The case of the complainants, in brief, is that they jointly took house building loan for their residence from State Bank of India, Siliguri Court Branch and while the process of repayment of that loan was going on then SBI, Siliguri Court Branch insured their house for a sum of Rs.7,50,000/- against the risk of earthquake (fire and shock) and the complainants were paying the insurance premium since such insurance was the condition of their loan agreement.  Complainants got their aforesaid insurance

Contd….P/2.

-:2:-

policy being No. 512301/11/5/00000390 and the policy was named as “Standard Fire and Special Perils Policy” covering their policy period from 17.08.2005 to midnight of 16.08.2015 by paying a total sum of Rs.2,893/- to OP No.2 of which net premium was shown as Rs. 2,625/- only for the purpose of securing their residential house from the risk of Earthquake.  It is further contended in the petition of complaint that in the evening of 18^th September, 2011 there was an extensive severe Earthquake over North East India including Siliguri Town and its adjoining area which Earthquake damaged the residential building of the complainants by way of cracking of the walls of the said building severely.  The complainants by their letter dtd. 21.09.2011 informed the OP No.2, New India Insurance Company Limited about such damage of the building inconsequence of Earthquake and then OP No.2 asked the complainants to submit estimated damage together with photographs of the damages.  The complainants submitted the estimated cost of damages in details duly examined and certified by the Govt. Approved Engineer/surveyor namely Sri Rajat Roy with photographs of said damages to the OP No.2 on 30.09.2011 which cost was estimated therein as Rs. 2,36,083/-.  Subsequent to that OP No.2 also sent one surveyor namely Sri Jayanta Kar who is not a Civil Engineer but one mechanical engineer and that mechanical engineer visited and examined the complainants’ damaged building and thereafter OP No.2 remained silent over the matter for about six(6) months without settlement of the claim of the complainants and to that attitude of OP No.2 complainants repeatedly asked the OP No.2 though in the meantime the price of the building materials and labour charges had been in gradual escalation.  On 16.05.2012 the office of the OP No.2 informed the complainants that a total sum of Rs. 18,321/- was only granted against their claim of damage to residential building out of that Earthquake shock and requested them to sign the settlement voucher as full and final settlement of their claim.  The complainants being aggrieved and dissatisfied with such settlement of their claim sent a letter to OP No.2 dtd. 16.05.2012 expressing their unwillingness to accept the grant of such scanty amount and requested there in that letter for resurvey

Contd….P/3.

-:3:-

 of the damages to assess the actual cost or to repair the damages of their building by any approved Govt. Contractor at the cost of the OP No.2, on the other hand, the OP No.2 without paying heed to their request sent a letter dtd. 23.05.2012 to the complainants with threat to complainants to sign the accompanied voucher accepting the claim of Rs. 18,321/- as fixed by the OPs in default of which they would closed the claim of the complainants as a case of “No Claim”.  The complainants then served their legal notice dtd. 04.06.2012 to both the OPs of this case and lastly on surprise the complainants received a registered letter from Op no. 2 under the reference of lodged claim which is of dtd. 20.06.2012 wherein the quantum of loss as assessed by their surveyor at Rs. 1,01,376/- which stood at Rs. 18,321/- against which the complainants have initiated this case on the ground of deficiency in service.  It is mentioned in the petition of complaint further that cause of action of the complainants first arose on 18.09.2011 continued thereafter on different dates and the complainants thus prayed for a total sum of Rs. 2,51,083/-, hence, this case.

                             The OPs contested this case by filing written version wherein the OP-Insurance Company admitted the matter of insurance made by the complainant in respect of building.  The OPs acknowledge that the surveyor was appointed on their part and the complainants are entitled to Rs. 18,321/- only on ratable proportion as per policy but as the complainants did not accept that sum so their case of claim was closed with the comment “No Claim”.  It appears that OP Nos. 1 & 2 submitted additional written version and in this additional W/V the OPs stated that this case is not maintainable here for which more appropriate Forum is the Civil Court and thus prayed for dismissal of this case on the ground that there was no negligence or deficiency in service on their part against the complainants. 

                             Prior to framing of issues for consideration of this case it is pertinent to note here that this District Forum passed judgment of this case on 26.06.2013 by allowing the case in part against the OPs and thereafter being aggrieved and dissatisfied with this judgment the OP-Insurance Company preferred an appeal being no. FA/874/2013 before the Hon’ble State Consumer Disputes Redressal Commission, Kolkata on which Hon’ble State

Contd….P/4.

