ORDER

(Per: Mrs. Veena Sharma, Member):

This is complainant’s appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 27.09.2008 passed by the District Forum, Uttarkashi in consumer complaint No. 92 of 2006.  By the order impugned, the District Forum has dismissed the consumer complaint.

2.       In brief, facts are that the complainant Smt. Gayatri Gumbar had purchased land for making her house at Mauja Joshiyada Patti, Baragaddi at Nehru Parvatarohan Sansthan Marg.  She took home loan from SBI, Uttarkashi and also withdrawn some amount from her PPF account to build a duplex.  The complainant got insured her house for a sum of Rs. 20.00 lacs from The New India Assurance Co. Ltd.-opposite party vide insurance policy No. 321902/11/04/00190, which was valid from 26.08.2004 to 25.08.2005 and EMI was regular deducted from State Bank of India, Uttarkashi against the complainant’s account.  The said insurance is comprehensive policy in which Earthquake, Flood & Fire is included, for which 1%, i.e. Rs. 200/- per month is paid by the complainant.  The said duplex/building had been partially damaged and cracks were also found due to Earthquake which occurred on 16.08.2005. After the Earthquake, complainant inspected her house and it was found that there were light cracks.  Therefore, the complainant did not inform the opposite party-insurance company about the damages.  Prior to the current incident previously in 2003 the insured building suffered damages due to heavy rainfall. The complainant contacted the insurance company and it was told by the surveyor of insurance company that the insurance company cannot pay the damages if the loss is less than Rs. 10,000/-.  On 16.08.2005, when the building suffered damages due to Earthquake, the complainant repaired the said damages on her own expenses, considering the damages were below Rs. 10,000/- and this incident was not reported to the insurance company. On 08.10.2005 another Earthquake was reported at 12:40 p.m. due to which the cracks occurred in the building on 16.08.2005 became wider.  After sustaining shocks from two Earthquakes, the building structure was intact, but due to heavy rainfall the water entered from the cracks and the situation got dangerous.  The complainant realized that the structure was not in a suitable condition to reside due to widening of cracks and, hence, the opposite party was informed about the situation of the building and the complainant also informed the District Magistrate and SHO of local Police Station in Uttarkashi.  The news about Earthquake was also published in national and local newspapers. The complainant informed the insurance company about the damages in form of written letters.  The opposite party raised objection that why the incident was intimated to the opposite party on 27.09.2005, which occurred on 16.08.2005.  The complainant replied the objection, raised by the opposite party, for which she sent a letter to the opposite party on 13.10.2005, but the opposite party never took it seriously.  The opposite party informed the complainant vide letter dated 31.03.2006 that they will not adhere the claim amount at all.  The building of the complainant was inspected by K.C. Kuriyal & Associates and the survey report, which was given by the above agency clearly shows that the building structure became unsuitable and unsafe due to tremors caused by Earthquake.  The report clearly states that the structure was unsafe and dangerous to live in and can be fatal to human life. As per the report of the K.C. Kuriyal & Associates, it was informed to the complainant that an amount of Rs. 5,08,300/- has to be incurred to repair the damaged building and this amount can be claimed from the insurance company, but the insurance company simply denied that they will not adhere the claim amount.  By denying the claim of the complainant, the insurance company has not provided the services that they agreed upon at the time of selling the insurance policy and committed deficiency in service on their part. 

