Complainant/s:           Imamsab S/o Budensab Badekhanavar,                                           Age: 30 Years, Occ: Coolie, R/o                                                               Tuppadkurahatti, Now residing at Zakir                                      Hussain Colony, Gadag.

                                                (Rep. by Sri.S.V. Hiremath, Advocate)   

V/s

JUDGEMENT

JUDGEMENT DELIVERED BY SMT.YASHODA.B.PATIL, WOMAN MEMBER

The complainant has filed the complaint U/Sec.35 of the C.P. Act, 2019 for compensation of Rs.16,50,000/- @ 18% p.a. cost of cylinder, stove and rent of Rs.54,000/- and Rs.25,000/- towards mental agony with cost.

The brief facts of the complaint are as under:

         2.  The complainant is the consumer of OP No.4, OP No.1 is the insurer of LPG Cylinder Fire Policy and OP No.2 and 3 are their higher authorities.  While using the LPG Cylinder for domestic purpose, all of a sudden on 20.11.2019 at about 4-00 PM, the cylinder bursted and damaging the entire house with household articles furniture, fixture, cloths, utensils including 8 tolas of gold etc.  At the time of said blast, nobody was present in the house.  After the incident came to the notice, complainant filed a complaint to the Police Station on 21.11.2019 under Ref.No.185/2019 bearing Petition No.76/613/2019, under which they have estimated the loss of about Rs.7 to 8 lakhs approximately. Actual loss estimated by the Engineer is about Rs.16,50,410/- and the   complainant has submitted the claim to the insurance company.  Surveyor was appointed to assess the loss.  After receipt of report, company intimated to the complainant that, estimate furnished by Engineer does not adhere to the policy conditions remodeling or additions etc.  Further, surveyor has informed to provide the Fire Station certificate for having attended the mishap.  OP No.1 has informed on 09.11.2021 that, incident has taken place on 20.11.2019 and after giving sufficient time to submit the appropriate estimation, the complainant has failed to submit the same.  Hence, they have closed the claim as NO CLAIM.  The cause of action arose when the OP No.1 has replied evasively to the legal notice.  Hence, filed this complaint.    

          3.       After admitting the complaint, notices are issued to the OPs.  OP No.1 to 3 appeared through their counsel and OP No.4 remained absent.  OP No.3 filed written version.

          4.       The brief facts of written version filed by OP No.3 are as under:

          OP No.3 denied the various allegations and contended that, fire accident occurred on 20.11.2019 and the same was informed to Police on  21.11.2019 with one day delay. So, story of complainant is false, concocted and barred by limitation.  There is an inordinate delay in intimating and violated the terms and conditions of the fire policy.  There is no deficiency of service on the part of the OP on 27.10.2021 notice was received and surveyor appointed who inspected the spot on 28.11.20219 and estimated the cost of Rs.40,000/- only. Surveyor has informed to put back the grieved clients structure to its pre-accident conditions and issued a notice on 17.07.2020, 31.07.2020 to submit estimation. Op has also issued letters to submit the estimate. Complainant submitted the estimation drawn by Sri. M.R.Kabadi consulting Engineer, who has drawn the estimate of RCC structure, additions and remodeling. As per general conditions, insurance occurrence of the incident, surveyor issued letter that, estimation which was furnished does not adhere to policy terms and requested to provide appropriate estimation, despite of repeated efforts insured has not replied.  Hence, they have closed the claim as NO CLAIM by issuing final reminder on 23.10.2020. Therefore, there is no deficiency of service committed by the OPs. Hence, prays for dismissal of the complaint.    

          5.       To prove the case, the complainant has filed affidavit evidence and was examined as CW-1 and got marked the documents as Ex.C-1 to Ex.C-15. Sri. Vadiraj. S. Sortur, for OP No.1 filed affidavit evidence and was examined as RW-1 and got marked the documents as Ex.OP-1 to  Ex.OP-18.

6.       No arguments advanced on behalf of complainant inspite of sufficient time given. The learned counsel for OPs filed written argument and argued.

