State Consumer Disputes Redressal Commission
Smt. Lata Verma. vs New India Assurance Co. Ltd. on 5 July, 2024
H . P. ST AT E C ONSUMER DISPUTES R EDRESSAL
COMMISS ION SH IML A
Consumer Complaint No.: 18/2018
Date of Presentation: 20.11.2018
Order Reserved on: 20.06.2024
Date of Order: 05.07.2024
......
Mrs. Lata Verma W/O late Sh. Shyam Lal Verma, R/O
Ward No.8, Near Shulini Mata Mandir, Shilli Road, Solan,
H.P.
...... Complainant
Versus
The New India Assurance Co. Ltd., D.O. 3rd Floor, Block-
7, SDA Complex, Kasumpti, Shimla, through its D.M.
.....Opposite Party
__
Coram
Hon'ble Justice Inder Singh Mehta, President
Hon'ble Mr. R.K. Verma, Member.
Whether approved for reporting?1 Yes
For Complainant : Mr. Shashi Bhushan, Advocate
For Opposite Party : Mr. Jagdish Thakur, Advocate.
1 Whether reporters of the local papers may be allowed to see the order?
Mrs. Lata Verma Vs. The New India Assurance Co. Ltd.
C.C.No.18/2018
Justice Inder Singh Mehta, President
ORDER
The complainant has filed the instant complaint seeking directions to the opposite party to pay a sum of Rs.49,07,707/- along with interest @ 9% per annum and Rs.50,000/- for the damages and compensation for financial loss, mental and physical harassment.
Brief facts of Case:
2. Brief facts stated are that the complainant is owner of the building situated at Ward No.8, near Shulini Mata Mandir, Shilly Road, Solan. The complainant insured the said building with opposite party/insurance company under Standard Fire & Special Perils Policy w.e.f. 30.05.2016 to 29.05.2017 for a sum of Rs.70,50,000/- on IDV basis.
During existence of the insurance policy, on account of torrential rain and excessive lightening on 25/26.01.2017, the walls of the building in question developed cracks and finally collapsed on 30.01.2017. Intimation regarding loss/damage 2 Mrs. Lata Verma Vs. The New India Assurance Co. Ltd. C.C.No.18/2018 was given to the opposite party/insurance company. The opposite party/insurance company deputed surveyor who asked for some documents which were duly supplied by the complainant. The complainant also submitted detailed estimate of Rs.53,07,707/- of Civil Engineer Mr. Rajesh Gupta for restoration of the building with the opposite party but the claimant had restrained her claim to Rs.49,07,707/-. The grievance of the complainant is that despite submission of all requisite documents, the opposite party/insurance company failed to settle her genuine claim and repudiated the claim vide letter dated 20.10.2017 Annexure C-5. There is deficiency in service and unfair trade practice on the part of the opposite party/insurance company. Hence, the present complaint.
3. The complaint is contested by the opposite party/insurance company by filing reply wherein opposite party/insurance company has taken preliminary objections that complaint is barred by limitation, complainant has 3 Mrs. Lata Verma Vs. The New India Assurance Co. Ltd. C.C.No.18/2018 suppressed the material facts and has not approached this Commission with clean hands.
On merits, opposite party/insurance company has not denied that the building in question was insured by the complainant for a sum of Rs.70,50,000/- under Standard Fire & Special Perils Policy w.e.f. 30.05.2016 to 29.05.2017. However, it is denied that damage/loss to the building in question was caused due to torrential rain and excessive lightening. The opposite party/insurance company has alleged that damage was caused to the building due to unauthorized cutting and excavation of soil by the complainant regarding which FIR No.30/2017 dated 30.01.2017 was also lodged by Smt. Kamlesh Gupta and challan was filed before the CJM, Solan. However, on receiving information, insurance company appointed surveyor who assessed the loss to the tune of Rs.16,75,300/-. The damage was caused to the building in question due to illegal and unscientific excavation made by 4 Mrs. Lata Verma Vs. The New India Assurance Co. Ltd. C.C.No.18/2018 the complainant immediately below the building. The claim of the complainant does not fall under the policy as it excludes demolition, construction, structural alterations or repair of any property or ground works or excavations. There is no deficiency in service or unfair trade practice on the part of the insurance company. Hence, a prayer for dismissal of the complaint has been sought.
4. Rejoinder denying the contents of the reply filed by the opposite party and reiterating those of the complaint has been filed.
5. Thereafter the parties lead evidence in support of their respective pleadings. The complainant has tendered in evidence her affidavit Ex. C-1.
