State Consumer Disputes Redressal Commission
K.V. Jacob, vs The Divisional Manager, New India ... on 30 September, 2011
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. 465/2005 (Arisen out of Order Dated null in Case No. of District ) 1. K V Jacob Kalapurackal House,Venmani,Mamala,Ernakulam BEFORE: SRI.M.K.ABDULLA SONA PRESIDING MEMBER PRESENT: ORDER KERALA STATE CONSUMER DISPUTES REDRESSALCOMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL 465/05
JUDGMENT DATED 30.09.2011
PRESENT
SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER
SHRI. M.K. ABDULLA SONA : MEMBER
APPELLANT
K.V. Jacob,
S/o Varkey, Kalapurackal House,
Venmani, Mamala P.O., Ernakulam Dist.
(Rep. by Adv. Sri. George Cherian Karippaparambil )
Vs
RESPONDENT
The Divisional Manager,
New India Assurance Co. Ltd.,
Aluva Divisional Office,
Koduvath Shopping Complex, Sub Jail Road, Aluva - 683 101
. (Rep. by Adv. P.G. Ganappan)
JUDGMENT
SHRI. M.K. ABDULLA SONA : MEMBER This appeal prefers from the order passed by the CDRF, Ernakulam in O.P. No. 757/03 order dated 10.3.2005.
The complainant is the appellant and the respondent is the opposite party in the above O.P. respectively.
The appellant/complainant prefers this appeal from the dismissal order of the complainant by the Forum below.
In the case of the complainant is that the complainant has decided to construct a new residential building consisting of two floors. The construction was with the financial assistance of the Federal Bank ltd. Puthencruz branch. In the first phase of the construction of the building the ground floor was completed on 10.11.2001. After the completion of the ground floor that portion was insured with the opposite party by the bank for a period of 25.4.2002 to 24.4.2003. The sum assured was Rs. 3,00,000/- The first Floor work was started on 2.5.2002. The concreting of the first floor roof was on 2.6.2002. On 7.6.2002 early morning, the residential building totally collapsed due to heavy torrential rain along with heavy rain there occurred mild earth tremors in that area. There were unprecedented geological phenomenon like strong tides noticed in the well of the complainant and adjacent wells in the locality. The complainant intimated the accident to the opposite party and the bank. But the Insurance Company(opposite party) repudiated the claim by letter dated 21.10.2002. The ground mentioned in the repudiation letter is that the complainant who suppresses the material facts and that the collapse of the building was due to defective construction. Hence the complainant alleging deficiency in service of the opposite party has claimed a compensation of Rs. 3 lakhs with interest 18% per annum from 21.10.2002 till realization.
The opposite party has issued a standard fire and special perils also in favour of the Federal Bank Ltd on condition of the complainant for the period from 25.4.2002 to 25.4.2003 for residential building of the complainant. The risk that was sought and covered under the policy was in respect of a residential building and the claim submitted by the complainant was in respect of a building that was under construction. As far as the building under construction is concerned, the risk factor is larger than a residential building and accordingly the premium rate is also in respect of a building in construction. Though the building was under construction, the complainant obtained policy by suppressing that fact and so the contract of the Insurance is void. On receiving the intimation, regarding the damage the opposite party arranged an independent spot survey through Zemders, General Insurance Surveyors. Loss assessors and Project consultants and survey report shows that the building was collapsed purely due to the defective construction, and the cost of damage mentioned in the complaint is false. The complainant is not entitled for the reliefs as prayed for and there is no deficiency in service in repudiating the claim.
The complainant has filed very detail proof affidavit and he was examined as Pw1and marked documents Exts A1 to A4. The complainant has examined Professor Aliyas Varghese an expert as Pw2. Mr. Biju Thomas , Panchayat member was examined as Pw3. The opposite party has examined in their part two witnesses ranked as Dw1 and Dw2 marked Exts. B1 to B10.
The expert Commissioner Report was marked as Ext. C1.
The Forum below heard parties in detail and considered the entire evidence and taken a view that there is no deficiency in service in the part of the opposite parties. Hence dismissed the complaint.
This appeal preferred by the appellant from the above impugned order passed by the Forum below.
On this day, this appeal came before this Commission both appellant and respondent appeared through their counsels respectively. The counsel for the appellant vehemently argued that the repudiation of the claim by the opposite party is not legally liable. This repudiation was done by the Insurance Company without follow the correct procedure and provision of law. His another contention was that the Forum below dismissed the complaint on the grounds that the building was collapsed due to the manufacturing defect, not by the heavy rain and earth quake etc. to these also not legally sustainable. He submitted that main reason for the repudiation mentioned in the letter by the opposite party is suppressed material facts done by the complainant., He submitted that the opposite party issued the policy certificate on the basis of the Ext. B1. suppressed of material facts is different from the one, filling of the columns of the proposal form. The complainant did not give any false information in the Ext. B1 proposal Form. The opposite party accepted this proposal form and issued the Insurance Policy. They have no hesitation to accept this proposal form. In these circumstances, the opposite party is not having any legal right to say such reason "Suppresion of material facts" in the proposal form(Ext. B1) does not legally sustainable is another report submitted before the Commission that as per the Ext. C1, Commission report, there is not manufacturing defects from the part of the complainant. In the averments to the Ext. B8, B9 and B10 Inspection report/certificate and inspection report produced and marked by the opposite party mentioned that there was no problem in the construction of the building. He submitted that as per the version of the witness Pw2 (expert witness) it is proved that the construction of the house done by the complainant promptly and accordance with the standard norms. In the circumstances, the contention of the opposite party like the building was collapsed due to the manufacturing defect is not legally sustainable and the opposite party did not proved any evidence to show that during the time of the collapse of the building there was no natural calamity appeared in that area. The counsel for the appellant argued each grounds of appeal memorandum and prayed to allow the appeal and allowed the complaint by set asiding the impugned order passed by the Forum below. He submitted that the order passed by the Forum below is strictly not accordance with the provisions of law and evidence. It is liable to be set aside.
