Chandigarh

StateCommission

A/28/2023

SBI GENERAL INSURANCE CO. LTD. - Complainant(s)

Versus

DR. O.P. SIHAG - Opp.Party(s)

J. P. NAHAR ADV.

25 May 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T. CHANDIGARH

[Additional Bench]

 

[1]

Appeal No.	:	A/28/2023
Date  of  Institution	:	15/02/2023
Date   of   Decision	:	25/05/2023

 

 

 

 

 

SBI General Insurance Company Limited, 1^st & 2^nd Floor, SCO 335-336, Sector 35-B, Chandigarh – 160022, through its Manager.

 

Now through its Authorized Signatory Rohit Ranjan, Assistant Manager (Consumer Litigation).

 

Attorney Holder of SBI General Insurance Company Limited, Zonal Office, 46, 3^rd Floor, Karol Bagh, Pusa Road, Opposite Metro Pillar No. 129, New Delhi – 110005.

 

….Appellant

Versus

 

1.     Dr.O.P. Sihag, Resident of House No.933, Sector 7-B, Chandigarh – 160019.

 

2.     State Bank of India, earlier State Bank of Patiala, Rambagh Road, Kalka Branch, Kalka (Haryana), through its Manager.

…. Respondents

 

BEFORE: MRS. PADMA PANDEY   PRESIDING MEMBER

                PREETINDER SINGH      MEMBER

 

 

PRESENT	:	Sh. J.P. Nahar, Advocate for the Appellant.
		Dr. O.P. Sihag, Respondent No.1 in person.
		Sh. Rohit Saroha, Advocate for Respondent No.2.

 

[2]

Appeal No.	:	A/42/2023
Date  of  Institution	:	14/03/2023
Date   of   Decision	:	25/05/2023

 

 

 

 

 

Dr.O.P. Sihag, Resident of HIG-8, Sector 1A, Parwanoo, District Solan (H.P) - 173220

….Appellant

Versus

 

 

SBI General Insurance Company Limited, 1^st & 2^nd Floor, SCO 335-336, Sector 35-B, Chandigarh – 160022.

 

…. Respondent

 

BEFORE: MRS. PADMA PANDEY   PRESIDING MEMBER

                PREETINDER SINGH      MEMBER

 

PRESENT	:	Dr. O.P. Sihag, Appellant in person.
		Sh. J.P. Nahar, Advocate for the Respondent.

 

PER PREETINDER SINGH, MEMBER

 

 

1.         This order shall dispose of two appeals i.e. A/28/2023 filed by the Appellant/Opposite Party No.1 (SBI General Insurance Co. Limited Vs. Dr. O.P. Sihag and Another) and Cross Appeal i.e. A/42/2023 filed by the Appellant/Complainant (Dr. O.P. Sihag Vs. SBI General Insurance Co. Limited), against the order dated 01.12.2022, rendered by the District Consumer Disputes Redressal Commission-I, U.T., Chandigarh (for brevity hereinafter to be referred as ‘the Ld. Lower Commission’), vide which it partly allowed the Consumer Complaint bearing No. CC/205/2019, filed by the Complainant (Dr.O.P.Sihag), against Opposite Party No.1 (SBI General Insurance Co. Limited) and dismissed qua Opposite Party No.2 (State Bank of India, earlier State Bank of Patiala), by passing the following order: -

9]       In view of the above discussion, the present consumer complaint deserves to be allowed and the same is accordingly allowed. OP No.1 is directed as under:-

i.       to pay Rs.1,07,364/- to the complainant with an interest @ 9% p.a. from the date of filing of this complaint till realization.

ii.      to pay an amount of Rs.7000/- to the complainant towards compensation.

iii.      to pay an amount of Rs.5000/- towards litigation costs.

10]     Since no deficiency in service or unfair trade practice has been proved against OP No.2, therefore, the consumer complaint qua it stands dismissed with no order as to costs.

11]     This order be complied with by the OP No.1 within thirty days from the date of receipt of its certified copy, failing which, it shall make the payment of the amounts mentioned at Sr.No.(i)&(ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.

