BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.541 of 2015
New CC No.308 of 2018
(Remanded Back) 03.07.2018
Date of Inst. 24.12.2015
Date of Decision: 30.05.2022
Kewal Krishan son of Shri Nathu Ram, aged about 49 years, resident of House No.ES-412/2, Bajwa Street, Mohalla Makdumpura, Jalandhar.
..........Complainant
Versus
1. M/s ICICI Lombard General Insurance Company Ltd., Birla Towers, 5th Floor, 25, Barakhamba Road, New Delhi-110001, through its M.D/Director/Manager etc.
2. M/s ICICI Lombard General Insurance Company Ltd., (Registered Office) ICICI Bank Towers, Bandra Kurla Complex, Mumbai-400051, through its M.D/Director/Manager etc.
3. M/s ICICI Lombard General Insurance Company Ltd., Nirmal Complex, G.T. Road, Jalandhar through its Manager/Branch Head etc.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Sh. Jaswant Singh Dhillon (Member)
Present: Sh. APS Pathania, Adv Counsel for the Complainant. Sh. RK Sharma, Adv Counsel for the OP No.1 to 3.
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been remanded back by the Hon’ble State Commission, vide order dated 03.07.2018, whereby the order of this Forum dated 24.01.2018 had been set-aside and further, a direction was given to this Commission to give its observation with regard to adequacy of the compensation in view of the allegations leveled in the complaint and the report of the Loss Assessors and then to pass a fresh order in accordance with law.
2. Brief facts of the complaint are that the OPs are engaged in the business of providing services of Insurance throughout the territory of India for consideration to the General Public at large and also doing the business of insurance at Jalandhar and accordingly, the complainant get a home insurance policy from OP No.3, who is working under the OPs No.1 and 2, on the payment of premium amount of Rs.899/- with a sum insured of Rs.8 lakh with a cover of fire and special perils and earth quack for the period from 25.06.2007 to 24.06.2008. The OPs after taking due consideration of the proposal of the above said policy opted by the complainant, issued a policy No.4013/137724/00/000. Thereafter, due to the construction raised in the nearby locality by the DLF authorities under the site project name, “The Galleria Project Site” and some portion of the house of the building of the complainant was damaged and at that time, the DLF authorities negotiated with the Insurance Company and with the intervention an amount of Rs.5,50,000/- was given as compensation and damages caused to the building of the complainant in the month of November, 2007 and after receiving the said amount, the complainant immediately got repaired his house building in order to make it live worthy. The previous Home Insurance Policy, provided by the OPs was going to be expired on 24.06.2008. Thus, the complainant again got renewed the said policy on 20.06.2008 and in this regard, a policy No.4013/212048/00/000 was issued by the OPs on 25.06.2008 for the cover of fire and special perils, earth quack, to the tune of Rs.8 lakh by accepting the premium of Rs.899/- from the complainant. The said insurance policy was valid for the period from 24.06.2008 to 23.06.2009. On 27.06.2008, due to the heavy rain falling in the area of residence of the complainant in the flood like situation, the rainy water stormed into the house of the residents of the area including the house of the complainant and due to the above said reason, the building structure of the house of the complainant was badly damaged. This act of the God was sudden and caused heavy loss. Due to the said sudden floody situation of heavy rain, the cracks developed in the walls of the house, the floor was also damaged to such an extent that as per the building expert report, the entire portion, which was badly damaged was required to be reconstructed and for that purpose, the earlier walls of the specific portion were required to be removed and after removing the same, those structures were to be rebuilt for supporting the entire building of the house. The flooring was also required to be made a fresh in order to make the same as living worthy and for the safe residence of the complainant and his family in order to avoid any physical injury to its cohabitants. The above said fact was also published in the various Newspapers of the area, in which the name of the complainant was also mentioned in the Newspapers. Thereafter, the complainant immediately informed the OPs and apprised them about the damage caused by the heavy rain water in the nearby areas. The claim registration number was given as 280608394 by the OP to the complainant. Thereafter, the complainant also wrote a letter dated 26.08.2008 to the OPs for making the payment of the claim immediately in order to make his house live worthy, which were sent through courier and the same are attached herewith. But inspite of making any registration of the claim by the complainant, no immediate relief was provided by the OPs as assured by them at the time of giving the insurance to the complainant. In order to make it living worthy, the complainant somehow managed to get some repairs of his house in order to safeguard the life of the building construction and for the safety of the family of the complainant, but still the above said building of the complainant has developed big cracks in the floor as well as in the walls of the house and thus, it has become unsafe for human habitation. The photographs showing the loss and damage caused to the house of the complainant were also taken which are also attached herewith.
