IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 30st day of September, 2021
Present: Sri. Manulal V.S. President
Smt. Bindhu R, Member
Sri. K.M. Anto, Member
C C No. 63/19 (filed on 03-05-2019)
Petitioner : Thankamma Jose,
W/o. Jose,
Palakkudiyil House,
Idamattom P.O.
Poovararani.
(Adv. Joseph T. John)
Vs.
Opposite Party : Manager,
National Insurance Company Ltd.
Cherupushpam Building,
Main Road, Pala,
Kottayam – 686 575.
(Adv. Benoy Jose Mathew)
O R D E R
Smt. Bindhu R, Member
This complaint is filed under Section 12 of the Consumer Protection Act 1986.
The complainant is working as a Post Master, whose house was insured for an amount of Rs.10 lakhs from 29-04-2014 to 28-04-2024 with the opposite party as per policy No.570601/11/14/3100000032. The policy covers Rs.9 lakhs for house and 1 lakh for the electrical and sanitary equipment of the house. 2018 flood affected the said house of the complainant and the tiles and the paint were ruined. The complainant applied to the opposite party for getting an amount of Rs.4,10,294/- for the reconstruction of the damaged house. Accordingly the opposite party sent a Surveyor to the site and after examination he submitted a report to the opposite party on 09-11-2018. In the said report the total estimated amount is Rs.68,310/-. In this68,310X9,00,000/15,12,000=44,661/- has been shown as the payable amount.
But this estimate is not correct. In the existing circumstances, Rs.2,05,070/- is required for the painting of the house and Rs.2,05,224/- is required for the repair works. The complainant has insured the house for a total amount of Rs.10 lakhs with the opposite party and the opposite party is bound to pay a claim within that limit. But the opposite party is not entitled to fix the claimable amount as per the report of its own survey. Complainant has submitted an estimate upon the existing market rate of the building material, the Surveyor has not stated that the amount estimated by the complainant is high. The Surveyor prepared the report upon mere technical documents. That is not maintainable under any law. The complainant is a consumer of the opposite party as she has paid a premium to the opposite party for taking the policy. Hence the complainant is entitled for realising Rs.4,10,294/- as per the insurance policy from the opposite party. Hence the complaint is filed for realising the amount of Rs.4,10,294/- from the opposite party along with Rs.25,000/- as compensation for the deficiency in service and litigation cost.
Upon notice from this Commission, opposite party appeared and filed version.
Contesting the complaint, the opposite party contented that residential building was insured from 29-04-2014 to 28-04-2024 for an amount of Rs.9 lakhs to the residential building and Rs.1 lakhs for electrical and sanitary equipment. As and when the opposite party received information regarding the damages sustained to the residential building of the complainant during the August, 2018 flood. Immediately they deputed a licensed Surveyor for inspecting and assessing the damages. However the complainant submitted an estimate and the same was highly exaggerated. The insurance Surveyor submitted his report assessing the total value as Rs.68,310/-. In understanding that the same was under insurance, proportionate amount was deducted and the liability of the opposite party was assessed at Rs.40,661/-. The opposite party promptly transferred the net liability assessed by the licensed Surveyor to the complainant’s account in due time.
The estimate of the complainant that the painting expenses would cause Rs.2,05,070/- and maintenance of the building was Rs.2,05,224/- is totally wrong. The respondent is liable to honour only the actual loss and is bound to meet the expenses of painting only to the extent of the damaged area. As per the insurance contract, the opposite party is liable to hounour the maintenance expenses of the damaged part alone. As per the terms of the insurance contract it is mutually agreed that company shall not be bound to reinstate exactly or completely but only as circumstances permit and in reasonably sufficient manner and in no case shall the company be bound to extend more in reinstatement that it would have cost to reinstate such property as it was at the time of occurrence of such loss or damage not more than the sum insured by the company thereon. The opposite party is liable to honour the damages based on applicable depreciation considering the date on which the building was constructed. Evenafter receipt of assessed damages in the bank account the petitioner did not perform her part of submitting actual bills and vouchers to the opposite party as per the insurance contract. The opposite party has reinstated the building to its original position and the contrary statements are false. At the time of availing the policy, the application of the complainant regarding the cost of the building and electrical and sanitary fittings were not correct and the actual cost of the building and sanitary fittings are much more than the declaration of the complainant. So the insurance policy availed will come under ‘Under Insurance’ category and so the respondent is entitled to deduct the proportionate percentage from the total claim assessed and the damages are assessed accordingly.