6. The opposite party/insurance company has tendered in evidence affidavit Ex. OP-1 of Sh. Vikas Garg, Deputy Manager, affidavit Ext. OP-2 of Sh. Pukhraj Singh, Surveyor, affidavit Ext. OP-3 of Er. Manuj Doger, Surveyor and affidavit Ext. OP-4 of Sh. Kamal Narain, investigator. 5 Mrs. Lata Verma Vs. The New India Assurance Co. Ltd. C.C.No.18/2018
7. We have heard the learned counsel for the parties and have gone through the case file carefully.
8. Learned counsel of the complainant has submitted that complainant has insured her building with the opposite party/insurance company for a sum of Rs.70,50,000/- under Standard Fire & Special Perils Policy. He further submitted that during the existence of the said policy, the building of the complainant collapsed on 30.01.2017 due to excessive rain and lightening. He further submitted that on receiving intimation, insurance company appointed surveyor, who assessed the loss to the tune of Rs.16,75,384/-. He further submitted that despite spot survey Annexure OP-6 and report of investigation Annexure OP-7 according to which the loss occurred due to excessive rain, the claim of the complainant was repudiated by the insurance company on the ground that the building collapsed due to unscientific excavation by the complainant. He further submitted that the surveyor has wrongly assessed the loss 6 Mrs. Lata Verma Vs. The New India Assurance Co. Ltd. C.C.No.18/2018 by applying criteria of depreciation of 50% while it should have been 5%. He has also relied upon the order of this Commission in case titled Smt. Kamlesh Gupta Vs. The Oriental Insurance Company Ltd., Consumer Complaint No.07/2018 dated 28.12.2023 and prays that complaint of the complainant be allowed.
9. On the other hand, learned counsel of the opposite party/insurance company has submitted that the building in question was insured with opposite party under Standard Fire & Special Perils Policy for a sum of Rs.70,50,000/- including furniture, fittings, fixtures and compound wall. He further submitted that as per terms and conditions of the insurance policy Annexure OP-2 (clause- VIII(iv) it excludes demolition, construction, structural alterations or repair of any property or ground works or excavations, therefore, the claim of the complainant does not fall under the policy. He further submitted that Annexure OP-3 is the legal notice dated 17.12.2016 issued by Smt. 7 Mrs. Lata Verma Vs. The New India Assurance Co. Ltd. C.C.No.18/2018 Kamlesh Gupta to the complainant through Mr.Akshay Thakur, Advocate alleging illegal acts of damaging the foundation of her house by cutting/excavating below her house. He further submitted that the houses of complainant and Smt. Kamlesh Gupta are adjoining to each other and below their houses there is one meter path of M.C. Solan and below the path, there was plot of complainant. He further submitted that the photographs at page 140 are showing the houses of complainant and Smt. Kamlesh Gupta and below those houses, illegal and unscientific work of construction is being carried out by the complainant which resulted into collapse of house in question, therefore, the complainant is not entitled for the claimed amount. He further submitted that Annexure OP-4 is the notice issued by the M.C. Solan to the complainant for developing the plot without getting the plan sanctioned and reply of the same is Annexure R-2 (at page
158). He further submitted that complainant is also facing criminal trial for her illegal acts and she has been challaned 8 Mrs. Lata Verma Vs. The New India Assurance Co. Ltd. C.C.No.18/2018 for the offence under Section 336 of Indian Penal Code. He further submitted that surveyor has assessed an amount of Rs.16,75,384/- on depreciation value basis. He further submitted that the claim of the complainant was repudiated rightly on the basis of documents placed on record and prays that complaint of the complainant be dismissed.
10. In rebuttal, learned counsel of the complainant has submitted that the reason of collapsing the house in question is rain as is evident from the report of spot surveyor, report of M.C. Solan (at page 30) and report of investigator late Mr. Kamal Narayan and this fact is also corroborated by the statement of Mr. Pankaj Negi an eye witness. He further submitted that the plot in question belongs to son of the complainant which is 25 meters away from the collapsed house in question. He prays that complaint of the complainant be allowed.
9 Mrs. Lata Verma Vs. The New India Assurance Co. Ltd. C.C.No.18/2018 FINDINGS
11. The admitted fact which emerges on record is that the complainant is owner of the building situated at Ward No.8, near Shulini Mata Mandir, Shilly Road, Solan.
12. It is further an admitted fact emerging on record that the complainant insured the said building with opposite party/insurance company under Standard Fire & Special Perils Policy, Annexure C-1 for a sum of Rs.70,50,000/- which was effective w.e.f. 30.05.2016 to 29.05.2017.
13. During existence of the insurance policy, loss/damage was caused to the insured building and it finally collapsed on 30.01.2017.
14. Intimation regarding loss/damage was given to the opposite party/insurance company, who appointed Sanjay Gupta as surveyor-cum-loss assessor. The said surveyor assessed the loss to the tune of Rs.16,75,384/-. However, he recommends to close the file as "No Claim." 10 Mrs. Lata Verma Vs. The New India Assurance Co. Ltd. C.C.No.18/2018
15. The insurance company repudiated the claim of the complainant on the ground that no insured peril was operated which caused loss to the building and due to the negligent act on the part of the complainant, the loss has caused to the building in question.