-:4:-

                   Commission passed order on 02.07.2014 and dismissed the appeal on contest and thereby pleased to affirm the judgment of this Forum dtd. 26.06.2013 and subsequent to that the OP-Insurance Company from such order dtd. 02.07.2014 in FA No. 874/2013 of the Hon’ble West Bengal State Consumer Disputes Redressal Commission, Kolkata preferred revisional application before the Hon’ble National Consumer Disputes Redressal Commission, New Delhi being revision petition no. 4129 of 2014 and it is found that by order dtd. 27.02.2015 Hon’ble National Commission has been pleased to remand the matter to this District Forum only for the purpose of deciding whether the excess clause would apply in this case and if it applies, to what extent reduction needs to be made from the cost of repair estimated by the engineer of the complainant. However, Hon’ble National Commission has been pleased to set aside the impugned order and remit the matter back to this District Forum for passing a fresh order after giving an opportunity to the complainants to file a report of their architect/valuer disclosing the total built up area of the house in question, the period during which it was constructed and the cost of its construction at the time the aforesaid property came to be insured along with observation and order that petitioner/insurance company shall be entitled to cross-examine the architect/valuer of the complainants.  Accordingly, it is found from the case record that on 26.03.2015 the complainants filed estimate of cost of proposed construction of ground floor and first floor building and the estimate of cost of damage work of the said building where the measurement of the ground floor and first floor are there in the assessment of cost of construction as prepared by their Architect/valuer, Mr. Rajat Roy and it is found further that the Architect/valuer, Sri Rajat Roy has been cross-examined accordingly by the Ld. advocate of the OPs on 03.05.2017 in this case.  It is also mentioned here that additional written notes on argument has been filed from the side of the OPs on 19.02.2018 and from the side of the complainants on 09.08.2017 in the fresh circumstance of the case.  Accordingly, under the present facts and circumstances this Forum framed the following issues for consideration of this case:-

Contd….P/5.

-:5:-

ISSUES

1. Are the complainants consumers as per section 2(1)(d) of the C.P. Act. 1986?
2. Is the case maintainable in its present form and nature?
3. Has there been any deficiency in service upon the complainants on the part of the OP-Insurance Company?
4. Whether the excess clause contained in the policy will apply in this case and if it applies to what extent of reduction needs to be made from the cost of repair estimated by the engineer of the complainants?
5. Are the complainants entitled to the award as prayed for?
6. To what other relief, if any, are the complainants entitled?

DECISION WITH REASONS.

ISSUE NOS. 1 & 2.

                             This instant case has been initiated by the complainants by filing one applicant under section 12 of the C.P. Act. 1986 the same was registered on 23.08.2012 before this Forum wherefrom it appears that complainants took house building loan jointly for construction of their house from SBI, Siliguri Court Branch and during course of repayment of that loan the said branch of the SBI took initiative and complainants insured their house with the OPs under “Standard Fire and Special Peril Policy” for securing their residential  building from the risk of Earthquake (Fire and Shock) covering their policy on and from 17.08.2005 to mid night of 16.08.2015 by paying a total sum of Rs. 2,893/- to OP No.2 out of which under premium was shown as Rs. 2,625/- only while total sum insured being Rs. 7,50,000/-.

                             The complainants have filed documents showing proper payment of premium of the said policy.  The subject matter that is the house of the complainants is situated within this area of Siliguri and it is also found from the case record that the OP No.2 of this case, is senior Branch Manager of New India Assurance Company Limited, having office situated at Siliguri and further it is

Contd….P/6.

-:6:-

 palpably clear that the claim of the complainants in this case is well within Rs. 20,00,000/- and moreover it is found from materials on record that the incident of Earthquake was taken place of 18^th September, 2011 in North East India including the area of Siliguri down and its adjoining which caused damaged to the complainants’ house and that incident of Earthquake is thus occurred within the insurance coverage period of the policy entered.  Thus under the facts and circumstances of the case we are of the considered view firstly that complainant are consumers within the purview of the C.P. Act. 1986 and this instant case is maintainable here in this District Forum as the case is completely within the territorial and pecuniary jurisdiction where the cause of action arose rightly and this case has been filed within a period of 2 years from the date of cause of action and thus it is not at all hit by limitation. 

                             Accordingly, both these issues are disposed of in affirmative in favour of the complainants.

ISSUE NOS. 3, 4, 5 & 6.

All these four (04) issues are taken up together for discussion and consideration as those are inter related with one another and moreover for the sake of convenience and to avoid repetition.