Petitioner’s claim was on the estimate based on the present value of the building materials and labour and the survey report prepared by a licensed surveyor is not a technological document as alleged.
The estimate submitted by the complainant is exaggerated and the complaint is devoid of truth which is liable to be dismissed. There is no cause of action against the respondent as alleged.
In the evidence part, the complainant adduced evidence through deposition and documents Pw1 to Pw3 were examined from the part of the complainant and Exts.A1 to A4 were produced. Opposite party filed proof affidavit along with Ext.B1 and B2.
On a detailed examination of the pleadings and the evidence on record, we frame the following issues
1. Whether there is any deficiency in service on the part of the opposite party?
2. Whether the complainant has suffered any damages thereby which is
compensable?
1. The complainant’s allegation is that he had insured his house for Rs.10,000,00/- with the opposite party and in 2018 Kerala flood, his house was damaged. He had claimed Rs. 4,10,294/- for the maintenance work of the house. But the insurance company relying on the surveyor report had gave only Rs. 40,661/- to the complainant as the said insurance policy was an under insurance.
2. The surveyor has produced a detailed report in which the assessment was
made under the clause of under insurance and the amount arrived is Rs.44,661/- .This amount was transferred to the complainant. According to the complainant this amount is not at all sufficient as he had paid the premium for years, the company was liable to compensate the loss covered by the policy.
3. Answering the above points, we consider the surveyor report first. The surveyor has stated in his report that there were several damages caused to the house of the complainant like damage to the floor, cracks in the walls, at many places paint was faded. There was mud over the floor.
So also we would consider the survey report Exhibit B2 in which the surveyor has not stated the evaluation process in which and he has omitted to calculate the actual price of the cement, sand etc. He himself has deposed that “knaâv, aWÂ, saä F¶nhbpsS hne Xn«-s¸-Sp-¯m-sX-bmWv CXv IW-¡m-¡n-bn-cn-¡p-¶-Xv. takvXn-cn-bpsS Iqen IW-¡p-Iq-«m-sX-bmWv CXv Xn«-s¸-Sp-¯n-bn-cn-¡p-¶-Xv.(Q) B Iqen- IqSn Iq«nbmWv Xn«-s¸-Sp-¯n-bn-cn-¡p-¶-Xv(A). The surveyor has not produced any document to support his assessment. The report itself is vague. The deposition of the DW1, the surveyor, he himself has stated that the amount calculated in Exibit B2 report is Rs. 75,900/- and it is not sufficient to complete the required work. “Xm¦Ä Cu B2  assess sNbvX 75,900/-þ cq]bv¡v B2  ]d-ªn-«pÅ \nÀ½m-W-{]-hÀ¯-\-§Ä sN¿n-¡m³ km[n-¡ptam? (Q) Cà (A)”.
From this itself it is evident that the surveyor has prepared the report without sufficient knowledge and confidence.
4. As far as an insurance claim is considered, the insurance company cannot solely rely on the surveyor report but has to take other evidences also in to consideration.
5. In New India Assurance Company Limited vs. Pradeep Kumar (2009) 7 SCC 787 the Hon’ble Supreme court held as hereunder: –
“15. The object of the aforesaid provision is that where the claim in respect of loss required to be paid by the insurer is Rs.20,000/- or more, the loss must first be assessed by an approved surveyor ( or loss assessor) before it is admitted for payment or settlement by the insurer. Proviso appended thereto, however, makes it clear that insurer may settle the claim for the loss suffered by insured at any amount or pay to the insured any amount different from the amount assessed by the approved surveyor (or loss assessor). In other words although the assessment of loss by the approved surveyor is a pre-requisite for payment or settlement of claim of twenty thousand rupees or more by insurer, but surveyor's report is not the last and final word. It is not that sacrosanct that it cannot be departed from; it is not conclusive. The approved surveyor’s report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured.”
