JUDGEMENT DELIVERED BY
SMT.SAMIUNNISA .C.H., PRESIDENT:
The complainant has filed a complaint under section 12 of Consumer Protection Act, 1986 against the OPs alleging the deficiency of service for non-payment of insured amount and for mental agony and pain, litigation charges along with interest and other reliefs as this Forum deems fit.
The brief facts of the Complaint
2. The Complainant is residing at Flat No.128, Sarige Nagar, Gadag from last 8 years. The Complainant own his residence and has built this residential property by availing a loan of Rs.3,00,000/- from Canara Bank, Gadag for which the bank had insured the residential building from National Insurance Company (OP No.1) for a period of 10 years i.e. 29.06.2004 to 28.06.2014.
3. On 17.01.2005 the Complainant left his house for his duty in the morning, the wife of the Complainant and children also left for Veerabhadreshwar Temple on the same day. At 10.50 AM the house was caught fire the same was intimated to fire and emergency service by the neighbours the fire servicemen successfully controlled the fire, the same was also intimated to the Complainant by his neighbours. The Complainant came back at 7.30 PM and mishap was intimated to the Rural Police Station Gadag, the Police authorities visited the spot on 18.01.2012 draw Panchanama and assess the loss due to the fire accident to Rs.7,95,800/- and special Report has being submitted to the Tahasildar, Gadag and also fire and emergency services have submitted a report of the fire accident occurred on 17.01.2012.
4. The fire accident was immediately informed to the OP No.1 to 3 through a letter stating the fire accident when the loss due to his mishap as Rs.7,95,800/- may be claimed from the OP No.1 and all the documents have been submitted.
5. The OP have not taken any action in this regard, the Complainant sent a legal notice through his counsel on 22.10.2012. The OP had not replied to the notice. Hence, this Complaint, the Complainant had prayed to order the OP to pay the fire accidental claim of Rs.7,95,800/- and to pay a compensation of Rs.25,000/- towards mental agony and financial loss and cost of litigation and other relief as the Forum deems fit.
6. The predecessor on seat registered a case and issued notice to the OP, the OP NO.1 and 2 appeared through their counsel and filed a Written Version.
The brief fact of the Written Version of OP No.1 as under:
The OP partly accepted the facts of the Complaint and most of the averment made in the Complaint are denied. The OP have accepted that the Complainant had insured his residential building under fire and special perils policy for a sum of Rs.3,89,400/-. The said policy was issued subjected to the terms and conditions incorporated in the policy the said policy was in respect of residential building only.
7. The OP had totally denied that on the date of mishap the Complainant had gone on his duty and his wife and children have also gone to the Godachi Veerabhadreshwar Temple at around 10.30 AM while the fire broken and spread to the house and caused lot of damages to the building. Further, the OP had denied that a loss to the extent of Rs.7,95,800/- is caused due to the fire accident and accordingly the police authorities has submitted the report to the Tahasildar, Gadag.
8. The OPs have admitted that the Complainant had intimated about the fire accident on 18.01.2012 and denied that the OP had not initiated any action or has not taken any steps in this regard. Immediately after the receipt of intimation the OP have appointed a IRDA Surveyor to assess the damages to the building occurred due to fire, the surveyor had visited and submitted the report that the building is transpired that the bedroom facing the front face has been converted as a provision store (grocery). It was noticed that the building had suffered from fire damages, interior plaster peeled off and/or cracked at many place especially at the bedroom which has converted to provision store, where the fire accident originated. Further the OP had stated that the surveyor wrote a letter dated: 13.03.2012 to the Complainant seeking clarification regarding use of building i.e. whether the commercial or residential purpose. The Complainant had not replied so for again the surveyor wrote letters repeatedly i.e. on 06.06.2012 and 24.12.2012 calling the Complainant to furnish the requisites information, the Complainant had not replied for the above said letters.
9. The insurance covered is for residential building as per the terms and condition of the policy, the building should be occupied for residential purpose only. But the Complainant is using it for commercial purpose also. Hence, the Complainant had violated of terms and conditions of the policy. Hence, the Ops stated that they are not liable to pay compensation.
