DATE OF FILING : 26.08.2009
BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI Dated this the 29th day of March, 2010
Present: SRI.LAIJU RAMAKRISHNAN PRESIDENT SMT.SHEELA JACOB MEMBER SMT.BINDU SOMAN MEMBER C.C No.166/2009 Between Complainants : 1. Cyril.P.Jacob, 26, Choice Village, Thripunithura, Ernakulam District. 2. Molly Cyril, 26, Choice Village, Thripunithura, Ernakulam District. (Both by Adv: Shiji Joseph) And Opposite Parties : 1. The Branch Manager, United India Insurance Company Limited, Thodupuzha, Idukki District. 2. The Divisional Manager, United India Insurance Company Limited, Muvattupuzha. (By Adv:T.J.Lakshmanan) O R D E R SRI.LAIJU RAMAKRISHNAN(PRESIDENT)
Complainant who is a bank officer, along with his employed wife working at Cochin, constructed a house building at Vagamon in the year 2002 by availing a loan of Rs.10 lakhs from the State Bank of Travancore, Vagamon branch. The building was duly insured with the opposite parties for Rs.10 lakhs as per the direction of the SBT. The period of insurance was from 11.12.2002 to 10.12.2017. The complainant's loan was subsequently taken over by HDFC Bank. At the time of taking over of the loan, the SBT had to send the entire loan documents to the HDFC bank. But they did not send the policy, plan and estimate of the building submitted along with the loan application to the HDFC Bank. On 22.06.2007 due to heavy wind and rain the roofing of the building collapsed. At the time of the occurrence of the incident, the policy was not with the complainants. The policy was taken as per the instruction of the SBT Vagamon branch, the policy was issued to the bank, and the bank had lien over the policy. Though the incident had occurred on 22.06.2007 it took several days to ascertain, the policy number and name of the insurance company from the 3rd opposite party. So the complainants informed the matter to the Ist and 2nd opposite parties about the incident only on 15.07.2007. Immediately after getting the information, the opposite party appointed a surveyor to ascertain the damages. The complainants were issued a claim form and in which the complainants claimed Rs.2,70,725/- as compensation. However, the surveyor submitted the report showing only Rs.1,20,771/- as compensation. The amount arrived by the surveyor is false, illegal and arbitrary and hence not acceptable to the complainants. On 11.01.2007, the Ist opposite party sent a letter requesting some clarifications. On 17.01.2008 the complainants gave detailed reply. The opposite party repudiated the claim stating the reasons that the change of bank is not intimated to the insurance company, the complainants did not produce any concrete evidence to prove the loss and no immediate notice was given to the Ist opposite party. Against the decision, the complainants filed a petition to the Regional Manager. But it was dismissed on 6.06.2008. Another petition was filed to the Insurance Ombudsman on 25.06.2008. But it was also dismissed on 14.08.2008. The policy was for 15 years, before 15 years, the complainants closed the loan hence the bank has ceased to have any right or interest over the policy. A survey was done after the incident. The complainants submitted the plan estimate etc. of the building. The complainants also submitted some photographs of the building to the surveyor. The reason for delay for intimating the claim was due to the non availability of the datas of the insurance company. Hence the repudiation of the claim by the Ist and 2nd opposite parties is the deficiency in service of the opposite parties. Due to the accident the complainants had suffered a loss of Rs.2,70,725/- . The complainants are entitled to get the amount from the Ist and 2nd opposite parties. The complainants also suffered severe mental agony, for that the complainants claimed Rs.50,000/- as compensation.
2. As per the written version of the opposite parties, they admitted that they had granted a Standard Fire & Special Perils Policy No.101102/11/02/11/000005231 for the period from 11.12.2002 to 10.12.2017 on an utmost good faith. The said policy was issued in the name of SBT Vagamon Account of Cyril.P.Jacob and Molly Cyril. The policy was issued subject to agreed bank clause along with other terms and conditions. As per the policy, the bank is having a charge over the property insured and the said bank is a necessary party in the above case for the proper adjudication of the matter and the said bank is not a party to the proceedings. Hence the complaint is bad for non-joinder of necessary parties. The opposite parties are not aware about the take over of the loan from SBT to HDFC bank and the same was not intimated to the company, no endorsement were made in the policy to that effect. The policy condition No.6(1) clearly specify that on the happening of any loss or damage, the insured shall forthwith give notice to the company within 15 days and here in this case no statutory notice was given to the company and the complainants themselves admitted in the complaint that they had informed the company about the loss only after the above said statutory period. So the complainants themselves admitted that they had violated the policy conditions and it is a settled law that in case of violation of the policy conditions the insurer is not liable to indemnify the party. After getting the claim intimation from the complainant, the company had deputed a surveyor M/s.KNB Surveyors for assessing the loss. Eventhough the said surveyor had assessed the loss, their finding was that the claim is not payable. The existence of the roofing was not seen by the surveyor, no materials were placed by the complainants to show that there was an existence of roofing and they had suffered a loss as they stated in their complaint. The case of the complainants was that there was a first floor on the existing building and the roof of the said floor was taken away by the wind. But in the complaint, the complainant wilfully suppressed the contention of the first floor and they only stated that roof of the building was collapsed. If the case of the complainants is that the roof of the existing building is collapsed then the said contention is absolutely false. The surveyor deputed by the company, had taken the photographs of the building and there is no collapse to the roof of the building so without any damage to the roof how the complainants had assessed the loss to the tune of Rs.2,70,725/-.If the roof of the Ist floor was collapsed then there is no proof adduced by the complainant to show that there was a first floor in the insured building. The photographs taken by the surveyor clearly indicates the nature of the roof and from the said nature the existence of the first floor is not possible. There is no evidence adduced by the complainant to the effect that there was an insured peril on the locality on 22.06.2007. The assessment of the loss by a surveyor is to comply the provisions of Insurance Act. The complainants have not submitted any plan and estimate of the building before the company and the same can be proved before the company. The complainant has not adduced any concrete evidence to substantiate his claim and no materials were placed to show that he had suffered a loss as prayed in the complaint. So there is no deficiency in service on the part of the opposite parties.
3. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to?
4. The evidence consists of the oral testimony of PWs 1 to 3 and Exts.P1 to P12 marked on the side of the complainants and the oral testimony of DW1 and Exts.R1 and R2 marked on the side of the opposite parties.
5. The POINT :- This petition is filed for getting insurance amount for the damages caused to the residential building of the complainants due to natural calamities. The Ist complainant was examined as PW1. The policy copy is marked as Ext.P1. Ext.P2(series) is the photographs of the collapsed roofings of the complainants' building which were taken through a digital camera. Ext.P3 is the claim form issued by the opposite party. PW1 and his wife are residing at Kochi. They constructed a building at Vagamon by availing a loan of Rs.10 lakhs from the State Bank of Travancore Vagamon branch. As per the instruction of the bank, the building was insured to the opposite parties for Rs.10 lakhs. The period of insurance was from 11.12.2002 to 10.12.2017. Later the loan was transferred to HDFC Bank. The roofing of the building was collapsed due to heavy wind and rain occurred on 22.06.2007. At the time of the incident, the policy was not with the complainants. So in order to get the details of the policy from the 3rd opposite party, it took a long time. So the matter was informed to the opposite parties only on 15.07.2007. After getting the information, the opposite parties deputed M/s.KNB Surveyors to ascertain the damages. On 8.07.2007 the surveyor inspected the property and assessed the loss. Ext.P4 is the copy of the survey report. But the assessment is only for Rs.1,20,771/-. Ext.P5 is the letter written by the opposite party to the complainant requesting the cause of delay for the information. Ext.P7 is the copy of the repudiation letter issued by the opposite party to the complainants. A petition was filed before the Regional Manager of the Insurance company on 6.06.2008 and that was also dismissed. So PW1 filed a petition before the Insurance Ombudsman on 25.06.2008. The same was also dismissed with vide order. Copy of the order from the Insurance Ombudsman dated 14.08.2008 is marked as Ext.P10. PW1 was not able to produce the plan of the building at the time of investigation of the surveyor because the plan was with the bank. The building was in 2 storeyed. The 2nd floor was completely collapsed. The walls were built up of hollow bricks. The windows were made up with wooden frame and glass. Flooring with terracotta tiles and bathrooms with ceramic tiles. The roof was built up with tin sheets and grass covering was done on the tin sheet. The tin sheet fitted on wooden material roof. PW1 is not aware where the plan of the building is kept now.
PW2 is the Vagamon Branch Manager of SBT. The insurance was done by the bank and the policy was issued to the bank. Ext.P11 is the proposal for standard fire and special perils policy. PW3 is the surveyor who assessed the loss of the building of the complainants. PW3 deposed that no evidence produced by the complainants to show that the Ist floor was taken away by wind. The Ist floor shown in the Ext.P2(series) photographs was not existing at the time of inspection. There was no bathroom and bricks work, flooring with tiles in the Ist floor at the time of inspection. The loss was assessed as per the estimate produced. The plan of the building was not shown to the surveyor. The building inspected by PW3 is a single storeyed one. Tin sheets were covered on the roof of the building. DW1 is the Manager of SBT Vagamon Branch. DW1 deposed that the bank insured the building of the complainants for the security of the loan. The plan and estimate of the building were produced by the complainants. As per that estimate, the building was insured. The loan was availed for a single storeyed building and the insurance was also given to the same building. Certified copy of the plan of the building is marked as Ext.R1 and certified copy of the estimate of the building is marked as Ext.R2. The insurance policy was for 15 years, later the loan was transferred to HDFC, Ernakulam Branch. In Ext.R1, it shows as slop roofing. The proposal of the policy was made by the bank. But the building was never inspected by DW1.
