BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

                               BENGALURU – 560 027.

DATED THIS THE 30^th DAY OF JULY, 2022

CONSUMER COMPLAINT NO.3239/2017

PRESENT:

SRI.RAJU K.S,

SMT.REKHA SAYANNAVAR,:MEMBER

Hightek Ecowood,

A registered Partnership Firm,

Having its Principal Office at No.110,

Bangalore 560 085,

Karnataka and Having its Manufacturing

Unit in Plot No.165,

Survey No.72, KIADB Industrial Area,

Harohalli Hobli,

Ramanagara District,

Rep by Mr.Harsha.……COMPLAINANT

Rep by Sri.A.Mahesh Chowdhary, Adv

V/s

M/s United India Insurance Company Limited,

Registered under the Companies Act,

Having its registered office at No.63,

1^st Floor, Maruthi Complex,

Bangalore-560 074,

Karnataka and having its Divisional Office at XII

40/3 Geetha Mansion,

K.G.Road, Bangalore-560 069,

Karnataka rep by its Senior

Divisional Manager.                           ..…   OPPOSITE PARTY

Rep by Sri.Janardhan Reddy, adv.,

//JUDGEMENT//

BY SRI.SHIVARAMA K, PRESIDENT

The complainant has filed this complaint u/s 12 of the Consumer Protection Act-1986 seeking for a direction to the opposite party to pay a sum of Rs.10,35,000/- towards loss sustained because of the compound wall and a sum of Rs.1,00,000/- towards mental agony and harassment caused to the complainant.

2. It is not in dispute that the opposite party had issued the Standard Fire and Special Perils Insurance Policy for the period from 26.11.2010 to 25.11.2011 and it was continued till 03.11.2015 to 02.11.2016.  Further, the policy was issued by the opposite party i.e., Standard Fire and Special Perils Insurance Policy to the insured Canara Bank M/s Hightek Ecowood Earthquake Covering claims for destruction of building and closed for the period from 03.11.2015 to 02.11.2016.  Further, it is not in dispute that due to heavy rain the compound wall was collapsed on 19.05.2016 and based on claim intimation made by the complainant, the opposite party deputed Mr.Gopalkrishna as surveyor for verification and assessment of loss.  Further, it is not in dispute that valuation report was submitted by the canara bank through their approved valuer Narayana Prasad.

3. It is the further case of the complainant that the opposite party had rejected the claim stating that there was no coverage mentioned in the policy towards the compound wall damaged including the foundation also.  The complainant had issued legal notice dt.31.12.2016 to the opposite party to pay the amount towards damage caused to the compound wall, but the opposite party rejected the claim.  Hence, the complaint came to be filed.

4. It is the further case of the opposite party that the opposite party had issued reply dt.21.01.2017 to the legal notice dt.31.12.2016 sent by the complainant.

 5.  To prove the case, the complainant (PW1) has filed affidavit in the form of his evidence in chief and had produced documents.  The representative of opposite party company had filed affidavit in the form of his evidence in chief and had produced documents vide EX.R1 to R6 documents.

6. Counsel for the opposite party had filed written arguments. 

7. Heard the arguments.

         8. The points that would arise for consideration are as under:

i) Whether there is deficiency of service on the part of the opposite party ?

    ii) Whether the complainant is entitled for the  

         compensation as sought ?

     iii) What order ?

  9.   Our findings on the aforesaid points are as follows:

Point No.1 :  In affirmative

Point No.2 :  Partly in affirmative

Point No.3 :  As per the final order for the following;

REASONS

10. POINT NO.1:- PW1 and RW1 have filed their respective affidavits in the form of their evidence in chief.  They have reiterated the fact stated in their respective pleadings, in the affidavits filed.  There is no dispute with regard to the insurance policy issued by the opposite party.  According to PW1, the complainant had purchased the entire plant, machinery and has constructed the building by availing pecuniary facilities in the form of business loan from Canara bank.  The said loan has been secured by creating equitable mortgage over his immovable property.  Further, the standard Loan agreement through which the complainant availed loan, enforced an obligation upon the complainant to take requisite insurance to insure any loss or damage to the aforesaid secured assets.  Further, the insurance taken was automatically renewed every year without any breach of the terms or it amounted to termination of contract.  Further, on 19.05.2016 during the night hours the insured premises was struck by unprecedented torrential rains leading to an unfortunate and least expected event of collapse of compound wall leaving the premises without any protections.  The complainant has produced the policy of insurance.  On perusal of the policy which was in force from 03.11.2015 to 02.11.2016, it appears that the description of the property insured was all type decorative and such other nature of building to insured business and other imaginary pertaining to insurance policies.  The value of the building was shown at Rs.1.10Crores.

