DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA(PUNJAB)<br /> <br /> C.C.No.337 of 21.11.2007<br /> Decided on : 27.5.2008 <br /> <br /> 1. M/s. Star Resorts, Bye Pass Road, Rampura Phul, District Bathinda through its Partner Kulwinder Singh S/o Malkiat Singh R/o Rampura Phul, District Bathinda.<br /> 2. Kulwinder Singh S/o Sh. Malkiat Singh, Partner M/s. Star Resorts, Bye Pass Road, Rampura Phul, Tehsil Phul, District Bathinda.<br /> .... Complainants<br /> Versus<br /> <br /> 1.Reliance General Insurance; Anil Dhirubhai Ambani Group, Regional Office, SCO Nos.212-214, Sector 34-A, Chandigarh through its Regional Manager.<br /> 2.Branch Manager, The Reliance General Insurance; Anil Dhirubhai Ambani Group, 3rd Floor, Surya Towers, The Mall, Ludhiana.<br /> ..... Opposite parties<br /> <br /> Complaint Under Section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM:-<br /> Sh. Lakhbir Singh, President<br /> Dr. Phulinder Preet, Member<br /> <br /> For the complainants : Sh. K.K. Vinocha, Advocate<br /> For the opposite parties : Sh. Sunder Gupta,Advocate<br /> <br /> O R D E R. <br /> <br /> LAKHBIR SINGH, PRESIDENT:- <br /> 1. This complaint under section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as the Act) has been preferred by the complainants seeking direction from this Forum to the opposite parties to pay them Rs.7,01,000/- as net loss to the insured building assessed by Mr. Atul Gupta vide his report dated 6.9.2007; Rs.15,875/- paid to Sh. Atul Gupta as inspection/assessment fee and miscellaneous charges and Rs. 5,00,000/- as compensation/damages on account of financial loss due to non payment of the loss in time, causing mental tension, agony and harassment.<br /> 2. Version of the complainants as emanates from the complaint itself leading to its filling may be epitomized as under :- <br /> Complainant No. 2 and his father Malkiat Singh are the only parters of M/s. Star Resorts, Bye Pass Road, Rampura Phul, District Bathinda having equal shares in it. They had purchased an insurance policy in the name of complainant No. 1 bearing policy No. 20013626162200004 having validity from 30.12.2006 to 29.12.2007 covering a sum of Rs.34,00,000/- on entire building above plinth level at their location apart from other coverages against insurance premium of Rs.5,594/-. Insurance cover was issued at the time of purchasing the policy. Complete policy alongwith its terms and conditions has not been supplied till date. During the validity period of insurance, part of POP ceiling of the insured premises/Hall had suddenly fallen down from corner side on 14.4.2007 while remaining part was damaged. Claim was lodged with the opposite parties intimating approximate loss of Rs.6,00,000/-. On its basis, opposite parties appointed Mr. Parmod Mittal of M/s. Mittal Surveyors Pvt. Ltd. as Surveyor & Loss Assessor. Resort was visited by him. Signatures of Kulwinder Singh were obtained on various blank forms, papers and vouchers etc. They were signed by him in good faith and under the belief that the same were formalities for assessment and payment of the claim. Apart from this, Mr. Mittal dictated a letter/statement in the handwriting of Kulwinder Singh. It was written by him in good faith and under the belief that original intimation letter regarding loss may be short to the procedure for getting the claim. Otherwise also, he (Kulwinder Singh) is not fully conversant with English language and its meaning as he is not much educated. After inspection of the Resort by Mr. Mittal, they got checked the Resort from Civil Engineer Parminder Singh Grewal of Rumi Architects and Consultants, Rampura Phul. Loss was assessed by him to the tune of Rs.8,88,000/-. It was certified by him that it was due to Earthquake which hit North India on 3.4.2007. Previously, they (complainants) were not aware of the real cause of loss i.e. Earthquake. Enquiries were made by them about Earthquake. On searching various newspapers of those dates,they came to know about the same. Accordingly, they made representation dated 7.5.2007 through registered post informing the opposite parties about the reality and sent various documents in support of it. Vide their letter dated 9.5.2007, opposite parties repudiated the claim mainly on the ground that damage occurred to the building/POP is not due to any storm or Earthquake and it is due to passage of time and further it does not fall within the perils of the policy. They, through representation dated 13.7.2007, requested Er. Atul Gupta Approved & Licensed Engineer, Valuer, Technical