Chandigarh

DF-I

CC/603/2022

Dheeraj Khanna - Complainant(s)

Versus

Aditya Birla Capital Limited - Opp.Party(s)

Chahit Bansal

02 Dec 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                          

Consumer Complaint No.	:	CC/603/2022
Date of Institution	:	15.06.2022
Date of Decision	:	02/12/2024

 

Dheeraj Khanna, Son of Sh. Harish Khanna, Resident of H.No.351/1, Village Khuda Lohra, Khuda Lohra, Sector-14, Chandigarh-160014.

...Complainant

Versus

1.    Aditya Birla Capital Limited, through its Director/Authorized Representative, Having its Registered Office at Indian Rayon Compound, Veraval, Gujarat-362266.

2.    Aditya Birla Housing Finance Limited, through its Authorized Representative, having its Branch Office at Unit No.38A and 39, 1^st Floor, CCC Chandigarh City Centre, VIP Road, Block B, Zirakpur, Chandigarh-140603.

3.    Liberty General Insurance Limited, through its Authorized Representative, Having its Registered & Corporate Office at 10^th Floor, Tower A, Peninsula Business Park, Ganpatrao Kadam, Lower, Mumbai-Maharashtra-400013,

4.    Liberty General Insurance Limited, through its Grievance Redressal Officer, Having its Office at: First Floor, Plot No. SCO.149-150, Sector 9-C, Madhya Marg, Chandigarh-160009.

...Opposite Parties

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

 

                                                                               

ARGUED BY	:	Sh. Abhishek Malhota, Advocate for complainant
	:	Ms.Tanya Trehan, Adv. Proxy for Sh.Harsh Chopra, Advocate for OP No.1 & 2 (thr.VC).
		Sh.Sachin Gupta, Adv. Proxy for Sh.Sachin Ohri, Advocate for OPs No.3 and 4.

