By. Smt. Beena. M, Member:-

This is a complaint filed under section 12 of the Consumer Protection Act 1986.

2.  The Complainant had insured her house situated at Kadalmadu, Sulthan Bathery, Wayanad with the Opposite Party from 20/10/2017 to 19/10/2020.  The house was insured amounting to Rs.10,00,000/- for STFI (Storm, Tempest, Flood and Inundation) and sum insured for Architect Fees also.  In the year 2018, due to the flood, the house of the Complainant got damaged, walls of the house were broken, roofs were damaged and the house become to be reconstructed for human dwelling.  The Complainant intimated the Opposite Party about the damage happened to the house and also submitted the claim form in time. The loss suffered by the Complainant was 100%, but the Opposite Party sanctioned only Rs.26,450/- towards damage.  The Opposite Party transferred the said amount to the bank account of the Complainant. The Complainant submitted that there was 100% damage to the house and so she is entitled to get a total amount of Rs.10,00,000/- from the Opposite Party towards insurance claim. Thereafter, the Complainant on several times approached the Opposite Party for balance claim amount and the Opposite Party assured that they would re-assess the damage and also promised that they would not deduct any depreciation as the damage was due to flood.  But the Opposite Party had not taken any step to give the balance claim amount. The rejection of the remaining claim of Rs.9,73,550 amounts to Unfair Trade Practice/ Deficiency in Service on the part of the Opposite Party.  The Complainant is entitled to get the balance insurance claim amount.  Hence, this complaint.    

 3. After the admission of the Complaint, the Commission issued summons to the Opposite Party.  The Opposite Party entered appearance and filed version stating the following contentions.

   4. The Opposite Party submitted that a Standard Fire and special peril policy was issued in favour of the Complainant and further submitted that after receiving the claim from the Complainant, surveyor was deputed to assess the damage. Accordingly, the surveyor on 08/09/2018 submitted his report and assessed the total damage to be Rs.52,900/-.   As per the report, the house was constructed in the year 1998 and hence after deducting depreciation @50%, the balance amount of Rs.26,450/- was paid to the Complainant.  The surveyor also reported that the building was a single storied one with mud brick and roofed with MP tiles on wooden garter and reapers.  The wall is plastered with cement and white colour washed.  The floor is cement, plywood door frames are provided for window.  The plinth area of building was 186.81sqm. The damages noted by the surveyor are bed room out wall cracked from bottom to top, bedroom inside wall cracked from the top of door, bottom to top crack noticed on the partition wall of hall to kitchen,4 common rafter found broken and 14 roofing tiles were broken.  The Opposite Party denied that the complainant has suffered 100% loss. The Opposite Party never assured that no depreciation would be deducted.  There is no negligence and deficiency in service on the part of the Opposite Party and there is no liability to pay the amount stated in the Complaint. Therefore, it is prayed for dismissal of the Complainant.

5. On perusal of Complaint, Version and Documents, Commission raised the following points for consideration:-

1. Whether there is any deficiency in service on the part of Opposite Party?
2. Whether the Complainant is entitled to get any relieves as prayed for?

6.  Point No.1 and 2:-  For the sake of convenience and brevity, both the  points are considered together. The Complainant had adduced oral evidence.  She was examined as PW1 and the documents produced were marked as Ext. A1 to A4. PW2 P.M. Surendaran, PW-3 Arun. E. K were also examined.  On the side of Opposite Party, OPW 1 and OPW2 were examined and Ext. B1 to B3 were marked.

