Punjab

Nawanshahr

CC/72/2015

Dr. Harminder Singh - Complainant(s)

Versus

Bajaj Allianz Life Insurance Company Ltd. - Opp.Party(s)

S.L.Jain

15 Jan 2016

ORDER

DISTRICT CONSUMER DISPUTES   REDRESSAL FORUM, SHAHEED BHAGAT SINGH NAGAR

 

Consumer Complaint No.   72 of 06.07.2015

Date of Decision            :   15.01.2016

 

1.       Dr.Harminder Singh S/o Sh.Harbhajan Singh

2.       Smt.Jaspal Kaur W/o Dr.Harminder Singh both residents of Main Road Banga, Tehsil Banga District SBS Nagar.

….. Complainants

Versus

Bajaj Allianz General Insurance Company Limited, Second Floor Satnam Complex, B.M.C. Chowk, G.T. Road Jalandhar City.

                                                                             …Opposite party

 

(Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

SH.G.K. DHIR, PRESIDENT

MS.SUSHMA HANDOO, MEMBER

COUNSEL FOR THE PARTIES:

For complainant                      :         Sh.S.L. Jain, advocate.

For OP                                     :         Ms.Sapna Jaggi, advocate

 

Per G.K. DHIR, PRESIDENT

 

1.       This complaint has been filed by complainants under Section 12 of the Consumer Protection Act, 1986 (hereinafter called as Act) against the OP by alleging that complainant No.1 is running his hospital known as Shri Guru Dev Hospital for earning his livelihood.  The complainants got their building of hospital and residence insured with Op vide policy No.OG-14-1202-4030-00000015 for period from 16.10.2013 to 15.10.2023.  Before issuing the policy, the building of complainants was duly inspected by officials of OP.  At that time the entire building except the top floor was used as hospital.  However, the top floor of building was used for residential purposes.  For approaching the top floor and other floor, an elevator/lift was got installed by complainants prior to the obtaining of the policy.  On 27.10.2014, the said elevator suddenly got damaged due to short circuiting.  Intimation in that respect was submitted with OP and thereafter complainants have been pursuing for settling of claim, but to no effect.  On 10.03.2015, a legal notice was served on OP, but the claim of the complainants was repudiated vide letter dated 11.11.2014.  That repudiation alleged to be on flimsy grounds.  By pleading unfair trade practice, sum of Rs.38814/- claimed as loss amount.

2.       Claim of complainant contested through written statement by pleading inter alia as if complaint not maintainable; complainants have not approached the forum with clean hands; complainants estopped by their act and conduct from filing the complaint and there is no deficiency in service or adoption of unfair trade practice by OP.  Admittedly, insurance policy for 10 years was issued.  However, that policy was taken for residential purposes and the terms and conditions thereof were known to complainant.  Violation of the terms and conditions of the policy committed by complainant because he used three floors of the building for running the hospital under the name and style of M/s Shri Guru Dev Hospital. Moreover, the policy covered only the main superstructure of the building.  However, complainant is claiming the loss of elevator/lift, which is not a part of superstructure building unless declared in advance.  No outward fire incident occurred because only sparking marks were observed on the damaged MCB and PLC.  Due to loose wire connection, MCB got heated, which passed the high spikes to PLC.  So type of loss reported by complainant is outside the scope of the issued policy.  All the material facts must have been disclosed by complainant while purchasing the policy, but they suppressed the material facts by claiming that insured building used for residential purposes.  This amounts to breach of utmost good faith.  General Exclusion clause 7 expressly provides that loss, destruction or damage to any electronic machine, apparatus, fixture or fitting arising from or occasioned by over running, excessive pressure, short circuiting, arcing, self heating or leakage of electricity from whatever cause (lighting included) provided that this exclusion will apply only to electrical machine apparatus, fixture or fittings, which may be destroyed or fired to set up is not covered by the policy.  After, report of loss, the place of accident duly inspected by IRDA licensed surveyor and he observed that loss is not due to any external factors.  So above referred exclusionary clause is fully applicable.  Object of complainant is to grab the compensation from present opponent.  The surveyor assessed loss only to extent Rs.19242/-.  There is no unfair trade practice or deficiency in service on part of OP.  Each and every other averment of complaint denied by praying for dismissal of complaint.