11. The only contention taken in the version by the opposite party that the compound wall was not covered under the policy.  It is the contention of the learned counsel for the complainant that since the building is included in the insured policy the compound wall was also included it.  Since, the compound wall is the protection to the building and without the compound wall the building cannot be protected.  Further, the complainant had availed Standard Fire and Special Perils Insurance Policy.  In EX.R2 Survey Report, it is stated that because of rain the compound wall has collapsed and the rainfall was of about 34-39 mm rain on 19.05.2016 and since it was a fortuitous incident leading to damages, but risk on compound wall was not covered in the policy.  We feel the surveyor has no authority to say as to whether the risk was covered under the policy or not.  His job was only to inspect the premises and to assess the damage and cost.  Therefore, the surveyor has exceeded the authority.  Hence, for the above said reasons, we answer this point in affirmative. 

12. POINT No.2:- The complainant claimed a sum of Rs.10,35,000/- towards loss sustained.  In support of the oral evidence, he has produced the bill with regard to the charges paid for compound wall reconstruction dt.20.06.2016 vide annexure-E, in which it appears that the total cost of reconstruction was Rs.10,30,550/-.  In the survey report vide EX.R2, it is stated that the compound wall was collapsed due to heavy rain on 19.05.2016.  Hence, reconstruction was also made on the same year.  As per EX.R1 insurance policy for the period 03.11.2015 to 02.11.2016 the building was insured for a sum of Rs.1.10Crores.  Further, as per the terms of the policy, 5% of the claim amount subject to minimum of Rs.10,000/- shall be excluded. It is not stated as to in which here the compound wall was constructed.  Further, the initial cost of the construction of compound wall has not been stated and no document has been produced.  The policy was commenced on 26.11.2010. The compound wall was collapsed in the year 2016. The complainant produced documents with regard to the construction of compound wall of the year 2016.  Hence, it cannot be said that in the year 2010 the cost of the compound wall was not the construction cost took place in the year 2016.  Further, there would be deterioration in the value of the compound wall.  Hence, we feel the approximate loss could be ascertained at Rs.6,00,000/-.  Further, the complainant claimed a sum of Rs.1,00,000/- towards mental agony and costs.  The attitude of the opposite party appears that even though the claim was made by the complainant the same was repudiated and email correspondence been made by the complainant.  Hence, the complainant is entitled for a sum of Rs.20,000/- towards mental agony and a sum of Rs.10,000/- towards litigation cost.  Accordingly, we answer this point partly in affirmative. 

13.  POINT NO.3:- In view of the discussion made above, we proceed to pass the following;

The complaint is allowed in part.

The opposite party is directed to pay a sum of Rs.6,00,000/- towards loss of compound wall to the complainant.   

 Further the opposite party is directed to pay a sum of Rs.20,000/- to the complainant towards mental agony suffered and a sum of Rs.10,000/- towards litigation cost. 

The opposite party shall comply the order within 30 days. In case, the opposite party fails to comply the order within the said period, the above said amount of Rs.6,30,000/- carries interest at the rate of 9% p.a. from the date of order till payment.

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.

 (Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced in the open Commission on 30^th day of July, 2022)

• REKHA SAYANNAVAR)    (RAJU K.S)    (SHIVARAMA, K)              
•  

//ANNEXURE//

Witness examined for the complainants side:

Sri.Harsha, Proprietor of the M/s Hightek Ecowood has filed his affidavit.

Documents marked for the complainant side:

1. Standard Loan Agreement.

2. Copies of the insurance policies.

3. Email dt.20.05.2016 to the bank.

4. Original copy of letter dt.02.06.2016 to the metrological department.

5. Valuation report dt.20.06.2016.

6. Report by canara bank approved valuer.

7. Letter dt.04.10.2016 sent by insurance company to Canara Bank with regard to the rejection of insurance claim for the compound wall.

8. Letter dt.05.10.2016 sent from Canara Bank to United Insurance Company.

9. Legal notice dt.31.12.2016.

Witness examined for the opposite party side: 

Sri.R.Govindaraju, Authorized signatory of opposite party company has filed his affidavit.

Documents marked for the Opposite Party side:

1. Copies of the policy,

2. Copy of the surveyor report dt.15.09.2016.

3. Copy of the intimation letter dt.04.10.2016.

4. Copy of the letter dt.05.10.2016 issued by the Canara Bank.

5. Copy of the repudiated letter dt.18.10.2016.

6. Copy of the reply notice dt.21.01.2017.

• REKHA SAYANNAVAR)    (RAJU K.S)        (SHIVARAMA, K)              
•