Expert, Surveyor & Loss Assessor, Bathinda to inspect the insured building and assess the loss who after inspecting the entire insured building and making necessary investigations vide his report dated 6.9.2007 opined that the loss to the insured building is due to Earthquake and not due to wear and tear of POP. He, after decreasing the value of salvage of the damaged material assessed Rs.7,01,000/- as net loss to the insured premises. They (complainants) assail the repudiation as illegal,null and void, against law and facts and principles of equity on the ground that insured did not take into consideration any documents submitted by them and sent to them vide registered A.D post on 7.5.2007 before repudiating the claim. Insurer neither at its own independent level nor its surveyor got inspected the loss from qualified Civil Engineer who was/is only competent to declare the cause of loss. Reports and certificates of Er. Parminder Singh Grewal have been illegally, wrongfully and against law and facts ignored. Insured has ignored the fact as to when the insured building and POP were got constructed/done and what was/is its age. Infact, the work was about five years old only and Er. Atul Gupta has opined vide his report dated 6.9.2007 that loss has occurred due to Earthquake and not due to wear and tear of POP etc. Earthquake vibrations often make strength of such type of construction weak and ultimately building collapses. At the time of initial intimation regarding loss, they were not aware of the real cause of loss i.e. Earthquake or due to vibrations caused by it. Opposite parties cannot take benefit of their (complainants) ignorance. Repudiation of the claim is based upon mere conjectures, surmises and suppositions. Legal notice was got issued by them through their counsel Mr. K.K. Vinocha through registered post. Opposite parties did not give its reply.<br /> 3. On being put to notice,opposite parties filed their version taking legal objections that complainant No. 1 is an unregistered partnership concern and on that account, complaint cannot be filed in any court as per Section 69 of the Indian Partnership Act; this Forum has got no territorial jurisdiction to entertain and try the complaint as they have no office within its territorial jurisdiction; complainants have no privity of contact with them and insurance policy was obtained for commercial purposes. Complainants were carrying on commercial activities and as such, they are not consumers and complaint is false and frivolous. They admit that insured had obtained insurance policy effective from 30.12.2006 to 29.12.2007 for covering a sum insured of Rs.34,00,000/-. Policy only covers risk of firm and allied perils, storm or earthquake, chairs worth Rs.4,00,000/- and Crockery worth Rs.2,00,000/-. It does not cover any loss to the insured building which occurs due to wear and tear etc. Terms and conditions of the policy were supplied to the complainants. They admit that some part of the POP ceiling of the insured premises(Hall) had suddenly fallen down on 14.4.2007 and intimation was given to them. After receipt of the intimation, Sh. Parmod Mittal of M/s. Mittal Surveyors Pvt. Ltd. was deputed to inspect the spot and assess the loss who after verifying the spot had assessed net loss to the tune of Rs. 3,93,265/- as per his survey report dated 23.4.2007. Kulwinder Singh had himself made statement on 14.4.2007 of his free will and without any coercion to the effect that there was no earthquake or storm in the area on the date of loss. It means that loss was due to its own weight and due to wear and tear. He had appended his signatures on the statement in English of his own accord. No loss has been got assessed by the complainant from any authorised person after giving notice. Alleged loss has been got assessed from Er. Parminder Singh Grewal at their back. The loss assessed by him is exorbitant. Complainant states that earthquake had hit North India on 3.4.2007. No earthquake had occurred on 14.4.2007. No loss was reported on 3.4.2007. Similarly, alleged loss has been got assessed from Er. Atul Gupta at their back. Claim has been rightly repudiated vide letter dated 9.5.2007 after thorough investigation. They deny that repudiation is illegal, null and void on the grounds mentioned in the complaint. Although they are not liable to pay any amount, yet if this Forum comes to the conclusion that they are liable in any manner to pay the loss, then their liability is limited to Rs. 3,93,265/- as per report of Mr. Parmod Mittal. They do not admit the remaining averments in the complaint.