          7.       The points for our consideration arose are as under:

          i)        Whether the complainant proves that, there is a                      deficiency of service on the part of OPs?

          ii)       Whether the complainant proves that, he is                            entitled for the relief?

          iii)      What order?

          8.       Our findings on the above points are as under:   

                   Point No.1: In affirmative.

                   Point No.2: In partly affirmative. 

                   Point No.3: As per final order.

          REASONS

          9.       Point No.1 & 2:- The points are taken together to avoid the repetition of facts.

          10.     On careful perusal of the materials placed before us, PW-1 has filed affidavit in-lieu of his chief examination and reiterated the contents of the complaint.  PW-1 has stated that, he is the consumer of OP No.4, OP No.1 is the insurer of LPG Cylinder Fire Policy and OP No.2 and 3 are their higher authorities.  While using the LPG Cylinder for domestic purpose, all of a sudden on 20.11.2019 at about 4-00 PM, the cylinder bursted and damaging the entire house along with household articles, furniture, fixture, cloths, utensils including 8 tolas of gold etc.  At the time of the said blast nobody was present in the house.  When the incident came to the notice the complainant filed a complaint to the Police Station on 21.11.2019 under Ref.No.185/2019 bearing Petition No.76/613/2019, under which they have estimated the loss about Rs.7 to 8 lakhs approximately. Actual loss estimated by the Engineer is about Rs.16,50,410/- and the complainant has submitted the claim.  Surveyor was appointed to assess the loss.  After receipt of the report, company intimated to the complainant that, estimate furnished by the Engineer does not adhere to the policy conditions, remodeling or additions etc.  Further, surveyor has informed to provide the Fire Station Certificate for having attended the mishap.  OP No.1 has informed on 09.11.2021 that, incident has taken place on 20.11.2019 and after giving sufficient time to submit the appropriate estimation, the claimant has failed to submit the same.  Hence, they have closed the claim as NO CLAIM. So, Ops have committed the deficiency of service.

          11. Per contra, RW-1 has filed affidavit and reiterated the contents of the written version filed by OP-3. RW-1 has stated that, fire accident occurred on 20.11.2019 and the same was informed to Police on  21.11.2019 one day delay.  So, the story of the complaint is false, concocted and barred by limitation.  There is an inordinate delay in intimating and violated the terms and conditions of the fire policy.  There is no deficiency of service on the part of the OP. On 27.10.2021 notice was received, and a surveyor was appointed who inspected the spot on 28.11.2019 and estimated a cost of Rs.40,000/- only.  Surveyor has informed to put back grieved clients structure to its pre-accident conditions and issued a notice on 17.07.2020, 31.07.2020 to submit estimation. Op has also issued letters to submit the estimate. Complainant submitted the estimation drawn by Sri. M.R.Kabadi, consulting Engineer, who has drawn the estimate of RCC structure, additions and remodeling. As per general conditions, insurance occurrence of the incident, surveyor issued letter that, estimation which was furnished does not adhere to policy terms and requested to provide appropriate estimation, despite of repeated efforts insured has not replied. Hence, they have closed the claim as NO CLAIM by issuing final reminder on 23.10.2020. Therefore, is no deficiency of service committed by the OPs.

          12.   At the very outset, RW-1 is not disputing that, the complainant is a customer of OP No.4 Bharat LP Gas.  The cylinder bursted on 20.11.2019, OP No.4 got insured with OP  No.1 to 3 as per Ex.OP-2 to  Ex.OP-5  surveyor of RW-1 visited the spot and submitted survey report and estimated the value as Rs.40,000/-. Main dispute is in respect of quantum of the valuation. Complainant produced the estimate Ex.C-2 issued by M.R.Kabadi, consulting Engineer for a sum of Rs.16,50,410/-. RW-1 contended that complainant has submitted the estimate towards proposed additions alterations and remodeling of the new captioned building.  As per terms of the policy insurers are liable to restore the captioned building to its pre-accident condition of similar material and design  and intimated the complainant to arrange and provide  a fresh appropriate repair estimate.  Inspite of repeated letter issued to complainant Ex.OP-7 to Ex.OP-11, he did not reply.  Hence, closed the claim as NO CLAIM. 

