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Judgment
THIS complaint has been filed by Brig. V.N. Chanana (Retd.), wherein he has stated that at the time of vacation of his house by the tenant on 31st July, 1991, he found that his house building was badly damaged. That walls were dug and all wires ripped apart, water pipes broken and mutilated, massive holes were made in each wall, R.C.C. slabs were broken by hammering, doors were removed thus leaving no security for any-one to live, truck loads of debris of house were lying and so on. He lodged a complaint in the Police Station and also informed the Oriental Insurance Company who had been providing insurance cover uninterrupted for the last 27 years.
THE Insurance Company sent a Junior Surveyor who visited the house in the dark hours and was totality adverse to seeing the damage. It was at the intervention of Shri G.V. Rao, Chairman, Oriental Insurance Company that a Senior Surveyor was deputed who submitted his report after one month raising issues which were not relevant to the complainant''s claim. The Insurance Company have filed letters dated 9th June, 1992 and 17th June, 1992 repudiating the claim of the complainant by stating that the damages had taken place during the course of tenancy of more than 27 years; that no repairs were carried out with the results that the house deteriorated due to VRNTL. As such the alleged loss did not fall within the terms and conditions of the policy and the complainant''s claim could not be allowed.
The important facts to be considered in the case are the terms and conditions of the Insurance Policy, the report of the Surveyor (J.B. Boda) Pvt. Ltd., and the report of Mr. L.C. Lal ''Surveyor'' Assessor and valuer of properties appointed by the complainant.
THE Insurance Policy cover provides under Item No. 4 ''Risk Covered'' Riot, Strike and Malicious and Terrorist Damage as per Riot, Strike, Malicious Damage and terrorist clause printed thereon. In the description of property on the Insurance cover it is stated as "buildings including boundary Walls". The Surveyor''s report of (J.B. Boda, Private Ltd.) dated 8th May, 92 has tried to draw the attention to the policy condition and have stated that it was the tenant who was in the custody of the building for 22 years and it is difficult for anyone to show between normal damages on the one side and the alleged damages caused by the malicious act on the part of the tenant who occupied the house.
IN support of his contention that the damage was caused due to the malicious act of the tenant warranting extensive repairs at huge costs to the complainant, he has referred to the report of Mr. L.C. Lai, Surveyor dated 6th October, 1991 who assessed the loss of Rs. 2,59,450/- plus 10% amounting to Rs. 2,85,300/- . This Surveyor had further stated that it was his considered view that the nature of the damages as seen indicate malicious damage with mala fide intention by the tenant in view of the legal battles lost by him. This cannot be attributed to normal wear and tear or lack of maintenance. He has also given details of the estimated figure of Rs. 2,85,300/- which he has tried to calculate on the current costs. The issue to be decided therefore is whether the case of the complainant is covered by terms and conditions of the Insurance Policy and if so to what compensation and claims he is entitled to. In our view it is established that the complainant had been taking Insurance Cover of the premises in question for the past 27 years and the Insurance Cover presented did specify under Clause 4 of the policy "Riot, Strike and Malicious and Terrorist damage as per Riot, Strike, Malicious Damage and Terrorist clause printed after Clause 12 page 2 of the policy which reads as under :- (5) "Any malicious Act but excluding any omission of any kind of any person, provided that the company shall not be liable for any loss or damage arising out of or in the course of burglary, house breaking, . theft or larceny or any attempt by any person taking part therein."
It is obvious that none of the riders as stated above are applicable and therefore the claim of the complainant has to be decided on the interpretation of the term ''malicious'', "malicious" has been defines as "bearing ill will or spite moved by hatred or ill will" (Chambers 20th Century Dictionary)
IN view of the long drawn out litigation between the complainant and his tenant causing ill-will or spite resulting in malicious act and final vacation of the premises under Court orders, the malicious intention of causing damage to the premises is established. Since ''malicious'' act is covered under the INsurance Policy the respondent INsurance Company is liable to make payment under the terms and conditions of the policy.
IN examining the amount payable to the complainant we have to observe that the policy covered a risk of Rs. 3 lacs. That the Surveyor of the respondent company has assessed the value of the house in question at Rs. 7,24,800/- and after allowing depreciation for 25-1/2 years @ 2% per year he has deducted an amount of Rs. 3,62,000/- . Thus assessing the current value of the property at Rs. 3,62,000/- . This figure is higher than the claim amount of Rs. 3 lacs. Even otherwise the basis of calculation for depreciation made by the Surveyor is on the higher side. He has not given consideration to the location and construction of the building as also the appreciation in the value both of land and structure. We, therefore, do not agree with his basis of calculation. We have further to observe that the only reason given by the Surveyor in rejecting the claim of the complainant is that "in his view the alleged damages appear to be of the nature of normal use and wear /tear depreciation and/or of marks left due to removal of fixtures /fittings owned by the tenant". He has thus partly accepted the fact of damage caused by the tenant at the time of vacation. It is a known fact that value of properties in the past decade particularly in Delhi have gone up. Even otherwise assessing the value as assessed by the Surveyor, the claim of the complainant cannot be rejected when the ''malicious'' Act of the tenant is established. As to the other two pleas taken by the respondent that it was the liability of the complainant to maintain the building as the tenant was paying rent and further that he did not file, any inventory of items when the house was given to the tenant on rent, we are of the view that the issue is not that of lack of maintenance of the premises but wilful damage caused at the time of vacation of the premises. As to the second contention that the complainant failed to file the list of items which should have been prepared at the time of renting the premises and in the absence of this respondents Surveyor could not give due credence to the quantum of damage. We are of the view that while this should have been done by the complainant but due to the fact of long tenancy of over 22 years in this was not done it would not prejudice his claim of compensation caused due to the ''malicious Act'' which led to the vacation of the house in a shattered condition and this could be the outcome of this revengeful attitude as he had to vacate the house under Court orders.
