State Consumer Disputes Redressal Commission
Sh. Lal Chand. & Anr. vs M/S National Insurance Co. Ltd. on 26 February, 2018
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 148/2017
Date of Presentation: 25.05.2017
Order Reserved On : 15.09.2017
Date of Order : 26.02.2018
......
1. Lal Chand s/o Shri Nand Lal
2. Rahul Sharma s/o Shri Nand Lal
Both r/o Village and Post Office Jhakri Tehsil Rampur
District Shimla H.P.
...... Appellants/Complainants
Versus
M/s. National Insurance Company Limited through Divisional
Manager Division Office National Insurance Company Himland
Hotel Cart Road Shimla Tehsil and District Shimla H.P.
......Respondent /Opposite party
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Vikas Sharma Advocate.
For Respondent : Mr. J.S. Bagga Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 26.04.2017 passed by Learned District Forum in consumer complaint No.228/2014 title Lal Chand & Anr. Versus M/s. National Insurance Company Limited.
1 Whether reporters of the local papers may be allowed to see the order? Yes.
Lal Chand & Anr. Versus National Insurance Co. Ltd. (F.A. No.148/2017) Brief facts of Consumer Complaint:
2. Complainants filed consumer complaint under section 12 of Consumer Protection Act 1986 against opposite party pleaded therein that complainants insured their building with opposite party in consideration amount of Rs.1500000/- (Fifteen lac) by way of purchasing Standard Fire and Special Perils Policy No.421103/11/ 09/3100000408. It is further pleaded that complainants paid premium of Rs.745/- (Seven hundred forty five) to the opposite party. It is pleaded that policy was operative w.e.f. 31.10.2009 to 30.10.2010. It is further pleaded that in the month of November 2009 entire land upon which the building was built started sinking and huge damage was caused to the building. It is further pleaded that huge cracks developed in the building and building became unsafe for residential purpose. It is further pleaded that complainants were forced to vacate the house. It is further pleaded that information was given to the legal authorities and concerned police officials. It is further pleaded that complainants filed claim before opposite party. It is further pleaded that opposite party also appointed surveyor to assess the loss. It is further pleaded that opposite party offered a sum of Rs.81841/-
(Eighty one thousand eight hundred forty one) for entire loss and complainants received the amount under protest on 2 Lal Chand & Anr. Versus National Insurance Co. Ltd. (F.A. No.148/2017) dated 12.06.2012. It is further pleaded that opposite party was liable to pay sum of Rs.1500000/- (Fifteen lacs). It is further pleaded that opposite party committed deficiency in service. Prayer for acceptance of complaint sought.
3. Per contra version filed on behalf of opposite party pleaded therein that consumer complaint is not maintainable. It is pleaded that complainants did not approach District Forum with clean hands and suppressed material facts from District Forum. It is pleaded that complaint is barred by time. It is further pleaded that opposite party is not liable to indemnify the complainants. Prayer for dismissal of complaint sought.
4. Complainants filed rejoinder and reasserted the allegations mentioned in the consumer complaint.
5. Learned District Forum dismissed the complaint filed by complainants. Feeling aggrieved against order passed by Learned District Forum complainants filed present appeal before State Commission.
6. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully.
7. Following points arise for determination in present appeal.
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Lal Chand & Anr. Versus National Insurance Co. Ltd. (F.A. No.148/2017)
1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal.
