Complainant Jorawar Singh vide the present complaint filed U/S 12 of the Consumer Protection Act, 1986 (hereinafter for short The Act) has prayed for issuance of the necessary directions to the opposite parties to honour the claim and to make payment of amount claimed by him on account of loss suffered by him due to Earthquake. Opposite parties be also directed to pay Rs.5,32,552/- minus Rs.33,045/- which was deposited by the opposite party no.1 alongwith interest @ 18% per annum from the date of filing the claim till its realization and Rs.50,000/- for physical and mental harassment and Rs.10,000/- for deficiency in service and Rs.11,000/- on account of litigation expenses incurred by him, in the interest of justice.

2.          The case of the complainant in brief is that his house was fully insured with the opposite parties vide policy No.36160011120100000179 valid from 23.08.2012 to 22.08.2013 for Rs.20,00,000/- for Superstructure, Plinth & Foundations, Furniture fitting, fixtures and other contents against Earthquake (Fire & Shock) etc. On 1.05.2013 in the noon, the earth quake occurred in Pathankot area and his house was damaged by the earthquake. The plinth, pillars and foundations were damaged and the linter of the house was creaked from many areas of the house. When in the evening he reached at his residential house and found that there were cracks in the whole building due to earthquake and he took the photographs of the same and the news regarding earthquake was also published in the newspaper. On 2.5.2013, he informed the opposite party no.1 for the same and requested the opposite party to depute its surveyor to inspect the spot and to assess the loss suffered by him due to incident of Earthquake. The Surveyor deputed by the opposite party no.1 for prepare the statement for estimated loss. The opposite party no.1 told him that he can start the repairing of the house and after completion of repair deposit the bills of repair & labour expenses to the Company and that on 20.12.2013 he gone to the office of opposite party no.1 and produced bills of Rs.5,32,552/- for payment. Opposite party took his signatures on the blank papers on the pretext that the same are necessary for payment of the insured amount. To his utter surprise, the opposite party no.1 deposited the amount of Rs.33,045/- in his bank on 26.12.2013 without giving any intimation of the same to him, whereby his house was insured for 20 lacks and he produced the bills of Rs.5,32,552/- only to the opposite party office for payment. The surveyor report is illegal and not as per the actual loss suffered by him.  The consent letter alleged by the opposite party is not binding upon him and he never gave consent for the amount of Rs.33,086/-. Actually, his signature has been taken by the Surveyor on the blank form and he afterwards filled it. This fact is very clear from the fact that the surveyor report is dated 11.12.2013 in which he assessed the loss to the tune of Rs.33,086/- but deposit Rs.33,045/- and if he has to give the consent then it is to be after surveyor report as the loss has been assessed by the Report dated 11.12.2013. The date on the consent letter is 10.12.2013 and the Surveyor Report is 11.12.2013 and how it is possible to give consent for Rs.33,086/- before assessment of loss.  He has further pleaded that the opposite party instead of making balance payment of the loss suffered by him repudiated his claim orally on the false and flimsy grounds. He never suppressed any fact from the opposite party nor ever contravened the terms and conditions of the insurance policy. In fact, the opposite parties by not making payment of claim amount on account of loss suffered by him on bogus, false, fake and baseless observations is trying to back out from pious obligation of making payment of the claim to the policy holder with malafide intention and ulterior motive without any reason or rhyme. Hence this complaint.

3.         Upon notice, the opposite parties insurer appeared through its counsel and filed their written version taking the preliminary objections that the complaint is barred as per provisions of order 2 rule 2 CPC resjudicate and constructive resjudicata; the complaint filed by the complainant is not maintainable as the complainant has filed the complaint against the terms and conditions of the policy and hence the same is liable to be dismissed as the complainant has miserably failed to disclose deficiency, if any, in the services of the opposite parties; the complaint is without any cause of action, hence liable to be dismissed and all allegations made in the complaint, which are not specifically denied herein, are denied being false and baseless. The complaint is absolutely false and frivolous. On merits, it was stated that the complainant intimated the opposite party no.1 on 3.5.2013 regarding damage to his residential building due to earthquake on 1.5.2013. Thereafter the opposite party no.1 deputed M/s.Sanjeev Gupta & Associates Surveyor, Loss Assessors & Valuers Dhangu Road, Pathankot to assess the loss caused to the residential building of complainant. M/s.Sanjeev Gupta & Associates Surveyor, Loss Assessors & Valuers Dhangu Road, Pathankot submitted his detailed survey report on 11.12.2013 to opposite party no.1 by assessing net loss of Rs.33,086/- to the residential building of the complainant. Mr.Sanjeev Gupta vide his detailed report held that walls on the rear portion, bed rooms, lobby area, front portion have got cracked at various points and extent of damage in the rear & front wall was significant and the crack in the bed room and lobby area was superficial. There were cracks on the roof slab but the cracks in the flooring were not due to earthquake rather found to be affected in routine with the passage of time. New beams/pillars were constructed in order to improve the quality of construction which is not covered as per terms and conditions of the policy. The complainant has made several improvements in his 12 years old building for which he is not entitled as per terms and conditions of the policy. The opposite party is to indemnify the loss of the building insured in as it is condition by repair but no improvement is to be indemnify as per terms and conditions of the policy. Mr.Sanjeev Gupta Surveyor has assessed the loss of the building by considering serial vise estimate given by the complainant, spot inspection and as per terms and conditions of the policy. Thereafter the opposite party no.1 apprised the complainant in respect to detailed survey report of M/s.Sanjeev Gupta & Associates Surveyor, Loss Assessors & Valuers Dhangu Road, Pathankot  who assessed net loss of Rs.33,086/-. The complainant accepted the detailed survey report and given his consent by signing letter of consent on 10.12.2013 in the office of opposite party no.1. The complainant agreed to accept the sum of Rs.33,086/- subject to terms and conditions and exceptions as per policy conditions towards repair and new parts in full and final settlement of his claim for loss which occurred on 1.5.2013 at 12.30 PM. It has been further submitted that as per survey report of M/s.Sanjeev Gupta & Associates Surveyor, Loss Assessors & Valuers Dhangu Road, Pathankot  and letter of consent given by the complainant, the opposite party no.1 has approved the loss of complainant for Rs.33,045/- and make the payment to the complainant on 23.12.2013 by crediting Rs.33,045/- in Bank account of complainant submitted by him. All other averments made in the complaint has been vehemently denied and lastly prayed that the complaint may be dismissed with costs.

