SMT. RAVI SUSHA: PRESIDENT

   Complainant filed this complaint U/s 35 of Consumer Protection Act 2019 for getting an order directing opposite parties to  pay Rs.50,10,000/- towards the damages caused to the house in the flood and inundation, Rs.2,00,000/- towards mental agony  , pain and physical stress and sufferings caused to the complainant due to the illegal act and deficiency of service of OPs and  Rs.96,000/- towards the amount paid as rent  from September 2019 to January 2021 and cost of the proceedings of this case.

        Brief facts of the case is that the complainant is  a business man arranged a business loan for improving his business from the 1^st OP, at that time the 1^st OP arranged insurance coverage to the stocks and inventories in the shop of the complainant from the 2^nd OP and also coverage to  his  house. It is also a fact that the insured house is situated near to the Karuvanchal river at a height of 5 meters above the  level of the river. Due to the heavy rain and inundation occurred   on 8/8/2019 to 10/8/2019, the water level in the river rose to a height of 6 to 7 meters submerging the entire area adjacent to the river including the house of the complainant.  Due to the  flood the house  and its surroundings were sub merged in water for 2 to 3 days .  So the soil beneath where in the house is located become loose and as a result of which the house was settled 2 to 4 inches to the earth. Due to that there  are major cracks developed in the RCC roofing of the ground floor as well as the 1^st floor of the house.  Further cracks also were developed all over  the walls of the house.  All the cracks developed after the flood  and inundation.  Further the complainant preferred a claim before the 2^nd OP  through 1^st OP.  Therefore the  2^nd OP deputed civil consultant appointed by the insurance company to assesses the damages. It is submitted that only high quality materials were used for the construction of the house.  According to complainant the Asst. Engineer LSGD,Alakkode Grama Panchayath, inspected the house reported that there are cracks in the RCC slab of the ground floor and the same is occurred due to the settlement of the house in the flood water and stagnation in the area.  Further as a result of the flood and the consequential settlement, the house is slightly slanted towards west.  The structural engineer Mebin John who inspected the house at the request of the complainant has reported that the house has under gone severe structural damages and the structure is beyond rectification  and it need to rebuild.  According to his calculation, the estimated cost for the reconstruction of the house is Rs.50,10,000/-. the assessments and the reports of the consultant surveyor are untrue, arbitrary and totally against facts.  The consultant/surveyor is biased and arrived  an amount  against the real damages and losses caused to the complainant.  It is submitted that  1^st OP is duty bound to protect the interest of complainant and legally liable to compensate the loss and damages sustained by the  complainant and the services of the OPs are totally defective and inadequate, so they are jointly and severally liable to compensate.  Hence the complaint. 

   After receiving notices OPs 1&2 filed separate versions stating their  contentions.

  1^st OP admitted the home  loan  and  its insurance coverage.  It is  submitted that 1^st OP has no liability to indemnify the complainant.  The grievances if any had to the redressed with 2^nd OP and this OP is an unnecessary party to this case. Hence prayed for the dismissal of the complaint

       2^nd OP submitted that the incident was reported only on 16/8/2019.  Immediately 2^nd OP deputed an independent IRDA licensed surveyor . The surveyor physically inspected the affected site and the inspection of the complainant’s house was carried out on 20/8/2019.  The surveyor had sent  letter of requirement seeking documents relevant to the claim in order to assess the loss. 2^nd OP had deputed a  structural engineer also who had visited along with surveyor on 12/11/2019 to confirm the damages happened  due to the flood.  Initially the surveyor had assessed the loss at Rs.2,44,892/-.  Later on receipt of the  representation of the complainant and few additional documents they had revisited and assessed the loss to the tune of Rs.4,18,621/-.  An eminent structural engineer was deputed to inspect along with the surveyor and give his technical opinion.  The  structural engineer along with the surveyor had inspected the site and submitted report assessed the actual loss.  They have assessed the loss without any bias as per the guidelines issued by IRDA from time to time.  As per the opinion of the  civil consultant who had in detail inspected the insured premises only civil superficial damage like minor cracks, flooring works, wooden door and windows, painting works etc have been observed and the same can be easily rectified.    According to 2^nd OP total reconstruction of the building would not be required as the condition of the building is good, all damage observed are minor  in nature and can be repaired and no structural damage has been  found  due to  flooding and inundation.  So the claim of the complainant  that he has sustained a huge loss of Rs.50,10,000/- towards damages caused to complainant’s  house is only a false claim. It is submitted that the settlement of an insurance claim is made by 2^nd OP on the basis of the policy conditions, approved surveyor’s report and other materials on record.  It is further submitted that  2^nd OP  was always willing  and ready to settle the claim of the complainant . 2^nd Op had  communicated this fact to the complainant to produce  certain documents for settling the claim but he did not heed to the request of the  2^nd OP.  There is no deficiency of service on the part of 2^nd Op hence prayed for the  dismissal of the complaint.