PW1 admitted that the delay caused for informing the incident to the opposite party insurance company was because PW1 and his wife were not aware of the details of the policy, name of the insurer, because the same was insured by the bank. So there is a delay caused in informing the matter. After the information, immediately a surveyor was appointed and inspected the disputed building. But the complainant has not submitted any plan and estimate of the building before the surveyor. The building inspected by the surveyor was only a single storeyed one. As per the opposite party, the complainants never produced any evidence to show that the insured peril was happened on that day. There is no report produced by the complainants to show that strong wind and rain caused destruction to the roofing of the building of the complainants. PW2, who is the Manager of SBT Vagamon branch deposed that the plan and estimate of the building were produced by the complainants which are Exts.R1 and R2 and the policy was as per the plan and estimate produced by the complainants. As per Ext.P4 survey report, it is written that the ground floor is a construction with RCC roofing and cement flooring. It has plastered brick walls and has a spacious balcony facing the valley in the front. At the time of inspection he could not find any first floor as existing to the building. But the roof terrace of the ground floor is found to be given a sheet roof protection. The insurer was informed that the sheeted roof was the roof the first floor, which was blown away by the high velocity wind. It is further said that the first floor had wooden walls and tiled flooring. It is also said that the sheeted roof was given a covering with dry grass. Nothing showed as a part of the first floor of the building and nothing shows as scattered as thrown away by a strong wind. Some photographs were produced by the insurer which were said to be taken inside the affected building prior to the incident during some function. A sheet roofed construction could be seen in the photos. Referring to the photographs and the stock of the damaged items as seen by them, the existence of a first floor could not be possible. So PW3 surveyor deposed that no evidence seen by him to show that the first floor was existing. DW1 who is the Manager of the bank deposed that as per Ext.R1, plan of the building and as per Ext.R2 estimate of the building, they have disbursed the loan for the building and the policy was also issued as per Exts.R1 and R2. On verifying the Ext.R1 plan, the building is only a single storeyed one and there is no scope for a first floor to the building because the sloped roofing has constructed over the ground floor. It is done with RCC roofing and cement flooring. The estimate of the building is for Rs.10 lakhs and it is also for the first floor. So it is very clear from the Exts.R1 and R2 documents that the building constructed by the complainants was a single storeyed one with slop roofing and the insurance certificate was also issued to the said building with Ext.R1 plan. But the Ext.P2 photographs shows that there was a strong construction on the ground floor of the building as the first floor and it was constructed with a single hall with glass windows and tin sheet roofing. So even though the building was constructed with a first floor, the insurance was not for the first floor. At the time of insuring the building, there was only a construction of ground floor. If the complainants constructed the first floor after insuring the building, that matter ought to have informed to the opposite parties and there is no evidence to show that the second construction was informed to the opposite parties, it was also endorsed to the policy. No policy was given to the first floor of the building. There is no evidence produced by the complainants to show that natural calamities like heavy wind and rain occurred on 22.06.2007 which destroyed the first floor of the building. No certificate from the Village Officer or any other authorities produced to show the same. So we think that eventhough if the building of the complainants was collapsed due to heavy wind and rain, there is no evidence to show that the fist floor of the building was insured by the complainants. PW2 the Manager of the SBT deposed that the insurance was availed by the bank and at the time of insurance there was only a single storeroom building. Estimates also shows the same. Hence the repudiation of the claim by the opposite party is legal and hence there is no deficiency is seen from the part of the opposite party.
Hence the petition is dismissed. Pronounced in the Open Forum on this the 29th day of March, 2010 sd/- SRI.LAIJU RAMAKRISHNAN(PRESIDENT) sd/-
I agree SMT.SHEELA JACOB(MEMBER) sd/-
I agree SMT.BINDU SOMAN(MEMBER) APPENDIX Depositions : On the side of Complainant : PW1 - Cyril.P.Jacob PW2 - Thomas Jacob PW3 - K.Madhu On the side of Opposite Parties : DW1 - Thomas Jacob Exhibits: On the side of Complainant: Ext.P1 - Photocopy of Standard Fire & Special Perils Policy Schedule Ext.P2(series) - Photographs of the collapsed roofings(12 Nos) Ext.P3 - Photocopy of Claim Form issued by the opposite party Ext.P4 - Photocopy of Survey Report dated 26.11.2007 prepared by PW3 Ext.P5 - Photocopy of letter dated 11.01.2007 issued by the Ist opposite party to the complainants Ext.P6 - Photocopy of Ist complainant's letter addressed to the Ist opposite party Ext.P7 - Photocopy of Repudiation letter dated 6.06.2008 Ext.P8 - Photocopy of Ist opposite party's letter dated 1.02.2008 addressed to the complainants Ext.P9 - Photocopy of complainants' letter dated 20.06.2008 addressed to the Secretary, Office of the Insurance Ombudsman, Ernakulam Ext.P10 - Photocopy of Order from the Insurance Ombudsman dated 14.08.2008 in Complaint No.10/KCH/G1/11-004-129/2008-2009 Ext.P11 - Photocopy of Proposal for Standard Fire & Special Perils Policy Ext.P12 - Photocopy of Ist opposite party's letter dated 9.02.2009 addressed to the Ist complainant On the side of Opposite Parties : Ext.R1 - Certified copy of Plan of the Building Ext.R2 - Certified copy of Estimate of the Building
| | HONORABLE Sheela Jacob, Member | HONORABLE Laiju Ramakrishnan, PRESIDENT | HONORABLE Bindu Soman, Member | | 
