State Consumer Disputes Redressal Commission
Oriental Insurance Company Limited vs Devinder Chauhan on 16 September, 2013
H.P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, SHIMLA.
(1) First Appeal No: 164/2013.
Date of Decision: 16.09.2013.
..................................................................................................
Devinder Chauhan, S/o Late Sh. Moti Ram,
Resident of Village Kufer (Dilwi), Post Office Panog,
Tehsil Kotkhai, District Shimla, H.P.
... Appellant
Versus
The Oriental Insurance Co. Ltd.
D.O.: Kothi No.4, Opposite Mela Ram & Sons,
Petrol Pump, Mythe Estate, Shimla.
Through its D.M.
... Respondent
For the Appellant: Mr. Shashi Bhushan, Advocate
For the Respondent: Mr. Deepak Gupta, Advocate.
...........................................................................................
(2) First Appeal No: 183/2013
Date of Decision: 16.09.2013
Oriental Insurance Company Limited,
Divisional Office, Kothi No.4,
Opposite Mela Ram & Sons,
Petrol Pump Left Side,
Mythe Estate, Upper Kaithu, Shimla-3, H.P.
Through its Senior Divisional Manager.
... Appellant
Versus
Devinder Chauhan, Son of late Sh. Moti Ram,
Resident of Village Kufer (Dilwi), Post Office Panog,
Tehsil Kotkhai, District Shimla, H.P.
... Respondent
...........................................................................................
Coram
Hon'ble Mr. Justice (Retd.) Surjit Singh, President
Hon'ble Mr. Chander Shekhar Sharma, Member
Hon'ble M` Prem Chauhan, Member
Devinder Chauhan vs. Oriental Insurance Company (F.A.No.164/2013)
&
Oriental Insurance Company vs. Devinder Chauhan (F.A. No.183/2013)
Whether approved for reporting?1
For the Appellant: Mr. Deepak Gupta, Advocate.
For the Respondent: Mr. Shashi Bhushan, Advocate.
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O R D E R:
Justice (Retd.) Surjit Singh, President (Oral) Both these appeals are being disposed of by a common order, as the same order, i.e. dated 10.06.2013, of learned District Consumer Redressal Forum, Shimla, has been assailed through them. One appeal, i.e. F.A. No. 183/2013, has been filed by the opposite party and second appeal, i.e. F.A No. 164/2013, by the complainant
2. Shri Devinder Chauhan, appellant in F.A. No. 164/2013, hereinafter called the complainant, constructed a house in the year 2000. House was insured with Oriental Insurance Company, appellant in F.A. No. 183/2013, hereinafter called opposite party, for the period from 28.06.2006 to 27.06.2007. An intimation, Annexure C-2, was given to the opposite party by the complaint on 22.02.2007, that owing to heavy rain and snowfall, followed by earthquake, cracks had appeared in the insured house and it had become quite risky to live therein. A day before informing the opposite party, through Annexure C-2, complainant addressed a letter to the Tehsildar, copy 1 Whether reporters of the local papers may be allowed to see the order? 2 Devinder Chauhan vs. Oriental Insurance Company (F.A.No.164/2013) & Oriental Insurance Company vs. Devinder Chauhan (F.A. No.183/2013) Annexure C-3, in which it was stated that damage had been caused to his house by heavy snowfall, which occurred on 12.02.2007, and his house had developed cracks upto foundations and that on the day of writing the letter, i.e. 21.02.2007, earthquake tremors were also felt, which made the inhabitation more risky.
3. A surveyor was deputed by the opposite party, who submitted report dated 31st December, 2007, Annexure R-3, per which the cause of loss could have been subsidence of the site of the house. He assessed the loss at `1,19,620/-. A consent form, Annexure R-3(h), was submitted by the complainant to surveyor, offering to accept the aforesaid amount of `1,19,620/-, provided the money was paid to him, without creating any hurdle necessitating the knocking of doors of the Court by the complainant.
4. Claim was repudiated by the opposite party on the ground that damage had not been caused by earthquake and the damage owing to rain or snow was not covered under the policy. Complainant felt aggrieved by the repudiation of his claim and filed a complaint, under Section 12 of the Consumer Protection Act, 1986.
5. Opposite party contested the complaint and pleaded that damage due to rain and snow was not covered 3 Devinder Chauhan vs. Oriental Insurance Company (F.A.No.164/2013) & Oriental Insurance Company vs. Devinder Chauhan (F.A. No.183/2013) under the policy and that no earthquake had taken place in the area on or around the date of alleged damage and, hence, the claim had rightly been repudiated. It was also stated that the complainant had made misrepresentation and concealed true facts, inasmuch as sometime he alleged that damage was caused by rain and snow and sometime he took the plea that it was caused by earthquake. It was also stated that damage had been caused to the building due to the construction activity undertaken by the complainant, close to the site of the insured house.
6. Learned District Forum, vide impugned order, concluded that the opposite party was not justified in repudiating the claim and consequently allowed the complaint and ordered the opposite party to pay a sum of `1,19,620/-, by way of insurance money, within two months, failing which to pay interest at the rate of 7.5% per annum, from the date of the order, onwards and also to pay `25,000/- on account of compensation and litigation expenses.
7. Opposite party is aggrieved by the order of allowing the complaint and directing it to pay the insurance money and compensation etc., while the complainant is aggrieved by the rate of interest, which has been ordered to 4 Devinder Chauhan vs. Oriental Insurance Company (F.A.No.164/2013) & Oriental Insurance Company vs. Devinder Chauhan (F.A. No.183/2013) be paid on the amount of insurance money, as according to him, the rate is too low.