<br /> 4. In support of their allegations and averments in the complaint, complainants have tendered into evidence affidavits (Ex.C.1 & Ex.C.32) of Kulwinder Singh complainant, affidavits (Ex.C.33 & Ex.C.34) of Er. Atul Gupta, photocopy of insurance cover note (Ex.C.2), photocopy of Schedule (Ex.C.3), photocopies of letters dated 14.4.2007, 7.5.2007, 9.5.2007, 23.4.2007 & 16.4.2007 (Ex.C.4, Ex.C.5, Ex.C.7, Ex.C.15 & Ex.C.20), photocopies of postal receipts (Ex.C.6 & Ex.C.9), photocopy of legal notice dated 31.10.2007 (Ex.C.8),copy of Inspection and loss assessment (Ex.C.10), photocopy of Commercial Care Policy containing pages 1 to 33 (Ex.C.11), photocopy of Annexure-III (Ex.C.12), photocopy of Schedule (Ex.C.13), photocopy of Claim Form Fire Insurance (Ex.C.14), photocopy of statement of Kulwinder Singh (Ex.C.16), photocopy of certificate (Ex.C.17), photocopy of Valuation Report (Ex.C.18), photocopy of report of Er. Parminder Singh Grewal (Ex.C.19), photocopy of ILA report (Ex.C.21), photocopy of one page of ledger (Ex.C.22), photocopies of photographs (Ex.C.23 to Ex.C.26), photocopy of Claim Form Fire Insurance (Ex.C.27)& photocopies of cuttings from the newspapers (Ex.C.28 to Ex.C.31). <br /> 5. On behalf of the opposite parties, reliance is placed on affidavits (Ex.R.1 & Ex.R.2) of S/Sh. Satyan Kapoor, Assistant Manager and Parmod Mittal, Surveyor respectively and photocopy of letter dated 9.5.2007 (Ex.R.3).<br /> 6. We have heard the learned counsel for the parties and gone through the record. Apart from this, we have considered written arguments submitted by the parties.<br /> 7. Some facts do not remain in dispute. They are that M/s. Star Resorts, Rampura Phul, District Bathinda had purchased insurance policy effective from 30.12.2006 to 29.12.2007. Copies of the cover note and schedule are Ex.C.2 & Ex.C.3 respectively covering sum insured as Rs.34,00,000/- on entire building above plinth level at the insured's location. On 14.4.2007, POP roof of the insured Hall had fallen down from a corner all of a sudden for which an intimation was sent to opposite party No.1 on 14.4.2007 and copy of the same is Ex.C.4. On its basis, opposite parties had deputed Mr. Parmod Mittal of M/s. Mittal Surveyors Pvt. Ltd. to survey and assess the loss. Site was inspected by him on 14.4.2007. He gave interim report, copy of which is Ex.C.21 and final survey report on 23.4.2007 copy of which is Ex.C.15 assessing net adjusted loss as Rs.3,93,265/-. Opposite parties repudiated the claim vide letter dated 9.5.2007, copy of which is Ex.C.7 and Ex.R.3. Its effective part is reproduced as under:- <br /> “Star Resorts<br /> By Pass Road, Rampura Phul,<br /> District Bathinda<br /> Dear Sir/s,<br /> Reg: Claim No 2001C07261600278 against Policy No.2001362616200004 Date of Loss 1.4.2007<br /> <br /> We would like to draw your attention to all our previous interactions with reference to the above claim. On scrutinizing the survey report submitted by our surveyor M/s. Mittal Surveyors Pvt. Ltd & documents submitted by you we observed that damages occurred to the building/POP ceiling is not due to any storm or Earthquake but by passage of time. We further draw your attention towards the operative clause of the policy, which is given below for your reference:<br /> Operative Clause:<br /> The Company hereby agrees, subject to the terms, conditions and exclusions herein contained or endorsed or otherwise expressed hereon, to indemnify the Insured to the extent and in the manner specified herein, against any loss/damage to the property insured; injury sustained by any Insured person; liability incurred by the Insured due to operation of any of the insured perils as hereinafter mentioned during the policy period.<br /> We would like to inform you that your loss does not fall within the perils of the above policy and would not be admissible under the scope of Policy No. 2001362616200004 issued to you.<br /> We therefore express our inability to proceed further with the claim and are treating this as Closed Claim.<br /> Thanking You<br /> Yours truly, <br /> Sd/-<br /> Authorised Signatory”<br /> 8. One of the objections taken by the opposite parties is that complainants are not consumers as the insurance policy was obtained for commercial purposes and complainants were carrying on commercial activities. Contention of the learned counsel for the opposite parties on this aspect of the matter, is not tenable. Matter has already been set at rest by the Hon'ble National Commission in the case of Harsolia Motors Vs. National Insurance Co. Ltd.