DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016

Case No.519/2009

Dr.  H. N. Agarwal

S/o Late Shri P. S. Agarwal

R/o S-222, G.K-II, New Delhi                                      ….Complainant

Versus

M/s The New India Assurance Company Ltd.

(through its Divisional Manager) Branch Office-311502

Plot No.22, Mother House, IInd Floor,

Yusuf Sarai, Commercial Complex,

Gulmohar Enclave, New Delhi-110049                ….Opposite Party

                                                          Date of Institution        : 01.07.09             Date of Order                 :  07.06.17

Coram:

Sh. N.K. Goel, President

Ms. Naina Bakshi, Member

ORDER

            At the beginning, we say that none has been appearing on behalf of the Complainant and we directed issuance of notice of pairavi to him for 23.05.17. Notice of pairavi issued to him through dispatch No.762 dated 18.04.17 has been served upon him on 29.04.17 vide track report Mark A.  Therefore, we reserved the case for orders.

Complainant’s case, in brief, is that the had been taking fire and allied perils insurance policy from the OP for the past over 15 years and in continuation again took policy on 26.11.2006 for coverage of his entire residential house for a sum insured amount of Rs.8.52 lacs alongwith burglary,  housebreaking including theft for a sum of Rs.5.21 (insured amount),  all risks for jewellery & valuable for a sum of Rs.1.24 lacs and other household articles for a sum of Rs.8.98 lacs approx. (insured amount) for the period 26.11.07 to 25.11.08 (midnight) vide policy No.311502/48/07/00000/331 and paid total premium of Rs.10,500/- by means of a cheque vide receipt No.400984 issued by the OP.  According to him, the owner of the plot bearing No.S-220 i.e. Pradeep Agarwal demolished the existing structure and digged basement on his plot which is below the complainant’s building foundation and there is no space between the foundation of the complainant’s building and the basement of  another house No. S-220;  that the complainant’s building is situated on the hill slope;  that on 08.08.08 due to very heavy rain and strong air current which had been recorded by the Meteorological Department of Delhi as 15.2mm of rainfall in 24 hours and due to water inundation in the adjacent building basement in which excavation work was going on complainant’s building’s foundation was exposed which caused slippage of soil under existing portion of the complainant’s building and due to this impact and differential settlement lead to developments of cracks in the floor, wall and the ceiling of the complainant’s portion of the building was badly damaged. The complainant immediately reported the matter to the local police authority on the same day and also the OP; that as per the advice the complainant deputed Sh. J. M. Narang (Structural Consultant) and Sh. Kailash Jatia, Architect for rectification of damages caused to his building and safety measure and suggestions for further widening of cracks caused to the building; that the OP’s surveyor Sh. Ajay Chopra made survey of the damaged site and took the photographs, required few documentation/ clarification from the complainant and the complainant provided the  details to the OP’s surveyor about the total expenditure on rectification of his building but in vain.  It is stated that in the second week of April 2009 OP informed his representative over the phone that the OP will reject the claim and the same will be informed to the complainant through a letter.  Copy of the letter has been filed as Annexure L & M. It is further stated that all efforts of the complainant went wasted when the OP fraudulently and dishonestly avoided and neglected to pay the amount to the complainant and put him in wrongful loss and wrongful gain to themselves.  The complainant has filed the present complaint for issuing directions to the OP to pay to him compensation of Rs.12,57,850/- on account of actual expenditure incurred in repair of the building alongwith a sum of Rs.1 lac towards physical harassment and mental agony due to the negligence, misconduct and unfair practice of the OP and also to pay cost and litigation charges of Rs.28,500/-.

       In the written statement OP has inter-alia stated that the intimation of the loss in the present case was given to the OP’s office only on 11.08.08 through letter dated 08.08.08 and the claims documents were submitted sometime in February, 2009 which is clear violation of the insurance contract as provided in clause (b) of the policy which provides that upon the occurrence of any event giving rise or likely to give rise to  a claim under the policy the insured shall give immediate notice thereof to the company and shall within 14 days thereafter furnish to the company his own expenses detailed particulars of the amount of the loss or damage together with such explanations and evidence to  substantiate the claim as the company may reasonably require.  Para 3 of the Preliminary objections is relevant. The same is reproduced as hereunder:-

       “3. That as per “ INDEMNITY” CLAUSE of the policy” The Company may at its option reinstate, replace or repair the property or premises lost or damaged or any part thereof instead of paying the amount of loss or damage or may join with any other Insurer in doing but the Company shall not be bound to reinstate exactly or completely but only as circumstances permit, and in reasonably sufficient manner and in no case shall the Company be bound to expend more in reinstatement than it would have cost to reinstate such property as it was at the time of occurrence of such loss or damage not more than the Sum Insured by the Company thereon.”

