IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Friday the 30th day of January, 2009
Filed on 23.08.06
Present
- Sri. Jimmy Korah (President)
- Sri. K. Anirudhan (Member)
- Smt. Shajitha Beevi (Member)
in
C.C.No.192/06
between
Complainant:- Opposite Parties:-
Sri.George Abraham Kottaviruthil, 1. M/s.New India Assurance Co.Ltd., Kottaviruthil House, Regd & Head Office, New India Edathua P.O. Edathua Village, Assurance Building, 87,
Presently Employed at P.O.Box No.3065, Mahatma Gandhi Road,
Safat-13031, Kuwait. Fort Bombay-400 001, (By Adv.George Mathew) Represented by its Branch Manager, At Alappuzha.
2. Branch Manager,
M/s New India Assurance Co.Ltd,
Salim Buildings, Near HPO,
M.C Road, Changanacherry.
(By Adv.C.Muraleedharan)
O R D E R
SRI.JIMMY KORAH (PRESIDENT)
The case of the complainant is as follows: - The complainant is represented by his power of attorney holder. The case of the complainant is that the complainant is the absolute owner of the 49cents of land, the residential building therein and a compound wall comprised in survey No.390/12 and No.390/l1A of the Edathua Village, Alappuzha. The complainant had availed a policy bearing No.1176010212411 of the 1st opposite party from the 2nd opposite party that covers the aforesaid assets from fire and other perils. When the policy was in force, consequent to heavy rain and resultant flood during the year 2004, the complainant's residential building and the compound wall sustained dreadful damage causing heavy loss for an amount of Rs.320000/-(Rupees three lacs twenty thousand only). On the basis of this policy, the complainant on December 2005 preferred a claim before the 2nd opposite party with all material documents. The said opposite party appointed a surveyor to inspect the building. The surveyor's conclusion was that flood in Kuttanadu is a common phenomena and developing crackers is a mere natural consequence. Thereafter, the complainant paid repeated visits to the office of the 2nd opposite party to make out the outcome of his claim application. On 13th February 2006, the complainant received a letter from the 2nd opposite party intimating the complainant that his claim was repudiated. The claim of the complainant was rejected for no valid reasons. Got aggrieved on this, the complainant approached this Forum seeking direction for payment of the claim amount and other relief.
1. On sending notice, opposite parties turned up and filed version. The opposite party contends that the complaint is unsustainable in every aspect. There is no deficiency of service. Instantaneously after the receipt of the complainant's claim, the opposite party appointed and engaged a surveyor to assess the cause and cost of the damage. As per the surveyor's report the damage was caused not due to heavy rain or any other like peril. The residential building of the opposite party sustained damage due to defective construction viz. inadequate foundation. That apart, there was no rain in the area in question in the month of October/November. Moreover, the cracking and other alleged damage are only usual phenomena in Kuttanadu, the opposite party asserts. The cost of the said damage if any is too meager. As per the terms and conditions of the insurance policy, the complainant is virtually disentitled to any of the relief sought for in the complaint. The complaint is only to be dismissed with compensatory cost to the opposite party.
2. On the side of the complainant, the power of attorney holder of the complainant was examined as PW1, and Exbts.A1to A5 were marked. On the side of the opposite parties, the manager was examined as RWl and the documents Exbts.B1 to B6 were marked.
3. Keeping in view the contentions advanced by the parties, the questions come up before us for consideration are:-
(a) Whether the damage sustained by the residential building of the complainant was caused by any rain or heavy flood?
(b) Whether, if any the complainant is entitled to the policy amount and other damages?
4. The issuance of insurance and its coverage during the material time have not been disputed by the opposite party. The crux of the contention of the opposite party is that the damage of the building cropped up not as an outcome of heavy rain or flood but as a result of defective construction. As soon as the complainant submitted the insurance claim with the opposite party, it appointed a qualified surveyor who at once inspected and investigated the basis and extent of the damage sustained to the building. The surveyor submitted the report. As per the same, the damage is not of alleged magnitude, but meager. That too the opposite party is not liable to pay for the reason that the alleged damage evolved absolutely from defective construction. On a closer scrutiny of the oral testimony and other materials on the record, it appears that even according to the opposite party, there were crack on the outer wall of the kitchen, a portion of stare case and the compound wall. The opposite party forcefully contends that the crakes were the consequence of inferior foundation which can be set right by lesser effort and smaller amount. To put it more clearly, the opposite party disputed the amount the complainant claimed to have spent for the revamp of his residence and the compound wall. Towards this a surveyor’s report was field. Merely filing the report of a surveyor cannot take the place of proof. Even the affidavit of the surveyor has not been filed in the present case. As such, there is no evidence worth the name to rebut the evidence placed by the complainant as to the amount he expended to correct the damage of his building. Thus, the complainant has not gone any single step to prove his case or disprove the other one the opposite party advanced. As the opposite party has not adduced any evidence to show that the complainant has not spent this much amount to get the building repaired, we have no other course open but to accept the version of the complainant that he has spent a sum of Rs.3,20,000 (Rupees three lacs twenty thousand only). The opposite party is liable to pay the said amount.
5. Concededly the complainant has submitted the claim with the opposite party. The opposite parties renounced the claim advanced by the complainant obviously on fragile and flimsy grounds. Rejecting the claim on untenable grounds, viewing from any angle will result in imperfection and inadequacy in the quality, nature and manner of performance of the service which the opposite party has undertaken to render. Apparently, this amounts to deficiency of service and resultant hardship to the complainant. It goes with out saying the complainant is entitled to compensation towards this point.
6. Resultantly, the opposite parties are directed to pay an amount of Rs.3,20,000/- (Rupees three lacs twenty thousand only) with 9% interest from the date of submitting claim application by the complainant before the opposite party. Towards compensation the complainant is entitled to an amount of Rs.10,000/-(Rupees ten thousand only). We are of the considered view that this will serve the purpose and the opposite parties are so directed. The complaint is allowed to the said extent.
For the forgoing discussion the complaint is allowed accordingly. No order as to cost.
Pronounced in open Forum on this the 30th day of January 2009.
Sd/-Sri. Jimmy Korah
Sd/-Sri. K. Anirudhan
Sd/-Smt. N. Shajitha Beevi
Appendix:-
Evidence of the complainant:-
PW1 - Shibu Zacharia (Witness)
PW2 - C.G.Gopinathan (Witness)
Ext. A1 - Letter from New India Assurance Company Limitd ,dated,
13.02.2006
Ext. A2 - Standard Fire & Special Perils Policy No.1176010212411 dated,
27.06.2001
Ext. A3 - Photocopy of the loss of reconstructions and estimates from the
Engineer
Ext. A4 - Receipt voucher from the New India Assurance Company Limited
dated, 27.06.2001
Ext. A5 - Power of Attorney dated, 09.05.2006
Evidence of the opposite parties:-
RW1 - Preetha.S (Witness)
Ext. B1 - True copy of policy and its conditions
Ext. B2 - Claim form submitted by the complainant
Ext. B3 - Survey Report with photographs
Ext. B4 - Letter of Dy.Secretary Non-Resident Keralite Affairs Department
Ext. B5 - Copy reply of the opposite party
Ext. B6 - Copy of repudiation letter
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite Parties/S.F.
Typed by:- k.x/-
Compared by:-