-I(2005)CPJ-27(NC). When insurance policy is taken by a commercial unit, it does not mean that it takes the policy for commercial purpose. Commercial purpose means that goods purchased or services hired should be used in activity directly intended to generate profit which is the main aim of commercial purpose. Where goods purchased or services hired in activity which is directly not intended to generate profit, it would not be commercial purpose. Person who takes insurance policy to cover envisaged risk, not takes policy for commercial purpose. Policy is only for indemnification of actual loss and not intended to generate profit. In this case as well, complainant No. 1 may be doing commercial activities and running Marriage Palace, yet policy purchased by it from the opposite parties was only for indemnification of actual loss and not intended to generate profit. Apart from this, it is also worth mentioning that complainants have pleaded that they are earning their livelihood for themselves and their dependent family members from the earnings of the Resort. They have proved it with the affidavits of Kulwinder Singh which are Ex.C.1 & Ex.C.32. In these circumstances, complainants are certainly consumers of the opposite parties and complaint before this Forum is maintainable. <br /> 9. Mr. Gupta, learned counsel for the opposite parties argued that admittedly, insured is a partnership concern and complainants have not placed on record any document regarding its registration. It being so, complainants cannot file complaint against the opposite parties and as such it is complaint is liable to be dismissed in view of Section 69(2) of the Partnership Act. For this, reliance is placed on the authorities U.P State Sugar Corporation Ltd. Vs. Jain Construction Co. & Anr.-2004(4)RCR(Civil)248 and Thawariya Vs. Firm Rajesh Kumar Heera Lal-2007(5)RCR(Civil)532.<br /> 10. Mr. Vinocha, learned counsel for the complainants countered the arguments of the learned counsel for the opposite parties by submitting that these authorities relied upon by the opposite parties are not applicable in the case in hand and this complaint is maintainable under the Act.<br /> 11. Rival contentions have been considered by us. With utmost regard and humility to the authorities relied upon by the opposite parties, they are not applicable to this complaint case under the Act. It is worth mentioning that in the case of U.P State Sugar Corporation Ltd.(Supra), it was held that there cannot, however, be any doubt whatsoever that the firm must be registered at the time of institution of the suit and not later on. Similarly, in the case of Thawariya (Supra), it was held that complaint by an unregistered firm is not maintainable. Hence, it is clear that as have been observed in these authorities, suit by an unregistered firm is not maintainable under section 69(2) of the Partnership Act. The case in hand is a complaint under section 12 of the Act and not suit. In the case of Jagdish Rubber Mills Vs. State Bank of India-1997(1)CPC-107(Pb.), it was held that Act (Consumer Protection Act)is a code in itself and the provisions of partnership Act even to the contrary cannot be attracted. When it is so, this complaint is maintainable. <br /> 12. Mr. Vinocha, learned counsel for the complainants vociferously argued that complete policy alongwith its terms and conditions was not supplied to complainant No.1. Only cover note and schedule copies of which are Ex.C.2 & Ex.C.3 were furnished. Terms and conditions, copy of which is Ex.C.11, was not a part of originals of Ex.C.2 & Ex.C.3. Moreover, there is no evidence that they were supplied. Policy with terms and conditions have been got produced alongwith other documents by the complainants from the opposite parties. In these circumstances, complainants cannot be held bound by the terms and conditions. For this, reliance is placed on the authorities M/s. Modern Insulators Ltd. Vs. Oriental Insurance Co. ltd.-I(2000)CPJ-1(SC) and Subhash Agrawal Vs. oriental Insurance Co. Ltd.-2006(2)JRC-437.<br /> 13. Mr. Gupta, learned counsel for opposite parties argued that policy with terms and conditions was supplied to the insured. Moreover, complainant himself is relying upon the copy of the terms and conditions which is Ex.C.11.