surveyor approved by IRDA and is having experience of 29 years. He visited the property on 14/9/2018 and prepared Ext.B2 report and assessed the damage for Rs.75,700/-. Though RW1 was cross examined at length nothing was brought out to discredit his testimony except certain procedure irregularities. As discussed earlier there is vast difference between the amount shown in Ext.A3 and in Ext.B2. The total amount shown in Ext.A3 is Rs.12,40,000/- whereas the amount shown in Ext.B2 is Rs.75,700/-. On a comparison of Ext.A3 and Ext.B2 it appears that Ext.A3 was prepared as if to reconstruct the building. However it is noticed that the amount shown in Ext.B2 is on the lower side. For example the amount shown for painting is Rs.27,000/- in Ext.B2 calculating the plinth area as 900 sqft. Per contra the amount shown in Ext.A3 for white washing 2 coats over walls, ceiling etc complete is Rs.51,283.32/- and for painting 2 coats over walls, ceiling etc complete is Rs. 85,472.20/-. In Ext.B2 the amount is calculated for 900 sqft of plinth area. As a matter of fact the area will be much more because painting is to be done in the exterior wall and in the interior wall and it will depend upon the walls of the building. It cannot assumed the wall area of a building having 900 sqft of plith area. Since there is vast difference is seen in Ext.A3 and Ext.B2 some guess work is to be needed. It is also noticed that Ext.A3 was prepared without giving noticed to the opposite party. Since date is not available in Ext.A3 it is not known when it was prepared. The complainant ought to have filed a commission application before this Commission and prepared an assessment and it would have been better to arrive a just decision. However as discussed earlier Ext.A3 was prepared on an assumption that the building is to be demolished and reconstructed. Opposite party has no liability to award compensation for reconstruction and they can only provide amount for curing the defects. After comparing Ext.A3 and B2 we are of the opinion that Ext.A3 is the very much on the higher side whereas Ext.B2 is on the lower side. Hence amount cannot be awarded on the basis of both reports. However we are of the opinion that since Ext.B2 is on the lower side 100% increase can be given to the estimate covered by Ext.B2. It has come out in evidence that opposite party has already paid an amount of Rs.75,700/- to the complainant and he accepted the same under protest. So we are of the opinion that the same amount ie, Rs.75,700/- will be a reasonable amount required for reconstruction of the building. As stated earlier we cannot arrived the amount since the relevant datas are not available and this is done only on the basis of a guess work and comparing both the reports.
16. Complainant is seeking an amount of Rs.25,000/- as compensation for deficiency of service. However it is seen that Rs. 75,700/- assessed by the surveyor was given to the complainant by the opposite party. We cannot expect the opposite party to pay the entire amount as demanded by the complainant on the strength of Ext.A3 report. In said circumstances we are of the opinion that complainant is not entitled for any compensation since there was no deficiency of service. These points are found accordingly.
17. Point No.4:-
In the result complaint is allowed in part.
A) Complainant is allowed to realize an amount of Rs.75,700/-(Rupees seventy five thousand and seven hundred only) along with interest @ of 9% per annum from the date of order ie, 10/11/2021 till realization from the opposite party.
B) Complainant is allowed to realize an amount of Rs. 2000/-(Rupees Two thousand only) as cost from the opposite party.
The order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 10th day of November, 2021.
Sd/-Sri.S.Santhosh Kumar(President)
Sd/- Smt. Sholy.P.R (Member)
Appendix:-Evidence of the complainant:-
PW1 - Nasrina Kareem (PA Holder)
PW2 - Anjali.K(Witness)
Ext.A1 - Special Power of Attorney
Ext.A2 - Copy of Policy
Ext.A3 - Copy of Detailed Estimate prepared by Anjali.K
Ext.A4 - Copy of Letter
Ext.A5 - Copy of Letter dtd. 19/12/2018
Ext.A6 - Copy of Consent Form
Ext.A7 - Copy of Letter dtd. 9/1/2019
Ext.A8 - Copy of complaint before Legal Services Authority
Ext.A9 - Copy of Letter dtd. 15/10/2019
Ext.A10 - Photographs
Evidence of the opposite parties:-
RW1 - Jose K.Thomas (Surveyor)
Ext.B1 - Copy of Policy
Ext.B2 - Survey Repot, Bill & Photographs
///True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
