IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM

Dated this the 30^th day of April, 2022

Present:  Sri. Manulal V.S. President

        Smt. Bindhu R. Member       

C C No. 124/2018 (filed on 23-06-2018)

Petitioner                                 :   Kunju Moideen,

                                                    S/o Kunju Muhammad,

                                                    Veloopparambil House,

                                                     Erattupetta P.O., Kottayam – 686121.

                                                       (Adv.T.R Santhosh and Adv.Jobin Mathew)

                                                                   Vs.                                                             

Opposite parties                      :   1)  National Insurance Co. Ltd.,

                                                          Pala, PB No.47 Pala P.O., PIN-686575

                                                          Rep. by its Branch Manager.

                                                                                                (Adv. P.C. Chacko)

                                                     2) District Cooperative Bank,

                                                          Kottayam,

                                                          Erattupetta Branch,

                                                          Erattupetta P.O., PIN – 686121

                                                          Rep. by its Branch Manager. 

                                                          (Adv. Jose Joseph K.)

                                                          O  R  D  E  R

Smt. Bindhu R. Member     

The case is filed under Section -35 of the Consumer Protection Act 2019.

The complainant has constructed a house for the total cost of Rs.8,00,000/- by availing a loan from the Kottayam district co operative bank, Erattupetta Branch which was being repaid in instalments. The complainant had insured the building with the 1^st opposite party for 18 Lakhs and the premium amount Rs.8,934/- was being paid regularly. The residential building and the electrical fittings were covered under the insurance as per the policy from 21.01.12 to 20.01.2032. While so, on 09.03.2017 the eastern side of the house, railings and the compound wall subsided exposing the foundation of the building. The building was cracked on several parts causing it not usable for residence. The complainant had to shift from the house for 5 months for the safety of his and his family’s life.

The landslide caused big damage to the house building and huge loss to the complainant. A detailed estimate was prepared by an authorised building consultant and submitted to the 1^st opposite party. The loss was calculated as Rs.8,30,000/- (Rupees Eight Lakhs Thirty Thousand ). The opposite party is bound to indemnify the loss occurred through the landslide of the complainant’s house as per the policy conditions. The complainant has submitted a claim of Rs.8,30,000/- and a surveyor was deputed by the opposite party . The surveyor who visited the complainant’s house intimated the complainant on 10.06.2017 that retaining wall was not included in the policy. Thereafter the 1^st opposite party also informed the complainant that as the retaining wall was not included in the policy coverage the claim was repudiated.  The complainant had to take another loan of about 10lakhs for rectifying the damages occurred to the house for making it residential.  If the opposite party had given the compensation amount as per the policy on time, the complainant could have done the said work without any other financial liability. So the repudiation of the policy without any valid reasons is a deficiency on the part of the 1^st opposite party which is to be compensated and hence this case is filed.

The opposite parties appeared on receipt of notice and filed version separately.

The 1^st opposite party has averred in the version that the policy is admitted but the allegation that the building, basement, foundation, compound wall with gate are all included and covered by the policy is incorrect. The policy coverage was not on the basis of the estimate or plan as alleged. The retaining wall, the compound wall or the gate was not insured by this opposite party as alleged. No insurance for retaining wall was sought for by the insured. The retaining wall was of poor quality and workmanship and the plot was lying in a substantial steep terrain. It was reported that the retaining wall on the left side of the complainant’s house has collapsed on 09.03.2017 at about 5 PM causing damage to the wall of the building. There was no occurrence of any natural calamities like earthquake, lightening, thunder, flood, rain storm etc. during the reported day of incident for causing destruction/damage to the retaining wall. If such an incident occurred, it would have been affected to the building instead of the retaining wall. The damage to the retaining wall happened because of the defects in construction.

 The Surveyor appointed by the 1^st opposite party visited the premises in the presence of the complainant and after inspection reported that the damage caused to the compound wall was not due to any insured peril but due to defect in the construction and thus the insurer is not liable for any loss claimed by the complainant.  However as a matter of procedure he has assessed the damage of the building to the tune of Rs.10.035/-. Since the claim was not payable the complainant is not entitled for any amount assessed by the surveyor. The policy does not cover compound wall, retaining wall or gate.

