By. Smt. Bindu. R, President:

            This complaint is filed by Smt. Marthayi, W/o. Rajan, Punjirimattam, VTC Vellarimala Post, Mundakkai, Vythiri Taluk, Wayanad against the Manager, The New India Assurance Company Limited, Micro Office, Room No.SBP IV/822 A, 14, Manjima Complex, Opposite to Jain Temple, Sulthan Bathery Post, Wayanad alleging deficiency of service and unfair trade practice.  The Complainant states that the Complainant is a coolie worker and the only bread winner of the family and also a beneficiary of Life Housing Scheme of the Kerala Government in the year 2019.  The Complainant states that she had insured the home and household articles with the Opposite Party through Kerala Gramin bank, Vaduvanchal Branch for the period of 19.12.2019 to 18.12.2039 vide Policy No.76220211190100000064 for an amount of Rs.15,00,000/-.  It is stated by the Complainant that after completion of the house under Life Scheme, the Complainant obtained a loan from Kerala Gramin Bank, Vaduvanchal Branch and extended and modified the house with the amount of loan and also from the amount collected through other sources.  According to the Complainant the cost of the house is Rs.12,50,000/- and household articles of Rs.2,50,000/- and the cost of property is Rs.10,00,000/- and therefore insured for Rs.15,00,000/-.  The Complainant states that herself and her family are victims of the landslide happened on 07.08.2020 and lost their house, property and household articles and herself and her family miraculously escaped from the natural calamity and the same was reported to the Opposite Party, who conducted enquiry and convinced the loss and offered the sum insured to the Complainant.  For that the Opposite Party asked for a  Certificate from the Village Officer and the Village Officer, Vellarimala reported that the Complainant’s house was completely destroyed in a landslide happened and the State Government selected the Complainant’s family as a beneficiary of the rehabilitation scheme.  The Complainant states that, when the Complainant approached the Opposite Party for the insured amount, they have granted only Rs.2,56,000/- as compensation.  The Complainant states that the Opposite Party had not provided the details including survey report and exploiting the illiteracy of the Complainant, the Opposite Party denied the benefit entitled to the Complainant which amounts to deficiency of service and unfair trade practice and hence the complaint.

            3.  Upon notice from this Commission, the Opposite Party entered into appearance and filed their version denying the allegations in the complaint.  The Opposite Party contented that the complaint is not maintainable as per law and states that a standard fire and special perils policy No.76220211190100000064 covering the period from 19.12.2019 to 18.12.2039 was issued in favour of Kerala Gramin Bank, Vellarimala and policy based on the proposal form submitted by the Bank to cover the residential building constructed without permission from the Grama Panchayat by the Complainant upon Resurvey No.292/4(292/8) with an endorsement No.9- Earth Quake (Fire and Shock).  The sum insured was Rs.15,00,000/- based on the proposal form and as per the policy general condition that the policy shall be voidable on misrepresentation, misdescription or misdisclosure of any material particular.  According to the Opposite Party, the policy was obtained by suppressing the area permitted by Meppady Grama Panchayat.  The Opposite Party contented that the Complainant constructed a house having plinth area of 145.67 Square meter against the permitted plinth area of 39.03 square meter violating the building permit which is an illegal construction which has not covered by the policy.  It is stated by the Opposite Party that the damage assessed by the Surveyor and loss assessor is Rs.12,14,921/- but the liability of the Opposite Party is limited to permitted legal construction and hence the Opposite Party is satisfied by the claim submitted by the Complainant by paying a sum of Rs.2,56,000/- ie Rs.124921 x 39.03 Sq.m/184.70 sq.m= Rs.2,56,732/- through electronic transfer to the bank account of the Complainant.  The Complainant accepted the amount as full and final satisfaction of the claim and hence the Complainant is estopped from claiming further amount.  The Opposite Party submitted that the Complainant is not entitled to any amount as claimed and there is no deficiency of service and unfair trade practice on the part of the Opposite Party and prays for dismissal of the complaint with compensatory costs.

            4.  Evidence in this case consists of the oral examination of PW1 and PW2 and Ext.A1 to A4 from the side of the Complainant and oral evidence of OPW1 and OPW2 and Exts.B1 to B7 from the side of the Opposite Party.

            5.  Heard both sides and the Complainant filed hearing notes.

            6.  The following questions are coming up for consideration:-

1. Whether the Complainant had proved deficiency of service and unfair trade practice on the part of the Opposite Party?
2. If so, compensation and costs to be awarded to the Complainant?