It is further stated that after receipt of the intimation letter on 11.08.08 the OP deputed independent surveyor M/s Ajay Chopra & Associates for the inspection of the alleged damages to the building of the complainant and to assess the loss to the building of the complainant who visited the site on 12.08.08 and sent various letters dated 15.08.08, 17.09.08 & 14.10.08 to the complainant asking him for certain documents; that the said surveyor again visited the residence of the complainant on 30.08.08 and matter was discussed again with the complainant but no documentary evidence in support his claim was given. According to the OP, the complainant submitted the alleged estimate of the cost of the repairs of the building as allegedly amounting to Rs.12,57,850/- only on 04.02.09 issued by KK Dawar Building Contractor towards repair of the affected residence which was without any technical support which also included total cost of repair of the building as per replacement value of the building and Rs.1,06,500/- of Choukhat, doors, cupboard, moulding, windows, fevicol, hinges, nails etc. which were neither damaged nor were part of insurance policy; that similarly Rs.52,000/-  has been claimed for switches, switch boards and lights which were not affected at all; that the surveyor of  the OP took the photographs of the damaged housed, discussed in details  the estimate of loss submitted by the complainant and came to the conclusion that the aforesaid loss is not covered under the policy of the insurance because the loss had not occurred due to subsistence and/or the insured peril.; that the said surveyor also mentioned the proximate cause of loss vide para 17.1 of  their report and assessed the underwriter’s liability as nil. It is stated that without prejudice and without any acceptance of liability and after thorough investigation and discussions by the aforesaid surveyor they worked out the cost of the repair of the alleged loss to the building for an amount of Rs.4,43,440/- as per details mentioned in the report subject to terms and conditions of the insurance policy. It is stated that a letter dated 27.02.09 repudiating the claim of the complainant was immediately sent to the complainant after going through the details of the surveyor’s report and keeping in view the terms of the insurance contract. It is prayed that the complaint be dismissed.

       Complainant has filed a rejoinder. In the rejoinder, inspection report of M/s Ajay Chopra & Associates has not been denied by the complainant but he has denied that the surveyor had asked him to submit the documents. It is denied that required papers were given after a gap of 6 months from reporting the loss.  The other averments made in the reply have been denied.

       Complainant has filed his own affidavit in evidence and has relied on documents Ex. CW-1/A to CW-1/Q.  On the other hand, affidavit of Sh. S. Bathoa, Sr. Divisional Manager has been filed in evidence on behalf of the OP.

       Written arguments have been filed on behalf of the parties.

       We have gone through the file very carefully.

We do not want to burden our order by discussing the matter in length. According to the admitted case of the parties, after the damages in the insured building in question of the complainant the complainant had submitted his claim of Rs.12,57,850/- based on the report issued by KK Dawar Building Contractor. There is no evidence on the record to even show that the said KK Dawar Building Contractor had any technical knowledge which according to the OP was without any technical support and also included the costs which were not damaged and were also not part of the insurance policy. According to the OP, their surveyor M/s Ajay Chopra & Associates inspected the alleged damages of the building in question of the complainant and assessed the loss for an amount of Rs.4,43,440/- as per the details mentioned in their report subject to the terms and conditions of the insurance policy.  The report of KK Dawar Building Contractor has been filed on behalf of the complainant as Annexure-J. We have gone through it very carefully and we are also inclined to observe that the details of the expenditures therein have been given without any basis or the details. Therefore, such a report cannot be relied upon.   The report of M/s Ajay Chopra & Associates has been filed on behalf of the OP. The same is a detailed report and every detail has been discussed therein. After discussing each and every aspect of the matter in detail an estimate of Rs.4,43,440/- as net assessed loss has been calculated in the said report. As per the OP, according to the surveyor report the complainant had suffered a loss of Rs. Rs.4,43,440/- because of the damages caused in the building in the incident.  Para 17 of the report is material and we reproduce it as hereunder:-

17.0  Conclusion

17.1  As per Architect and Structure Engineer reports,  the loss occurred due to excavation carried by adjoining property, Plot No.S-220 upto level below and/or in building line of S-222 (Insured Building) that too in contiguous stretch, which caused settlement in soil below floors and foundations resulting in cracks to the building.  This further aggravated basement and penetrated to the soil of the insured’s building below foundation.

17.2  From the above,  it should be seen that the loss has not occurred due to subsidence and none of the insured’s peril had operated. Apart from the above,  the same is not covered under Section 1 – Building & Contents i.e. VIII – (e) of the policy, hence there shall be no “Liability”.

We say that the onus to prove that the complainant had not given the intimation to the OP as per the provision contained in clause (b) of the policy or the claim is not covered under Section 1 Building & Contents i.e. VIII – (e) of the policy was on the OP. The OP should have filed a copy of the terms and conditions governing the policy in question. However, the OP has not filed the copy of the terms and conditions governing the policy in question.  Therefore, we hold that the OP has not proved that the repudiation of the claim of complainant by them was justified, according to law and according to the terms and conditions of the policy in question. Therefore, we hold that the OP has committed deficiency in service by repudiating the claim of the complainant. At the same time we hold that the complainant is entitled to only Rs.4,43,440/- to be recovered from the OP towards the loss caused to the building in question on account of the above stated incident. 

In view of the above discussion, we allow the complaint to the extent of Rs.4,43,440/- and direct the OP to pay Rs.4,43,440/- to the complainant by means of a Cross Payee Cheque/ Pay Order in the name of the complainant within a period of 30 days from the date of receipt of copy of this order failing which OP shall become liable to pay Rs.4,43,400/- with interest @ 6% p.a. from the date of filing of the complaint till realization.

Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations.  Thereafter file be consigned to record room.

Announced on 07.06.17.