4.           Complainant tendered into evidence his own affidavit Ex.CI and of Joginder Singh Bhatti Ex.C2 to Ex.C40 and copies of photographs in 17 pages Mark A and copy of newspaper Mark B and closed the evidence.

5.     On the other hand, Sh.Sanjeev Gupta, Prop.M/s.Sanjeev Gupta and Associates Surveyor and Loss Assessor of the opposite parties tendered into evidence his own affidavit Ex.OP-1 and of Sh.Shiv Lal, Branch Manager of opposite party also tendered into evidence his own affidavit Ex.OP5 alongwith the other documents Ex.OP2 to Ex.OP9 and closed the evidence.

6.     We have carefully gone through the pleadings of both the parties; arguments advanced by their respective counsels and have also appreciated the evidence produced on record with the valuable assistance of the learned counsels for the purposes of adjudication of the present complaint.

7.       We find that there has been no dispute as to the validity of the comprehensive insurance Policy of Rs.20,00,000/- Ex.C4/ Ex.OP8 pertaining to the complainant’s Ex.C5 Residential House, its super-structure, plinth & foundation, the furniture, fixtures & fittings against risks to dwellings and its subsequent loss if caused by Earthquake, Fire & Shock etc. The factum of ‘earth-quake’ Ex.C8/Ex.OP7 on 01.05.2013 and the subsequent ‘damage’ (Ex.C10 & Ex.OP3) to the insured building structure etc is also admitted. The OP insurers upon intimation Ex.OP9 on 03.05.2013 deputed the Loss Surveyor, who assessed (Ex.C39/Ex.OP2 of 11.12.2013) the net Loss valued at Rs.33,086/- whereas the complainant got the ‘damage’ incurred/caused to his House repaired/renovated Ex.C11 at a total expense of Rs.5,32,552/- duly supported by the Bills/Receipts Ex.C12 to Ex.C38 paid for Building materials and Labour involved. The OP insurers have produced Ex.C40/Ex.OP6 the Letter of consent dated 10.12.2013 (alleged to be issued by the complainant consenting to receive Rs.33,086/-) but that being pre-dated to the Surveyor Report (11.12.2013) loses its veracity. No doubt, the complainant has duly challenged and contested Ex.C39 the Surveyor Report (dated 11.12.2013) but he has failed to confront and nullify the same through an Expert’s evidence and/or opinion upon the volume of damage caused to the House building exclusively on account of the Earthquake of 01.05.2013. As per the insurance contract and in terms of the applicable Policy, the insurers are liable to pay/compensate only for the loss/damage to the insured ‘exclusively’ caused through the earth-quake of 01.05.2013. The complainant has duly reported in the complaint that the damage was caused and there appeared many ‘cracks’ on the plinth, foundation, lintel and walls etc and thus only the expenses incurred on ‘repairs’ etc could be justifiably claimed and not those incurred on ‘re-fabrication & renovation’ Ex.C11 (Rs.2.50 lac)  that has somehow been included in the claim such as: fresh laying of CC floorings, floor tiles & floor marble etc., fresh laying of PVC pipes (for electrical & plumbing), sewerage laying, renovation of kitchen & wash-rooms etc plus the cost of labour Ex.C11 (Rs.2.82 lac) etc. Under the circumstances, the amount of Rs.33,086/- as duly assessed by the OP designated Loss Assessor as per Ex.C39 (Ex.OP2) shall be acceptable since no other logical assessment/alternative has been made available on the records of the proceedings of the present complaint.           

8.       In the light of the all above, we find the present complaint devoid of any ‘merit’ as envisaged under the Act and thus ORDER for its dismissal with however no orders as to its costs. 

9.       Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.

                 (Naveen Puri)

                                                                                     President   

Announced:                                                         (Jagdeep Kaur)

June 22, 2015                                                               Member

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