2. Final order.
Findings upon point No.1 with reasons:
8. Complainant Lal Chand filed affidavit in evidence.
There is recital in the affidavit that building of complainants was insured with opposite party in consideration amount of Rs.1500000/- (Fifteen lac) by way of purchasing Standard Fire and Special Perils Policy No.421103/11/09/3100000408 from opposite party. There is further recital in the affidavit that complainants paid premium to the tune of Rs.745/- (Seven hundred forty five) to the opposite party. There is further recital in the affidavit that insurance policy was operative w.e.f. 31.10.2009 to 30.10.2010. There is further recital in the affidavit that in the month of November 2009 entire land upon which the building was built started sinking and huge damage was caused to the building. There is further recital in the affidavit that huge cracks developed in the building and building became unsafe for residential purpose. There is further recital in the affidavit that opposite party also appointed surveyor to assess the loss. There is further recital in the affidavit that opposite party offered a sum of Rs.81841/- (Eighty one thousand eight hundred forty one) for 4 Lal Chand & Anr. Versus National Insurance Co. Ltd. (F.A. No.148/2017) entire loss and complainants received the amount under protest on dated 12.06.2012. There is further recital in the affidavit that complainants sustained loss to the tune of Rs.1500000/- (Fifteen lacs).
9. Complainants also filed affidavit of Sudesh Bhaluni in evidence. There is recital in the affidavit that deponent is approved architect and valuer and deponent has adequate knowledge and is qualified in the field of construction and valuation of building. There is further recital in the affidavit that deponent had prepared the details of measurement and abstract of costs of building constructed by Lal Chand and Rahul Dev Sharma on the land comprised in Khasra No. 3009/1595 at Mauza Jhakri Tehsil Rampur District Shimla. There is further recital in the affidavit that as per abstract of estimated cost, the cost of construction of building was Rs.2492400/- (Twenty four lac ninety two thousand four hundred). There is further recital in the affidavit that due to sinking of land in the month of November 2009 building was completely damaged. There is further recital in the affidavit that Shri Lal Chand and Rahul Sharma sustained 100% loss of the building.
10. Learned District Forum listed consumer complaint for evidence of opposite party on dated 02.03.2016, 26.04.2016, 08.06.2016,29.07.2016, 29.09.2016, 10.11.2016 5 Lal Chand & Anr. Versus National Insurance Co. Ltd. (F.A. No.148/2017) and 30.11.2016. On dated 30.11.2016 learned District Forum closed the right of opposite party to lead evidence by the order of Forum.
11. Submission of learned advocate appearing on behalf of complainants that complainants have received amount of Rs.81841/- (Eighty one thousand eight hundred forty one) from opposite party vide cheque No.649671 on dated 12.06.2012 under protest and on this ground appeal be allowed is decided accordingly. Complainants filed affidavit relating to controversial facts. There is recital in the affidavit that complainants have sustained loss to the tune of Rs.2492400/- (Twenty four lac ninety two thousand four hundred). There is further recital in the affidavit that complainants received sum of Rs.81841/-(Eighty one thousand eight hundred forty one) from opposite party under protest. State Commission has also perused annexure CB wherein complainants received amount of Rs.81841/- (Eighty one thousand eight hundred forty one) on dated 12.06.2012. There is positive recital in the receipt that complainants have received cheque under protest. It is well settled law that whenever any amount is received under protest then complainant is not debarred claiming further relief. It is proved on record that in the present consumer complaint complainants have received amount of Rs.81841/-(Eighty one 6 Lal Chand & Anr. Versus National Insurance Co. Ltd. (F.A. No.148/2017) thousand eight hundred forty one) under protest from opposite party.
12. Complainant also filed affidavit of Sudesh Bhaluni who is approved architect and valuer. Sudesh Bhaluni has specifically mentioned in the affidavit that complainants have sustained loss to the tune of Rs.2492400/- (Twenty four lac ninety two thousand four hundred). Affidavit filed by Sudesh Bhaluni is trustworthy, reliable and inspires confidence of State Commission. There is no evidence on record in order to prove that Sudesh Bhaluni has hostile animus against opposite party at any point of time.