7.   It is the case of the Complainant that her house was damaged in the flood water in the year 2018 and she sustained 100% loss.  It is admitted that the house in question was insured with Opposite Party for the period from 20/10/2017 to 19/10/2020.   It is also admitted that the damage to the insured house due to the flood was covered under the insurance policy.  Ext A3 is the report of Village Officer wherein it is mentioned that there were 100% damages. The Opposite Party appointed a surveyor by name T. Rajeevan who filed his report Ext. A2.   In the said report it is mentioned that the house of the Complainant was partly damaged due to flood.  We have thoroughly gone through the survey report. In it, the surveyor assessed the loss as Rs.52,000/-.  After deducting the depreciation value of the house, the Opposite Party gave Rs.26,450/-.   As per the report, the house was constructed in the year 1998 and hence the surveyor applied 50% depreciation.  Ext A3 is the report issued by the Village Officer, in which it is mentioned that 100% loss has been sustained by the Complainant during the flood. Ext. A3   was marked subject to objection, as there is no seal or signature on the document to show that it was issued by the Village Officer. If the marking of document produced by the Complainant, opposed by the Opposite Party, it is the bounden duty of the Complainant to prove the genuineness of the said document.  Here, no steps were taken by the Complainant to prove the same by examining the Village   Officer, who had given the certificate of 100% loss to the house of the Complainant.  So, Ext. A3 is excluded from consideration.  Ext. A4 is the final bill of construction of house produced by the Complainant, which shows that the total value of the work done is Rs.14,24,100/-.  It is seen that the bill is signed by the contractor and prepared in the letter pad of the contractor.  At the time of examination, the contractor deposed that he had not issued the bill in English, but he never denied the expenses incurred for the construction shown in the final bill.  It is clear that the Complainant had spent that much amount for construction of the house.  Thus, he is entitled to get the expenses incurred for reconstruction of house. The Soil Conservation Officer was examined as PW3 and Ext. X1, Verification Report of Appeal Application was marked.  At the time of examination in chief, PW3 deposed that 75% of the house was damaged and the house was not residential.  Then he deposed in cross examination that he could determine damage of the building and also deposed that he could not determine the age of the house.  Branch Manager of the Opposite Party was examined as OPW1.  The deposition of OPW1 states that                                                     “depreciation aspects policy bn ImWnÔ.     The report of surveyor reveals that extensive damage has caused to the building which are listed in Ext.A2 and the assessment also contains the value of the building for construction on page No.4 where it was stated that the cost of construction would be around 15 lakhs and on page No.3 it is seen stated that the proximate cause of the damage was due to the flood which is covered under the policy issued by the Opposite Party.

      8. Now the question which requires consideration for this Commission is whether the damage caused to the building makes it unfit for dwelling purpose?  Unfortunately, the surveyor has not spoken about the same in his report, but the Complainant has specifically raised a plea that due to the damage caused by the flood the building has become unfit for dwelling and the same was substantiated by the report and evidence rendered by the Soil Conservation Officer whose report was also marked as Ext X1. The report was neither denied nor countered by the Opposite Party.  And in his deposition, he has clearly stated that the building has 75% damage and hence we can easily infer that the building has become unfit for dwelling which need a total reconstruction work and the Complainant has spent about 14 lakhs which was also clearly spoken by the contractor who carried out the reconstruction work. Though the contractor had denied the issuance of Ext. A3, he has admitted that the content of it was given by him in Malayalam.  When damage goes to the root of stability of the building due to natural calamity, the building became to be unfit for dwelling purpose which is to be termed as total damage to the entire building and hence the Complainant is entitled to the relief as sought for.

In the result, the Complaint is allowed and the Opposite Party is directed to pay Rs.9,23,550/-(Rupees Nine Lakh Twenty Three Thousand Five Hundred and Fifty  only) towards the balance claim amount and also to pay Rs.1,00,000/- (Rupees One Lakh only) as compensation and Rs.10,000/- (Rupees Ten Thousand only) as costs.

The above order shall be complied within 30 days from the date of receipt of this order, failing which the above amount shall carry 8% interest per annum from the date of this order till realization.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the 11^th day of September 2023.

Date of Filing:-29.10.2019.

PRESIDENT   : Sd/-

MEMBER       : Sd/-

MEMBER       : Sd/-

APPENDIX.

Witness for the Complainant:-

PW1.              Asia.                                       Housewife.

PW2.              K. M. Surednran.                Contractor.

PW3.              Arun. E. K.                            Soil Conservation Officer.

Witness for the Opposite Party:-

OPW1.          Rema. K. S.                           Branch Manager, United India

Insurance Co Ltd.

OPW2.          T. Rajeevan.                         Insurance Surveyor and loss Assessor.

Exhibits for the Complainant:

A1.                  Policy Schedule for the period of 20.10.2017 to 19.10.2020.

A2.                  Survey Report.                                                        Dt:08.09.2018.

A3.                  Copy of Report of Village Officer.                      Dt:12.03.2019.

A4.                  Final Bill for House Construction.                      Dt:21.03.2021.

X1.                  Copy of verification report of appeal application.

Exhibits for the Opposite Party:-

B1.                  Standard Fire and Special Perils Policy Schedule for the period of

20.10.2017 to 19.10.2020.

B2.                  Claim form for Fire and allied perils.                Dt:11.06.2018.

B3.                  Survey Report.                                                        D:08.09.2018.

PRESIDENT   :Sd/-

MEMBER       :Sd/-

MEMBER       :Sd/-

/True Copy/

                                                                                    Sd/-

                                                                                             ASSISTANT REGISTRAR

                                                                                                 CDRC, WAYANAD.

Kv/