It has been averred in the petition of complaint that the complainants’ house sustained severe damages in the Earthquake which rocked major parts of North East India including Siliguri Town of 18.09.2011.  The complainants informed OP No.2, the Senior Branch Manager of New India Assurance Company Limited about the matter of such extensive damage in their house by a letter dtd. 21.09.2011 while the OP No.2 insured asked them to submit a estimate of damage to their house along with relevant photographs showing the same.  The complainants have engaged Government approved engineer/surveyor Mr. Rajat Roy for assessing damage and that engineer submitted report estimating the damages at Rs. 2,36,083/- and thereafter complainants submitted that report along with photographs to OP No. 1 on 30.09.2011.  It is to be noted here that one Mr. Jayanta Kumar Kar was appointed by the OP-Insurance Company as Surveyor/Loss Assessor for assessment of the damage of the complainants building to estimate the loss at Rs. 1,01,376/- and on 16.05.2012 the OP No.2 informed the complainants that their insurance claim was settled at Rs. 18,321/- but complainants refused to receive that doled amount and request for further

Contd….P/7.

-:7:-

assessment on resurvey of the matter and it has been further argued by the Ld. advocate for the complainants that OP No. 2 threatened them by virtue of letter dtd. 23.05.2012 that if they did not accept that amount of Rs. 18,321/- then their claim of insurance would be closed.  In this context the complainants by a letter dtd. 04.06.2012 addressed to OP No.2 through their Ld. advocate demanded reasonable settlement on their insurance claim but as no fruitful result came out, so the complainants compelled to initiate this case before this district Forum by filing application under section 12 of the C.P. Act. 1986 with a prayer along with direction to the OPs to pay them the sum of Rs.2,36,083/- as insurance claim which amount was estimated to the damage of their house as per report of their appointed surveyor/engineer, Mr. Rajat Roy and also therein prayed for other reliefs totaling an amount of Rs. 2,51,083/-.

During course of argument advanced by Ld. advocate for the OPs it is submitted that claim of insurance as against complainants’ house is admitted but it is reiterated that the complainants have suppressed the actual valuation of their house and accordingly complainants as per report of the surveyor, Mr. Jayanta Kar are entitled only to Rs. 18,321/- as against claim of insurance being the ratable proportion as per paragraph no. 10 of the policy and OP-side thus challenged the assessment of damages report prepared by Government approved engineer/surveyor of Sri Rajat Roy.  It is argued further by the Ld. advocate for the OPs that the final survey report dtd. 28.02.2012 of surveyor, Jayanta Kumar Kar mentioned at present valuation of the complainants’ house would be Rs. 21,00,000/- and suppressing that valuation the complainant paid premium showing lower valuation of the house and in the context Ld. advocate referred the rulings of Hon’ble  National Consumer Disputes Redressal Commission, where it is stated that where the value of the property insured is greater than the value of the sum insured the insured is considered to be the insurer for the difference and he has to bear a ratable proportion of the loss suffered because of braking out of the insured peril and is has been reported in [III (2004) CPJ 69 NC)] and accordingly Ld. advocate for the OPs emphatically stated that assessment of loss made by Jayanta Kumar Kar, Surveyor in this case on that formula as per guidelines of the Hon’ble National Commission and so the complainants are entitled to receive only Rs. 18,321/- from the OPs being the ratable proportion as per paragraph No. 10 of the policy.  It is very much pertinent to note here that this particular case on record was disposed of by this district Forum of 26.06.2013 and it was allowed on contest in part while both the OPs jointly and severally were directed to pay to the complainants a sum of Rs. 2,36,083/- along with sum of Rs. 5,000/- totaling Rs.2,41,083/- but it appears that the OPs preferred an appeal before the Hon’ble State Consumer Disputes

Contd….P/8.

-:8:-

Redressal Commission, West Bengal, Calcutta over that judgment dtd. 26.06.2013 and Hon’ble State Commission in the result of that appeal was pleased to affirm the judgment passed by this district Forum without interfering with the amount of compensation assessed and subsequent to that the OP-Insurance Company filed revision petition being No. 4129 of 2014 against said order dtd. 02.07.2014 of Hon’ble State Commission in SC case No. FA/874/2013 before the Hon’ble National Consumer Disputes Redressal Commission New Delhi.

It appears from the record that Hon’ble National Consumer Disputes Redressal Commission, New Delhi by virtue of order dtd.27.02.2015 has been pleased to remand the matter back to this District Forum only for the purpose of deciding whether the excess clause would be applied in this case and if it applies, to what extent reduction needs to be made from the cost of repair estimated by the engineer of the complainants.

