Tamil Nadu

South Chennai

CC/325/2014

M.Peter - Complainant(s)

Versus

The New India Assurance Co Ltd., - Opp.Party(s)

M/s.R.Poornima

04 May 2018

ORDER

                                                                        Date of Filing  : 22.07.2014

                                                                          Date of Order : 11.05.2018

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

                 TMT. K. AMALA, M.A., L.L.B.                                : MEMBER-I

 

C.C. No.325 /2014

DATED THIS FRIDAY THE 11^TH DAY OF MAY 2018

                                 

M. Peter,

S/o. Mr. Micheal,

No.54, Cathedral Road,

Chennai – 600 086.                                                .. Complainant.                                                        ..Versus..

 

1. The Regional Manager,

The New India Assurance Co. Ltd.,

Regional Office, No.710000,

Spencer Towers,

3^rd Floor, 770 A, Anna Salai,

Chennai – 600 002.

 

2.  The Manager,

The New India Assurance Co. Ltd.,

Divisional Office, No.710800,

Ratna Building,

No.231, TTK Road,

Alwarpet,

Chennai – 600 018.                                             ..  Opposite parties.

          

Counsel for complainant         :  M/s. R. Poornima & another

Counsel for opposite parties  :  Mr. SP. Chockalingam

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act, 1986 seeking to pay a sum of Rs.13,82,579/- towards damages along with interest to the complainant, to pay a sum of Rs.1,00,000/- towards compensation for mental agony with cost of Rs.25,000/-.

1. The averments of the complaint in brief are as follows:

The complainant submits that he has insured his house at Chennai under Standard fire and Special Perils Policy with the opposite party for a sum of Rs.88,00,000/- under three heads namely:

   for Residential Building    :Rs.60,00,000/-

        Compound Wall         :Rs.20,00,000/-

Servants quarters :Rs.8,00,000/- for the period from 24.11.2011 to 23.11.2021.The complainant further submits that on 28.01.2012 at about 4.30 am, the compound wall which is duly insured with the opposite party fell down due to landslide.The complainant intimated the same to the insurer / opposite party on 30.01.2012.The complainant requested the opposite party for due appointment of Surveyor in order to assess the cause and damage to the compound wall.Since the opposite party delayed in appointing the Surveyor, the complainant was constrained to appoint an Expert namely M/s. Sastha Associates to assess the damages.The said M/s. Sastha Associates assessed the damages to the compound wall in such a manner and gave a detailed report quotation for reconstruction of the compound wall after removing the debris / damaged material of thecompound wall.Accordingly the said M/s. Sastha Associates assessed the damage to the tune of Rs.1382579/-. The Village Administration Officer also submitted a report stating that, the damages caused to the compound wall is due to the landslide.

2.  

3.     The brief averments in the written version filed by the opposite parties is as follows:

The opposite parties specifically deny each and every allegations made in the complaint and puts the complainant to strict proof of the same. The opposite parties state that, the damages caused to the compound wall is not due to the landslide.  But the opposite parties have not produced any record in detail.  On the other hand, it is apparently clear from the report of the surveyor and Ombudsman, that the opposite parties including the Surveyor has not gone into the detailed investigation regarding natural calamity including landslide rock slide and subsidents.   Further the opposite parties state that the damage caused to the compound wall was due to lateral load developed on the wall by escavation of earth and dumping of mud by the adjoining owner and filed photographs but none of the photograph can identify such escavation.  The Surveyor also has not submitted any other document including the Enquiry Report and statements of neighbours of the demised premises the local public and Members of the Local Bodies Officials attached to the disaster management.  Further the contention of the opposite parties that the Surveyor Report dated:28.3.2012 of Mr. V.V. Subramaniam and the photographs shows that the compound wall collapsed due to the escavation of earth and dumping mud is not acceptable since the Surveyor has not examined anybody nearby the demised premises including Member of local bodies, local people with regard to the landslide on the alleged date.  The Surveyor also has not taken steps to examine the officials related to disaster management and visited the demised premises after a long lapse of two months.  

4.  

5.   In order to prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A8 are marked.  Proof affidavit of the opposite parties filed and documents Ex.B1 to Ex.B2 are filed and marked on the side of the opposite parties.