The foundation and the building have not settled down. The hairline cracks on the 2 sites of the wall of the building has occurred only due to the defective construction and poor workmanship of the retaining wall alone. There was no land slide and consequential damages but only damages due to defective construction which is excluded under clause VIII (d), the loss destruction or damage directly caused due to defective design or workmanship or use of defective materials. In addition to the surveyor report, a chartered engineer, an approved valuer also visited the place and based on both the reports the 1^st opposite party rightly repudiated the claim of the complainant and there is no deficiency of service on the part of the opposite party. 

The 2^nd opposite party filed version contending that it was not a necessary party to the complaint. It is admitted that the complainant had availed a loan of Rs.8, 00,000/- the repayment of which was defaulted and Rs. 8, 56,663/- was due to the 2^nd opposite party from the complainant. The 2^nd opposite party is aware that there was an insurance policy but unaware about the terms and conditions of the same. The complainant has not sustained any loss or damage due to any act on the part of the 2^nd opposite party and hence the complaint is liable to be dismissed. 

The complainant adduced evidence as PW1 and through exhibits A1 to A6.  The opposite party adduced evidence through exhibits B1 to B5.

We have given a thoughtful consideration to the pleadings and evidence on record and frame the following issues:

1. Whether there is deficiency in service on the part of the opposite party?
2. If so what are the reliefs?

.............

Point no 1and 2

The complainant alleges that his house which is insured with the 1^st opposite party has got damages because of the subsidence of land and retaining wall causing loss to him which would have been compensated by the 1^st opposite party. But the 1^st opposite party strongly contested that the retaining wall is not covered under the policy and that too the construction of the wall is of substandard workmanship.

The Exhibit B5 and A6 is the repudiation letter in which the policy claim was rejected for the reason that “retaining wall was not covered under the policy”

Exhibit B2 is the policy certificate in which the description of risk is described as residential building and F&F and electrical fittings only. In Exhibit B1, the claim form submitted by the complainant the reason for damage is shown as the damaged retaining wall. So from B1 document it is seen that the reason for loss is caused because of a reason not covered under the policy. 

Exhibit B4  is the report of a chartered engineer and approved valuer in which it is reported that the construction of the retaining wall is of poor quality and workmanship and that is the reason for the damages of both the retaining wall and the building.

Exhibit B3 and B3(a) is the report of the surveyor in which it is categorically stated that the retaining wall which was built in a substandard quality got damaged by itself without any earthquake, land sliding etc. There is no evidence got from the locality to prove such kind of incidents on the day of occurrence.

The complainant has produced documents but there is no documentary or oral evidence to prove that there occurred any land subsidence or land sliding causing the alleged damages to the house. He himself has submitted the claim form stating that the retaining wall was damaged. 

Again if the retaining wall is considered as under the coverage, clause VIII (d) of Exhibit B2 Policy conditions:

Loss destruction or damage directly caused by subsidence of part of the site on which the property stands or land slide / rock slide excluding.

1. The normal cracking, settlement or bedding down of new structures
2. The settlement or movement of made up ground
3. Coastal or river erosion.
4. Defective design or workmanship or use of defective materials
5. Demolition, construction, structural alteration or repair of any property or groundwork or excavations.

So also the claim of the complainant is clearly excluded and cannot be approved by the 1^st opposite party, as per the sub clause (d) supra according to B3 and B4 reports. 

So on the evaluation of the evidence on record, we are constrained to find the points in favour of the opposite party and in the absent of cogent evidence to prove the case of the complainant, we find no deficiency in service on the part of the opposite party and hence the complaint is dismissed.

Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Commission on this the                                                                     30^th day of   April, 2022.

Smt. Bindhu R. Member                 Sd/-

Sri. Manulal V.S. President                      Sd/-

Appendix

Sworn Statement from the side of Complainant

PW1- Kunjumoideen V.K.

Exhibits marked from the side of complainant

A1 –Photocopy of the Plan of the complainant’s house (Subject to object)

A2- Estimate of the building (Subject to object)

A3- Insurance Policy No.570601 issued by 1^st opposite party

A4- Copy of the Standard Fire and Special Perils Policy issued by I^st OP

A5- Copy of the reply from the Surveyor dated 10.06.2017

A6- Copy of the reply notice from the I^st OP dated 08.12.2017

Exhibits marked from the side of opposite party

B1- Fire Claim Form submitted by the complainant

B2- The certified true copy of the policy and its conditions

B3- The survey report issued by the surveyor dated 01.10.2017

B3(a)- Series-Photographs (13Nos)

B4- Technical Report submitted by the technical expert

B5- Copy of the repudiation letter dated 08.12.2017

                                                                                           By Order

                                                                                  Assistant Registrar