     At the evidence stage, complainant filed chief affidavit and documents.  Complainant was examined as PW1, marked  Exts.A1 to A12.  One more witness the Secretary, Alakkode Panchayath was examined on the side of complainant.  Marked Exts.X1 to X3.   From the side of OPs,  two witnesses,  Head of   Operation-Chennai, M/s Puri Crawford Insurance Surveyors and Loss Assessors India Pvt.Ltd,(DW1) and Legal claims Manager, Sujith Krishna SK(DW2), were examined.  Marked Exts.B1 to B5.  After that the learned counsels of both parties complainant and 2^nd OP made   oral  argument  and the learned counsel of  2^nd  OP filed  written argument note also.

   The undisputed facts are that  the complainant has taken a business loan from 1^st OP and 1^st OP arranged insurance coverage to the stocks and inventories in the shop of the complainant and also to his residential house from 2^nd OP Insurance company.  It is also a fact that the insured house is situated near to the Karuvanchal river.  Further  on 8/8/2019 to 10/8/2019 heavy rain  and flood happened at that area and the flood affected the house also.  Further the complainant preferred a claim before the 2^nd OP  through 1^st OP.  It is also  not under dispute that the Loss assessor with civil consultant appointed by the insurance company, assessed the net loss of Rs.418621/-.

      Complainant alleged that the assessments and the reports of the consultant surveyor are untrue, arbitrary and totally against facts.  The consultant/surveyor is biased and arrived  an amount  against the real damages and losses caused to the complainant’s house.  According to complainant the Asst. Engineer LSGD,Alakkode Grama Panchayath, inspected the house reported that there are cracks in the RCC slab of the ground floor and the same is occurred due to the settlement of the house in the flood water and stagnation in the area.  Further as a result of the flood and the consequential settlement, the house is slightly slanted towards west.  The structural engineer Mebin John who inspected the house at the request of the complainant has reported that the house has under gone severe structural damages and the structure is beyond rectification  and it need to rebuild.  According to his calculation, the estimated cost for the reconstruction of the house is Rs.50,10,000/-.

      2^nd OP submitted that though the incident happened on 8/8/2019,it was reported to OP only on 16/8/2019.  Immediately 2^nd OP deputed an independent IRDA licensed surveyor . The surveyor physically inspected the affected site and the inspection of the complainant’s house was carried out on 20/8/2019. 2^nd OP had deputed a  structural engineer also who had visited along with surveyor on 12/11/2019 to confirm the damages happened  due to the flood.  Initially the surveyor had assessed the loss at Rs.2,44,892/-.  Later on receipt of the  representation of the complainant and few additional documents they had revisited and assessed the loss to the tune of Rs.4,18,621/-.  An eminent structural engineer was deputed to inspect along with the surveyor and give his technical opinion.  According to 2^nd OP total reconstruction of the building would not be required as the condition of the building is good, all damage observed are minor  in nature and can be repaired and no structural damage has been  found  due to  flooding and inundation.  So the claim of the complainant  that he has sustained a huge loss of Rs.50,10,000/- towards damages caused to complainant’s  house is only a false claim.

    According to  complainant there is settlement of the house in the flood and due to that there  are major cracks developed in the RCC roofing of the ground floor as well as the 1^st floor of the house.  Further complainant has stated that the damages happened to the building is beyond rectification and it need to rebuild the house and for that the estimated cost is Rs.50,10,000/-.  For proving the above said averment complainant submitted Exts.A10 and Ext.A11.  Ext.A10 is the certificate issued by one Mr.Mebin John stating that the damaged structure of the house is beyond rectification and submitted an estimate valued Rs.50,10,000/- for the re-construction of the building.  These documents are strongly opposed by the 2^nd OP.  2^nd OP vehemently contended that on getting intimation from the complainant, about the incident on 16/8/2019, an eminent structural engineer was deputed to inspect along with the surveyor and they inspected the site and submitted report assessed the actual loss.  According to their observation only civil superficial damage like minor cracks, flooring works, wooden door and windows, painting works etc have been observed and the same can be easily rectified.   Total reconstruction of the building would not be required as the condition of the building is good, all damage observed are minor  in nature and can be repaired and no structural damage has been  found  due to  flooding and inundation.

   Here the complainant has examined only the Secretary Alakkode Grama Panchayath as PW2.  Through PW2, Exts.X1 to X3  were marked.  On perusal of Exts.X1 to X3, in Ext.X3, there is a suggestion to assess the actual damage by an engineer of the concerned department.  Ext.X2 is the report of Assistant Engineer, LCGD section, Alakkode Panchayath.  On analysis of Ext.X2 report, it is revealed that the engineers reported damages but he could not come to a conclusion that the cracks were happened due to  settlement of the house.  Further the engineers has not reported that the cracks found in the house were of major in nature and the damages are not to be rectified.  Here complainant did not try to examine the engineer to establish that re-construction of the house is necessary.