2.          Since, the issues involved in the above-said cases, except minor variations, here and there, of law and facts are the same, as such, we are of the considered opinion that these appeals can be adjudicated by passing a consolidated order.

 

3.         For the convenience, the parties are being referred to, in the instant Appeals, as position held in Consumer Complaint before the Ld. Lower Commission.

 

4.         Before the Ld. Lower Commission, it was the case of the Complainant that in the insured part of his house, the lower retaining wall collapsed on 07.08.2018, due intimation of which was given to Opposite Party No.1 (SBI General Insurance Co. Ltd.) on 08.08.2018 through customer care email ID. Pursuant thereof, one Sh. Mukesh Mahajan, Surveyor, visited the site on 11.08.2018 to whom everything was told including use of iron in the retaining wall for reinforcement. The 2^nd retaining wall also collapsed in the mid night on 15.08.2018 and the same was also intimated to OP No.1 on 16.08.2018. After confirming he sent mail on 16.08.2018. Accordingly, the surveyor was sent for the inspection of 2^nd retaining wall. It was averred that the two retaining walls were reconstructed as per the guidelines of the Surveyor and the two estimates, one of Rs.3,10,254/- for lower retaining wall against claim No.548203 and the other of Rs.79,572/- for upper retaining wall against claim No.565623, prepared by the qualified Engineer were also submitted to the Surveyor as per the requirement.  The two bills, one of Rs.2,90,015/- against estimated amount of Rs.3,10,254/- for lower retaining wall in respect of claim No.548203 and the other of Rs.1,05,944/- against the estimated amount of Rs.79,572/- for upper retaining wall in respect of claim No.565623, were submitted to the Surveyor on 16.10.2018 after completion of the reconstruction of the two retaining walls. It was alleged that in case of claim of lower retaining wall claim of Rs.2,90,015/- against the estimated amount of Rs.3,10,254/- the Surveyor deducted, Rs.9,960.09 for the use of iron, Rs.83,444.49 i.e. 35.50% of considered claim for the average clause and Rs.45,000/- as expenditure on removal of debris rendering  the amount only to Rs.1,516/- for removal of debris. The deduction of claimed amount of Rs.9,960.09/- out of Rs.13,060/- vide bill dated 08.08.2018 is illogical. It was submitted that photo of the iron as desired by Sh. Mukesh Mahajan was sent to the Surveyor’s mail ID on 12.08.2018. The iron weighing 198.60kg along with 1kg MS wire was used in the steps of retaining wall.  The iron weighing nearly 30 Kg was obtained from the debris of collapsed retaining wall used in the joints of old retaining wall, was also reused along with some new iron in the joints of three blocks of retaining wall to strengthen it.  Hence, the amount spent on iron was justified and deserves to be refunded. Regarding the deduction of Rs.83,444.49 i.e. 35.50% of the considered claim as average clause, this deduction was because of under insurance of the house i.e. the house was got insured for Rs.25,00,000/- which is 35.50% less than actual value of Rs.38,75,700/- (excluding plot value), meaning thereby the house cost the complainant of Rs.25,00,000/- in 2007.  According to the Complainant the house was got under insured by the bank or under insured by the insurance company and he was never consulted in that regard. The deduction of Rs.83,444.49/- the 35.50% of the considered claim was arbitrary and illegal. Hence, the aforesaid Consumer Complaint was filed before the Ld. Lower Commission, alleging deficiency in service and unfair trade practice on the part of the Opposite Parties.

 

5.         In the reply filed before the Ld. Lower Commission, while admitting the factual matrix of the case, Opposite Party No.1 pleaded that the complainant is alleging deficiency on account of two different claims without taking any prior permission to adjudicate the same in single complaint. It was submitted that cause of action, date of loss, quantum of claim and circumstances of each claim were different in nature and required separate adjudication of each claim. It was also submitted that upon receipt of claim intimation, the company appointed an IRDA approved surveyor twice for making an assessment of loss to the complainant, who prepared the assessment of loss in accordance with policy terms & conditions by applying necessary clauses of insurance contract and others necessary conditions relevant to the claims of the complainant. The complainant was trying to take excessive amount of debris in both the claims, despite knowing the fact that the claim amount for debris was limited up to 1% of admissible claim amount as per the terms & conditions of insurance of contract. It was asserted that the Surveyor after going through each part of the policy document has assessed 1% of admissible claim amount for removal of debris from the spot as per policy terms & and conditions. Denying all other allegations and pleading no deficiency in service, the Opposite Party No.1 prayed for dismissal of the Complaint.