10. Further the OP have stated that without prejudice to the above mentioned defence the Ops is ready to settle the claim as per the IRDA Survey Report the claim at Rs.29,048/- accordingly the voucher has been sent to the Complainant for signature the Complainant has not returned the signed voucher to the OP. The OP wrote a letter on 20.03.2013 calling upon the Complainant to send the voucher duly signed, but the Complainant had not sent the voucher to the OP.
11. Further the OP stated that there is no deficiency in service on the part of OP No.1 and 2 and prayed to dismiss the Complaint with costs.
12. In the background of the above said pleadings, the Complainant himself examined as CW1 in support of allegation made by him, the documents produced are as follows:
1) Photo copy of insurance proposal form
2) Photo copy of site plan.
3) Photo copy of building plan,
4) Photo copy of estimation,
5) Photo copy of insurance policy,
6) Photo copy of letter written to the Complainant by the OP No.3.
7) Letter written to the OP No.1 by the Complainant,
8) Photo copy of FIR,
9) Photo copy of Panchanama,
10) Photo copy of Complaint
11) Photo copy of the Report by fire station,
12) copy of legal notice
13) Postal receipts,
14) Postal acknowledgement two in number.
On the other hand, OP No.1 and 2 filed a written version and examined as OP No.1 and OP No.2 respectively, the documents produced in support of their defence are:-
- Certified copy of the policy,
- Surveyor Report,
- Building photos five in number,
- Letter written by the surveyor to the Complainant two in number.
- Letter written by the OP to the Complainant two in number.
- Postal Acknowledgement.
13. On the pursuance of the above documents and arguments heard on both sides, we conceived that OP have not came forward to settle the claim of insurance at extent of Rs.7,95,800/-, but the Ops are ready to settle the claim as per the surveyor report, this being the pleadings, the points arises before us for adjudication are as follows:
1. Weather the complainant proves that the Ops have committed any deficiency in service?
2. Weather the complainant is entitled for relief as claimed?
3. What order?
Our findings to the
Point No.1: Negative,
Point No.2 : Partially Affirmative,
Point No.3 : as per the final Order
R E A S O N S
14. POINT NO.1: This is the case of the Complainant that he had availed a loan of Rs.3,00,000/- (Three lakh Rupees) from OP No.3 for the construction of residential house. OP No.3 i.e. Canara Bank on the behalf of the Complainant had insured the residential house (building) for Rs.3,89,400/- under standard fire and special perils policy for a period of 10 years. The residential building caught fire on 17.01.2012 damaging the building, burning the valuable articles etc. at extent of Rs.7,95,800/- when the Complainant wife and children were not present in the house, the fire station officials was informed immediately by the neighbours of the Complainant, fire brigadier came to spot and successfully manage to controlled the fire, the Complainant informed about the fire accident to OP No.1 immediately. After the receipt of the Claim Form from the Complainant. The OP No.1 appointed an IRDA surveyor to assess the damage caused to the building due to the fire.
15. The surveyor visited the spot and verified the damages caused to the building and submitting his report stating that a bedroom facing the front face has been converted into small provision store. The Complainant had lodge a Complaint at Rural Police Station, Gadag on 18.01.2012. Police visited to the spot and prepared the Panchanama accordingly a report had been submitted to the Tahasildar Gadag that the loss had been occurred to the extent of Rs.7,95,800/-. The Ops have acted immediately by appointing an IRDA surveyor who had visited the spot and wrote a letter to the Complainant on 13.03.2012 that surveyor observed that the Complainant had claim provision item (grocery commodities) worth Rs.1,35,000/- along with other household articles the total claim worth Rs.7,75,000/- claimed by the Complainant in this regard the surveyor has called Complainant to clarify that the building is used for residential purpose or for both residential and commercial purpose and to furnish the stock records at the time of fire accident etc., again on 06.06.2012 the surveyor wrote another letter to the Complainant informing to furnish the requisites clarification.