3.       Counsel for complainant to prove his case tendered affidavit Ex.CW1/A of complainant No.1 alongwith Photostat copies of documents i.e. Ex.C-1 to Ex.C-9 and then closed the evidence.

4.       On the other hand, counsel for OP has tendered affidavit Ex.OP/A of Navjeet Singh, Assistant Manager alongwtih affidavit of Sh.Jasjeet Singh Hora Ex.OPA and thereafter, counsel for OP also closed the evidence.

5.       Written arguments on behalf of counsel for the parties not submitted.  Oral arguments of both the counsel for the parties were heard and records gone through minutely. 

6.       Undisputedly, the policy in question was purchased for ten years term for period from 16.10.2013 to 15.10.2023.  Copy of policy schedule Ex.C-2 alongwith annexures are produced as Ex.C-2 to Ex.C-5 by complainant.  Proposal form submitted by complainant before purchasing the policy is Ex.C-6. In Ex.C-3 to Ex.C-6 each, it is mentioned as if the policy is purchased for residential building on Main Road Banga.  In Ex.C-3, it is mentioned as if it is dwelling unit and the description of the block is mentioned as residential in Ex.C-3 and Ex.C-4 each.  In view of this submissions advanced by counsel for OP has force that policy in question was purchased for insuring residential building alongwith the superstructures of the building.

7.       The parties are bound by the terms of contract of insurance because nothing can be added or subtracted to the terms and conditions of the policy is the settled proposition of law laid in cases of Indo Swift Limited Vs New India Assurance Company Ltd and others IV (2012) CPJ 148 (NC); United India Insurance Company Ltd Vs Harchand Rai Chandan Lal IV (2004) CPJ 15 (SC) and Deokar Exports Pvt. Ltd Vs New India Assurance Co. Ltd 1(2009) CPJ 6 (SC).  As the terms and conditions of the policy provides for insurance of residential building and the superstructures thereof and as such the inference is obvious that elevator/lift, being not a part of superstructure was not insured.  Besides as per claim of complainants themselves put forth through para No.2 of complaint, the building in question used for residence and hospital and as such the elevator was installed not for exclusive use of residential building, but the same was got installed for hospital purposes also.  In complaint itself it has been mentioned that the entire building except the top floor is used for residential purposes.  So major portion of the building is used for hospital.  Being so the commercial activity mainly is carried on in the insured premises and as such complainants are not consumers of OP because they have not disclosed about the installation of elevator in the proposal form Ex.C-6 itself.  As the insured units were residential building and the superstructures thereof, but not the hospital or the elevator and as such repudiation of the claim is quite appropriate.  So there is no deficiency in service on part of OP.

8.       Copy of the terms and conditions of the insurance policy produced in course of arguments by counsel for OP.  Exclusionary clause-7 provides that the policy does not cover, loss, destruction or damage to any electrical machine, apparatus, fixture, fitting arising or occasioned by over running, excessive pressure, short circuiting, arcing, self fitting or leakage of electricity from whatever cause (lighting included) provided that this exclusion will apply only to the particular electrical machine, apparatus, fixture or fittings which may be destroyed by fire to set up.  So this exclusionary clause certainly provides that in case of damage or destruction of the electrical machine, apparatus, fixture like elevator by short circuiting, the insurance company will not be liable to pay the claim.  In this case also claim staked on account of damage to elevator due to short circuiting and as such exclusionary clause-7 of the terms and conditions of the policy does not cover the claim of complainants.  In view of this repudiation of the claim is quite proper. 

9.     As a sequel of above discussion, the present complaint is dismissed with no order as to costs.

10.     File be indexed and consigned to record room.

11.     Let copies of the order be sent to the parties, as permissible, under the rules.

Dated:  15.01.2016

 

  

(Sushma Handoo)                                               (G.K. Dhir)

Member                                                               President