          13. It is pertinent to note here that, as per intimation of the RW-1, complainant submitted Ex.C-2 estimate for Rs.16,50,410/-. If, RW-1was not satisfied then, he should have proceeded to settle the claim as per the conditions of the policy on the basis of survey report.  It is not proper on the part of the Ops to repeatedly inform the complainant to furnish fresh repair estimate. Merely, on the ground that, the complainant did not submit a fresh repair estimate the act of the RW-1 to close the claim as NO CLAIM is not proper.  Even though a surveyor visited the spot immediately and submitted the report, RW-1 issued final letter Ex.OP-11on 23.10.2020 after more than a year for closing the claim as NO CLAIM. Of course, complainant produced Ex.c-15 certificate issued by M.R.Kabade, who is a author of Ex.C-2 estimate. Ex.C-15 reveals that re-estimated the value and total reduced Rs.7,98,506/- instead of Rs.16,50,410/-.      So, the act and conduct of the Ops goes to show that instead of settling the claim on the basis of survey report which was not done by the Ops it amounts to deficiency of service. Therefore, the complainant is entitled for the relief.

          14. Complainant is claiming Rs.16,50,410/-  as per Ex.C-2 estimate.  At the time of lodging the complaint Ex.C-11 stated that, due to bursting of Cylinder  the damage caused to the building and other articles like T.V. Treasury, Golden ornaments is about 7 to 8 lakhs approximately.
Accordingly, a Ref. Petition was registered as per Ex.C-12. However, the complainant is claiming the compensation for reconstructing the entire building and submitted an estimate of Rs.16,50,410/-. Subsequently, the complainant has produced Ex.C-15 certificate issued by M.R.Kabade, who is a author of Ex.C-2 estimate. Ex.C-15 reveals that re-estimated the value and total reduced Rs.7,98,506/- instead of Rs.16,50,410/-.   So, complainant is not entitled for the compensation for additions alterations and remodeling of the captioned building he is entitled only in respect of restoring the captioned building to its pre-accident condition of similar material and design only. So, Ex.C-2 estimate and Ex.C-15 re-estimation certificate are not containing the actual loss of pre-existing building or things and articles. Thus, complainant is not entitled the compensation as per Ex.C-2 or Ex.C-15. Ex.OP-13 to Ex.OP-17 are Photo’s submitted by Ops which reveals that, damage is caused to the building inside and outside. Ex.OP-13 to Ex.OP-17, as per surveyor report he has estimated the damage of Rs.40,000/-. The said surveyor is  appointed by Ops, naturally who is an interested person and he has issued the report in favour of who have appointed him. The surveyor has produced the survey report Ex-OP No.18 and Photo’s Ex.Op-13 to Ex.OP-17  and no other documents are produced to show the actual damage caused to the building and other articles. Though the surveyor has examined the entire house he has not uttered anything about the damage caused to the belongings of the house articles, furniture etc., The surveyor in Ex.OP-15 on the Photographs has mentioned that, utensils in the Kitchen where thrown away and damaged and Kitchen and rare part of the house is badly damaged. But he has not shown the value of all the articles inside the house.  Even Op has not been examined the author of survey report.  In the absence of oral and documentary evidence estimate of Rs.40,000/- the survey report submitted by surveyor cannot be reliable and accepted. PW-1 has specifically stated that, due to bursting of  cylinder has caused damage to the entire house along with household articles, furniture, fixture, cloths, utensils and valuable 8 tolas of gold items etc., Of course complaint has not produced the documents to show the value of the articles, furniture and gold separately. However, at the time of Cylinder blast nobody were present in the house, therefore, essential articles like furniture, cloths, utensils, valuable ornaments all were damaged. Therefore, the complainant is entitled for a reasonable compensation for the damage caused to the building as well as articles kept in the house. Taking into consideration the actual damage caused, as shown in the  survey report of Op and Ex.C-2 estimate  of complainant, it is just and reasonable to settle the claim for Rs.3,30,000/-.

