State Consumer Disputes Redressal Commission
The New India Assurance Company Limited vs Surinder Pal Son Of Shri Paras Ram, on 31 January, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.799 of 2011
Date of institution : 19.05.2011
Date of decision : 31.01.2013
The New India Assurance Company Limited, Branch Office, above
UCO Bank, Banga Road, Nawanshahr through its Branch Manager,
now through the authorized signatory of Chandigarh Regional Office,
SCO 36-37, Sector 17-A, Chandigarh.
.......OP No.1-Appellant
Versus
1. Surinder Pal son of Shri Paras Ram, resident of Village Adoana,
Tehsil Balachaur, District SBS Nagar.
......Complainant-respondent
2. Punjab National Bank, Balachaur through its Branch Manager.
...OP No.2-Respondent
First Appeal against the order dated
19.4.2010 of the District Consumer Disputes
Redressal Forum, Shaheed Bhagat Singh
Nagar.
Before :-
Hon'ble Mr. Justice Gurdev Singh, President.
Shri Jasbir Singh Gill, Member.
Present:-
For the appellant : Shri R.C. Gupta, Advocate. For respondent No.1 : Shri S.K. Mahajan, Advocate. For respondent No.2 : Shri Amandeep Singh, Advocate. JUSTICE GURDEV SINGH, PRESIDENT :
The appellant/OP No.1, the New India Assurance Company Limited, has preferred this appeal under Section 15 of the Consumer First Appeal No.799 of 2011. 2 Protection Act, 1986 (hereinafter referred to as "the Act") for setting aside the order dated 19.4.2010 passed by District Consumer Disputes Redressal Forum, Shaheed Bhagat Singh Nagar (hereinafter referred to as "District Forum") vide which the complaint filed by respondent No.1/complainant, Surinder Pal, under Section 12 of the Act was allowed and OP No.1 was directed to pay Rs.80,274/- to the complainant along with Rs.5,000/- as compensation, within 30 days of the passing of the order.
2. As per the allegations made in the complaint, the complainant applied for grant of loan facility to respondent No.2/OP No.2, Punjab National Bank, for the construction of residential house. While sanctioning the loan OP No.2 got insurance of the house of the complainant in the sum of Rs.8,00,000/- from OP No.1 and that insurance policy was valid from 15.6.2006 to 14.6.2016. Due to incessant rains the walls and flooring of the house developed cracks and the matter was reported to OP No.1 and a claim was lodged with it. It's surveyor visited the house and assessed the loss at Rs.80,274/-. Even Tehsildar, Balachaur reported that the damage occurred due to incessant rains. As the damage was caused during the subsistence of the insurance policy, so the complainant lodged a claim with OP No.1 by submitting the requisite documents. That claim was illegally repudiated, vide letter dated 12.10.2010. He prayed for payment of the amount of Rs.80,274/- on account of damage to the house, First Appeal No.799 of 2011. 3 damages to the tune of Rs.40,000/- and interest at the rate of 12% per annum on those amounts.
3. The complaint was resisted by OP No.1. It was admitted in the reply that the house of the complainant was insured with this insurance company for a sum of Rs.8,00,000/- from 15.6.2006 to 14.6.2016 and that the information of damage to the house was reported to it and claim was also lodged. It also admitted that its surveyor inspected the spot, assessed the loss and reported the matter to it. The other allegations in the complaint were denied and it was pleaded that the loss to the house was due to bad settlement/bedding down of the structure and as such this damage was outside the scope of the policy. That fact was so stated by the surveyor in his report. Therefore, the complainant is not entitled to any such amount as damage to the house or damages by way of compensation.
4. The parties produced their evidence before the learned District Forum. After going through the evidence and hearing the counsel for the parties the complaint was allowed, vide impugned order.
5. We have heard the learned counsel for both the parties and have carefully gone through the record of the District Forum.
6. It has been submitted by the learned counsel for OP No.1 that unimpeachable evidence was produced by his party before the District Forum that the damage to the house was on account of bad settlement/bedding down of the structure. It is very much clear from the terms and conditions of the insurance policy that such a damage First Appeal No.799 of 2011. 4 was not covered by it. The claim of the complainant was correctly repudiated. The District Forum erred while allowing the complaint and awarding the compensation.
