BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 13/02/2009

Date of Order : 31/12/2011

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 88/2009

Between

And

O R D E R

A. Rajesh, President.

1. Briefly stated, the facts of the complainant's case are as follows :

The complainant constructed a house by availing a housing loan. The house was insured under a Fire and Special Perils Policy dated 04-07-2005 with the opposite party. On 29-08-2008, the house of the complainant was damaged in lightning. Due to the impact of the lightning, cracks and breaks were formed on all portions of the building causing damage to other amenities including well electric wiring etc. The complainant duly submitted insurance claim application before the opposite party. The insurance surveyor assessed the damages at Rs. 1,08,200/-. A competent Civil Engineer estimated the damages at Rs. 4 lakhs. Since the sum insured is Rs. 5,18,000/-, the opposite party is liable to pay Rs. 4 lakhs to the complainant together with costs of the proceedings. This complaint hence.

2. The version of the opposite party :

The opposite party issued Fire and Special Perils Policy coverage to the complainant's residential building for the period from 04-07-2005 to 03-07-2010. After the receipt of an insurance claim application, the opposite party engaged an independent licensed surveyor to assess the loss sustained to the insured building. He assessed the damages at Rs. 1,08,721/-. On receipt of the survey report, the opposite party intimated the complainant to settle the claim on the basis of the survey report and as per the terms and conditions of the policy. The surveyor failed to deduct Rs. 58,000/- assessed for electrification, which is excluded as per Clause 7 in the policy. Though the net loss assessed by the surveyor is Rs. 1,84,899/- after applying under insurance the net loss was assessed at Rs. 1,08,721/-. There is no deficiency in service on the part of the opposite party. The opposite party requests to dismiss the complaint.

3. The witness for the complainant was examined as PW1. Exts. A1 to A3 were marked on the complainant's side. The witness for the opposite party was examined as DW1. The expert commissioner's report was marked as Ext. C1. Heard the counsel for the parties.

4. The points that came up for consideration are :-

1. Whether the complainant is entitled to get a compensation of Rs. 4 lakhs from the opposite party?

2. Costs of the proceedings?

5. Point No. i. :- PW1 is the insurance surveyor, who prepared Ext. A1 survey report. As per Ext. A1 survey report, he assessed the damages of the house of the complainant as follows :

“The subject newly constructed building of plinth area 1458 sq.ft. With all standard finishes is found insured only for Rs. 5,88,000/-. whereas the present construction cost of the same would be not less than Rs. 10,00,000/-. Hence it is not adequately covered.

Applying under insurance,

Net Loss to be compensated. = Rs. 1,84,899.00

---------------------------- x Rs. 5,88,000.00 Rs. 10,00,000.00

= Rs. 1,08,720.00

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Rounded off = Rs. 1,08,721/-

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6. According to the opposite party, the above amount does not include Rs. 58,000/- assessed for electrification work which is excluded as per the terms and conditions of the policy as claimed by the opposite party. The above contention was incorporated by the opposite party in their version vide order in I.A. No. 104/2010 dated 07-04-2010 before the Forum which was allowed. Prior to the above order, at the instance of the complainant, this Forum vide order in I.A. No. 270/09 dated 19-10-2009 directed the opposite party to pay Rs. 1,08,200/- to the complainant being the admitted insurance claim. The opposite party complied with the above order of this Forum.

7. Not having been satisfied at the quantum assessed by the surveyor, the complainant requested for deputation of an expert commissioner vide I.A. No. 711/2010 which was allowed by this Forum. The expert commissioner was examined as DW1 and his report was marked as Ext. C1. As per Ext. C1 report, the expert commissioner assessed the damages of the building to the tune of Rs. 1,70,504/-. During evidence, the surveyor who was examined as PW1 could not substantiate as to how he failed to note the extend of damages or the measurement of damages. He further went to depose that the exact damages can be assessed only if the exact measurement of the damages is assessed. The Hon'ble National Commission in Oriental Insurance Co. Ltd. Vs. Mehar Chand 2009 (4) CPR 242 (NC) held that, “When an authorised garage had assessed the damage of insured vehicle and surveyor reduced the amount substantially he was supposed to give sound and cogent reasons and any absence of such reasons such report was not acceptable.” However, in the instant case, the complainant failed to establish that he had sustained a loss to the tune of Rs. 4 lakhs. The expert commissioner in Ext. C1 report extensively quoted the nature of the damage, to say the length, breadth, depth and height of the damages and finally came to the conclusion that an amount of Rs. 1,70,504/- is enough to indemnify the loss. There is no reason otherwise to conclude that the report of the expert commissioner is conclusive and reliable. So we have no hesitation to hold that the complainant is entitled to get the insurance claim on the basis of Ext. C1 report.

8. Clause 7 in the specimen of Standard Fire and Special Perils Policy reads as follows :

“Loss, destruction or damage to any electrical machine, electronic equipments, apparatus, fixture, or fitting arising from or occasioned by over-running, excessive pressure, short circuiting, arcing, self heating or leakage of electricity from whatever cause (lightning included) provided that this exclusion shall apply only to the particular electrical machine, apparatus, fixture or fitting so affected and not to other machine, apparatus, fixtures or fittings which may be destroyed or damaged by fire so set up.”

9. Going by the above clause, it is seen that non-inclusion of electrification is conclusively included in the above clause. So, the contention of the opposite party is unsustainable. Since the complainant has already received a sum of Rs. 1,08,200/- in part as per the direction of this Forum, he is entitled only to get the balance amount of Rs. 62,304/- (Rs. 1,70,504 – Rs. 1,08,200 = Rs. 62,304/-) from the opposite party in full and final settlement which shall be paid with interest at the rate of 9% p.a. from the date of complaint till realisation. Ordered accordingly.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in the open Forum on this the 31^st day of December 2011.

Forwarded/By Order, Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :: Nil

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