Per Pawanjit Singh, President

1.        The present consumer complaint has been filed by complainant against the opposite parties (hereinafter referred to as the ‘OPs’).  The brief facts of the case are as under :-     
   1. It transpires from the averments as projected in the consumer complaint that on 26.06.2020, the complainant approached OP No.2 i.e. Aditya Birla Housing Finance Limited (ABHFL) to get a Home Loan of Rs.29,00,000/-, which was sanctioned on the same day and the first installment of the loan was disbursed into his loan account on 10.08.2020 and the same was to be repayable in 240 installments. The copy of statement of account and repayment schedule for the loan are Annexure C-1 and Annexure C-2. On 06.07.2020 vide Sale Deed/Conveyance Deed (Annexure C-3) was jointly registered in the name of Mrs.Ranjana Khanna and Sh.Harish i.e. parents of the complainant. OP No.2 being the agent of OPs No.3 and 4 i.e. Liberty General Insurance Ltd. (for short ‘insurance company’) offered House Protection Insurance for the said property i.e. Flat No.53A, Sante Majra, Kharar, Sector 127, Kharar, Distt SAS Nagar, Mohali, Punjab-140301 (hereinafter referred to as the ‘subject flat’) to the complainant and he accepted the said offer and accordingly, he got the subject flat along with household goods/appliances etc. insured by paying  premium of ₹14,010/- vide certificate of insurance valid from 08.07.2020 to midnight of 07.07.2025 (Annexure C-4) (hereinafter referred to as the ‘subject policy’). He also purchased/financed the appliances including washing machine, air conditioner and many other accessories of daily use from Bajaj Finance Ltd. Thereafter, he paid the loan amount and the copy of No Due Certificate and Statement of Accounts are Annexure C-5 (Colly.) and Annexure C-6 (Colly.) respectively.  After few days, the floor of the subject flat got descended and the POP and the paint on the roof also got ruined. In the washing area and the bathrooms, the tiles and flooring also got wrecked and sank inside the ground. Immediately, the complainant informed OP No.4 telephonically about the incident who assured its full support/financial assistance and also promised him to indemnify all the losses as per the policy terms. Thereafter, he frequently visited the office of OP No.4 and waited for the claim and was in full aspiration that OPs No.3 & 4 will indemnify the loss but they did not process the claim and rather repudiated his genuine claim. Compelled under the circumstances, he hired the services of private contractor namely Land Twisters, in order to restore the subject flat and for that purpose he spent ₹6,18,000/-  from his own pocket. The copy of the construction bill dated 03.05.2021 is Annexure C-7.  On 08.05.2022, the theft had taken place in the subject flat and various appliances/equipments were stolen regarding which the matter was also reported by him to the police (Annexure C-8).  Subsequently, the complainant got served the legal notice upon the OPs  requiring them to pay the claim but OPs No.3 and 4 have repudiated the claim vide letter dated 31.05.2022 (Annexure C-10)  and sent e-mail (Annexure C-11) denying the loss incurred to the complainant. The aforesaid act amounts to deficiency in service and unfair trade practice on the part of OPs. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
   2. OPs No.1 and 2 resisted the consumer complaint and filed their written version, inter alia, taking preliminary objections of maintainability, cause of action, concealment of facts, estoppels and also that the complainant has not approached this Commission with clean hands and further that they are not privy to the insurance contract. On merits, it has been alleged that as the subject house was got insured by the complainant from OPs No.3 and 4, there is no relationship of an agent/master between them and OPs No.3 and 4.  On merits, the facts as stated in the preliminary objections have been re-iterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
   3. In their separate written version, OPs No.3 and 4 resisted the consumer complaint and inter alia took preliminary objections of maintainability, jurisdiction, cause of action, concealment of facts and non-joinder & mis-joinder of parties. However, it is admitted that the complainant obtained the subject policy from the company. It is alleged that the complainant is not owner of the subject flat rather Mr.Harish and Mrs.Ranjana Khanna are the owners of the subject flat who have not been impleaded as parties, therefore, the complaint is not maintainable against answering OPs. It is further alleged that as the complainant has no insurable interest in the insurance policy and he has got no legal right to insure the subject flat.   It is further alleged that no effort was made by the complainant for registration of the FIR regarding the alleged theft rather he had made only a complaint (Annexure R-7) to the SHO after long time.  It is further alleged that on receiving the intimation regarding the alleged incident dated 05.07.2021 i.e. after a delay of 62 days from the incident, the surveyor was deputed who assessed the loss at ₹2,70,671/- but the claim was rightly repudiated  as No Claim because the peril claimed as internal leakage does not find coverage under the subject policy. On merits, the facts as stated in the preliminary objections have been re-iterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
   4. In separate rejoinders, complainant reiterated the claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.
2.        In order to prove their respective claims the contesting parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3.        We have heard the learned counsel for the contesting parties and also gone through the file carefully, including the written arguments.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that the parents of the complainant namely Mrs.Ranjana Khanna and Sh.Harish are the registered owners of the subject flat, which was earlier got financed by the complainant from OPs No.1 and 2 and thereafter the same was insured by the complainant along with the appliances/household goods from OPs No.3 and 4  vide certificate of insurance (Annexure C-4/R-4) and the loss to the subject flat was caused due to some internal leakage causing bedding down of the floor area after few days of the issuance of the subject policy regarding which the intimation was also given to the Insurance Company and due to burglary/theft certain household goods/appliances were also stolen from the subject flat and thereafter the Insurance Company deputed the surveyor, who found that the loss to the subject flat due to seepage being not covered under the subject policy, had recommended for repudiation of the claim, as is also evident from the survey report dated 31.05.2022 (Annexure R-4) and thereafter the Insurance Company had repudiated the claim of the complainant vide repudiation letter  dated 31.05.2022 (Annexure R-6), the case is reduced to a narrow compass as it is to be determined if the insurance company is unjustified in repudiating the claim of the complainant and the complainant is entitled for the reliefs as claimed, as is the case of the complainant or if the Insurance Company have rightly repudiated the claim of the complainant being no covered under the terms and conditions of the subject policy and the consumer complaint of the complainant, being false and frivolous, is liable to be dismissed, as is the defence of the Insurance Company.
   2. In the back drop of the foregoing admitted and disputed facts on record, it is clear that the entire case of the parties is revolving around the terms and conditions of the policy (Annexure C-4/R-2), statement of the complainant (Annexure R-5) and the repudiation letter dated 30.05.2022 (Annexure R-6) and the same are required to be scanned carefully.
   3. As per the case of the complainant, after few days of the issuance of the subject policy, the floor of the subject flat got descended and the POP and the paint on the roof also got ruined and  in the washing area and the bathrooms, the tiles and flooring also got wrecked and sank inside the ground.  However, the complainant has not whispered even a single word in the complaint that due to the internal leakage /seepage in the building, the loss was caused to the subject flat especially when he himself stated in his statement (Annexure R-5) to the Insurance Company  that due to internal leakage, the tiles and walls of the subject flat were damaged, further making it clear that the complainant has made improvement in the present complaint by changing the facts qua the internal leakage, which were earlier intimated to the insurance company at the first instance vide Annexure R-5.
   4. As per the case of the complainant, his claim falls under Condition No.11 of Section I-Home Protection i.e. bursting and/or over flowing of water tanks, apparatus and pipes. However, the complainant has inadvertently mentioned Condition No.11 instead of Condition No.9 of Section I-Home Protection, which relates to the bursting and/or over flowing of water tanks, apparatus and pipes etc. and the relevant portion of the same is extracted as under:-

