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2005 DIGILAW 358 (UTT)

Oriental Insurance Co. Ltd. v. J. P. Nautiyal

2005-08-18

LUXMI SINGH, SURENDRA KUMAR

body2005
JUDGMENT Hon'ble Sri Surendra Kumar, Acting President : This is an appeal against the order dated 4.3.1997 passed by the District Forum, Uttarkashi whereby the complaint of the complainant was allowed and the appellant was directed to pay a sum of Rs. 84,588/- along with interest @12% from 5.4.1996 till the actual date of payment. 2. The brief facts of the case are that the complainant got his house insured with the opposite party for the period from 13.6.1995 to 12.6.1996. It is alleged that on 5.9.1995 his house was damaged by the jerk of an earthquake. Information was given to the insurance company on 8.9.1995. The insurance company asked for estimate which was submitted by the complainant to the insurance company or 5.10.1995 but the insurance company did not pay the claim amount. For the safety of his family members and animals from excess cold, the complainant got his house repaired himself and again asked for claim. The complainant suffered a loss of Rs. 1,50,000/- but the amount was not paid to him, thereafter he filed the complaint before the learned Forum. 3. The insurance company filed written statement and alleged that on receipt of claim form the matter was investigated but there was no record regarding occurrence of earthquake. During the survey no damage was found to the house of the complainant. It is pleaded that the earthquake occurred on 20.10.1991 and at that time the insurance was not effective. 4. Both the parties filed their affidavits and other relevant documents in support of their allegations. The learned Forum after taking the evidence of the parties and hearing them passed the impugned order, against which the insurance company has preferred this appeal. 5. We have heard the learned Counsel for the parties and gone through the records. The complainant in para 2 of his complaint said that on 5.9.1995 at about 7:15 p.m. there was jerk of earthquake due to which his house was damaged. He has also alleged that information was given to the insurance company on 8.9.1995. The estimate was also submitted to the insurance company but the insurance company did not settle the claim of the complainant. He has also alleged that information was given to the insurance company on 8.9.1995. The estimate was also submitted to the insurance company but the insurance company did not settle the claim of the complainant. The insurance company in its written statement said that on receipt of claim form, necessary inquiry was made from the office of District Magistrate and other related departments but no record was found regarding the occurrence of earthquake on 5.9.1995. In para 8 it is said that the damage to the house of the complainant was caused by the earthquake which occurred on 20.10.1991 and on that date the insurance was not effective. Thus the damage to the house has not been denied by the insurance company. 6. The letter of the complainant to the insurance company has been filed which is dated 8.9.1995, in which he intimated to the insurance company regarding damage by earthquake. By letter dated 5.10.1995 he submitted the estimate to the insurance company. The complainant has also filed copies of various letters showing that he has submitted all the papers to the insurance company regarding his claim. The newspaper cutting dated 05th September has also been filed, in which it is specifically mentioned there were jerks of earthquake in Uttarkashi. The sum insured was Rs. 4,00,000/-. The complainant has also filed the receipts regarding payments made to various persons for purchase of material etc. One such receipt is for a sum of Rs. 55,000/ - issued by Sh. Khemraj dated 5.4.1996, in which he certified that he received a sum of Rs. 55,000/- from the complainant in respect of. There is another receipt of Rs. 17,600/- issued by Jeet Cement regarding purchase of 110 bags of cement. All these receipts have not been denied by the insurance company. 7. Then there is report of Sh. Akhilesh Jain dated 31.8.1996. In his report he mentioned that it is a two storeyed building with large front open area. Front area soil is retained through the retaining wall and also mentioned that the building was constructed in the year 1988-89. Date and time of loss is mentioned as 20.10.1991 but how he came to the conclusion that the damage to the house occurred on 20.10.1991 and not during the insured period has nowhere been explained. He has assessed the loss to the tune of Rs. 23,256.65/-after allowing depreciation @ 10%. Date and time of loss is mentioned as 20.10.1991 but how he came to the conclusion that the damage to the house occurred on 20.10.1991 and not during the insured period has nowhere been explained. He has assessed the loss to the tune of Rs. 23,256.65/-after allowing depreciation @ 10%. The surveyor however has not taken into consideration the actual cost of construction while assessing the loss. He has not taken the cost of water because in hilly areas the water is to be lifted. This fact has totally been ignored by the surveyor. In their letter dated 17.3.1996, A. K. Gupta and Associates written to the complainant said that we have tried to contact you twice at Uttarkashi but unfortunately due to unrest/curfew, we could not contact you. The complainant in his affidavit dated 11.9.1996 has specifically alleged in para 5 that there was no such curfew ever in Uttarkashi. The complaint has also filed the copy of estimate which is for a sum of Rs.1,50,733/-. 8. The insurance company did not file any iota of evidence to prove that the earthquake by which the damage was caused to the house occurred on 20.10.1991 and not on 5.9.1995. No paper of any department has been filed by the insurance company in support of its contention. 9. The complainant has filed all the papers showing the amount which he has spent in the repair of his house. In our opinion the case of the complainant was fully proved. The Learned Forum has passed a correct order appreciating each and every aspect of the• case. It calls for no interference. This appeal has got no force and is liable to be dismissed. ORDER The appeal is hereby dismissed. Cost shall be easy.