Kerala

Idukki

CC/3/2019

Soji Jaimon - Complainant(s)

Versus

Unaited India Insurance ltd - Opp.Party(s)

03 Mar 2022

ORDER

DATE OF FILING :4.1.2019

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the 3^rd day of March, 2022

Present :

SRI. C. SURESHKUMAR PRESIDENT

SMT. ASAMOL P. MEMBER

SRI. AMPADY K.S. MEMBER

CC NO.3/2019

Between

Complainant : Soji, W/o. Jaimon,

Theruvath House,

Chelachuvadu P.O.,

Idukki.

And

Opposite Parties : 1. The Branch Manager,

United India Insurance Company Ltd,

Aliyakunnel Building,

Central Junction, Idukki Colony P.O.,

Cheruthoni.

2. The Manager,

United India Insurance Company Ltd,

Registered and Head Office,

24 Whites Road, Chennai – 600 014.

(Both by Adv: Sony George)

 

O R D E R

 

SRI. C. SURESHKUMAR, PRESIDENT

 

1. This is a complaint filed under Section 12 of the Consumer Protection Act of 1986 (the Act, for short). Complaint averments are briefly discussed here under :

 

2. Complainant is a resident of Kanjikkuzhi Village. 1^st opposite party is Branch Manager representing Cheruthoni branch of United India Insurance (cont….2)

- 2 -

 

Company Ltd. and 2^nd opposite party is Manager of its Head Office situated in Chennai. Complainant had put up a small house in 3 cents of property owned hy her situated at Chelachuvadu kara, for which she had received financial assistance of Rs.2 lakhs from Prime Minister’s Indira Vikas Yojana of Central Government. She had raised remaining amount by taking a loan from Kanjikkuzhy branch of Union Bank and other sources. After completion of construction, house was insured with the 1^st opposite party on 17.1.2017, for a sum of Rs.3 lakhs. Due to floods which took place in 2018, house of complainant was completely destroyed owing to rains and land slide on 14.8.2018. Though this was intimated to opposite parties, they had inspected the house only after a period of one month and more. In the meanwhile , complainant had to stay in a relief centre / shelter and thereafter in her husband’s house. While so, a local club, namely, Globen Club had assisted the complainant in reconstructing the entire house. Complainant had also expended money availed by taking gold loan and from other resources. Surveyor sent by opposite party had inspected the house after reconstruction work was completed. The surveyor, after inspection, was satisfied that complainant was entitled to get entire insurance money of Rs.3 lakhs for the loss sustained. He had also assured the complainant that insurance money will be deposited in her bank account. However, to the surprise and dismay of complainant, only an amount of Rs.51,900/- was deposited in her bank account by opposite parties in November, 2018 in full settlement of her insurance claim. According to complainant, the amount given by opposite parties is not sufficient. She is entitled to get Rs.3 lakhs for which she was paid only Rs.51,900/-. There is deficiency in service on the part of opposite parties. Complainant prays for realization of Rs.2, 48,100/- being the remaining insurance amount and Rs.50,000/- as compensation for deficiency in service along with litigation cost of Rs.5,000/- to paid to her by opposite parties.

 

3. Both opposite parties have entered appearance and filed a joint written version. Their contentions are briefly discussed here under :

 

According to opposite parties, complaint is not maintainable in law or upon facts. It is true that petitioner is owner of 3 cents of property with a residential building situated in it. Opposite parties are not aware of any loan availed by complainant for construction of the house. Opposite parties admit that the residential building was insured with them by complainant. However, they submit that it is incorrect to say that the entire house was lost in flood and land slide. Building had sustained only damages which are repairable. It is incorrect to say (cont….3)

• 3 -

that insurance surveyor had inspected the building more than one month after intimation. Surveyor had inspected the building on 9.10.2018 and prepared a survey report. As per survey report, loss assessed is Rs.54,000/-. It is incorrect to say that survey report is prepared after renovation work was completed by complainant. Survey report was prepared after inspection of building and intimation of same was given to complainant. Surveyor had not promised to give Rs.3 lakhs towards insurance claim. No such promises was made by him. Opposite parties are not aware of any money spent by complainant for repair of building. There is no deficiency in service. Petitioner has no cause of action and complaint is to be dismissed with costs.