7.    Considered the matter in detail and perused the records.  It is an admitted fact that the house building constructed by the Complainant is destroyed in natural calamity on 07.08.2020.  But during the examination of PW1, the Complainant admitted in the box that the permission given is only for constructing 39.03 Sq.m building and the house constructed by the Complainant is a double storied building having an area of 145.67 sq.m in Meppady Grama Panchayat, which is an unauthorized construction.  It is also admitted by the Complainant that the Complainant had received an amount of Rs.2,56,000/- from the insurance company.  The Complainant has not produced any document regarding the permission granted or license obtained for the construction of 39.03 sq.m building from concerned authorities.  PW2 is the Branch manager of Kerala Gramin Bank, Vellarimala.  The plan of the building constructed by the Complainant, which was produced in the Bank is marked as Ext.A4. PW2 deposed that the Complainant had obtained a loan from the bank for the construction of the building.  During cross-examination, PW2 had admitted that he had seen the consent obtained from the Panchayat for construction of the building and that Ext.A4 contains no signature of the pachayath Secretary.  According to PW2, Rs.7.5 Lakhs was granted for the construction of 164.22 sq.m building and there are dues in the said loan account.   Coming to the evidence of Opposite Party, OPW1 is the Senior Divisional Manager, who had admitted that no notice was served to the Complainant before survey of the property.  At the time of examination some pages of the report were missing and full set of survey report was later filed by the Opposite Party which is marked as Ext.B3.  OPW1 deposed that the property will be valued before insuring the same. Originally the building was of 39.3m2 and during that time loan was there.  OPW1 was not aware about the period when the loan was taken.  OPW1 also submitted that they have noticed that the building was initially obtained through Panchayat and after obtaining the loan, the same was modified and expanded.  At the time of proposal, plan and permit were not requested and it is deposed by OPW1 that the insurance will be given for the area requested by the bank.  According to OPW1, the full claim amount was not given on the basis of the letter given by the bank that the construction is illegal and according to OPW1, the property is not worth above 50,00,000/-.  In re-examination it is clarified by OPW1 that “]cmXn¡mcnbpsS sI«nS¯n completion certificate I­n«p­v claim \p tijamWv I­Xv AXv t\m¡nbt¸mgmWv illegal construction \S¯nbsX¶v a\ÊnembXv”. OPW2 is the General Insurance Surveyor who is having IRDA License and who had submitted Ext.B3 report as per which damage is calculated at Rs.2,56,732/-.  According to OPW2 the building is as per the Life Mission Scheme and the permit issued by the Panchayat is only for 420 sq.ft.  But the constructed building is with 1500 sq.ft without having permit and it is deposed by the witness that Ext.B3 is a genuine report after considering the records.  According to OPW2, the sum assured is Rs.15,00,000/- but the entire building costs more that and the witness deposed that the buildings coming under the Life Scheme cannot be constructed for an area more than allowed area.  Considering the documentary evidences submitted by the Complainant, Ext.A1 is the Ownership Certificate which does not discloses the total area of the building constructed.  Ext.A2 is the Certificate issued by the Village Officer, Vellarimala stating that the entire building is damaged and could not be used for residential purpose.  It is in evidence that the claim was decided as per the plan, permit etc and also considering the fact that the construction is illegal.  In this case, the Complainant had not produced the copy of permit or license issued by the Panchayat to show that there is no illegal construction as contented by the Opposite Party, which is the crucial question to be considered in this case.

8.  Considering the entire aspects and evidence in detail, this Commission finds that the Complainant had not proved her case on merits and Point No.1 is found against the Complainant.  Since Point No.1 is found against the Complainant, Point No.2 is not considered by the Commission.

            9.  Hence, on the basis of the above observations this complaint is only to be dismissed.

Hence Consumer Case is dismissed without Costs.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the 12^th day of September 2023.

Date of Filing:-19.07.2021.

PRESIDENT   :Sd/-

MEMBER       :Sd/-                   

MEMBER       :Sd/-

APPENDIX.

Witness for the Complainant:-

PW1.              Marthasi.                                          Coolie Worker.

PW2.              Vijayan. T. N.                                   Bank Manager.

Witness for the Opposite Party:-

OPW1.          Nandakumar. O.                            Senior Divisional Manager.

OPW2.          Raghesh Raghav.                            General Insurance Surveyor.

Exhibits for the Complainant:-

A1.                  Ownership Certificate.                                         Dt:06.11.2020.

A2.                  Certificate issued by the Village Officer.          Dt:03.09.2020.

A3.                  Copy of Standard Fire and Special Perils Policy.

A4.                  Copy of Plan of the proposed residence at Mundakai.

Exhibits for the Opposite Party:-

B1.                  Copy of Standard Fire and Special Perils Policy.

B2.                  Fire Insurance Claim Form.

B3.                  Survey Report.                                                        Dt:27.11.2020.

B4.                  Letter.                                                                        Dt:15.12.2020.

B5.                  Copy of Building Permit.                                      Dt:03.08.2018.

B6.                  Copy of Discharge Voucher.                               Dt:10.03.2021.

B7.                  Copy of letter.                                                         Dt:18.03.2021.

PRESIDENT   :Sd/-

MEMBER       :Sd/-

MEMBER       :Sd/-

/True Copy/

                                                                                                          Sd/-

                                                                                             ASSISTANT REGISTRAR

                                                                                                  CDRC, WAYANAD.

Kv/-