3.       The insurance company-opposite party has accepted in its written statement that the complainant’s house was insured by the insurance company for a period from 26.08.2004 to 25.08.2005 for a sum of            Rs. 20.00 lacs.  The complainant had taken a loan of Rs. 7,50,000/- from the SBI, Uttarkashi on 23.06.2003 and as per one of the clause of the loan, the insured has to take home insurance, which will also act as a guarantee and save the interest of lender and it will also act as a security, that if anything happens to the structure of the building, then the said amount can be claimed from the insurance company.  The insurance policy covered any damages caused to respective structure due to Earthquake and Fire and the premium of this was duly paid Rs. 1,296/-  But the insurance company is claiming that the said building had not suffered any damage due to Earthquake. The complainant wrote a letter to the opposite party on 17.10.2005 and informed the opposite party about the damages, as suffered in the month of August and October.  The opposite party contended that the insured had failed to inform damages in time.  According to the opposite party no damages were reported in Uttarkashi and nearby places during that period due to Earthquake, when the complainant informed.   The complainant herself repaired the damages of her house without informing the opposite party.  At present the complainant’s house is in good condition.  No high density Earthquake was reported during that period when the complainant claimed the damages.  The complainant had not fulfill the formalities about the claim which can prove that the complainant’s house was damaged during the said period.  There is no proof that the complainant had intimated the District Magistrate or SHO of local Police Station and no certificate was provided by them for the above damages. According to the local administration, no loss was reported by Earthquake during that period.  So no certificate of any damage was given to the complainant. According to the insurance company if there were any damages during Earthquake, the complainant should have informed immediately to the opposite party, so it could be investigated by the opposite party in timely manner.  Just by publishing in the newspaper about the Earthquake, it does not prove that there were any damages in complainant’s house.  No reports were lodged by the complainant or any other person about the damages occurred through Earthquake. The complainant ha intimated the insurance company on 27.09.2005 after a period of long delay, while the incident occurred on 16.08.2005. According to the terms and conditions of the policy, the insured has to inform the insurance company within 15 days of the incident.  So the opposite party could not investigate the damages of the complainant’s house. The opposite party vide letter dated 27.09.2005 had asked the complainant about the FIR against the damages,  report of Geological Department and loss certificate, but the complainant did not complete the formalities.  Therefore, there is no deficiency in service on the part of the insurance company.

4.       The District Forum, on an appreciation of the facts and circumstances of the case, has dismissed the consumer complaint No. 92 of 2006 vide order dated 29.09.2008. Aggrieved by the said order, the complainant-appellant has filed the present appeal.

5.       We have heard learned counsel for the parties and perused the material placed on record.

6.       Learned counsel for the appellant-complainant has submitted before this Commission that the order passed by the District Forum, Uttarkashi is against the law, facts and merits of the case. The District Forum has failed to appreciate the evidence and records of the case.  The complainant had made the ground floor of her house in the year 1991 before taking the insurance policy.  It is false and frivolous that the complainant has not fulfill the formalities because the concerning bank/financier (SBI, Uttarkashi) has submitted all the documents to the surveyor of the insurance company.  The complainant’s house was insured by the insurance company-respondent vide insurance policy No. 321902/11/04/00190, which was valid from 26.08.2004 to 25.08.2005.  The complainant did not get any relief from the District Administration.  In the appeal, the appellant-complainant has stated that she had constructed the first floor of her house in the year 2003 after the loan was sanctioned.  Learned counsel for the appellant further stated that the appellant has not informed the opposite party for the damages of her house because the cracks, which occurred on first floor, were very light and she repaired them on her own cost. When rainy season started the appellant came to know that these cracks are dangerous, as the leakage had been started from the walls and roof.  Learned counsel further stated that the ground floor was built in the year 1991 and was insured for a sum of Rs. 7.00 lacs and after constructing the first floor, the house of the appellant was insured for a sum of Rs. 20.00 lacs. 

7.       On the other side, learned counsel for respondent has submitted before this Commission that the appellant’s house was not damaged due to Earthquake. The appellant has not informed the insurance company-respondent timely.  The appellant had repaired the damages of her house on her own cost and no intimation was given to the insurance company.  At present, the appellant’s house is in proper condition.  The appellant’s house was insured by the insurance company-respondent for a period from 26.08.2004 to 25.08.2005, while the date of incident is just 10 days before, i.e. 16.08.2005.  So the claim of the appellant was repudiated.  The appellant has not described about her previous policies.  Learned counsel has further pleaded that the insurance company-respondent had appointed the surveyor, but the appellant did not provide the required documents to the surveyor.