13. No personal affidavit of opposite party filed relating to controversial facts under section 13 (4) of Consumer Protection Act 1986. Adverse inference against opposite party is drawn. See AIR 1999 SC 1441 Vidyadhar Versus Mankik Rao. See AIR 1999 SC 1341 Ishwar Bhai C. Patel Versus Hari Har Bahera. Even version filed by opposite party is not supported with any affidavit. Opposite party did not adduce rebuttal evidence despite seven opportunities granted by learned District Forum to the opposite party to adduce evidence. Evidence adduced by complainants remained unrebutted on record. Even insurance company did not file affidavit of surveyor who assessed the loss. 7
Lal Chand & Anr. Versus National Insurance Co. Ltd. (F.A. No.148/2017)
14. State Commission has also perused insurance policy placed on record. Opposite party has issued Standard Fire and Special Perils Policy in favour of complainants which was operative w.e.f. 31.10.2009 to 30.10.2010. The building was insured for a sum of Rs.1500000/- (Five lac). It is also proved on record that opposite party also received premium to the tune of Rs.745/- (Seven hundred forty five) from complainants for insuring four stories building which consists of twelve rooms i.e. including kitchen, bathroom situated upon Khasra No.1595/3 at Village and Post Office Jhakri.
15. State Commission has also perused terms and conditions of policy annexure C-9 placed on record. It is proved on record that 100% damage was caused to the building of complainant due to landslide and subsidence as per affidavit filed by Sudesh Bhaluni which remained unrebutted on record. Terms and conductions relating to subsidence and landslide are quoted in toto. Subsidence and landslide including Rock Slide:
Loss, destruction or damage directly caused by Subsidence of part of the site on which the property stands or Land slide/Rock slide excluding:
a) The normal cracking, settlement or bedding down of new structures.
b) The settlement or movement of made up ground.
c) Coastal or river erosion.8
Lal Chand & Anr. Versus National Insurance Co. Ltd. (F.A. No.148/2017)
d) Defective design or workmanship or use of defective materials.
e) Demolition, construction, structural alterations or repair of any property or groundwork or excavations.
16. It is also proved on record that complainants filed earlier consumer complaint No.118/2013 before learned District Forum Solan and same was return to the complainants on dated 28.08.2014 with the direction to file consumer complaint before appropriate Forum. It is proved on record that thereafter on dated 24.09.2014 complainants filed present consumer complaint before learned District Forum Shimla. In view of the fact that learned District Forum Solan has permitted the complainants to file present complaint before appropriate Forum at Shimla and in view of the fact that complainants have filed fresh consumer complaint before learned District Forum Shimla within one month State Commission is of the opinion that continuous cause of action accrued to the complainants against opposite party. In view of above stated facts it is held that present consumer complaint is not time barred under section 24-A of Consumer Protection Act 1986. It is further held that even complainants are not estopped to file present consumer complaint against the opposite party due to their act and conduct because complainants have received amount to the tune of Rs.81841/- (Eighty one thousand eight hundred forty one) under protest. 9
Lal Chand & Anr. Versus National Insurance Co. Ltd. (F.A. No.148/2017) It is well settled law whenever any amount is received under protest then concept of estoppel did not apply. Point No.1 is decided accordingly.
Point No.2: Final Order
17. In view of findings upon point No.1 above appeal is allowed and order of learned District Forum is set aside. Consumer complaint filed by complainants is allowed. It is ordered that opposite party would pay Rs.1500000/- (Fifteen lac) to the complainants as insured amount alongwith interest @ 9% per annum from the date of institution of complaint till realization within one month after the receipt of certified copy of order of State Commission. It is further ordered that in addition opposite party would pay Rs.10000/- (Ten thousand) to complainants as compensation for mental agony and harassment within one month after receipt of certified copy of order of State Commission. It is further ordered that opposite party would pay litigation costs to the complainants to the tune of Rs.5000/- (Five thousand) within one month after receipt of certified copy of order of State Commission. Affidavit and report filed by Architect and valuer namely Sudesh Bhaluni will form part and parcel of order. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order 10 Lal Chand & Anr. Versus National Insurance Co. Ltd. (F.A. No.148/2017) be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member 26.02.2018.
*GUPTA* 11