6.     The points for consideration is:-

1.     Whether the complainant is entitled to a sum of Rs.13,82,579/- towards damages to the compound wall with interest as prayed for?

2.     Whether the complainant is entitled to a sum of Rs.1,00,000/- towards compensation for mental agony with cost of Rs.25,000/- as prayed for?

7.     On point:

Both parties filed their respective written arguments.  Perused the records namely the complaint, written version, proof affidavits, documents etc.  The complainant pleaded and contended that he has insured his house at Chennai under Standard fire and Special Perils Policy with the opposite party for a sum of Rs.88,00,000/- under three heads namely: for Residential Building         :Rs.60,00,000/-

     Compound Wall            :Rs.20,00,000/-

     Servants quarters :Rs.8,00,000/- for the period from 24.11.2011 to 23.11.2021 is admitted by the opposite party.   Ex.A1 is the policy.   The complainant further contended that on 28.01.2012 at about 4.30 am the compound wall which is duly insured with the opposite party fell down due to landslide.  The complainant intimated the same to the insurer   opposite party on 30.01.2012 as per Ex.A2 which is not denied.  The complainant requested the opposite party for due appointment of Surveyor in order to assess the cause and damage to the compound wall.  Since the opposite party delayed in appointing the Surveyor, the complainant was constrained to appoint an Expert namely M/s. Sastha Associates to assess the damages.  The said M/s. Sastha Associates assessed the damages to the compound wall in such a manner and gave a detailed report/ quotation for reconstruction of the compound wall after removing the debris / damaged material of the  compound wall.   

8.     Accordingly the said M/s. Sastha Associates assessed the damage to the tune of Rs.1382579/- as per Ex.A4.  The Village Administration Officer also submitted a report as per Ex.A3 stating that, the damages caused to the compound wall is due to the landslide.   The Village Administration Officer in his report, Ex.A3 stated as follows:

“Nkw;gb ,lj;jpy; fl;lg;gl;bUe;j Rw;Wr; Rtu;fs; epyr;ruptpd; fhuzkhf> Kw;wpYkhf fle;j 28.01.2012-Mk; ehsd;W ,be;J tpOe;Jtpl;lJ”. 

9.     Further the complainant contended that as per the policy in Ex.A1 the damages to the compound wall is covered and it should be compensated by the opposite party and submitted a claim form under Ex.A4.   The complainant further contended that the opposite party deputed a Surveyor one Mr. V.V. Subramaniam who visited the demised premises after two months and find out the collapsed compound wall, after repeated requests and letters by the complainant and approaching the opposite parties regulatory authorities.  The Surveyor of the opposite parties’ after due inspection submitted the report without taking into the consideration of  landslide and its causes came to the conclusion that, the fall of compound wall is due to the escalation work, and filling foundation work and remodernizaiton of neibouring owner and hence there is no coverage of policy.  But assessed the damages to the tune of Rs.5,04,560/-.  The Surveryor Mr. V.V. Subramaniam has not recorded any statement from the neighbours of the building including local people regarding the landslide on the impugned date.    Equally, the Surveyor has not assessed the damages as per the norms fixed by the Public Works Department.  The complainant further contended that the allegation invented by the Surveyor that the escalation work of the neighbour caused the damages to the compound wall is not acceptable because the Surveyor has not taken any step to find out the landslide in relevant time and by investigating the facts and recording the statement of neighbours including local public.   

10.   On the other hand, the Village Administrative Officer of the locality submitted a report in clear terms that the compound wall was collapsed only due to landslide.  The Surveyor has not even enquired anything about the landslide with the Village Administrative Officer or the Members of the local bodies.  Further the contention of the complainant is that he has made a request to the Ombusman who passed orders as per Ex.A8.  The Ombudsman carefully perused the policy conditions and noted the list of various perils covered under the policy in clause no.8 as follows:

“As per the above said Policy condition No.VIII it covers “Subsidence”, also in addition to Landslide and Rockslide.  The “Subsidence”, although a peril covered under the Policy, has not been examined by the surveyor.  He mentions only about rockslide and landslide in his report, whereas he should have examined the claim from all angles” proves the Surveyor’s Report is improper.  Further the complainant contended that the complainant  is claiming a sum of Rs.13,82,579/-, the actual cost for reconstruction of the compound wall and a sum of Rs.1,00,000/- towards compensation for mental agony caused due to the deficiency in service of the opposite parties. 