6. The complainant has produced Exhibit A3, the estimate prepared by the
mason who conducted the masonry work. He has deposed as PW2 that
“Ext.A3  Af-hp-Isf Ipdn¨v -]-d-ªn-«n-Ã. F{X ssSep-IÄ¡v Cf¡w Dm-bn-cp-¶p F¶v t_m²y-s¸-«n-cp-¶pthm? (Q) t_m²y-s¸-«n-cp-¶p.(A) B hnhcw Cu statement  F´vsImv FgpXn tNÀ¯n-Ã. (Q) sam¯w ssSep-I-fn hnÅ Dm-bn-cp-¶p. Bbn-c¯n\m¶qän injvSw square feet tiles FSp-¯p.
Exhibit A4 was issued by PW3 and he has deposed that “Putty machine \v 1,500 cq] apX 3000 cq] hsc hne Dv. Fsâ I¿n Ccn-¡p¶ machine \v 3,800/- cq] hne Dv. cement primer \v liter \v 80 apX 130 cq] hsc hne Dv. shÅw-I-b-dn-bXv sImv IqSnb Emelsion hm§n-bmWv ASn-¨-Xv. ”.In A3,the amount to replace the tiles and the cost of sand, cement and metal are also clearly stated. The labour charge also is calculated clearly.
7. Another contention taken by the insurance company is that the policy is categorized as underinsurance. But it is the duty of the insurer to assess the value of the insured building with proper assessment. The Opposite party has failed to conduct a proper valuation of the insured building and so they cannot raise such a contention without producing any valid document to support this contention.
9. Thus from the pleadings and evidence it is evident that the surveyor report on
which the company relied on for considering the claim of the complainant become infructuous from the deposition of the surveyor and as per the settled position the surveyor report only cannot be the base of the approval or disapproval of a claim.
9. So the act of the opposite party company in giving an under estimated amount by receiving the premium just relying upon the survey report which itself was disowned by the same surveyor is found to be a deficiency in service on their part and the above issue no.1 is found in favour of the complainant. Hence the complaint is allowed. In Ext.A3 and A4, the area of work done has not been specified clearly. The rates quoted in the A3 and A4 seams exorbitant and they are not supported by any bills. Whereas in Ext.A1 the rates are too low and this also is not supported with any documents.
Issue no 2
The complainant though alleges that the insurance company is deficient in
rendering the service of honouring the claim amount to her, has failed to produce the bills of the completed work and other supporting documents assessing the damages through an expert. So the complainant has failed to adduce evidence to quantify the damages incurred to her. So we see the estimated amounts as per the Exhibits B3 and B4 are exorbitant. So point no 2 is partially favourable to the complainant.
On the basis of the above discussion, we order:
- The opposite party to give Rs.2,30,000/- towards the reconstruction of the
damaged house of the complainant.
2. The opposite party is directed to give a compensation of Rs.10,000/-to the
Complainant with cost Rs.2,500/-.
Order shall be complied with within a period of 30 days from the date of receipt of Order. If not complied as directed, the award amount will carry 9% interest from the date of Order till realization.
Pronounced in the Open Commission on this the 30th day of September, 2021
Smt. Bindhu R, Member Sd/-
Sri. Manulal V.S. President Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Witness from the side of complainant
Pw1 – Thankamma C.T.
Pw2 – Surendra Babu C.K.
Pw3 – Arun B. Marar
Witness from the side of opposite party
Dw1 – T.S. Biju
Exhibits marked from the side of complainant
A1 – Attested copy of policy NO.570601/11/14/3100000032
A2 – Copy of survey report dtd.09-11-18 by T.S. Biju
A3 – Copy of estimate by C.K. Surendra Banu
A4 – Copy of estimate by Arun B. Marar
Exhibits marked from the side of opposite party
B1 – Photocopy of policy issued by the opposite party for the period of
29-04-2014 to 28-04-2024
B2 – Survey report dtd.09-11-2018 and photos of house
By Order
Senior Superintendent