“Section I-Home Protection

I (A) Building & I (B) Personal Possessions/Contents

We shall indemnify you for the loss and/or Damages to Your Home against any of the perils speciffed hereunder during the period of Insurance, as described in the Policy Schedule.

1) to 8)       xxxx        xxxx        xxxx       

9)       Bursting and/or overflowing of Water Tanks, Apparatus and Pipes

10)      Missile Testing Operations

11)      Leakage from Automatic Sprinkler Installations Excluding loss, destruction or Damage caused by:

a)       Repairs or alterations to the buildings or premises

b)       Repairs, removal or extension of the sprinkler installation

c)        Defects in construction known to the Insured.

12)      Bush Fire- Excluding loss, destruction or Damage caused by forest fire.

13)      Earthquake (Fire & Shock)

Loss or Damage (including loss or Damage by fire) to any of the property Insured by this Policy occasioned by or through or in consequence of earthquake including flood or overflow of the sea, lakes, reservoirs and rivers and/or Landslide/ Rockslide resulting therefrom.”

 

5. As it has already been discussed that the damage to the subject flat was caused due to internal leakage,  which fact has been stated in the letter/statement (Annexure R-5) and has also been referred in the Survey Report dated 31.05.2022 (Annexure R-4) by the Surveyor.
6.  Now the sole question that arises for determination is if the loss caused to the subject flat due to the internal leakage is covered under the Condition No.9 of Section I-Home Protection of the terms and conditions of the insurance policy i.e. bursting and/or over flowing of water tanks, apparatus and pipes or not?  However, the terms and conditions of the subject policy are very clear on this point that no such type of leakage/seepage  are covered under Clause 4 of the exclusions of the terms and conditions of the insurance policy which specifically says that the cover shall not indemnify loss or damage to the property caused by any or all of the following:-

1 to 3       xxxx        xxxx        xxxx

Loss of Damage directly or indirectly arising from or in consequence of the seepage and or discharge of pollutants of contaminants, which pollutants and contaminants shall include but not be limited to any solid, liquid, gaseous or thermal irritant, containment or toxic or hazardous substance or any substance the presence, existence or release of which endangers or threatens to endanger the health, safety or welfare off persons or the environment”.

7. In this manner, as it stands proved on record that the loss or damage directly or indirectly arising from or in consequence of seepage is specifically excluded under Clause 4 of the exclusion clauses of the terms and conditions of the Insurance Policy and therefore, the Insurance Company is not liable to indemnify the complainant.
8. So far as the burglary/theft is concerned, as there is no convincing evidence or document that the aforesaid appliances/household goods were ever purchased or installed by the complainant in the subject flat and further that the complainant has reported the matter to the insurance company on 15.09.2021 i.e. after a considerable delay of 62 days from the date of incident i.e. 05.07.2021 and, therefore, the complainant is not entitled for loss of theft/burglary, if any.
9. In so far as the objection of the OPs regarding the maintainability of the complaint is concerned, it has come on record that there is no iota of evidence to show that the complainant is having any insurable interest in the subject flat which admittedly is still in the name of his parents i.e. Mrs.Ranjana Khanna and Sh.Harish and they have neither transferred the  title of the subject flat in favour of the complainant nor have given title of the subject flat to the complainant in any manner whatsoever, to our mind, the complaint filed by the complainant is not maintainable.
10. In view of the aforesaid discussion, it is safe to hold that the complainant has failed to prove the cause of action set up in the consumer complaint and the present consumer complaint deserves dismissal.

4.        In the light of the aforesaid discussion, the present consumer complaint, being devoid of any merit, is hereby dismissed leaving the parties to bear their own costs.
5.        Pending miscellaneous application(s), if any, also stands disposed off.
6.        Certified copies of this order be sent to the parties free of charge. The file be consigned.

02/12/2024			Sd/- [Pawanjit Singh] President
			Sd/-
			[Surjeet Kaur] Member
			Sd/-
			[Suresh Kumar Sardana] Member