The Surveyor of the respondent Co. in assessing the value of the house has allowed 2% depreciation per year and has assessed the value of the house at a figure of Rs. 3,62,000/- but finally rejected the claim on technical grounds. We do not agree with his basis as with modern concrete structures, the life of a building can be safely taken as 100 years and when maintained property it could even be more.
THE valuers and Surveyor of the complaint has assessed the claim at his items of compensation as damage are exhorbitantly high. It appears that it is not the assessment of loss but an attempt to put claim which could make it a new premises with all modern fittings. He has also given no basis or proof that the items mentioned by him did exist in the same condition as claimed by the complainant. In our view without specific proof the claim advanced by the complainants valuer/Surveyor cannot be accepted. THE purpose of the value of insurance or claim in lieu thereof is to seek compensation for the loss suffered and this has to be adequately justified. It fails to satisfy us that concrete structure would be broken involving an expenditure of Rs. 93,450/- likewise Rs. 93,450/- would be required to be spent on wood work etc. Since, in our view the damage was caused due to the malicious act of the tenant the complainant under the terms of the policy is entitled to claim compensation. However, in the absence of any documentary proof by way of inventory of fixtures and fittings, the claim has to be restricted to the damage caused and the amount of compensation payable therefore.
AS stated earlier that the life of the house could be safely taken as 100 years and at 1% depreciation, there could be say 30% depreciation. Even in making this assessment we have to give allowance to the fact that the house in question was being used as office space and in that event its wear and tear had to be moved when compared with personal use for living. The complainant has not furnished any proof of structural changes or details thereof. This precludes us from determining the exact of the damage caused. Accordingly we have to examine the report of the valuer/Surveyor of the complainant who had worked out the details including the cost estimates, as no reliance could be placed on respondent''s Surveyor, since he did not go into the details and summarily dismissed the claim on technical grounds. In examining the report of complainant''s valuer/Surveyor, we find that he has given a highly exaggerated basis of claim in respect of various items for example, he has assessed Rs. 92,000/- towards masonry work Rs. 93,400/- towards wood work, Rs. 23,800/- towards sanitary and watering installations and Rs. 47,300/- for electrical fittings. Even on a minor item such j as fixing of electrical bell. The amount given is Rs. 200/- which cannot be accepted, we also do not find any justification to accept the contention that cracks in the outer walls could have been caused due to the malicious Act of the tenant. In our view the question of replacement of windows or electrical fans or fittings will in any case , become necessary in the normal course of wear and tear of fittings and fixtures of a house constructed 26 years back. Even the replacement of a gyeser will become necessary after this lapse of time. There are many such items which in our view will need replacement in the normal course of the occupation of the house. In our view, it is not the intention of the Insurance Policy to get a new house done at the cost of the respondent. However, as we have stated earlier that wilful damage was caused by the tenant with ''malicious intention'' since he had to vacate the house under Court orders after prolonged litigation and ill will, the damage caused to the house was undoubtedly extensive as well as intentional and the complainant has suffered a loss on this account. He is therefore entitled to compensation in terms of the Insurance Policy. However, in our view the claim of complainant is highly exaggerated. We therefore, consider it just and reasonable to accept his claim at 30% of the claim. Amount of Rs. 2,85,000/- amounting to Rs. 85,500/- . Further as the respondent Co. did not settle his claim in a just and reasonable manner and without giving due consideration to the facts and circumstances of the case, and also overlooking the conditions of the Policy, the complainant is further entitled to interest at 18% on the amount of Rs. 85,000/- from the 7.8.92 the date of filing the complaint till the date of payment.
AS to his claim of compensation of Rs. 5 lacs towards harassment we would like to state that while we have sympathy with the complainant for the suffering he had to undergo but the same was due to a long litigation and ill will between him and his tenent and obviously respondent Co. could not be held liable for this.
WE, therefore, allow t''he complaint and direct the respondent to pay Rs. 85,500/- together with interest @18% from 7.8.92 till the date of payment within 3 months failing which action shall be taken under Section 27 of the Consumer Protection Act. No order as to costs. Complaint allowed.