The counsel for the respondent/opposite party argued in detail on the strength of the evidence adduced by the opposite party before the Forum below. He submitted that the non completion of the Forum below is nothing but a suppression of material fact by the complainant. He did not give even the door number or the copy of the sanction order of the legal body for the construction expert for the policy. He submitted that the bank given loan to the complainant. Hence the bank arranged the entire thing for insure the building. He submitted that the petition done by the opposite party, Insurance company has legal right and it was done accordance with the terms and conditions of the Insurance policy. His only argument is that expert witness report issued by the complainant, Pw2 is the person who strictly appointed as an expert Commissioner by the 'Forum below. He inspected the collapsed house without giving notice to the insurance company/opposite party. By this objection filed by the opposite party before the Forum below his name was removed from the panel commissioners by the Forum below and appointed another commissioner. But he did not examined as an expert before the Forum below. The complainant chosed the expert though his name was removed from the panel as an expert witness. In the circumstances his evidence is not at all acceptable and he is not an independent witness. He has prejudiced to the complaint. The expert commissioner prepared and marked Ext. C1 Report is not seen examined. It is nothing but suppression of true facts from the eye of the Forum below. It is not seeing that any earth quake, heavy rain and such natural calamities incidental during the time of the collapse of the building in that area. He read some of the news reports (which is not a document marked) and as per this report also there was no earth quake or heavy storm etc. were reasons for the collapse of this building. He finally submitted that the order passed by the Forum is strictly accordance with the provisions of law and evidence. It is legally sustainable. The petition of the claim done by the opposite party is accordance with the terms and condition of the policy. The complainant is not entitled to get any relief both in his complaint and in appeal.
We found as per the argument of both sides and the examination of entire evidence adduced by both sides the repudiation of the claim on the grounds of the deficiency in service of the work of the building is legally acceptable. The complainant did not adduced any evidence to show that there were no such natural calamities like earth quake, storm and heavy rain etc. incidented at the time of the collapse of the building in that area. We are not in a position to accept the evidence of Dw2 and expert witness cited by the complainant. We consider, he is not an independent witness. He had no suggestion to take sample of the concrete for the test. Without testing the strength, the quality of the materials used by the complainant for the construction of the building, it is not possible to say nothing about the reason for the collapse of the building. Dw2 who just visited the premises of the collapsed building, he did not conducted any technical standard tests. In the circumstance, it is not any way helping the complainant in this case. What was the harm to the complainant to take steps to examine the expert commissioner for this point. In the circumstance, we are not seen any reason to interfere in the repudiation of the claim done by the opposite party. But at the very same time suppression of material facts done by the complaint is incorrect. The opposite party accepted the proposal form without any hesitation and issued the policy. In the circumstances, the opposite party/Insurance Company estopped to take contention in the repudiation letter that the complainant who suppressed the material facts and which is not legally sustainable. It is common practice from the Insurance company to consist any proposal form without scrutinizing and issue policies. Then at the time of the settlement of the claim they are raising such unnecessary reasons on somany cases. It is the duty of the insurance company to issue the policy only after through scrutinizing and issue policies. Then at the time of the settlement of the claim they are rasing such unnecessary reasons on somany cases. It is the duty of the Insurance Company to issue the policy only after a thorough scrutiny and enquiry of the contents of the proposal form better was a valid policy. But in this case, a building was insured, for an insured amount of Rs. 3,00,000/- and acceptance of premium also from the part of the complainant. They issued the policy only on the basis of this Ext. B2, Proposal Forum. What is harm to ask the complainant to produce atleast a copy of the approved plan and sanction letter etc given for the construction of the building by the statutory body or atleast an engineer. It is not fair from the part of a central government organization. The opposite party is liable to return the premium collected by them to the complainant. Both in the complaint, or in the appeal there is no prayer. In this circumstance, we are not passing any order to do so. But in the order passed by the Forum below is having some mistakes. The Forum below mistakenly or wrongly written that deposition of the Pw2 is the deposition of the expert commissioner. It is incorrect. Both sides, submitted somany citations to support there own case. But the fact of this citation is not any way related with the fact of this case. In this case there is one question alone went to be answered ie. Whether the impugned building was collapsed either due to the natural calamities or due to the defective construction? If the complainant claimed that the building was collapsed due to the natural calamity then alone is entitled to get the claim amount. But in this case he failed to prove such fact. In the circumstance, we are not seeing any apparent error in the order passed by the Forum below. In the circumstance, we uphold the order passed by the Forum below and which is legally sustainable. This order passed by the Forum below is strictly accordance with the provisions of the law and evidence.
In the result, this appeal is dismissed and confirmed the order passed by the Forum below. Both parties are directed to suffer their respective costs. The points of the appeal discussed one by one and answered accordingly.
Both parties are directed to suffer their costs.
M.K. ABDULLA SONA : MEMBER ST [ SRI.M.K.ABDULLA SONA] PRESIDING MEMBER