Mr. Justice P.N. Nag, President — By this complaint, the complainant has sought directions from this Commission to the respondent (hereinafter to be referred to as the Insurance Company) to pay a compensation of Rs. 4,00,000/- to the complainant on account of loss suffered by him.

2. The facts set out in the complaint are that the complainant had started constructing a singlestoreyed house in the month of February, 1989 on his land comprised in Khasra No 243/1 situated in Village Pateog, Pargana Jhajiot, Tehsil and District Shimla and completed the same in June, 1989. The complainant insured the said house with the Insurance Company vide Policy No 111300/11111338/90 dated 14.9.90 and also paid the premium. The Insurance Policy was valid upto 13.9.91. The insurance cover was for a sum of Rs. 2,00,000/-. Unfortunately, on 4.8.91 due to land slides, the house was completely destroyed. The matter was immediately brought to the notice of the Insurance Company and the complainant also filed the insurance claim. According to the complainant, he had suffered a loss of Rs. 2,00,000/-. Because of the land slide and consequent damage to the house, the complainant suffered mental agony and distress. The complainant also agreed to accept only a sum of Rs. 60,000/- full and final settlement of his claim. Even though the amount was also not paid with the result that the complainant has been forced to file this complaint whereby he has claimed a compensation of Rs.. 4,00,000/- which includes:

(i) Cost of damaged building 2,00,000

(ii) Compensation for mental pain and agony. 1,00,000

(iii) Compensation for delayed payment and thereby torturing the complainant 1,00,000

Total: 4,00,000

3. In the counter-affidavit, the insurance cover for the house has not been denied by the Insurance Company. It has also not been disputed that due to land slide some cracks appeared in the building of the complainant and a little portion of it was damaged. However, a major portion of the building was intact. The Insurance Company appointed the Surveyor who has assessed the total loss to the tune of Rs. 67,441/-. After deducting the value of salvage worth Rs. 441 / and electricity installation which is not covered in the insurance policy worth Rs. 2,751 /- (Rs. 441 /- + Rs. 2,751 /- = Rs. 3,192/-), the net amount payable under the claim has been settled at Rs. 64,249/-. According to the Insurance Company, the settled amount is still payable to the complainant subject to complainant's furnishing of indemnity bond, power of attorney and letter of subrogation in favour of the Insurance Company.

4. The evidence by both the parties have been led in the form of affidavits.

5. We have heard the learned Counsels for both the parties.

6. Under the terms of the Insurance Policy at page 6, the risk covered is at Sr. No. 8 "Subsidence and Landslide (including Rockslide) damage". There cannot be any manner of doubt that if the house has been damaged due to the landslide, the risk is covered and the Insurance Company is liable to pay the amount of loss suffered by the complainant on account of damage to his house due to landslide.

7. Mr. Deepak Bhasin, learned Counsel for the Insurance Company has drawn our attention to the affidavit of one Shri B.K. Sharma, Engi neer/Surveyor/Loss Assessor and also his survey report dated 29.9.91 wherein it has been shown that the complainant has himself submitted an estimate for repairs to the tune of Rs. 1,07,765/- on the basis of H.P. Public Works Department Schedule of Rates with 66% cost index on the basis of which the Company Surveyors had assessed the loss by deducting Rs. 29,465/- towards the cost of retaining wall which is not covered under the Policy and had deducted some of the items which were not damaged and accordingly the quantities of same were reduced. Accordingly an amount of Rs. 29,465/- and Rs. 10,000/- (Rs. 29,465/- + Rs. 10,000/- = Rs. 39,465/-) were deducted from the estimate of repairs submitted by the complainant for Rs. 1