          15. For the above, the complainant has proved that OP No.1 to 3 have committed deficiency of service and he is entitled for the relief a sum of Rs.3,30,000/-.  Complainant is claiming an interest at the rate of 18 % p.a. it is on higher side.  So, as per rate of interest in the Nationalized Bank it is proper to award interest @ 10% p.a. from the date of survey report Ex.Op-18 submitted on 20.10.2020 till realization. Complainant has suffered mental agony, due to closing the claim without sufficient grounds. So, complainant is entitled for a sum of Rs.25,000/- towards mental agony and Rs.10,000/- towards cost of the litigation.  Accordingly, we answer Point No.1 in the affirmative and point No. 2 in the partly affirmative.   

          16.    POINT NO. 3: In the result, we pass the following:

//O R D E R//

              The complaint filed U/Sec.12 of the Consumer Protection Act, 1986, is partly allowed against No.1 to 3 and dismissed against OP No.4.

Complainant is entitled a sum of Rs.3,30,000/- with interest at 10% p.a. from the date of survey repot dtd:20.10.2020 till realization.

Further, the complainant is entitled for Rs.25,000/- towards mental agony and Rs.10,000/- towards cost of litigation.

OP No.1 to 3 are directed to pay the entire claim amount to the complainant within two months from the date of this order.

Office is directed to send the copies of this order to the parties free of cost.

           (Dictated to the Stenographer, directly on computer, corrected and then pronounced by us in the Open Court on this 2^nd day of JANUARY-2023)

,            

    (Shri Raju N. Metri)  (Shri. D.Y. Basapur)   (Smt.Yashoda Bhaskar. Patil)

        MEMBER                 PRESIDENT              WOMAN MEMBER

-: ANNEXURE :-

EVIDENCE ON BEHALF OF COMPLAINANT/S:

PW-1: Imamsab S/o Budensab Badekhanavar,

DOCUMENTS ON BEHALF OF COMPLAINANT/S

Ex.C-1:Letter addressed to complainant by National Insurance Co.,

           Ltd., Gadag.  

Ex.C-2:Estimate of building damaged in Cylinder burst given by

          M.R.Kabade.

Ex.C-3:Legal Notice

Ex.C-4 to 6: Postal receipts.

Ex.C-7 to 9:Postal acknowledgment.

Ex.C-10:Reply notice.

Ex.C-11:Application to Tahasildar

Ex.C-12: Acknowledgment from Police Station

Ex.C-13:General receipt.

Ex.C-14: Aadhar Card.

Ex.C-15 : Certificate dtd:14.12.2022

EVIDENCE ON BEHALF OF OPs:

RW-1:Sri. Vadiraj S. Sortur

DOCUMENTS ON BEHALF OF OPs:

Ex.OP-1:Authorisation  letter dtd:06.06.2022.

Ex.OP-2 to 5:Certified copy of Insurance Policy terms and conditions.

Ex.OP-6 :Copy of letter by OP No.1 to OP No.2 dtd:20.02.2020 and

               Postal acknowledgment.

Ex.Op-7: Copy of letter by OP No.1 complainant dtd:20.02.2020 with

              Postal acknowledgment.

Ex.Op-8: Copy of letter by surveyor to the complainant dtd:17.07.2020

               with Postal acknowledgment. 

Ex.Op-9:  Copy of letter  by OP No.1 to the complainant dtd:31.07.2020          with Postal acknowledgment.

Ex.Op-10: Copy of letter by OP No.1 to complainant dtd:20.08.2020

                with Postal acknowledgment.

Ex.Op-11: Copy of letter by OP No.1 to complainant dtd:23.10.2020

                with Postal acknowledgment.

Ex.Op-12: Copy of Monthly statement of complainant issued by Gram   

                Panchayat.

Ex.OP-13 to 17: Photo’s

Ex.OP-18: Copy of survey report issued to the Branch Manager,   

                 National Insurance Co. Ltd., Gadag. Dtd:20.10.2020.

(Shri Raju N. Metri)      (Shri. D.Y. Basapur)   (Smt.Yashoda Bhaskar. Patil)

        MEMBER                 PRESIDENT              WOMAN MEMBER