<br /> 14. After giving our thoughtful consideration to these respective contentions, we do not feel ourselves inclined to agree with the learned counsel for the complainants in the facts and circumstances of this case. Claim has been repudiated by the opposite parties on the ground that damage occurred to the building/POP was not due to any storm or earthquake but by passage of time. Complainants admit the receipt of insurance cover note and the schedule. In the schedule, there are special conditions. Special conditions as per standard policy terms are fire and allied perils which are covered. Apart from this, earthquake (Fire & Shock) is also covered. Even if it is taken that copy of Ex.C.11 was not supplied to the insured, even then insured was aware as to what is covered by the perils. What is required to be adjudicated is as to whether damage to the building/POP ceiling was due to earthquake or not. As mentioned above, complainants themselves are relying upon the terms and conditions. When they themselves admit the terms and conditions by way of producing and proving them in their evidence, it means that they admit the facts contained in them. For this, we get support from the observations of their Lordships of the Hon'ble Supreme Court in the case of Sitaram Motilal Kalal Vs. Santanuprasad Jaishanker Bhati-AIR-1966 Supreme Court 1697. Accordingly, complainants cannot say that they are not bound by the terms and conditions of the policy.<br /> 15. Claim has been repudiated vide letter dated 9.5.2007 which has been reproduced above. Repudiation of the claim is mainly on the basis of report of Surveyor i.e. M/s. Mittal Surveyors Pvt. Ltd. Mr. Parmod Mittal had submitted interim report dated 16.4.2007, copy of which is Ex.C.21, stating that POP ceiling of one corner of about 35'x30' had fallen down with its steel fitting and mash work. Electric fittings in the ceiling were also damaged. Cracks had appeared at number of places. He further observed that whole of the POP ceiling requires replacement as it is very risky to function under it. Accordingly, loss expected was of about Rs.6,00,000/-. At the time of inspection of the site on 14.4.2007, complainant Kulwinder Singh had made statement copy of which is Ex.C.16 in which it has been recorded that there was no earthquake or storm in the area. Final survey report was submitted by M/s. Mittal Surveyors Pvt. Ltd. On 23.4.2007 copy of which is Ex.C.15. Regarding cause of loss, observations of the Surveyor are as under :-<br /> “The cause of falling down of POP ceiling from one corner was discussed with the insured. He could not explain anything about the cause of loss. In his written statement he has stated that there was no Storm or Earth Quake in the area. As per our knowledge also no Storm or such like natural perils covered in the insurance policy has taken place in the area due to which the ceiling has fallen down.<br /> It appears that the ceiling fell down due to its own weight by passage of time as it was constructed in 2001-02. No structural damages were seen. Hence there was no loss due to Earth Quake or Storm.<br /> Therefore no peril of the policy has affected and cause of loss is out of the scope of the policy.”<br /> 16. Mr. Gupta, learned counsel for the opposite parties argued that the loss to the building/POP ceiling is not payable at all as it does not fall in any of the perils. Claim of the insured has rightly been repudiated on 9.5.2007. Loss has not occurred due to Earthquake or storm or fire. Kulwinder Singh himself made statement, copy of which is Ex.C.16, in which he stated that there was no earthquake or storm in the area. Infact, the ceiling had fallen down due to its own weight due to passage of time as it was constructed in 2001. Moreover, there was no structural damage to the insured building.<br /> 17. Learned counsel for the complainants submitted that abundant evidence has come on the record which proves that there was Earthquake on 3.4.2007 which had hit North India and damage to the building/POP ceiling was due to its vibrations and not due to wear and tear of POP. He further urged that opposite parties cannot derive any benefit from Ex.C.16 as till 14.4.2007 complainant Kulwinder Singh was not aware of the real cause of loss and he came to know about it only after Civil Engineer, Parminder Singh Grewal inspected the Resort on 16.4.2007.