 

6.         Opposite Party No.2 filed its separate written statement pleading that the documents placed on record, undoubtedly prove that the complainant alongwith wife approached the Bank for financial assistance primarily for the purchase of property and thereafter, for construction of the same for their use and benefits. After considering their demands, housing loan for purchase of the plot was sanctioned and granted to the tune of Rs.6.25 lakhs on 09.12.2005 and thereafter, housing loan for construction was sanctioned and granted to the tune of Rs.13.75 lakhs on 10.08.2006. The loan documents were duly executed by the borrowers in this regard. The OP Bank had only acted accordingly to the agreed terms & conditions and under the circumstances; the instant complaint is not maintainable and deserves to be dismissed. The Complaint is also bad for non-joinder and misjoinder of necessary parties as the wife of the complainant who was one of the borrowers has not come into this complaint. It was submitted that the complainant availed the housing loans from the Branch of OP Bank at Kalka. The loan accounts were adjusted and finally closed at Kalka. The property purchased and constructed with the help of finances from the OP Bank at Parwanoo. The claim of insurance lodged qua the property situated at Parwanoo.  The alleged dispute, if any, arose at Parwanoo; whereas, the complainant had lodged the instant complaint at Chandigarh. All other allegations made in the complaint against the OP No.2 were denied and a prayer for dismissal of the complaint was made.

 

7.         On appraisal of the pleadings of the parties and the evidence adduced on the record, Ld. Lower Commission partly accepted the Complaint and issued directions to the Opposite Party No.1 (SBI General Insurance Co. Limited) as noticed in the opening para of this order.  

 

8.         Aggrieved against the aforesaid order passed by the Ld. Lower Commission, the instant Appeals have been filed by the Appellant/Opposite Party No.1 (SBI General Insurance Co. Limited) as well as by the Complainant (Dr. O.P. Sihag) in Cross Appeal i.e. A/42/2023,

 

9.         We have heard Sh. J.P. Nahar, Learned Counsel for Appellant, Dr. O.P. Sihag, Respondent No.1 and Sh. Rohit Saroha, Learned Counsel for Respondent No.2 and have gone through the evidence and record of the case with utmost care, along with the written arguments advanced on behalf of the Appellant as well as Respondent No.1.

 

10.         It is the case of the Complainant that the Ld. Lower Commission while passing the impugned order has failed to appreciate the documentary evidence available on record, which resulted into perverse finding.  

 

11.         Learned Counsel for the Appellant/OP No.1 argued that there was no deficiency in service on the part of Appellant/OP No.1, in as much as, the Complainant/ Respondent No.1 has tried to take excessive amount of debris in both the claims, despite knowing the fact that the claim amount for debris was limited upto 1% of admissible claim amount as per the terms & conditions of insurance contract. In support of above, Learned Counsel  tried to lend support from Annexure OP-1, which contain the terms of policy.
12.         We have minutely scanned the terms & conditions of the policy contained in Annexure OP-1 and would like to refer to the Specific Exclusion Clause No.4, which is relevant to the present context, which reads thus:-

“Specific Exclusion: This section does not cover

4. Expenses necessarily incurred on (i) Architects, Surveyors and Consulting Engineer’s Fees and (ii) Debris Removal by the insured Consulting Engineer’s Fees and (ii) Debris Removal by the insured following a loss, destruction or damage to the Property insured by an insured peril in excess of 3% and 1% of the claim amount respectively.”

 

                Perusal of the afore-extracted clause makes it emphatically clear that the liability of Appellant/OP No.1 (Insurance Company) for removal of debris cannot be more than 1% of admissible claim amount and therefore, the claim on account of removal of debris has been rightly restricted by the Opposite Party No.1 to the extent of 1% of the claim amount. No case is therefore made for any interference in the findings recorded qua this issue by the Ld. Lower Commission. 