   Further we can see that in Ext.A9 report of Assistnat Engineer,LSGD section, Alakkode Grama Panchayath, the Engineer reported  that ” പ്രസ്തുത സ്ഥല പരിശോധനയിൽ ടിയാന്ർറെ വീടിരിക്കുന്ന സ്ഥലം പുഴയോട് ചേർന്ന് നിർമ്മിച്ചതാണെന്നും, പുഴയുടെ സൈഡ് കെട്ടിയത് തള്ളിപ്പോയതായും കാണുന്നുണ്ട്.  വീടിന് പ്രത്യക്ഷത്തിൽ  ചുമരുകളിലും കൂടാതെ ഗ്രൌഡ്  ഫ്ലോർ സ്ലാബിലും വിള്ളലുകൾ കാണപ്പെടുന്നുണ്ട്. ഈ വിള്ളലുകൾ പ്രസ്തുത സ്ഥലം വെള്ളം കയറിയപ്പോൾ ഇരുന്നു പോയതുകൊണ്ട് സംഭവിച്ചതാകാമെന്നും ഇതിനാൽ അറിയിക്കുന്നു.”

   In Ext.A10 the Engineer Mr.Mebin John reported that” the structure is beyond  rectification and  need immediate assistance from concerned authorities”.

  In Ext.A11 the total amount needed for rebuilding of the house amounts Rs.50,10,000/-.  It is to be  seen that Exts.A10 to A11 are opposed by 2^nd OP and  both the documents were marked subject to proof.  But the complainant failed to examine Engineer Mebin John for proving the veracity of reports Exts.A10 & A11.  So we cannot rely upon Exts.A10& A11.

     So from the available evidence the authenticate document to rely upon the damage caused to the complainant’s house is Exts.B1,B2 series .  Final survey report prepared by  PCIS Crawford dtd.26/6/2020.

   On perusal of Ext.B2 series, we can reveal that it is a detailed report.  Further  gross Loss assessed was Rs.855800.00.  Assessed Loss by surveyor was Rs.418621.00/-.  It is to be noted that the terms and conditions of the insurance policy, the 2^nd OP Insurance company has not explained anywhere the justification for arriving at the figure of Rs.418621.00/- which it had assessed as the amount of  Assessed loss payable.  In the insurance terms, nowhere stated about the deprecation percentage  as 2.5% per year.  Taking into consideration the net loss, assessed by the surveyor, we are of the view that the complainant is entitled to get the gross loss Rs.8,55,800.00/- together with compensation for the mental agony.

   With regard to 1^st OP, we are of the view  that no deficiency in service on its part in sending the claim application etc to 2^nd OP.

      In the  result complaint is  allowed in part.  2^nd opposite party Insurance company is directed to pay Rs.8,55,800/- to the complainant along with Rs.25,000/- towards compensation and Rs.5000/- towards cost of the proceedings of this case within  one month from the date of receipt of  the certified copy of this order.  Failing which Rs.8,55,800.00/- + Rs.25,000/- carries interest @9% per annum from the date of order till realization.  Complainant  can execute the order as per provision in Consumer Protection Act 2019.

Exts:

A1-Insurance policy

A2-Final notice issued by the surveyor of 2^nd Op to the complainant

A3-letter issued by 2^nd OP to PW1

A4-lawyer notice

A5-postal receipt(2 in Nos)

A6-Acknowledgment card(2 Nos)

A7-Joint inspection report

A8-Letter issued  to the complainant by the Secretary Alakkode Grama panchayath

A9-Report submitted by the Asst.Engineer LSGD Alakkode panchayath

A10-Certificate issued by  MebibJohn Structural engineer

A11-Plan and estimate

A12-photographs(2 in Nos) subject to proof

X1- letter issued by Alakkode Grama panchayath to PW1

X2- Report issued by Asst.Engineer,LSGD Section  to the Secretary Alakkode Grama 

       Panchayath

X3- The complaint sent by PW1 to Vellad village officer was forwarded by Alakode Gram Panchayat

         along with a report

B1& B2(series) -Surveyor report  dtd.27/3/20,26/6/20

B3&B4- Photographs

B5- Insurance policy

PW1-Joseph Thomas-complainant

PW2-PrasannakumarN.N- witness of PW1

DW1-A.Udayakumar- 2^nd OP.

DW2-Sujith Krishna S.K- witness of 2^nd OP

       Sd/                                                        Sd/                                                      Sd/

PRESIDENT                                         MEMBER                                             MEMBER

Ravi Susha                                       Molykutty Mathew                                    Sajeesh K.P

eva           

                                                                        /Forwarded by Order/

                                                                 ASSISTANT REGISTRAR