8. We have heard learned counsel for the parties and have gone through the record.
9. We do find even from the documents of the complainant himself that the damage was not caused due to earthquake. Complainant was issued a certificate on 18.02.2007, or say before 21.02.2007, by the Panchayat that damage to the house in the form of cracks on all the four sides of the house, including a big crack in the foundation, had occurred due to heavy snowfall and rain. The certificate is Annexure R-3(g). The alleged earthquake occurred on 21.02.2007. Damage in the form of cracks in the structure and foundation had taken place before that, as is made out from the aforesaid document, which is dated 08.02.2007. Again in his consent letter, which is Annexure R-3(h), and purports to be written in the hand of the complainant himself, it is mentioned that the damage to the house had taken place on 12.02.2007. There is no reference of any damage caused to the house subsequent to aforesaid date, due to alleged earthquake. Again, on 21.02.2007, complainant addressed an application, Annexure R-3(f) to the Tehsildar, in which it was stated that the house and the 5 Devinder Chauhan vs. Oriental Insurance Company (F.A.No.164/2013) & Oriental Insurance Company vs. Devinder Chauhan (F.A. No.183/2013) foundations had developed cracks, due to heavy snowfall that had taken place on 12.02.2007 and that on the date of application, there were tremors of earthquake, due to which risk of the house collapsing had increased. In the application, there is no reference that any damage was caused to the house by the tremors.
10. Above stated evidence is more than enough to disbelieve the complainant's version that damage was caused to the house partly by snowfall & rain and partly by the earthquake.
11. Learned counsel representing the opposite party submits that damage to the insured house on account of snow and rain, is not covered under the policy. Learned counsel representing the complainant submits that damage was not caused by rain or snow as such, but the rain and snow led to subsidence of the site, on which the house stood and subsidence of the site and the damage occurring due to such subsidence, is covered under policy, vide clause VIII, which reads as follows:-
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:-6
Devinder Chauhan vs. Oriental Insurance Company (F.A.No.164/2013) & Oriental Insurance Company vs. Devinder Chauhan (F.A. No.183/2013)
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;
d) defective design or workmanship or use of
defective materials;
e) demolition, construction, structural
alternations of repair of any property or ground works or excavations.
12. Learned counsel representing the opposite party submits that it has not been the case of the complainant that there was any subsidence of the land and that the damage was caused because of such subsidence and that, as a matter of fact, some new construction had been started by the complainant and that the alleged subsidence took place because of construction of new house by the complainant, to which there is a reference in, Annexure C-2, by which damage was intimated on 22.02.2007 to the opposite party.
13. Complainant has been alleging from the very beginning, even before intimating the damage to the opposite party, vide Annexure C-2, that damage caused to the structure was in the form of cracks, in the walls as also the foundations. Cracks in the structure, particularly when the foundation is also involved, would occur only when the site, on which the structure stands, sags or subsides. Of course, 7 Devinder Chauhan vs. Oriental Insurance Company (F.A.No.164/2013) & Oriental Insurance Company vs. Devinder Chauhan (F.A. No.183/2013) term subsidence, as such, is not used in letter of intimation, Annexure C-2, or the application, which was submitted to the Tehsildar, Annexure C-3, but the Patwari and Tehsildar, who on receipt of the applications, Annexure R-3(f), visited the site on 23.02.2007, observed in their reports recorded, on the reverse of the aforesaid application, that site of building had subsided. Aforesaid reports of the field revenue staff, strengthen our observation that when cracks are there in the walls and foundations, the cause is generally the subsidence of the site.
14. Surveyor deputed by the opposite party also, vide para 6, pertaining to the cause of loss, did not rule out the subsidence of the site. He, however, recommended that in order to ascertain, whether any such subsidence was there or not, services of an expert needed to be availed. The opposite party, for the reasons best known to it, did not obtain any expert report.
15. As regards the submission that alleged subsidence took place because of construction activity undertaken by the complainant, for erecting new house, suffice it to say that there is absolutely no evidence that the construction of new house, to which there is reference in, Annexure C-2, had started close to the site of insured house, 8 Devinder Chauhan vs. Oriental Insurance Company (F.A.No.164/2013) & Oriental Insurance Company vs. Devinder Chauhan (F.A. No.183/2013) before the damage had taken place or that such construction was, in any way responsible for the damage to the insured building. We find no reference in the report of the surveyor that the construction of new house was in any way connected with the subsidence of the site of insured house, though it does find mention in the report that construction of new house adjoining to insured house had commenced for shifting the family members from insured house, which had developed cracks. The fact that new construction is reported to have been undertaken for shifting the family members from the damaged (insured) house means that construction was started after the damage to the insured house had occurred.
16. In view of the above stated position, we see no merit in the appeal filed by the opposite party. The same is, therefore, dismissed.
17. As regards the appeal filed by the complainant, we find on record a consent letter, Annexure R-3(h), per which the complainant agreed to accept the loss assessed by the surveyor, without insisting for any interest. Of course, learned District Forum has not ordered the payment of interest from the date of complaint, but from the date of passing of the impugned order, in case the money is not paid within 2 months, but at the same time, a sum of `25,000/-, 9 Devinder Chauhan vs. Oriental Insurance Company (F.A.No.164/2013) & Oriental Insurance Company vs. Devinder Chauhan (F.A. No.183/2013) has been awarded, on account of compensation and litigation expenses and this amount takes care of non-award of interest from the date of the complaint to the date of passing of impugned order. Hence, the appeal filed by the complainant is also dismissed.
18. This order be placed on the record of F.A. No. 164/2013 and its authenticated copy on the record of F.A. No.183/2013.
19. A copy of this order be sent to each of the parties, free of cost, as per Rules.
(Justice Surjit Singh) President (Chander Shekhar Sharma) Member (Prem Chauhan) Member September 16, 2013.
DC Dhiman) 10