3. The OPs deputed its Surveyor to prepare the survey report about the loss caused to the building of the complainant. The said surveyor of the Insurance Company visited number of times to the house of the complainant, but instead of settling the entire insurance claim, the complainant received a letter dated 03.10.2008 from the OPs, wherein his claim has been repudiated and his file has been closed being No Claim. The complainant was told that the loss caused to the building of the complainant is not due to the insured perils and the same falls outside the purview of the policy. Thereafter, the complainant filed a consumer complaint before the District Forum and the same was earlier decided by the predecessor of this Forum that the above said claim requires to be adjudicated by the Civil Court and aggrieved by the said order, the complainant preferred an appeal before the Hon'ble State Commission and vide order dated 19.12.2014, it was ordered that the findings of the order passed by the District Forum that the OPs while rejecting the claim as no claim on the ground that the loss was not due to the insured peril and the same falls outside the preview of the policy and the said dictum of the District Forum was not challenged by the OPs and has attained finality. Thereafter, the State Commission further directed that as per the Insurance Act, the appointment of the Surveyor and Loss Assessor of more than Rs.20,000/- was necessary under the Insurance Act, which is mandatory provision and accordingly, the District Forum was directed to decide the matter a fresh and as per the findings of the Hon'ble State Commission, the predecessor of this Hon'ble Forum, vide order dated 17.04.2015, again directed the OPs to appoint the Surveyor and Loss Assessor to assess the loss of the house of the complainant and to settle the claim of the complainant, on the basis of the documents already given by the complainant to the insurance company or on the judicial file within 15 days and it was further directed to complete the entire process within 4 months from the date of receipt of the copy of order. Thus, the OPs appointed their surveyor and he started visiting the house of the complainant and as per his directions, the fresh experts opinion was obtained as due to rising prices, the reconstruction and renovation of the building expenses were to be incurred as per the latest market prices of the building material. Accordingly, the said Expert/Loss Assessor approached Sh. RK Verma, Government approved valuer, who assessed the loss for reconstruction not below an amount of Rs.15,29,200/-. The said surveyor was not satisfied with the said report and he again approached another expert M/s Vij Engineers and Enterprises and he assessed the loss of Rs.7,28,014/-, after deducting the depreciation amount. As a matter of fact, both these technical expert reports were again not accepted the OPs and did not make the payment of the insurance claim and after the above said period, they filed an application before District Forum for making the payment of Rs.3,25,000/- approx. for the said claim, which was very minimum and as per the loss of the surveyors in the said amount, the entire portion of the walls, floors, wooden work, which were badly damaged and requires reconstruction and renovation, the said amount is very meager and is not acceptable. However, the complainant made the statement before the Forum that the said amount was received by him under protest reserving his rights to agitate before the Forum again with regard to not making the entire payment of the claim. Under the above circumstance, the OPs have harassed the complainant for the last about 8 years and he has approached piller to the post and the OPs dilly dallied the matter on one pretext or the other, for the reasons best known to them. The OPs conduct is absolutely negligent, they are indulged in unfair trade practices and are rendering deficiency in services. The complainant has started believing that there is no use to take insurance cover from any insurance company under the law and to pay huge premiums regularly. The OPs have caused a great mental tension and agony to the complainant, which is clear cut deficiency in service on the part of the OPs, which gave cause to file the present complaint and accordingly, the instant complaint filed with the prayer that the complaint of the complainant may be accepted and the OPs be directed to pay the claim of the complainant for the loss and damages caused to the house of the complainant, to the tune of Rs.15.50 lakh and also to pay damages of Rs.1,00,000/- for causing mental tension, agony harassment and inconvenience to the complainant in the interest of justice, equity and fair play with cost throughout.
