State Consumer Disputes Redressal Commission
Andaman & Nicobar Islands
Port Blair
Present : Justice P.N. Sinha, President
Shri Bimal Behari Chakravarty, Member
Appeal No. 8 of 2009
Shri K. Sankara Rao S/o Late K. Solapuri, Presently camped at
Visakhapatnam,A.P. c/o Sri Gulam Ahmed, Room No.2, 2nd Floor,
Methab Bhavan, Near Carmel School, Port Blair.
………. Appellant
-Vs-
M/s New India Assurance & Co., A&N Islands, at Port Blair,
Being respondent by its Branch Manager, New India Assurance & Co.,
Babu Lane, Port Blair.
………Respondent
JUDGEMENT
Dated: 30.09.10
This appeal has been preferred by the appellant being aggrieved by and dissatisfied with the judgement and order of the District Consumer Disputes Redressal Forum, Andaman, Port Blair(in short the District Forum) dated 09.11.09 in CD.Case No.50 of 2005 thereby dismissing the complaint.
The appellant as complainant filed the complaint before the District Forum stating therein that his residential house standing on land bearing survey Nos-252 & 253 situated at Garacharma village, Port Blair Tehsil was totally damaged and became dilapidated due to the major earth-quake followed by tsunami on 26.12.04. His house was insured with the opposite party under fire policy vide policy No.710604/11/04/11/00000287 and the policy was valid from 18.10.04 to 17.10.05. He reported the matter to the opposite party on 30.08.05 and in reply to his information the opposite party served a letter on 19.09.05 to him which he received on 29.09.05. He by letter dated 04.10.05 supplied the particulars demanded by opposite party and thereafter, the opposite party remained silent without any action and did not bother to depute any surveyor to estimate the lose and damage of his house. He submitted a representation to the opposite party on 17.10.05 but, in spite of that, the opposite party did not take any action. As his building was in a precarious condition and there was chance of collapse at any time and in spite of requests the tenant of his house did not vacate the tenanted room, he filed a petition before the Sub-Divisional Magistrate, Port Blair under Section 133 of Cr.P.C. In the said matter the Magistrate obtained a report from the Executive Engineer, Construction Division No-II, APWD, Prothrapur, Port Blair. The Executive Engineer inspected his house and in his report dated 24.10.05 clearly mentioned that the house was in a dilapidated condition and was not safe for dwelling purpose. In spite of several visits with the officers of the opposite party, the opposite party did not take any step in the matter and did not dispose of his claim. The action of the opposite party clearly shows that opposite party was negligent and conduct of the opposite party amounted to deficiency in service. He lodged the complaint claiming an amount of Rs.4,25,000/- as the full sum of insured amount and Rs.10,000/- as compensation for mental agony and harassment.
The opposite party contested the complaint by filing a written objection wherein it denied the material averments of the complaint. The opposite party inter-alia contented that the compliant was not maintainable as the complainant did not give any information about lose or damage and also did not submit the estimate cost of the construction of the structure of the building. The information or the report which the complainant supplied to it did not speak about actual lose or damage suffered by the complainant. The complaint was premature as there was no cause of action to file the same and the same is liable to be rejected. It was not possible for the surveyor to assess actual lose until and unless the complainant submits documents relating to costs for the construction of the building. The report submitted by the Executive Engineer in a proceeding under section 133 of Cr.P.C cannot establish actual lose suffered by the complainant.
After hearing the submissions of the parties and considering the evidence and materials on record, the District Forum by its judgement and order dated 09.11.09 dismissed the complaint observing that the complaint was premature and not maintainable as there was no cause of action.
Before us the appellant submitted that the District Forum was erroneous by observing that there was no cause of action to file the complaint. In spite of giving intimation to respondent about damage of the building after the major earth-quake on 26.12.04, the surveyor of respondent did not visit his building to make survey of lose suffered by the appellant. The report of Manohar Lall dated 13.01.07 and the report of the Executive Engineer in the proceeding under Section 133 of Cr.P.C establishes that his residential house was damaged and was in dilapidated condition. During pendency of complaint before the District Forum the respondent issued prescribed claim form to him and he submitted the claim form on 03.09.09. In spite of that, the respondent did not take any action to assess the lose suffered by him and kept the matter pending for a long period. The inaction of respondent establishes negligence and deficiency in service on the part of respondent. Accordingly, judgement and order of the District Forum should be set aside and the respondent should be directed to make payment of the amount claimed by him in his complaint.
