Tamil Nadu

StateCommission

CC/81/2003

K. PADMINI NAIR - Complainant(s)

Versus

THE NEW INDIA ASSURANCE CO. LTD., BRANCH MANAGER - Opp.Party(s)

S.K. CHANDRAKUMAR

10 Jul 2015

ORDER

 

BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

                                 PRESENT :  THIRU.A.K.ANNAMALAI                         PRESIDING JUDICIAL MEMBER

                                 TMT.P.BAKIYAVATHI                                                     MEMBER

C.C.NO.81/2003

DATED THIS THE 10^th DAY OF JULY 2015

                                                                                                                        Date of filing :  09.10.2003

                                                                                                                         Date of order : 10.07.2015

Mrs.K.Padmini Nair,

#5 Ramalinga Nagar,

4^th Cross Road,                                                         M/s.S.K.Chandra Kumar

Coimbatore 641 011.                                               Counsel for Complainant

                             -vs-

1.  M/s.The New India Assurance Co.Ltd,

     Rep by its Branch Manager,                                   M/s.K.Suriya Narayanan

     #28, R.G.Street,                                                Counsel for 1^st opposite party

     Coimbatore 641 001.

2.  The Coimbatore City Municipal Corporation,

     Rep by its Commissioner,                                      M/s.R.Sivakumar

     Town Hall, Coimbatore.                                       Counsel for 2^nd opposite party

3.  Tamilnadu Water Supply & Drainage Board,

     Rep by its Chief Commissioner,

     46, Bharathi Park Road,                                         M/s.Sudharshana Sunder

     Coimbatore 641 043.                                           Counsel for 3^rd opposite party

          The complaint filed by the complainant before this commission against the opposite parties praying to direct the opposite parties to pay sum of Rs.40,00,000/- as per the claim for demolition and reconstruction of the house for setting right the damage incurred to the house due to the sudden flood with 24% interest from the date of intimation till realization and to pay a sum of Rs.1,00,000/- as damages for mental agony and to pay Rs.1,00,000/- as physical pain and to pay costs.   This complaint coming before us for final hearing on 03.07.2015 and heard the arguments on either side, and perused the records and passed the following order:

THIRU.A.K.ANNAMALAI, PRESIDING JUDICIAL MEMBER

1.       The complaint filed under Sec.17 of the Consumer Protection Act, 1986.

          The complainant claiming direction for the payment of Rs.40,00,000/- against the insurance claim for demolition and reconstruction of the house under the policy due to the sudden flood with 24% interest alleging deficiency in service in not settling the claim from 21.12.2001 and to pay a sum of Rs.1,00,000/- each as damages for mental agony and physical pain and to pay costs.

2.       The gist of the complaint in brief as follows :

          The complainant obtained householder’s policy on 13.4.1999 and thereafter renewed yearly commencing from 16.4.2001 till 15.4.2002 with risk coverage to the extent of Rs.50,00,000/- including householder’s article on payment of premium of Rs.4895/- for his house situated at No.5, Ramalinga Nagar, 4^th Cross Road, Coimbatore 641 011 covering the damages and loss arising out of

a.  Fire lighting, explosion of gas in domestic appliances

b.  Bursting and overflowing of water tanks, apparatus or pipes.

c.   Aircraft or articles dropped there from

d.   Risk, strike or malicious act.

e.   Earthquake, fire and / or shock, subsidence and landslide (including rockslide)

      damages

f.    Flood inundation, storm, tempest, typhoon, hurricane, tornado or cyclone.

g.   Impact damage.

Due to sudden torrential rainfall in and around Coimbatore District in between 6.11.2001 to 20.11.2001 the entire Saibaba Colony where the complainant’s house is situated was damaged to a great extent.  Hence after consulting the experts in the field of construction on 6.12.2001 she applied for the claim form and submitted the same with the documents on 25.1.2002.  She engaged a licensed building surveyor to assess the damages on 11.12.2002 and the surveyor gave a report that house was completely damaged due to flood of rain resulting in seepage of walls, despite the complainant taking all precautions to prevent flooding and suggested to demolish and reconstruct the house.  Subsequently after receiving the claim the 1^st opposite party repudiated the claim on the ground that damages not due to floods that there are lot of evidence to show that the damages were caused due to sudden floods and the 1^st opposite party cannot say that the claim falls out of scope of the householder’s policy they repudiated the claim without any proper reasons in order to avoid liability that the flooding during heavy monsoons could also be attributable to the 2^nd and 3^rd opposite parties in not providing basic services like proper drainage & sewage facilities to the colony which caused flooding of house during monsoons and thereby there was deficiency of service on their part also.  Hence the complainant claimed the relief as stated above.