 

13.         Learned Counsel for the Appellant/Opposite Party No.1 contended that the Ld. Lower Commission failed to appreciate that reduction of claim amount by 35.5% was fully justified and as per the terms & conditions of the insurance policy. In support of his contention, he referred to Clause No.10 of the insurance policy, which is an ‘average clause’ and provided that:

 

“If the property hereby insured shall at the breaking out of any fire or at the commencement of any destruction of or damage to the property by any other peril hereby insured against be collectively of greater value than the sum insured thereon, then the insured shall be considered as being his own insurer for the difference and shall bear a ratable proportion of the loss accordingly. Even item, if more than one, of the policy shall be separately subject to this condition”. 

 

14.         Learned Counsel for the Appellant pointed out that the Ld. Lower Commission missed to peruse the aforesaid Clause, which resulted in perverse finding.  However, we are not impressed with the same. Although the Ld. Lower Commission in the order impugned before us recorded a finding that there was no mention of the average clause in the insurance policy, yet the same is of little significance, in view of the fact that the same has neither been referred to nor disclosed before the Ld. Lower Commission.

 

15.         Learned Counsel for the Appellant/OP No.1 further argued that the claim has to be deducted from the claim amount on account of the under insurance of the risk.  In support of his contention, he has submitted, the sum insured under the policy was around Rs.25 lakhs and value of the property worked out based upon the market value rate was around Rs.38 lakhs. However, we are not inclined to accept the contention of Learned Counsel for the Appellant for the simple reason that if the Appellant/OP No.1 (Insurance Company) does not agree with the value of the house it could have raised this issue at the time of insurance was done. Thus to rake up such issue of under insurance at the time of claim calculation is nothing but an afterthought to defeat the claim of the owner of the insured house. It was in this backdrop, the Ld. Lower Commission in para 8 has observed that the value of house for insurance lays the upper limit of the claim to be reimbursed. If the house was insured for Rs.25 lacs then the upper limit for claim would be Rs.25 lacs and it cannot go beyond Rs.25 lacs even if there is complete loss of the house. The Ld. Lower Commission while holding Opposite Party No.1 guilty of rendering proper services to the Complainant has aptly held that Appellant/OP No.1 had illegally deducted an amount of Rs.83,444/- + Rs.23,920/- = Rs.1,07,364/- and ordered to pay the same to the Complainant along with interest and compensation, besides cost of litigation. Thus, by no stretch of imagination, the Appellant/ Opposite Party No.1 cannot absolve itself from its legal liability qua the Complainant/ Respondent No.1. It is demonstrable from a reading of the impugned Order of the Ld. Lower Commission that it is certainly not an order passed without reasons or without applying the judicious mind. The facts and circumstances of the case have been gone into, weighed and considered, and due analysis of the same has been made. It also does not appear to be an order passed without taking into account the available evidence.

 

16.         In the wake of the position, as sketched out above, we do not see any strain of perversity discernible from the order which may occasion to vitiate the same. We are, therefore, dissuaded to interfere with the impugned order rendered by the Ld. Lower Commission. The appeal  being bereft of merit is accordingly dismissed. The order of Ld. Lower Commission is upheld.

 

17.         Now coming to the cross appeal bearing No.42 of 2023 filed by the Appellant/Complainant (Dr.O.P. Sihag Vs. SBI General Insurance Co. Ltd.), it may be stated here that as an offshoot of above discussion, no case is made out, in favour of the Appellant/Complainant. Consequently, the cross appeal being lame of strength is hereby dismissed.

 

18.         Certified copy of this order be placed in Cross Appeal No.42 of 2023.

 

19.         All the pending application(s), if any, also stands disposed off accordingly.

 

20.         Certified Copies of this order be sent to the parties, free of charge.

 

21.         The file be consigned to Record Room, after completion.

Pronounced

25^th May, 2023                                                                  

                                         Sd/-                         

                                                                (PADMA PANDEY)

PRESIDING MEMBER

 

 

Sd/-

(PREETINDER SINGH)

MEMBER

“Dutt”