It has further been enshrined from the order of the Hon’ble National Commission that the report of surveyor in this regard is rejected since he was a mechanical engineer whereas the engineer appointed by the complainants was a civil engineer.  We have gone through the order of the Hon’ble National Consumer Disputes Redressal Commission dtd. 27.02.2015 where Hon’ble National Commission has further been pleased to hold that it is necessary to find out the cost of construction of the house of the complainants at the time it got insured so that it may be decided whether the excess clause contained in the policy would apply and, if so, what would be the proportionate reduction from the cost of repair estimated by the engineer of the complainants and thus this instant case has been remitted back to this Forum for passing a fresh order after giving an opportunity to the complainants to file a report of their architect/valuer disclosing the total built up area of the house in question, the period during which it was constructed and cost of its construction at the time the property in question in this case came to be insured.  The Hon’ble National Commission has also been pleased to give liberty to the petitioner-OP-Insurance Company to cross examine the architect/valuer of the complainants.  And thereafter a direction has been given upon this Forum to consider the report of the architect as well as the report of the surveyor appointed by the insurance company for passing a fresh order in this case.  In view of the guidelines and observations of the Hon’ble Consumer Disputes Redressal Commission in revision petition No. 4129 of 2014, we under the facts and circumstances of the case, have framed one additional issue for the purpose of consideration of the same.  It appears that the complainants’ building in question is two storied building having sanction plain of three storied.  During the argument afresh from the side of OPs Ld. advocate submitted that valuation of the house

Contd….P/9.

-:9:-

in question of the complainant at the time of survey of the same was about Rs.21,16,725/- which has been rounded up in figure as Rs. 21,00,000/- disclosed from the report of the said surveyor Jayanta Kumar Roy prepared on 28.02.2012 but as per observation of Hon’ble national commission we cannot rely on this report regarding valuation of the property as said surveyor is a mechanical engineer and moreover that valuation is not also to be counted as it is not assessed cost of the property at the time of construction of the property came to be insured.  In this context from the document as produced from the side of the complainants it appears that complainants’ Civil Engineer, Mr. Rajat Roy estimated the cost of construction of the two storied building of the complainants at Rs. 6,32,972/- which is less than the sum insured amounting Rs.7,50,000/-.  And from this report of Mr. Rajat Roy we also obtained the measurement of the house so constructed in its ground floor as also on first floor as total 251-96M and at the same time the cost of repair over damage work has been reported at Rs.2,36,083/-.  From the cross-examination of said architect/ valuer as conducted by the Ld. advocate of the OPs it appears that no such specific question was there put to shatter the report prepared by the said witness, Architect/valuer, Mr Rajat Roy.  Thus on perusal of all these materials on record it is considered by us that excess clause is not applicable here in this case.  The value of the property here in this case, the value of the house in question of the complainants at the time of getting insured is found not greater but lesser than the value of the sum insured and therefore the question of bearing ratable proportion of loss suffered because of Earthquake does not arise and under the circumstance, it is held that the preponderance of probabilities has been in favour of the report of Mr. Rajat Roy by which report he assessed the damage of the complainants’ house with repairing cost at Rs. 2,36,083/- and in that case the offer of Rs. 18,321/- as prepared by the surveyor of the OP-Insurance Company as against claim of the complainants is meager accordingly baseless which clearly shows and establishes deficiency in service from the part of the OPs against the complainants.  The complainants are fully entitled to receive the said sum of Rs. 2,36,083/- under the insurance policy for repair of their residential house from the OP-Insurance Company. The OP-Insurance Company is also liable to pay another sum of Rs. 5000/- as against cost of litigation to the complainants totaling a sum of Rs. 2,41,083/-. All the issues are thus disposed of in favour of the complainants.  As a result, the instant case succeeds in part.

Hence, it is,

O R D E R E D,

that the instant Consumer Case being No. 97-S-2012 be and the same is allowed on contest, in part against both the OPs.

Contd….P/10.

-:10:-

The OP Nos. 1 & 2 are directed to pay jointly and severally a sum of Rs. 2,36,083/- (Rupees two lakh thirty six thousand and eighty three) and another sum of Rs. 5,000/-(Rupees five thousand) totalling a sum of Rs. 2,41,083/-(Rupees two lakh forty one thousand and eighty three) to the complainants within 45 days from the date of this order failing which this award shall carry interest @ 7% per annum on the sum of said Rs. 2,36,083/- counting from the date of this order.

In case of default, the complainants shall be at liberty to put this award in execution.

Let a copy of this order be supplied to the parties free of cost.