7. On the other hand, it has been submitted by the learned counsel for the complainant that the complainant successfully proved that damage to the house was caused due to incessant rains and such damages are clearly covered by the insurance policy issued by OP No.1. The surveyor appointed by it assessed the loss at Rs.80,274/-. He wrongly made deductions from that amount while giving his findings that the loss was only to the tune of Rs.25,399/-. The report of the expert proved on the record by the complainant clearly shows that the damage to the house was to the tune of Rs.80,274/-. There was incessant rains and the damage to the house was caused due to those rains and that fact stands proved from the reports of the Tehsildar and the Executive Engineer, PWD (B&R), which were duly proved on the record. There is no ground for upsetting the well reasoned order of the District Forum.
8. We are of the considered opinion that on the basis of the evidence on the record and the terms and conditions of the insurance policy the order of the District Forum is liable to be set aside. It was not disputed that the parties are bound by the terms and conditions as contained in the insurance policy. The relevant term and condition No.8 is reproduced below:-
"8. Subsidence and Landslide including Rock slide First Appeal No.799 of 2011. 5 Loss, destruction or damage directly caused by Subsidence of part of the site on which the property stands or Land slide/Rock slide excluding:
the normal cracking, settlement or bedding down of new structures the settlement or movement of made up ground coastal or river erosion defective design or workmanship or use of defective materials demolition, construction, structural alterations or repair of any property or groundworks or excavations."
9. The case of the complainant is that the damage was on account of incessant rains. To substantiate his plea, he proved on record the report of Tehsildar Ex.C-7 which was obtained by him by moving an application. In the report, it has been mentioned that the house was inspected and it was found that on account of heavy rains the walls and flooring of one room of the house had developed cracks thereby causing heavy loss to the house. Tehsildar cannot be said to be an expert in a field of building construction. He was the best person to disclose as to how much rain was there during the relevant period. Judicial notice can be taken of the fact that an apparatus for gauging the rain is being kept in every Tehsil Office and the record is maintained regarding the fall of the rain every day. For the reasons best known to the complainant, he did not get that record produced First Appeal No.799 of 2011. 6 from the Tehsildar nor obtained his report on that aspect. No weight can be given to this report of the Tehsildar that the damage to the house was on account of heavy rains.
10. The report of the Executive Engineer was proved as Ex.C-8. As per the report, he inspected the spot and found that the roofs and flooring of one of the rooms of the house had settled down on account of heavy rains and that was also the cause of the settlement of the walls of that room.
11. This evidence produced by the complainant stands rebutted by the report of the surveyor appointed by OP No.1, who is a qualified engineer and on the basis of his qualification and experience, can be said to be an expert in the field of building inspection. He specifically mentioned in his report that the loss occurred due to the bad settlement/bedding down of the structure and the same is outside the scope of the policy. The claim of the complainant was repudiated on that report of the surveyor.
12. The above reproduced term and condition makes it clear that where the loss is due to the normal cracking, settlement or bedding down of the new structure, the claimant is not entitled to any compensation/damage under the policy. There is no term and condition covering the risk of the complainant on account of heavy rains. As per term and condition No.6, the loss, destruction or damage directly caused by Storm, Cyclone, Typhoon, Tempest, Hurricane, Tornado, Flood or Inundation is covered by the policy and not the loss, First Appeal No.799 of 2011. 7 destruction or damage caused by heavy rains. The District Forum committed an illegality while recording a finding to the contrary and awarding the damages and compensation to the complainant. Such a finding cannot be sustained.
13. Accordingly the appeal is accepted. The order dated 19.4.2010 passed by the learned District Forum is set aside.
14. The damages/compensation, if already, deposited be refunded to OP No.1, along with interest which has accrued thereon, by way of demand draft/cheque, within a period of one month
15. The arguments in this case were heard on 28.1.2013 and the order was reserved. Now, the order be communicated to the parties.
16. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH)
PRESIDENT
January 31, 2013 (JASBIR SINGH GILL)
Bansal MEMBER