11.   The contention of the opposite party is that, the damages caused to the compound wall is not due to the landslide.  But the opposite parties have not produced any record in detail.  On the other hand, it is apparently clear from the report of the surveyor and Ombudsman, that the opposite parties including the Surveyor has not gone into the detailed investigation regarding natural calamity including landslide rock slide and subsidents.  Further the contention of the opposite parties is that the damage  caused to the compound wall was due to lateral load developed on the wall by escavation of earth and dumping of mud by the adjoining owner and filed photographs but none of the photograph can identify such escavation.  The Surveyor also has not submitted any other document including the Enquiry Report and statements of neighbours of the demised premises, local public, Members of the Local Bodies Officials attached to the disaster management.  Further the contention of the opposite parties is that the Surveyor Report, Ex.B1 dated:28.3.2012 of Mr. V.V. Subramaniam and the photographs, Ex.B2 shows that the compound wall collapsed due to the escavation of earth and dumping mud is not acceptable since the Surveyor has not examined anybody nearby the demised premises including Member of local bodies, local people with regard to the landslide on the alleged date.  The Surveyor also has not taken steps to examine the officials related to disaster management and visited the demised premises after a long lapse of two months.  

12.   Further the contention of the opposite parties is that, there is no evidence to show that the compound wall was collapsed due to landslide is not acceptable.   Because on a careful perusal of the Village Administrative Officer’s Certificate, Ex.A3 it is apparently clear that the compound wall was collapsed due to landslide.   Further the contention of the opposite parties is that, the policy is not covered for the impugned claim and the opposite parties are not liable to pay compensation and cited a decision reported in “The National Consumer Disputes Redressal Commission, New Delhi between Gajanand Elastic Industries Versus New India Assurance Co. Ltd. & others”. 

13.   On a careful perusal of the entire records, it is apparently clear that, the opposite parties’ surveyor has not investigated properly in true spirit and filed his report.  Further the contention of the opposite parties is that the compensation claimed is exorbitant.  But no substantial contentions raised regarding the quantum of damages.  Considering the facts and circumstances of the case, this Forum is of the considered view that the opposite party shall pay a sum of Rs.13,82,579/- with interest at the rate of 9% with a compensation of Rs.25,000/- with cost Rs.5000/- to the complainant.

  In the result, this complaint is allowed in part.  The  opposite parties 1 & 2 are jointly and severally liable to     pay a sum of Rs.13,82,579/- ( Rupees thirteen lakhs eighty two thousand five hundred and seventy nine only) with interest at the rate of 9% p.a. from the date of filing of this complaint i.e. 22.07.2014 to till the date of this order and to pay a sum of Rs.25,000/- (Rupees twenty five thousand only) towards compensation for mental agony with cost of Rs.5,000/- (Rupees Five thousand only) to the complainant.

The aboveamounts shall be payablewithin six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a to till the date of payment.

Dictated  by the President to the Steno typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 11^th day of May 2018. 

 

MEMBER I                                                                      PRESIDENT

COMPLAINANT SIDE DOCUMENTS:

Ex.A1		Copy of the Policy form of the complainant
Ex.A2	30.01.2012	Copy of the letter by the complainant
Ex.A3	01.02.2010	Copy of the certificate issued by the Village Administrative Officer
Ex.A4	06.02.2012	Copy of the Fire Insurance Claim Form
Ex.A5	13007.2012	Copy of the letter by the complainant
Ex.A6	07.02.2013	Copy of the letter by the complainant
Ex.A7	01.01.2014	Copy of the letter by the complainant
Ex.A8	24.03.2014	Copy of the Award by the Ombudsman

 

OPPOSITE  PARTIES SIDE DOCUMENTS:  

Ex.B1	28.03.2012	Copy of the Survey Report
Ex.B2		Copy of photographs

 

 

MEMBER  I                                                                      PRESIDENT