3.       The opposite parties 1 and 3 denied their allegations in their written version separately filed.  The 2^nd opposite party did not file any version separately.  The complainant subsequently given up the complaint against the 2^nd and 3^rd opposite parties as per the endorsement made on the complaint dated 12.11.2003.

4.       The 1^st opposite party contended that by admitting the policy taken by the complainant from 16.4.2001 to 15.4.2002 covering the building and contents of the house for a sum of Rs.50,00,000/- and submitted a claim on 6.12.2001 stating ‘nature and cause of loss’ : “Excessive rainfall inundating the city due to bad drainage caused flooding of the house and rain water seeps upwards from below the foundation.  All the outer walls and inner walls have been damaged and repair is not possible due to dampness caused setting is of a pest attack.”  Hence these damages due to inherent vice in the construction.  The building has been constructed without taking into consideration that the locality being a low lying area and there is a possible threat to the safety of the building in the event of rains and seepage of water for which the complainant ought to have taken adequate measures to put up a construction which can withstand the normal rain and reasonable inundation which alone is covered under the insurance policy.

5.       The surveyor appointed by the complainant stated that the house has to be reconstructed with raising the foundation after demolishing in view of the inundation possible alternative is to raise the foundation of the building by 5 feet to prevent seepage, dampness to the walls and pest attacks.  This can be done only after demolishing and reconstructing the building. The surveyor appointed by the 1^st opposite party also pointed out that the house situated in a low lying area with frequent seepage of water due to improper or no sewage system and due to the rains, the entire area gets affected as a result of which the foundation and the walls are damaged.  Further it was pointed out that the house of the complainant had not suffered any structural damage and the building being occupied by the complainant with a play school and further there was no accidental damage to the building to construe that the damage occurred due to an insured peril and that the damage to some of the walls is only due to breathing and sweating.  In the opinion of the independent surveyor and loss assessor engaged by this opposite party, the painting on the walls have peeled off due to dampness of the walls during monsoon rains and the damage to the walls etc is attributable to the seasonal fluctuation and does not relate to any specific cause which falls under the policy.  Hence the claim was repudiated properly.

6.       Both sides have filed proof affidavits and on the side of the complainant Ex.A1 to A13 and on the side of the 1^st opposite party Ex.B1 are marked.

7.       The following points are for consideration :

          1.  Whether there is any deficiency on the part of the 1^st opposite party in repudiating the claim of the complainant under the coverage of policy for the damages claimed?

          2.    Whether the complainant is entitled for a sum of Rs.40,00,000/- towards insurance claim for the damages caused to the building due to floods?

          3.   Whether the complainant is entitled to any claim for compensation of Rs.1,00,000/- each for mental agony and physical pain?

          4.     To what relief?

8.       POINT NOS.1 & 2 : In this complaint enquiry, it is admitted the case of both sides that the complainant had availed the householder’s policy covering damages to the building under various categories including damage for Earthquake, fire, and or shock, subsidence and landslide, Flood inundation, storm, tempest, typhoon, hurricane, tornado or cyclone and thereby the complainant claimed under the clause floods alleging that there was torrential rainfall in and around Coimbatore District between 6.11.2001 to 20.11.2001 due to torrential rainfall in entire Saibaba Colony where the complainant’s house situated was damaged to a great extent which was not disputed by the 1^st opposite party.  However the complainant contended that the floods not due to torrential rainfall and due to situation of building in low lying area whether the water inundation due to flood and caused damages due to heavy monsoons rains and not due to any sudden floods and inundation as per Ex.B1 Surveyor’s report under the policy particular category 5.09.  Further the complainant’s own surveyor report under Ex.A5 it is stated

“ The only possible alternative is to raise the foundation of the building by 5’0” to prevent seepage, dampness to the walls and pest attacks.  This can be done only after demolishing and reconstructing the building.

