National Consumer Disputes Redressal
Sheetal James & Anr. vs New India Assurance Co. Ltd. on 19 August, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 162 OF 2011 (Against the Order dated 14/03/2011 in Complaint No. 29/2009 of the State Commission Maharastra) 1. SHEETAL JAMES & ANR. MISS MONICA JAMES SHEETAL JAMES FARM, SURVEY NO .12, HISSAR 1A YEOOR,PATOONA THANE MAHARASTRA ...........Appellant(s) Versus 1. NEW INDIA ASSURANCE CO. LTD. CBD ,2ND FLOOR VAIDHYA COMPLEX SEC-11, NAVI MUMBAI MAHARASTRA ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER
For the Appellant : In person For the Respondent : Mr. S.M. Tripathi, Advocate
Dated : 19 Aug 2016 ORDER
JUSTICE V.K. JAIN (ORAL)
The complainants/appellants obtained an insurance policy from the respondent in respect of a farm house, namely Sheetal James Farm which they had constructed at Survey No.12 Hissa 1A Patoona Yeoor, District Thane of Maharasthra. The policy was taken for the period from 10.6.2008 to 9.6.2018. The said farm house was covered by the insurer to the extent of Rs.50 lakhs comprising Rs.45 lakhs for the building and Rs.5 lakhs for the house veranda, compound wall and the gate. The case of the complainants/appellants is that a substantial portion of the farm house got damaged during heavy rains and storm in the night intervening 15th / 16th June, 2008. A claim for reimbursement under the insurance policy was lodged by them with the respondent. A surveyor, namely M/s S.B. Nalluri and Associates was appointed to inspect the farm house and assess the loss to the complainants/appellants. The surveyor was of the view that the loss had not been occasioned by any of the insured perils but had happened due to faulty workmanship in improper compacting of the soil and, therefore, was not admissible. In view of the said opinion, the monetary value of the damage to the house was not assessed by the surveyor. The claim lodged by the appellants/complainants was rejected vide letter dated 3.7.2008 which to the extent it is relevant reads as under:-
"The surveyor has noticed huge cracks, detachment of walls & loosening of soil at various places as also seen from photographs taken by him. Also that there was no steel foundation or structural columns or reinforcement used in construction of your Farm House. Three is also no approved Building Plan by the Municipal authorities. The soil below the plinth had "loosened" and columns & floor had settled down by pulling down the walls.
Surveyor has confirmed that the rains have not caused cracking of floor and plinth. Cause of loss is not due to destruction or damage caused by subsidence and landslide including rock slide but due to improper compacting of soil and faulty chairmanship which is not a covered peril under the said policy as stated therein coverage point no.VIII as appearing on page no.2 of the terms and conditions of the above policy.
Hence the claim is not admissible as per clause of Standard Fire & Special Perils Policy coverage point no.VIII as appearing on page no.2 - which excludes damages due to the normal cracking, settlement or bedding down of new structures
b) the settlement or movement of made up ground and defective design or workmanship or use of defective materials."
2. Being aggrieved from the rejection of the claim, appellants/complainants approached the concerned State Commission by way of a consumer compliant.
3. The complaint was resisted by the insurer primarily on the ground on which the claim had been repudiated. The State Commission vide its order dated 14.3.2011 dismissed the complaint. Being aggrieved, the appellants/complainants are before this Commission by way of this appeal.
4. A perusal of the survey report dated 20.6.2008 would show that when the surveyor contacted the complainants, they maintained that the loss had happened due to storm and heavy rains. Nowhere in his report the surveyor claimed that there was no storm in the area in the night intervening 15th / 16th June 2008. Therefore, the claim of the appellants/complainants that the damaged to the house had happened due to heavy rains and storm remained unrebutted. In view of the said unrebutted position, the respondent/insurer cannot say at this stage that the damage had not occasioned due to storm in the night intervening 15th / 16th June, 2008. I, therefore, have no hesitation in holding that the farm house of the appellants/complainants had got damaged on account of storm.
5. A perusal of the insurance policy would show that the said farm house was insured for several perils including storm, flood and inundation. Therefore, once it is shown that the damage to the house had happened due to storm, the loss to the complainants would be covered under the insurance policy taken by them.
6. The learned counsel for the respondent had drawn my attention to clause VIII of the insurance policy which reads as under:-
" VIII Subsidence and Landslide including Rock slide Destruction or damage 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."
Relying upon the aforesaid clause, it is contended by the learned counsel for the insurer that since in the opinion of the surveyor, the damaged had happened due to the soil of the house having loosened up, the loss to the complainants/appellants is not covered under the policy taken by them. I, however, find no merit in the contention. Clause VIII extracted hereinabove, refers to damage due to subsidence and land slide, including rocks slide and sub-clauses (a) to (e), of the said clause excluded the insurance of the property due to subsidence and land slide, including rock slide in case such damage was covered under the any of the sub-clauses extracted hereinabove. The aforesaid sub-clauses did not limit restrict or exclude the insurance where the damage happens due to storm, cyclone etc. covered under clause VI of the insurance policy. Therefore once it is shown that the damage to the house had happened due to storm, the loss to the insurer would be covered even if the soil of the site on which the house stood loosened or had settled down.
7. I also find that the survey report does not indicate the qualification of the surveyor who prepared the survey report dated 20.6.2008. Unless the surveyor is an engineer by qualification, he cannot be in a position to ascertain the cause of damage to the house in such a case. Mr. Tripathi, submits that the surveyor is an engineer as well as is evident from the description below their name which describes them as engineers, surveyors, loss assessors, investigator and valuers. The aforesaid description, in my opinion, is not sufficient to prove that the surveyor was a qualified engineer. In any case, even if it is assumed that the surveyor was actually a qualified engineer and the house had collapsed on account of loosening of the soil, as reported by him that would not affect the claim in a case where the damage happened on account of storm, flood and inundation, etc. covered under clause VI of the policy.
8. For the reasons stated hereinabove, I hold that the loss suffered by the complainants on account of damage to their farm house in the night intervening 15th / 16th June, 2008 is covered under the insurance policy taken by them. Therefore, they are entitled to reimbursement of the loss suffered by them. I, however, find that no evidence was led by the complainants/appellants, before the State Commission, to prove the actual loss actually suffered by them on account of the damage to the farm house. The surveyor as noted earlier did not at all assess the monetary value of the damage to the house. In these circumstances, it has become necessary to remit the matter back to the State Commission to decide the quantum of compensation payable to the complainants after permitting both the parties to lead evidence on the said quantum. The impugned order is accordingly set aside and the matter is remitted back to the State Commission for deciding the complaint afresh in the light of this order. The parties shall be entitled to lead such evidence as they may deem appropriate, before the State Commission, on the issue of compensation to which the complainants are entitled in terms of the policy taken by them. The parties are directed to appear before the State Commission on 19.9.2016. Considering the age of the case, the State Commission is directed to decide the complaint afresh, in terms of this order, within three months of the parties appearing before it.
9. The appeal stands disposed of accordingly.
......................J V.K. JAIN PRESIDING MEMBER