4. Notice of the complaint was given to the OPs, who appeared through their counsel and filed written reply, whereby contested the complaint by taking preliminary objections that the present complaint is not maintainable against the OPs in the circumstances, when the Hon'ble State Commission, Chandigarh, vide order dated 19.12.2014 in First Appeal No.911 of 2012 remanded back the complaint No.645 of 2008 to the District Forum, Jalandhar, for deciding the same in accordance with law and the District Forum, Jalandhar decided the same, vide order 17.04.2015 under the complaint No.645 of 2008/120 of 2015 and the OPs having complied with the directions of the District Forum, Jalandhar of dated 17.04.2015 by settling the claim and paying Rs.3,30,000/- to the complainant through District Forum, Jalandhar and as such, the complaint is liable to be dismissed. It is further averred that in compliance of order dated 17.04.2015, the Surveyor and loss Assessor namely Jasjeet Singh Hora and Co. was deputed to assess the loss, who submitted its report dated 27.07.2015, assessing the loss to the tune of Rs.3,30,000/-, after deducting depreciation as per rules and further estimated loss assessed by the M/s Vij Engineers Enterprises of Rs.4,47,000/- without deducting depreciation, has further been endorsed by the Surveyor and Loss Assessor namely Jasjeet Singh Hora & Co., vide its report dated 27.07.2015 and has deducted applicable depreciation. However, the valuation report of M/s Vij Engineers Enterprises dated 04.07.2015 showing depreciated cost of construction of Rs.7,28,014/- referred in the Survey Report of Jasjeet Singh Hora & Co. dated 27.07.2015 is with regard to total reconstruction of the house and not of the proposed area for reconstruction allegedly damaged due to rains, as such, the complainant has been adequately compensated as per loss assessed in compliance of the order dated 17.04.2015. It is further alleged that the complainant has not come to this Forum with clean hands rather he has concealed the material facts because the complainant has not explained the mode and proof of expenses of Rs.5,50,000/- on repairs of the house in November, 2007 and has filed this complaint in order to extract money from the OPs and therefore, the complaint is liable to be dismissed and further submitted that there is neither any negligence nor any deficiency in service and nor any unfair trade practice on the part of the OPs. The OPs in compliance of the order dated 17.04.2015 passed by District Forum, Jalandhar in complaint No.645 of 2008/120 of 2015, titled “Kewal Krishan Vs. ICICI Lombard Gen. Insurance. Co. Ltd.” have settled the claim and has paid Rs.3,30,000/- to the complainant through the District Forum, Jalandhar and as such the complaint is liable to be dismissed. On merits, the factum in regard to purchase of the insurance policy as well as submission of claim and repudiation of the claim of the complainant as well as appointment of the Surveyor is not denied by the OPs, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.
5. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavits of the complainant Ex.CA and Ex.CB alongwith documents Ex. C-1 to Ex.C-36 and closed the evidence.
6. In order to rebut the evidence of the complainant, counsel for the OP No.1 to 3 tendered into evidence report of the building damage loss survey report dated 27.07.2015 as Ex.O-1, Annexure-1 as Ex.O-2 and copy of estimate report dated 04.07.2017 of M/s Vij Engineers Enterprises as Ex.O-3 and also tendered affidavit of the Amandeep Singh, Manager Ex.OA and Insurance Policy Ex.O-4 and Payment Receipt Ex.O-5 and then closed the evidence.
7. We have heard the learned counsel for the respective parties and have also gone through the case file very minutely.
8. Perusal of the order passed by the Ld. Predecessor of this Commission dated 24.01.2018 shows that the Ld. Predecessor observed that earlier also the present complainant filed the complaint and as such, the second complaint is not maintainable. It is observed that the complainant has already taken the payment of claim amount of Rs.3,30,000/- from the OP and now the complainant has no right to reagitate the same again and again in the Forum. The complaint was dismissed. The complainant challenged the order by way of appeal before the Hon’ble State Consumer Disputes Redressal Commission, the Hon’ble State Commission observed that there are three different reports with regard to assessment of the loss to the insured party, but the Ld. District Commission did not decide the complaint with regard to adequacy of compensation and the complaint was remanded back to decide the adequacy of the compensation considering the reports already on the record.
9. It is not disputed rather it is admitted fact that due to construction raised in the nearby locality by the DLF authorities under the site project name, “The Galleria Project Site” some of the portion of the house of building of the complainant was damaged and after negotiation with the insurance company by the DLF authorities, the amount of Rs.5,50,000/- was given as a compensation and damages caused to the building of the complainant in the month of November, 2007. It is also not disputed that the complainant got renewed the policy, which was going to be lapsed on 24.06.2008. The insurance policy was valid for the period from 24.06.2008 to 23.06.2009. The complainant has alleged that on 27.06.2008 due to heavy rain falling in the area of the residence of the complainant in the flood like situation, the rainy water stormed into his house and the building structure of the house of the complainant was damaged. The reports of building expert, on the record, have been relied upon by the complainant.
10. The contention of the OP is that the complainant has not filed on record any document to show that he has utilized the amount of Rs.5,50,000/- taken from the insurance company with whom DLF authorities negotiated and he has also not produced on the record any document to show that the damaged portion was repaired after taking such money. His further contention is that the Surveyor has rightly assessed the loss to be Rs.3,30,000/-, which is with regard to damaged portion, whereas other reports are with regard to entire building, which has not been damaged. The adequate compensation is allegedly to have been given to the complainant.
11. Now to consider the case of the complainant regarding the loss and the contention of the OP as per directions of the Hon’ble State Commission, the reports on the record are to be considered.