 The Estimated cost of demolishing and reconstructing an extent of 5000 sq.ft (aaprox) with good quality construction would be Rs.50.00 lacs approximately;”

Hence the 1^st opposite party contended that the damages to the building is not due to torrential rainfall but due to improper construction of building in low lying area and due to improper or no sewage system which caused entire area got affected as a result of which the foundation and walls are damaged for which they relied upon the very own report of the complainant’s surveyor report under Ex.A5.  Further under  Ex.A11 the 1^st opposite party’s surveyor’s reply to the complainant that they reiterate that there has been no accidental damage to the building, which could be considered as an insured peril. The damage to some of the walls in her house is only due to breathing and sweating and also noticed that the house is still being continued to be occupied and even a play school is noticed being run.  According to this report the claim is outside the scope of policy and thereby the claim was repudiated.  Even as per the surveyor’s report of the complainant or by the 1^st opposite party they have not assessed the value of the damages to ascertain the exact damage in case if otherwise the claim is to be considered.  When the complainant claimed Rs.40,00,000/- towards damages on the basis of entire claim of the policy no separate materials for the same was availed except for the report of the situation due to floods.  The 1^st opposite party stated that the building is still in use and a playschool being run shows that there cannot be any severe damages to the building if otherwise which may cause risk to the children or kids in their play school even if it is allowed to run with the same condition, the 1^st opposite party did not explain what are all the facts covering under the Caption “floods” to determine exact nature of damages to be covered under the insurance and thereby we are of the view that the complainant cannot seek any relief under the Consumer Protection Act, 1986 alleging deficiency in service against the repudiation of the claim by the 1^st opposite party except to move for before appropriate Civil Forum for determining the damages and validity of claim and these points are answered accordingly.  
9.       POINT NO.3 :     In view of the findings in Point No.1 and 2 the complainant cannot claim any compensation against the deficiency in service or mental agony and physical pain and this point is answered accordingly.

10.     POINT NO.4 :      In view of the points 1 to 3 are answered adverse to the complainant, the complainant is not entitled for any relief from the 1^st opposite party and the complaint is liable to be dismissed.  Accordingly

          In the result, the complaint is dismissed against the 1^st opposite party since already complaint against the 2^nd and 3^rd opposite parties is dismissed as given up.  However with liberty to the complainant to move before Civil Court if so desired for the claim against the 1^st opposite party.  The parties are do bear their own costs.

 

P.BAKIYAVATHI                                                        A.K.ANNAMALAI

    MEMBER                                                       PRESIDING JUDICIAL MEMBER

 

LIST OF DOCUMENTS FILED BY THE COMPLAINANT :

Sl.No	Date	Description
Ex.A1	16.04.2001 to 15.04.2001	Copy of Householder’s policy Insurance Clause
Ex.A2	04.06.2003	Copy of the Tax receipt
Ex.A3	06.12.2001	Copy of Claim Form application
Ex.A4		Copy of Letter from the neighbor
Ex.A5	11.01.2002	Copy of Complainant’s Survey report
Ex.A6		Copy of Newspaper cuttings
Ex.A7		Copy of Photographs
Ex.A8	25.01.2002	Copy of Submission form
Ex.A9	19.02.2001 (2)	Copy of Reply from the 1st opposite party’s Surveyor
Ex.A10	12.03.2002	Copy of Rejoinder by the 1st opposite party’ surveyor
Ex.A11	08.04.2002	Copy of Reply to the rejoinder by the 1st opposite party’s surveyor
Ex.A12	25.06.2002	Copy of Final Reply from the 1st opposite party
Ex.A13		Copy of Insurance policy

 

LIST OF DOCUMENTS FILED BY THE 1^st OPPOSITE PARTY :

Sl.No	Date	Description
Ex.B1	02.05.2002	Copy of Householder’s Insurance Survey report with annexures

 

P.BAKIYAVATHI                                                      A.K.ANNAMALAI

    MEMBER                                               PRESIDING JUDICIAL MEMBER

 

 

INDEX; YES/NO

VL/D;/PJM/INSURANCE