16. The whole dispute hinges around, whether no insured peril has caused damage to the building of the complainant and the building in question was damaged due to the own act of the complainant?
17. The answer is Yes.
18. It is coming on record that unauthorized cutting/excavation work of the plot below the insured house at lower elevation for the construction of house, which belongs to the complainant, was carried out by the complainant prior to the incident in question.
19. The act of unauthorized construction by the complainant was also opposed by adjacent owner of the building, namely, Smt.Kamlesh Gupta, who got issued the 11 Mrs. Lata Verma Vs. The New India Assurance Co. Ltd. C.C.No.18/2018 legal notice dated 17.12.2016, Annexure OP-3, whereby the complainant was requested to stop the illegal cutting work. Relevant portion of legal notice is reproduced as under:-
"4. That due to your illegal acts and omission the house of my client might deteriorate and fall down at any time. That due to your illegal acts and omission the foundation of the house of my client is damaging and the house may fall at time endangering the life of my client and her family members and public at large. That my client brought the matter to the notice of D.C. Solan and S.D.M. Solan and municipal committee on dated 12.11.2016, but nothing has been done till date..."
20. It is also coming on record that aforesaid unauthorized cutting/excavation work of the plot below the insured house was carried out by the complainant without seeking prior permission from the competent authority. The factum of unauthorized construction is also proved on record by the notice dated 22.12.2016, Annexure OP-4 issued by 12 Mrs. Lata Verma Vs. The New India Assurance Co. Ltd. C.C.No.18/2018 the Executive Officer, Municipal Council, Solan under Section 211 of the H.P. Municipal Act, 1994.
21. Relevant portion of notice dated 22.12.2016, Annexure OP-4 is reproduced as under:-
"... It has come to my notice that you are going ahead with the development of plot without getting the plans sanctioned from the competent authority in utter disregard to TCP/ Municipal Bye Laws. Further more cutting of hill carried out by you is vertical one in a height of about 12 mtrs. Thus violating the norm of 3.50 metrs. Laid down for the purpose....
You are, therefore, hereby served with this notice to stop the illegal cutting work of development of plot forthwith. Please note cutting of more than 3.5 mets is not allowed under law"
22. It has come on record that the complainant despite receipt of the legal notice issued by adjacent owner Smt.Kamlesh Gupta as well as the notice under Section 211 13 Mrs. Lata Verma Vs. The New India Assurance Co. Ltd. C.C.No.18/2018 of the H.P. Municipal Act, 1994 did not stop the work and kept on un-authorizedly digging the plot for the construction of the house.
23. It has also come in the report of the investigator Kamal Narian, who was appointed by the insurance company that complainant had used the JCB machine for unauthorized cutting of plot below the insured house.
24. The house of the complainant as well as adjacent owner Smt.Kamlesh Gupta collapsed on 30.01.2017 due to unauthorized vertical cutting of plot to the extent of 12 mtrs. at lower elevation by the complainant, which resulted into collapse of houses on 30.01.2017. Smt.Kamlesh Gupta got registered FIR under Section 336 of the Indian Penal Code for the negligent and illegal act on the part of the complainant and thereafter, challan under Section 336 of IPC was also filed against the complainant. 14 Mrs. Lata Verma Vs. The New India Assurance Co. Ltd. C.C.No.18/2018
25. Moreover, clause VIII(iv) of the terms and conditions of the policy excludes demolition, construction, structural alterations or repair of any property or ground works or excavations, therefore, the claim of the complainant does not fall under the policy.
26. Thus, the documentary evidence i.e. legal notice dated 17.12.2016, Annexure OP-3, notice dated 22.12.2016, Annexure OP-4 issued by the M.C. Solan under Section 211 of the H.P. MC Act, 1994, FIR No.30/2017 dated 30.01.2017, Annexure OP-7 (colly), police challan under Section 336 of IPC and the photographs Annexure OP-6 (colly) placed on record by the opposite party/insurance company indicates that damage/collapse of the insured house on 30.01.2017 was result of unauthorized vertical cutting of plot by the complainant to the extent of 12 mtrs. at lower elevation of the insured house, which disentitles the complainant to claim compensation from the insurance company for her own negligent act.
15Mrs. Lata Verma Vs. The New India Assurance Co. Ltd. C.C.No.18/2018
27. As far as the judgment relied upon by the complainant is concerned, same is not applicable in the facts and circumstances of the present complaint.
28. In view of the above discussion, we find no merit in the instant complaint. Consequently, the complaint is hereby dismissed.
29. Parties are left to bear their own costs.
30. Certified copy of this order be sent to the parties and their counsel(s) strictly as per rules. Pending application(s), if any, also disposed of. File after due completion be consigned to the Record-Room.
Justice Inder Singh Mehta President R.K.Verma Member Manoj 16