12. Perusal of the record shows that the Surveyor appointed by the OP gave a report on 27.07.2015 and based is assessment on the valuation report given by M/s Vij Engineers & Enterprises dated 04.07.2015 Ex.C-3. He has assessed the loss, after deducting the depreciation, as Rs.3,30,000/-, which has already been paid. The report of Jasjeet Singh Hora, the Surveyor is Ex.C-1/O-1 and Ex.C-2/O-2. There are two reports of M/s Vij Engineers & Enterprises dated 04.07.2015, which are Ex.C-3/O-3 & Ex.C-13. This Surveyor was appointed by the complainant. There are three reports of M/s R. K. Verma & Associates dated 10.07.2008 Ex.C-10, dated 09.08.2010 Ex.C-11 and dated 19.06.2015 Ex.C-12. This surveyor was also appointed by the complainant. Now perusal of the report of M/s Vij Engineers & Enterprises Ex.C-3 shows that he gave a report on 04.07.2015 and discussed and assessed in detail the loss and the estimate cost of construction of proposed building after demolishing existing damaged structure above plinth level without deducting the depreciation. His another report Ex.C-13 of same date, which shows that he has mentioned in detail about the boundaries and ownership and other particulars of the building and at the end, he has simply mentioned the estimated cost of replacement of the residential portion and shop as Rs.9,77,200/- and after depreciation, it becomes Rs.7,28,014/-. He has not mentioned in this report how he assessed this cost of replacement of construction. He has further simply mentioned the depreciated cost of construction above plinth level at this stage. In his earlier report Ex.C-3, he mentioned in detail about the work to be done for the purpose of construction after demolishing existing damaged structure, but that detail is missing in his other report Ex.C-13 dated 04.07.2015. Both these reports of the same engineer are not the same and there is a difference of assessment of cost of construction. The third report is of R. K. Verma & Associates of different dates which are Ex.C-10 to Ex.C-12. His report Ex.C-10 is incomplete in which he has given the details of quantity, unit, rate and amount. In Ex.C-11, also after giving the detail of the work to be done in meters and the cost per meter and the measurement as per the material, the total cost of construction is Rs.7,08,479.91 and this report is dated 09.08.2010. His another report is dated 19.06.2015 Ex.C-12, which shows that the total assessment of loss has been assessed by him as Rs.15,29,200/-. Perusal of the detail of all these reports Ex.C-10 to Ex.C-12 show that there is difference of the quantity of the material to be used and the rate of the material per unit and the total amount. There is no explanation as to how this huge difference has come regarding the same property and same damaged portion. If for the sake of arguments, it is assumed that the rate of the material per unit has increased with the passage of time, but the quantity of the material to be applied for the renew of construction of the damaged portion must be the same, but in all these reports Ex.C-10 to Ex.C-12, there is huge difference of quantity to be used for the renew of construction as per his report.
13. Perusal of the report of the Surveyor appointed by the OPs Ex.C-1 and the report of M/s Vij Engineers & Enterprises, appointed by the complainant, Ex.C-3 shows that the quantity to be used for the reconstruction of the damaged structure to be carried at proposed shop cum residential building is exactly the same. Ex.C-1 has been given after deducting the depreciation of Rs.1,14,152.01 out of Rs.4,47,654.96. Similarly, as per the report Ex.C-3, the total loss assessed by M/s Vij Engineers & Enterprises is Rs.4,47,654.96 and rounded up Rs.4,47,000. This cost is without deducting the depreciation of the building as has been done in Ex.C-1 and Ex.C-2. The total covered area of the house is 700 square feet on ground floor as per Ex.C-3. No document has been filed on record by the complainant to show that the damage occurred after the excavation by DLF authorities in the month of November, 2007, was got repaired and now again same portion has been damaged due to excavation and rainy water despite the repair done by the complainant after taking the money from the insurance company. The loss assessed by the Sh. R. K. Verma & Associates in his two reports cannot be relied upon as apparently there is huge difference of quantity of the material to be used in the same damaged portion and thus, he has given totally different report and has assessed the double of the loss in the year 2015, so this cannot be relied upon. The loss assessed by both M/s Vij Engineers & Enterprises in Ex.C-3 and by Jasjeet Singh Hora in Ex.C-1 and Ex.C-3 is the same, quantity of material to be used is the same, rate per unit of the material is also the same and the loss assessed by both the surveyors is the same. The only difference is that in Ex.C-3 depreciation has not been deducted, whereas in Ex.C-1 and Ex.C2 the depreciation has been deducted and after deducting the depreciation, the loss as Rs.3,30,000/- has rightly been assessed and the compensation of Rs.3,30,000/- already given is adequate compensation. So, from all angles, we do not find any merits in the complaint of the complainant and as such, the complaint of the complainant is dismissed with no order of costs. Parties will bear their own costs. The complaint could not be decided within stipulated time frame due to rush of work.
14. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jaswant Singh Dhillon Jyotsna Dr. Harveen Bhardwaj
30.05.2022 Member Member President