 

4. After filing of complaint, an application for inspection of the building by an Expert Commissioner was filed by complainant. Petition was allowed and Assistant Engineer, LSGD Section Idukki Kanjikkuzhy Grama Panchayath was appointed as commissioner. Able Commissioner had, after inspection, submitted a report which consists of valuation details of building in question. Case was posted for evidence after affording sufficient opportunity to both sides to take steps. Complainant herself was examined as PW1 on her side and Exts.P1 to P4 were marked. Insurance surveyor who had inspected the building was examined as RW1 on the side of opposite parties. Exts.R1 and R2 series, 11 in numbers of photographs, were marked on the side of respondents. There was no attempt on the side of complainant or opposite parties to get the Commission Report admitted in evidence. It is seen from report of commissioner that inspection of the building was after notice to complainant. There is nothing in the report of commissioner to show that inspection notice was given to opposite parties before or after his inspection. After examination of RW1, evidence was closed and both sides were heard. Now, the points which arise for consideration are :

1) Whether there was any deficiency in service on the part of opposite parties ?

2) Whether complainant is entitled for Rs.3 lakhs towards insurance claim for her house ?

3) Whether complainant is entitled for any compensation for deficiency in service on the part of opposite parties ?

4. Reliefs and costs ?

 

5. Point Nos.1 to 3 are considered together :

 

Learned counsel for complainant has narrated complainant’s case in brief. After adverting to the evidence tendered in this case, able counsel would contend (cont….4)

• 4 -

 

that there is sufficient proof of the fact that entire building was lost in the land slide during floods of 2018. The fact that reconstruction work was entirely carried out by the complainant with the assistance of a local club will not absolve the liability of opposite parties to fully compensate the complainant. Inspection of RW1 was after reconstruction. Hence Exts.R1 and R2 series are not sufficient evidence to show that building, had sustained only repairable damages. Loss has not been correctly assessed by the surveyor. Though this was intimated to opposite parties, they had refused to entertain complainant’s claim for remaining insurance money. There is deficiency in service on their part. That being so, complainant is entitled for the reliefs prayed for, in the complaint. Able counsel also submitted that none of the opposite parties have given evidence in this matter.

 

6. Learned counsel for opposite parties would contend that opposite parties have no direct knowledge with regard to the damages sustained by building or it’s inspection by surveyor. Hence their examination will not in any way help this commission to ascertain the truth. Insurance surveyor who had inspected the building was examined on the side of opposite parties. He has given evidence about actual damages sustained to the building and the loss assessed by him. As far as commissioner’s report is concerned, there was no notice of inspection to opposite parties. That being so, commission report cannot be relied upon without examining the commissioner. Loss has been correctly assessed by the surveyor. It is idle to contend that surveyor’s inspection was belated. Inspection was carried out immediately after incident was reported to opposite parties. Complainant does not say the date on which she had informed the opposite party or registered the claim initially. That being so, her case that inspection was done more than one month after intimation to opposite parties cannot be believed. There is no deficiency in service on the part of opposite parties. Complainant is not entitled for the reliefs prayed for in the complaint.

 

7. Thus, these are the rival contentions. As pointed out by the learned counsel for opposite parties, complaint does not reveal the date on or even the week, or month in which intimation about the incident was given by her to the opposite parties. No such date or period is mentioned in chief examination affidavit either. Surveyor has given evidence that he had inspected the building soon after receiving instructions from opposite parties for inspection. According

 

(cont….5)

 

- 5 -

 

to him, inspection was on 9.10.2018. It is for the complainant to prove that this was more than one month after information was given by her regarding the mishap to opposite parties. She does not have a case of having given written intimation to opposite parties. Whatever it may be, as mentioned earlier, the date on which inspection was given to opposite parties by complainant or even the week or month in which such intimation was given is not mentioned in the complaint or in the chief examination affidavit. Hence her case that there was delay in inspection of building after intimation was given by her to opposite parties cannot be believed.

