KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD THIRUVANANTHAPURAM APPEAL NO.562/06 JUDGMENT DATED 10.2.2010 PRESENT JUSTICE SHRI.K.R.UDAYABHANU -- PRESIDENT SRI.M.K.ABDULLA SONA -- MEMBER The Branch Manager, New India Assurance Co.Ltd. Munnar, rep. by the Divisional Manager, New India Assurance Co.Ltd. -- APPELLANT Divisional Office, Thiruvananthapuram. (By Adv.Sreevaraham G.Satheesh) Vs. 1. Mariyakutty Paily, Kakkathjottathil House, Mannamkandam P.O, 200 Acres, Adimali, Idukki. 2. The Secretary, -- RESPONDENTS Devikulam Taluk Co-operative Agricultural and Rural Development Bank Ltd., Adimali P.O. (R2 by Adv.Preetha.N.V) JUDGMENT JUSTICE SHRI.K.R.UDAYABHANU,PRESIDENT The appellants are the first opposite party/Insurance Company in CC.7/06 in the file of CDRF, Idukki. The appellants are under orders to pay a sum of Rs.2 lakhs to the complainant. 2. The case of the complainant is that she availed a housing loan of Rs.2 lakhs to the 2nd opposite party, bank for the construction of a new house at an estimated cost of Rs.2 lakhs. The house was insured for Rs.2 lakhs, along with 25 other buildings. The premium was deducted by the 2nd opposite party bank. While under construction when it had completed up to the roof level on 11.7.05 it was destroyed by a lands lide. A surveyor visited the property on 10.10.05. The opposite party repudiated the claim. All the houses were insured while under construction. The complainant has sought the help for an engineer to assess the damages and he has assessed damages at Rs.2,15,000/-. The opposite party No.2 Bank is taking steps to recover the arrears of loan amount. 3. The first opposite party insurer has contended that the complainant has suppressed the fact that the building is under construction and obtained insurance policy as if the building is a pacca residential building. Hence on account of suppression of material facts, the opposite party is not liable to honour the policy. More over, the surveyor has assessed the loss at Rs.62,920/- 4. The second opposite party bank has filed version denying liability. 5. The evidence adduced consisted of the testimony of PW1, PW2, DW1, and Exts.P1 to P11 and R1 to R3. 6. At the outset it may be noted that the appellant has not produced the relevant proposal form. So also, the complainant has not produced the plan and estimate of the building. There is no evidence also with respect to the fact as to how much of the loan amount was released to the complainant. On an examination of Ext.P8 report of PW2 the engineer and Ext.R2 report of RW1 the surveyor, it is seen that the reports are conflicting. While the surveyor has not assessed the loss or the amounts to be incurred for removing the earth that sub merged part of the building in the lands lide, PW2, the engineer has reported as if the doors and windows are of the Anjali and Ventake. The surveyor has mentioned that the doors and windows are made of concrete. The photographs of the surveyor also show that the scaffolding is in position but a part of the building is submerged in earth to the lands lide. 7. The contention of the appellant that there was material suppression and that the subject of insurance was residential building in the sense fully constructed buildings cannot be upheld. We find that the policy issued ie.R1 is with respect to 26 houses and the sum assured is Rs.43,4000/-. It cannot be believed that the appellant incurred the risk of such a magnitude without verifying the buildings under construction. It is also to be noted that the policy was taken by the second opposite party bank to secure the loans advanced. Further as noted above in the absence of the proposal form it cannot be held that the complainant has suppressed material facts. In the light of the above circumstances, we find that the contention of the appellant that there is material suppression while taking the policy is liable to be rejected. 8. In view of the fact of the conflicting reports by the surveyor and the engineer and on perusal of the survey report and the estimate prepared by the PW2 the engineer we find that it would be reasonable to award a sum of Rs.1 lakh as compensation to be paid to the complainant. In the result, the appeal is allowed in part directing the appellant to pay a sum of Rs.1 lakh to the complainant with interest at 9% per annum from 9.1.06 the date complaint. The amount is to be paid within three months from the date of receipt of this order failing which the appellant would be liable to pay interest at 12% from the date of this order. Forward the LCR to the Forum. JUSTICE K.R.UDAYABHANU -- PRESIDENT M.K.ABDULLA SONA -- MEMBER | 