<br /> 18. These arguments addressed before us on behalf of the parties have been taken into consideration by us. Onus to prove justification for repudiation of the claim is upon the insurer. As emerges from the affidavits Ex.C.1 and Ex.C.32, complainants were not aware about the real cause of loss on 14.4.2007 when Sh. Mittal deputed as Surveyor by the opposite parties had visited the insured premises. After his visit, they got the Resort inspected from Civil Engineer Sh. Parminder Singh Grewal who certified that damage was due to Earthquake which hit North India on 3.4.2007. Before this, complainants had no knowledge of the cause of loss. Fact that there was Earthquake which hit North India on 3.4.2007 stands supported with the copies of the clippings from the newspapers which are Ex.C.28 to Ex.C.31. From the newspaper cuttings, it is clear that the tremors of the Earthquake were also felt in Punjab. When complainants came to know that loss to their building was due to Earthquake, they had made representation on 7.5.2007 copy of which is Ex.C.5. Alongwith it, they sent claim form, Architect Report, Newspaper cuttings, estimate of loss, valuation certificate and balance sheet of first and last second years. Despite this, opposite parties illegally repudiated the claim. Complainants are relying upon the report of Er. Atul Gupta which is Ex.C.10. His affidavit is Ex.C.33. He is B.E (Civil) with Hons. from Thapar Institute of Engineering & Technology, Patiala since 1988. He has worked as approved valuer, architect, Surveyor & Loss Assessor and as Technical Expert. He is also licensed Surveyor & Loss Assessor. Licence has been issued in his favour by the Insurance Regulatory & Development Authority. He is also empanelled valuer of various Banks. He is the only approved valuer for Punjab Financial Corporation in and around Bathinda. He is also approved valuer of Income Tax Department for immovable properties. No-doubt, the report of Er. Atul Gupta is dated 6.9.2007, yet keeping in view his experience and qualifications, his opinion about the cause of loss cannot be thrown to the winds. He has assessed the loss to the tune of Rs.7,01,000/-. Report of Mr. Gupta regarding the cause of loss is well reasoned and worth placing credence especially keeping in view his qualifications and experience. In his report, he has observed as under :-<br /> “According to my knowledge and experience the POP does not wear and tear so quickly nor the civil construction of the building unless there is any exterior damage or water seepage. As per my detailed inspection there was no water seepage/leakage in the building. Therefore it was only due to vibrations caused by the earthquake with which there was foundation settlement resulting into the cracks on the bathroom side wall which in turn loosened the nails/screws thus damaging the POP of the ceiling of the main hall. I got all the measurements done and after discussions with the relevant people, I am of the opinion that my client has suffered a loss to the resort detailed as under due to earthquake.”<br /> 19. Legal notice was got served by the complainants upon the opposite parties copy of which is Ex.C.8. It is dated 31.10.2007. Intimation was given that the damage was due to Earthquake which had hit North India on 3.4.2007. Opposite parties did not deem it fit to send reply of the notice. From this, adverse inference is drawn against the opposite parties to the effect that they accept the version of the complainants. Had it been not so, they would not have kept mum after receiving the notice. M/s. Mittal Surveyors Pvt. Ltd. in the report copy of which is Ex.C.15 is relying upon the statement of Kulwinder Singh copy of which is Ex.C.16 for arriving at a conclusion that there was no storm or Earthquake in the area. At the risk of repetition, it is again mentioned that Sh. Kulwinder Singh was not aware about the real cause of loss on 14.4.2007. It is only after Er. Parminder Singh Grewal certified that the loss is due to Earthquake which hit North India on 3.4.2007, he came to know about the real cause of loss. No doubt, statement copy of which is Ex.C.16 is in the handwriting of Kulwinder Singh. From the spellings of the words used and sentence making, it appears that it is not the outcome of Kulwinder Singh and is the result of negative approach adopted by the Surveyor. From the facts and circumstances, it appears that Surveyor has tried to favour the insurer instead of bringing reality to the surface. Documents were submitted before Mr. Mittal Surveyor but he did not consider them especially certificate copy of which is Ex.C.17 in which it has been clearly recorded that damage was due to Earthquake. Newspaper cuttings copies of which are Ex.C.28 to Ex.C.31 and claim form Ex.C.14 & Ex.C.27 have been got produced from the opposite parties by the complainant. Opposite parties did not consider these documents while repudiating the claim. They did not them it fit to discuss in the repudiation letter representation dated 7.5.2007 in which it was clearly mentioned that cause of damage of the false ceiling collapse was vibrations of Earthquake. Earthquake causes vibrations in the earth. It is not necessary that building may fall immediately. Their effect can come afterwards as it has happened in this case.