16. On the careful scanning of the documents produced by the OP it is crystal clear that the OP has discharge his duty efficiently, in support of which the letters had been produced before the Forum. After several request by the surveyor to the clarification for the claim the Complainant is not responded for the same. Finally, on 07.11.2012 the surveyor submitted his report on the basis of information he has collected at the time of survey and assess the loss to a extent of Rs.44,773/-. After the submission of the Report by the Surveyor to the OP No1, the OP No.1 informed the Complainant through a letter dated: 04.12.2012 that the competent authority has approved the claim for Rs.28,148/- towards full and final settlement and also informed the Complainant that the bankers has signed the voucher, the same voucher has been forwarded to the Complainant and requested the Complainant to return the signed voucher. Again the OP had requested the Complainant to return the voucher duly singed through a letter dated: 05.03.2013 which had been received by the Complainant. The Complainant kept quite all the time without replying the Ops letter or clarifying the doubts of the surveyor, after the receipt of the intimation of the fire accident the Ops had discharged their duties accordingly, finally the Ops approved the claim for Rs.28,448/-, the same had been informed to the Complainant that the OP had delivered their duties from time to time. Hence, we answer the Point No1 in negative.
17. POINT NO.2: The residential building of the Complainant caught fire and caused damages to the building and other items while standard and fire perils insurance was in force on the residential premises of the Complainant. This is the undisputed fact by OPs and the same was admitted.
18. The building caught fire on 17.01.2012 while the Complainant, wife and children were not present in the house. The neighbours of the Complainant informed the fire service station about the fire and the fire station authority took appropriate action and successfully controlled the fire, the Complainant lodge a Complaint at Rural Police Station, Gadag that he had suffered a loss to the extent of Rs.7,75,800/- and the police visited the spot and prepared a Panchanama (Mahajar) bearing No.AF-2/2012 and same had been submitted to the Tahasildar,Gadag. The fire station officials have also submitted a report that the fire mishap had occurred.
19. The Complainant informed the fire accident to his banker i.e. OP No.3 through which the building had been insured for Rs.3,89,400/- and the Insurance Company was also informed immediately after the receipt of intimation, the Ops appointed a IRDA Surveyor to assess the loss occurred.
20. The surveyor visited the spot for valuation and noted that the bedroom facing to the road had converted to small provision store by installing a rolling shutters, further the surveyor report repeatedly called the Complainant to clarify whether the building is used for residential or commercial purpose and also to produce stock statements and bills for the items which had been burnt in the mishap. The Complainant never replied to the surveyor’s call nor furnished the requisite documents, finally the surveyor prepared his report on the basis of information he collected and assess the losses to the extent of Rs.44,773/- after deducting the depreciation @ of 09% and reported that sum insured is under value for Rs.3,89,400/- against the original value of the building is Rs.6,00,000/- so the liability he had assessed Rs.29,058/-. The Complainant had claim Rs.7,75,800/- from the Ops in which he had claimed Rs.1,35,000/- towards Kirani items and Rs.4,00,000/- towards gold ornaments and other items. The Complainant had failed to produce the purchased bill for the same and also the Complainant had not produced the repair estimation of the building. These cannot be considered without any documentary evidence, the surveyor appointed by the OP had himself assessed the loss to the tune of Rs.44,773/- and said that the building is insured for under value where the actual value of the building is Rs.6,00,000/- which had insured to Rs.3,89,400/-. Mere further reasons that the building is under insured the OP cannot deduct his claim because the loss assessed by their surveyor is below to the sum insured. Hence, the Complainant is liable to receive a claim of Rs.44,773/- as assessed by the surveyor and hence we answer the Point No.2 is partly affirmative.
21. POINT NO.3: In view of our findings on the above points, the complaint filed by the complainant has to be allowed in part. In the result, we proceed to pass the following:
//O R D E R//
1. The Complaint is partially allowed.
2. The complainant is entitled to receive a sum of Rs.44,773-00 (Rupees forty four thousand seven hundred seventy three) towards the claim of insurance as per the surveyor report within 30 days from the date of the order, fails to pay the said amount within 30 days, the complainant is entitled to get 12% interest p.a. from the date of this order till realization.
3. Parties have to bear their own costs.
4. Send the copies of this order to the parties free of cost.
(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by me in the Open Court on this 16th day of April, 2016)
Member Member President