On the contrary, Mr.N.A.Khan, the learned advocate for the respondent submitted that the District Forum rightly came to the conclusion that complaint was premature and there was no cause of action to file the same. Mr.Khan drew our attention to the cross-examination of complainant K.Shankar Rao(PW-1) wherein PW-1 admitted that he did not file claim in prescribed form and he did not apply for having the prescribed form from the respondent. PW-1 also admitted in cross-examination that he did not submit estimated cost of construction relating to his building in question. Mr. Khan, submitted before us that unless the appellant furnishes all the papers including estimated cost of construction and relevant documents in support of such construction and other papers it would not be possible for the Insurance Company to assess after survey the lose or damage suffered by the appellant. Unless the appellant submits all the necessary papers and particulars question of making survey by a surveyor according to rules does not arise. The appeal having no merit is liable to be dismissed.
We have carefully perused the evidence adduced by the parties, the materials on record and considered the submissions made by the learned advocates for the parties. After considering the submissions of both the parties and carefully going through the evidence and materials on record we find no ground to come to a different finding from that of the District Forum.
Cross-examination of PW-1, K.Shankar Rao, the appellant complainant clearly reveals that he did not file claim in prescribed form and he also did not apply for obtaining prescribed form from respondent. He also admitted that he did not submit the estimate cost of construction of his building with supportive documents to establish the construction cost. We have perused the inspection report of the Executive Engineer, Construction Division No.II, APWD, Prothrapur in connection with a proceeding under Section 133 of Cr.P.C which has been marked as exhibit-9. Exhibit-9 only establishes that the building is in dilapidated condition and not safe for dwelling purpose. This document does not establish the actual lose suffered by appellant and, in our opinion exhbit-9 is irrelevant in this matter as it has no connection at all as this document was prepared in connection with a criminal proceeding and before the claim application was submitted by the appellant.
At the same time the survey report of the Manohar Lall and the subsequent report submitted by another surveyor engaged by the appellant are also irrelevant as such reports were placed before the District Forum in terms of order of the District Forum. The District Forum made a mistake in that respect and passed an order which was not legal as after receiving complaint the District Forum had no authority or power to direct survey of the building of appellant and to obtain a report to that effect. It was not a civil suit in which a civil court can direct either local inspection or local investigation. It was the duty of the respondent to make survey by engaging a surveyor for the purpose of assessing lose or damage suffered by the appellant after receiving claim application in format along with all papers and document including estimated cost of construction of the building. The District Forum while hearing the complaint cannot reduce its position to that of Insurance Company to assess the lose by engaging or directing appointment of surveyor. Though the District Forum ultimately arrived at correct decision, in the order sheet, the District Forum made mistake by calling for a report from a surveyor. Such order passed by the District Forum was made beyond the power or authority of District Forum.
Evidence of OPW-1 M. Bakthvachalam for the respondent reveals that the appellant complainant till now did not submit estimate cost of the repairs of the impugned building and for the said reason they could not take any fruitful action. He stated that they are ready to compensate, if any, after the estimated cost is supplied by the complainant. The Insurance Company cannot be blamed for not supplying claim form to the appellant before 01.09.09. It was the duty of the appellant to apply for the prescribed form to submit his claim. A complaint before the District Forum against Insurance Company for compensation on account of deficiency in service is not maintainable unless the claim is repudiated without valid reasons by the Insurance Company. Question of deficiency in service and negligence against Insurance Company may arise, if it is found that in spite of receiving prescribed claim form, estimated cost of construction of the building, estimated cost of the repairs of the impugned damage building and other relevant papers and documents, the Insurance Company remained inactive for a considerable length of time and did not dispose of the claim application.
In the instant matter we rather find that the appellant himself was negligent as he did not submit prescribed form of claim in time and till date did not file or submit estimated cost of construction of building, estimated cost of repairs of the building and also did not submit other relevant papers and documents to assess the claim by the respondent. The entire evidence, materials on record and the circumstances clearly proves that there was no cause of action to file the complaint. The complaint filed by the complainant appellant before the District Forum was premature. The District Forum made no mistake by dismissing the complaint. We do not find any merit in the appeal and accordingly the appeal stands dismissed. However, we do not make any order for costs and parties do bear their respective costs.
Send down the records of C.D.Case No.50 of 2005 to the District Forum, Port Blair along with a copy of judgement and order passed by this Commission for information and necessary action.