<br /> 20. Mr. Mittal is Chartered Accountant as is clear from his affidavit Ex.R.2. There is no document to show that he has qualifications about civil/building work, its maintenance, age of civil work, cause of early loss to the building etc. He did not avail the services of qualified Civil Engineer at the time of inspection of the Resort for coming to the conclusion that POP had fallen due to its own weight and its normal wear and tear. He did not conduct proper enquiry. His report on this aspect of the matter is not fair. Opinion of Mr. Parmod Mittal to the effect that POP ceiling had fallen down due to its own weight with passage of time as it was constructed in 2001-02, does not appeal to reasons. He did not mention any criteria or cite any authentic book in his report to support that life of such ceiling cannot be more than 5/6 years. To the contrary, he has mentioned in his both the reports i.e. interim and final report that cracks had appeared at number of places and that it is expected that whole of POP ceiling requires replacement as it is very risky to function under it. He did not try to know the age of POP ceiling for its decay in normal course or the reasons behind cracks. <br /> 21. In view of what has been discussed above, it stands proved that the damage occurred to the building/POP ceiling was due to the vibrations of the Earthquake. Ceiling cannot be said to have been fallen down due to its own weight or with passage of time on the ground that it was constructed in the year 2001-02. Hence the claim of the complainants falls under the peril i.e. Earthquake. Accordingly, repudiation of the claim made by the insurer is certainly illegal, null and void, arbitrary and against law and facts. Accordingly, it is set-aside. Deficiency in service on the part of the opposite parties in repudiating the claim is proved.<br /> 22. Now question arises as to what relief should be accorded to the complainants. Rumi Architect & Consultants assessed loss to the tune of Rs.8,88,000/-. Complainants are claiming net loss of Rs.7,01,000/- on the basis of the report of Er. Atul Gupta. In our view, both the reports of Er. Parminder Singh Grewal and of Er. Atul Gupta cannot be made the basis of quantum of loss. To the contrary, Mr. Mittal Surveyor has taken into consideration each and every pros and cone concerning the value at risk, loss assessment and loss adjustments for adjudging net adjusted loss to the tune of Rs.3,93,265/-. In these circumstances, we find it difficult to hold that opposite parties are liable to pay net loss as assessed by Er. Atul Gupta. In the circumstances, direction deserves to be given to the opposite parties to pay to the complainants Rs.3,93,265/- alongwith interest @ 9% P.A from the date of repudiation of the claim i.e. 9.5.2007 till realization. Complainants also claim Rs.15,875/- spent by them for inspection/assessment fee and miscellaneous charges of Er. Atul Gupta whose report is Ex.C.10. Claim was repudiated on 9.5.2007. There is no evidence that any notice was given to the opposite parties for getting the loss assessed from Er. Atul Gupta. It is not the case where opposite parties deputed Er. Atul Gupta for inspection and loss assessment and then the expenses were incurred by the complainants. Hence, no case is made out for allowing Rs. 15,875/-. Complainants claim Rs.5,00,000/- as compensation/damages for mental tension, agony and harassment. There is no case to allow it in view of the relief which is going to be accorded as above. Out of compensation and interest, one can be allowed.<br /> 23. No other point was urged before us at the time of arguments.<br /> 24. In the result, complaint is allowed against the opposite parties with costs of Rs. 1,500/-. Opposite parties are directed to do as under :-<br /> ( i ) Pay Rs.3,93,265/- to the complainants alongwith interest @ 9% P.A from 9.5.2007 till payment.<br /> ( ii ) Compliance within 30 days from the date of receipt of copy of this order.<br /> 25. Copy of this order be sent to the parties free of cost. File be also consigned.<br /> <br /> Pronounced (Lakhbir Singh)<br /> 27.05.2008 President<br /> <br /> <br /> (Dr.Phulinder Preet) Member <br /> <br /> 'bsg'<br />