Haryana

StateCommission

A/1095/2015

ANARO DEVI(SINCE DECEASED) - Complainant(s)

Versus

UNITED INDIA INSURANCE CO. - Opp.Party(s)

VISHAL MALIK

15 Jul 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :      1095 of 2015

Date of Institution:        21.12.2015

Date of Decision :         15.07.2016

Anaro Devi (since deceased) through her LRs:

(i)      Naresh s/o late Smt.Anaro Devi

(ii)      Rajender  s/o late Smt.Anaro Devi

(iii)     Ashok s/o late Smt.Anaro Devi

(iv)    Vinod s/o late Smt.Anaro Devi

(v)     Subhash s/o late Smt.Anaro Devi

All Residents of Kaisthan Mohalla, Rohtak.

                                      Appellants/Complainants

Versus

 

The United India Insurance Company Limited, through Divisional Manager, Office at Model Town, near D. Park, Rohtak.

                                      Respondent/Opposite Party

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Mr. B.M. Bedi, Judicial Member.

                                                                                                         

Argued by:          Shri Vishal Malik, Advocate for appellants.

                             Shri Paul S. Saini, Advocate for respondent.                    

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

This complainants’ appeal is directed against the order dated September 11^th, 2015 passed by District Consumer Disputes Redressal Forum, Rohtak (for short ‘the District Forum’) whereby Complaint No.270 of 2011 was dismissed.

2.      Anaro Devi (since deceased) now represented through her legal representatives-complainants (appellants herein) obtained Standard Fire and Special Perils Policy (Exhibit R-3) for her house covering risk upto Rs.25.00 lacs, from United India Insurance Company Limited (for short ‘the Insurance Company’)-Opposite Party/respondent, for the period September 15^th, 2009 to September 14^th, 2010.

3.      On August 16^th, 2010 due to heavy rain, the house of the complainant was completely damaged. The Insurance Company was informed. The complainant also got the estimate for reconstruction of the house prepared from Shri Hari Ram Gupta (an approved valuer), who vide report Exhibit C-1, prepared the estimate of Rs.27.00 lacs and also took photographs of the house (Exhibits C-2 to C-8). The Insurance Company also deputed Shri Ramesh Kumar Jain, Surveyor and Loss Assessor, who submitted report Exhibit R-4. Despite surveyor submitting that there was damage to the house, the Insurance Company repudiated claim vide letter Exhibit R-2. Hence, complaint under Section 12 of the Consumer Protection Act, 1986 was filed.

4.      Notice being issued, the Insurance Company contested the complaint stating that upon information Shri Ramesh Kumar Jain, Surveyor & Loss Assessor, was appointed who submitted the report that the damage appeared to have occurred as earth below the house had subsidence due to recent rain which was not covered under the policy. Therefore, it was declared as ‘No Claim’. It was prayed that the complaint be dismissed.

5.      The District Forum after evaluating the pleadings and evidence of the parties, dismissed the complaint. Hence appeal.

6.      We have perused the report          (Exhibit R-4) of Shri Ramesh Kumar Jain, Surveyor & Loss Assessor, appointed by the Insurance Company and the photographs of the damaged house, which were clicked at the time of inspection by the surveyor.  The surveyor in his report admits damage to the house due to heavy rain. The relevant extract of the report (Exhibit R-4) is reproduced as under:-

                   “d)     History of Fire.

Date & Time:      Due to heavy rain between 10.08.2010 to 15.08.2010.

As reported by the Insured’s son Mr. Sharma that it start raining cats & dogs in Rohtak Town since morning of 10.08.2010 & it continued raining every now and then till 15.08.2010, where cracks in the walls of his house developed due to the said heavy rains. On my further enquiry, it was informed that there was no accumulation of water due to Inundation in their Kaysthan Mohalla & also the area was not flooded due to the said heavy rains.