8.       There is no dispute with regard to the fact that the appellant had insured her house by the respondent-insurance company vide policy        No. 321902/11/04/00190, which was valid from 26.08.2004 to 25.08.2005 for a sum of Rs. 20.00 lacs upon payment of Rs. 1,296/- as premium. The main dispute in this case is that the house of the appellant was insured on the date of occurrence of Earthquake or not? And second question is that the appellant had informed the respondent in time or not?

9.       From the careful perusal of the vital documents namely affidavit of K.C. Kuriyal & Associates, insurance policies, FIR, investigation report etc.  It is evident that the appellant’s house was damaged due to Earthquake by a letter dated 27.09.2005 of the insurance company, which is reply of the appellant’s intimation letter, in which the respondent has asked some documents from the appellant about the incident (paper No. 62).  The report of the K.C. Kuriyal & Associates (paper Nos. 67 to 71), who is an Architect and Engineer, has been filed by the appellant, as per evidence.  In inspection report dated 03.11.2005, it is mentioned that the surveyor had surveyed the appellant’s house and estimated the cost of repair                 Rs. 5,08,300/-  and further stated that appellant’s house was damaged due to Earthquake. The building structure became unsafe due to tremors caused by the Earthquake. A letter dated 03.01.2006 of SBI, Uttarkashi is on record (paper No. 47) in which the Branch Manager has supplied all the documents related to the appellant’s loan and insurance policy to the investigator of the insurance company, but no rebuttal filed against these evidence.  A copy of FIR is also filed on record (paper Nos. 57 & 58) dated 30.08.2005 and 09.10.2005.  A report of Sh. R.K. Gupta, Surveyor & Loss Assessor Valuer and Investigator, who was appointed by the insurance company, has been filed on record (paper No. 59 to 61), but he did not file any survey report about the damages of insured house.  He only mentioned in the said report that he had investigated the damaged property on 11.11.2005 and asked some papers from the appellant of her property.  There is no survey report filed by the insurance company despite the documents provided by the appellant regarding the loss of property.  An affidavit of Sh. S.K. Suri, Branch Manager, The New India Assurance Co. Ltd. has been filed on record (paper No. 31).  In the said affidavit, he stated that during that time when the appellant claimed, no Earthquake was occurred and insurance company was informed very late.

10.     After the perusal of the documents & evidence filed by the parties, we are of the view that the insurance company-respondent claimed that they have not received any papers/documents related to the appellant’s loan and her property, but SBI, Uttarkashi provided all the necessary documents on 03.01.2006 to the investigator appointed by the insurance company.  There was no information sent to the Bank that the insurance company has not received the abovementioned documents. The insurance company-respondent claimed that the information about the damage was delayed from the concerned, but the appellant was not made aware of any terms and conditions related to delay when she bought insurance policy.  The insurance company claimed that the cracks in the building/appellant’s house were present before taking the insurance policy.  If it is true, then it should have been filed in the initial physical verification of the property before providing the insurance of the said building structure to the appellant, but there was no physical verification conducted by the insurance company.  This cannot be said true.  So it is evident that the insurance company-respondent is trying to manipulate and force their terms and conditions on the appellant by falsifying the true facts.

11.     The District Forum has not properly considered the facts and circumstances of the case and has erred in dismissing the consumer complaint per impugned order, which cannot legally be sustained and is liable to be set aside. As such, the appeal filed by the appellant-complainant is fit to be allowed.

12.     For the reasons aforesaid, the appeal is allowed.  The impugned order dated 27.09.2008 passed by the District Forum, Uttarkashi is set aside.  The insurance company-respondent is directed to pay Rs. 5,08,300/- as compensation, Rs. 10,000/- for mental agony and Rs. 5,000/- towards litigation expenses.  Cost of the appeal made easy.