 

8. According to complainant, land slide took place on 14.8.2018. Surveyor had inspected the building on 9.10.2018. Complainant would say that in between these dates, the house was reconstructed by her with the active assistance of a local club namely, Globen Club. There was no attempt by the complainant to summon and examine any member of the said club who had carried out the said reconstruction work. No document was summoned by the complainant regarding the work carried out from the office bearers of the said club either. She has only produced Ext.P3, a report in a daily regarding the work done by the club members. Though the report is not admissible in evidence, even if it is presumed to be not hearsay, it is only to the effect that the damages sustained to the building were attended to by the club members. Thus P3 is of no assistance to complainant. Ext.P2 is photocopy of certificate issued by Village Officer of Kanjikkuzhy Village, dated 18.9.2018, where in it is certified that building No.IKP/III/124 owned by complainant was rendered inhabitable owing to rains. Certificate does not reveal that the building was inspected by the Village Officer. Original of the same has not been produced by complainant. There was no attempt to summon and examine the Village Officer either. Therefore much relevance cannot be placed upon Ext.P2. As far as commission report in this case is concerned, learned commissioner in the 1^st part of report sent as a letter addressed to the Commission along with his valuation report has stated that even a photo showing damaged building was not made available by the complainant. At the time of inspection, plastering work was over and building was white washed and it was not possible to ascertain which portion was reconstructed. Therefore, he had prepared an estimate, which is the valuation report, based upon information supplied by the complainant herself. That being so, commission report is not at all sufficient to prove the actual damages caused to building and actual costs of/for it’s reconstruction.

 

(cont….6)

- 6 -

 

9. Admittedly, according to complainant, house was reconstructed by her and therefore it is presently habitable. Her case that entire building was destroyed owing to land slide is not believable, firstly for the reason that she has not given the date on which intimation regarding her claim to opposite parties was given, initially. Secondly, there was no attempt from the side of complainant to summon office bearers of Globen Club to prove the nature of work carried out by them and expenses involved. There was no attempt to summon any document relating to the work done by the club members either. Though she claims that she had also raised funds by taking loan and pledging gold ornaments for doing reconstruction work, apart from her evidence, which is vague, there is no documentary evidence to support this case of hers. She does not specify how much money was expended by her personally for the reconstruction or the value of work carried out by the club. Pleadings in this regard are also vague. Ext.P4 is yet another certificate issued by the Secretary of Idukki Kanjikkuzhy Grama Panchayath dated 14.6.2019, which is after filing of this complaint. In this certificate also, Secretary does not say when the building was personally inspected by him. Moreover, there was no attempt to summon and examine the Secretary to prove Ext.P4. Ext.P4, like Ext.P2 cannot be taken as corroborative evidence to sustain the case of complainant that the entire house was lost owning to land slide. It is seen from Exts.R1 and R2 series and evidence of RW1, that a portion of foundation had sunk due to loss of soil in the front portion. This was repaired and cracks were plastered. Surveyor had assessed loss of Rs.54,000/- and after deducting depreciation of one year, a compensation of Rs.51,900/- was given to complainant. There is no evidence from the side of Complainant to prove that R1 is an incorrect estimate. Complainant has not succeeded in proving that she is entitled for Rs.3 lakhs towards insurance claim for the loss sustained, from opposite parties. Therefore, we find that complainant is not entitled to get Rs.2,48,100/- towards balance insurance claim from them. She has also not succeeded in proving that there was deficiency in service on the part of opposite parties. That being so, she is not entitled for the compensation prayed for or litigation costs. Point Nos.1 to 3 are answered accordingly.

 

 

 

(cont….7)

 

 

 

 

• 7 -

 

10. Point No.4:

 

In the result, this petition is dismissed, considering circumstances, without costs.

 

Pronounced by this Commission on this the 3^rd day of March, 2022

Sd/-

SRI. C. SURESHKUMAR, PRESIDENT

Sd/-

SMT. ASAMOL P., MEMBER

Sd/-

SRI. AMPADY K.S., MEMBER

 

APPENDIX

Depositions :

On the side of the Complainant :

PW1 - Jaimon.

On the side of the Opposite Party :

DW1 - Madhu K.

Exhibits :

On the side of the Complainant :

Ext.P1 - Copy of Policy

Ext.P2 - Photocopy of certificate issued by the Village Officer of Kanjikkuzhy

Village, dated 18.9.2018.

Ext.P3 - Report in a daily regarding the work entertained by the club members.

Ext.P4 - Copy certificate issued by the Secretary of Idukki Kanjikkuzhy Grama

Panchayath dated 14.6.2019

On the side of the Opposite Party :

Ext.R1 - Survey report dated 22.11.2018.

Ext.R2 - Photographs - 11 in numbers.

Forwarded by Order,

 

 

SENIOR SUPERINTENDENT