          Under the circumstances, undersigned minutely inspected the cause of the said cracks & it was observed that these have developed/occurred, may be due to subsidence as the Front portion of the said house leaning towards its Front Street thus rendering the house slightly leaned/inclined towards at its front portion thus resulting in cracks in the walls of almost all the rooms of the house. Further it was reported that all the houses in their street are slightly subsidizing for unknown reason-may be due to subsidence of the earth below in this particular area.

          Insurers may please note that while on inspection, it was observed that all the houses in Insured’s street are inclining/leaning towards each other & this fact is evident from the photographs arranged by me where it is evident that the top portion of these houses opposite each other in the Insured’s street are quite inclined towards each other. Also from the photographs it can be observed that the Insured’s house at its first corner had been duly supported by a heavy burnt brick pillar, which the Insured had constructed a month back to support their house from further leaning.

e)      Cause

          The Insured had explained in his intimation Dtd. 16.08.2010 that there is loss in his house due to heavy rains.

          Though Rohtak Town had been lashed with heavy rain in the second week of August but Kaysthan Mohalla situated on a very higher site as compared to Rohtak Town, there is at all not any possibility of accumulation of rain water due to inundation & accordingly the cause as stated by the Insured in his intimation is not acceptable. Further after my inspection as explained above, it seems that the cracks in the house have appeared, may be due to subsidence of the earth below & since the risk of “SUBSIDENCE” only find coverage under the Policy Terms & Conditions when the Building &/or a part of it collapse & thus the risk of “SUBSIDENCE” as explained is also not acceptable under Terms & Conditions of the Policy.

f)       Nature and extent of damages & my verification.

          During my said visit on 18.08.2010 i.e. about a week later of the said occurrence as stated by the Insured Representative, I observed the following damages to the Residential Building of the Insured, while on inspection:-

• Small to heavy cracks were observed to have developed in almost all the rooms of the said residential house of the Insured.”

7.      The observations of the surveyor support the claim of the complainants that there was damage to the house because of heavy rain. The photographs clicked by the surveyor and placed on the file also indicate cracks in the walls. Similar is the report (Exhibit C-1) of Shri Hari Ram Gupta (an approved valuer), indicating cracks in the walls and the photographs clicked at that time (Exhibit C-2 to C-8) also show that there are cracks of different sizes in the walls. Thus, there is no denying the fact that there was damage to the house due to heavy rain. Though, Shri Hari Ram Gupta, in his report (Exhibit C-1) has stated that the house needs total demolition and reconstruction for which he assessed the amount of Rs.27.00 lacs, however, the photographs did not indicate the loss to that extent.

8.      The Insurance Company-Opposite Party, does not deny the complainant having obtained “Standard Fire and Special Perils Policy” (Exhibit R-3) covering risk upto Rs.25.00 lacs, for residential house; the report of the surveyor (Exhibit R-4) as well as of Shri Hari Ram Gupta, appointed by the complainant, both opine of the damage to the house.

9.      The only plea raised by the learned counsel for the Insurance Company is that normal cracking, settlement or bedding down of new structures was not covered. The photographs indicate that there are varying sizes of cracks and do not show it to be normal cracks. The policy being admitted and damage also being not denied, the complainant was certainly entitled to reimbursement for at least repair of the house.

10.    Neither the surveyor deputed by the Insurance Company nor the engineer appointed/hired by the complainant, have assessed the amount required for repair of the house. However, taking clue from the photographs and the report of the surveyor that there are cracks almost in every wall of varying size, only a guess work has to be applied for repair. Considering the circumstances of the case, we quantify the amount of compensation at Rs.5.00 lacs for repair to the damaged house.

11.    Hence, the appeal is allowed, the impugned order is set aside and the complaint is partly allowed. The Insurance Company-Opposite Party is directed to pay Rs.5.00 lacs (rupees five lacs only) to the appellants-complainants within 45 days from the date of this order.

 

Announced: 15.07.2016

(B.M. Bedi) Judicial Member

(Nawab Singh) President

 

CL