Haryana

Kurukshetra

CC/88/2019

Mohinder Pal - Complainant(s)

Versus

Future Genrali - Opp.Party(s)

Shishan Dutt

22 Feb 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPTUES REDRESSAL  COMMISSION, KURUKSHETRA.

                                                     Complaint Case No.88 of 2019

                                                     Date of institution: 13.03.2019                                                               

                                                   Date of decision:22.02.2022.

                         

Mahinder Pal aged 68 years,  son of Sh.Kuda Ram resident of village Bodhni Tehsil Pehowa, District Kurukshetra.

                                                                …Complainant.

                        Versus

1. Future General India Insurance Company Limited, Corporate Office, India Bulls, Finance Centre Tower 3, 6^th Floor, Senapati, Bapat Marg (W) Mumbai – 400013  through its Authozied Signatory.

 

2. Future General India Insurance Company Limited 1^st Floor, Plot No.401-402, Delhi Road, Model Town, Rohtak, Haryana 124001 through its Authorized Signatory.

 

3.Sarva Haryana Gramin Bank, Branch Office, Bodhni, Tehsil Thanesar, District Kurukshetra through its Branch Manager.

                                                                          ….Opposite parties.

                Complaint u/s 12 of the Consumer Protection Act.

Before:      Smt. Neelam Kashyap, President.

                Ms. Neelam, Member.

                Sh.  Issam Singh Sagwal, Member.

       

Present:     Sh. Shishan Dutt Advocate for the complainant.

                Sh.Gaurav Gupta Advocate for OP No.1 and 2.

                Sh.Gurdev Singh Advocate for the OP No.3.

ORDER

                This is a complaint under Section 12 of the Consumer Protection Act, 1986 has been moved by Mahinder Pal against Future General India Insurance Company etc.-Opposite Parties.

2.             In the complaint it is stated that the complainant is owner in possession of the agricultural land comprised in Khewat No.180, Khatoni No.391 to 395 out of the total land measuring 72 Kanal 15 marla Kittas -13, (whole Khewat) situated in village Bodhni, Hadbast No.16, Tehsil Pehowa, District Kurukshetra vide Jamabandi for the year 2012-213.   The complainant after getting the  loan from the OP No.3 got established a poly house in the land of his share at village Bodhni.  The complainant  in order to secure the  damages in future  to the poly house, got the said poly house insured from OP No.1 and 2 and the sum assured was Rs.22,50,000/-. The said insurance policy was obtained for the  period from 16.2.2018 to 15.2.2019 and the premium through OP No.3 was paid amounting to Rs.13,370/- from the loan account No. 8142AH00021487 of the complainant.  The complainant  has further stated that on 1.06.2018 poly house of the complainant has been badly damaged due to rain and storm and the intimation regarding the loss sustained by the complainant was given to the OPs and the Ops deputed their surveyor who visited the premises of the po9ly house and prepared the loss estimate amounting to Rs.4,60,000/-  and further assured to disburse the claim amount to the complainant immediately.  In addition to the damaged estimated by the OP through their surveyor, the complainant also got assessed the loss caused to the poly house of the complainant through Jeet Water Bank Private Limited, Kurukshetra who estimated the loss to the tune of Rs.4,47,498/-. However, the Ops got the premium amount and never  issued any policy to the complainant.  On the directions of the surveyor, the complainant submitted the claim form alongwith all required/requisite documents to the Ops  on account of claim of the damages caused to the poly house of the complainant and the Ops on receipt of documents assured to pay the claim very soon but the Ops have illegally repudiated the claim of the complainant vide their letter dated 26.10.2018 which is  deficiency in services on the part of the Ops. Thus, alleging deficiency in services on the part of the Ops, the complainant has filed the present complaint and prayed that the Ops be directed to pay the compensation of Rs.4,60,000/- to the complainant for the damages caused to the poly house alongwith the compensation for  mental agony and harassment caused to the complainant alongwith litigation expenses.

3.             Upon notice, OP No.1 and 2 appeared and filed written statement disputing the claim of the complainant.  It is submitted that on receiving the intimation of claim, answering OP deputed an independent IRDA approved surveyor Team Insurance Surveyors and Loss Assessor LLP, New Delhi     for assessment and  survey of loss. It was found by the surveyor that the complainant is not maintainable as the captioned poly house  got  damaged due to storm accompanied with rains and upon perusal of policy, it was noted that STFI (Storm Tempest, Flood, Indundation) perils are excluded from the  scope of cover , so the claim of the complainant is not maintainable and stands excluded under the preview of the policy. It was also communicated to the complainant that if complainant has another policy which covers the subject claim, then please lodge the claim under the relevant policy.  Surveyor, vide letter dated 11.6.2018, demanded certain  documents such as news paper cutting confirming s torn in the area, copy of estimates for damages, copy of proof of affected poly house and land, claim support with repair/replacement invoices and salvage offer for damages but the  complainant has not provided the same. The answering Ops vide letter dated 7.6.2018 confirmed the complainant  that the complainant poly house got due to storm accompanies with rains and upon perusal of the policy, it is being noted that the STFI (Storm, Tempest, Flood and inundation) perils are excluded from the cover of the policy and as such the claim of the complainant has been rightly  repudiated and communicated to the complainant vide letter dated 26.2.2019.  Thus, it is stated that there is no  deficiency in services on the part of the OP No.1 and 2 and prayed for dismissal of the present complaint.

4.             OP No.3 appeared and filed its separate written statement disputing the claim of the complainant.   Insurance of the poly house of the complainant has been admitted by the OP No.3.  It is submitted that the complainant himself purchased the insurance policy from OP No.1 and 2 who are only liable for any loss to the poly house and the payment of Rs.13370/- was paid to the Ops No.1 and 2 as premium of the said insurance.  It is further submitted that the answering OP No.3 has no liability to pay the compensation. It is also submitted that there is no deficiency in services on the part of the OP No.3 and prayed  for dismissal of the present complaint.

5.     The complainant in support of his case has filed affidavit Ex.CW1/A and tendered documents Ex.C-1 to Ex.C-9 and closed his evidence.

6.             On the other hand, OP No.1 and 2  in support of their case have filed affidavit Ex.RW2/A and tendered documents Ex.R-1 to Ex.R-5 and closed their evidence.

7.             The OP No.3 in support of its case has filed affidavit Ex.RW3/A and tendered documents Ex.R-6 and Ex.R-7 in support of its case.

8.             We have heard the learned counsel for the parties and have gone through the case file very carefully.

9.               The learned  counsel for the complainant while reiterating the averments made in the complaint has argued that  he is owner in possession of the agricultural land comprised in Khewat No.180, Khatoni No.391 to 395 out of the total land measuring 72 Kanal 15 marla Kittas -13, (whole Khewat) situated in village Bodhni, Hadbast No.16, Tehsil Pehowa, District Kurukshetra vide Jamabandi for the year 2012-213.   It is argued that the  complainant after getting the  loan from the OP No.3 got established a poly house in the land of his share at village Bodhni.  The complainant  in order to secure the  damages in future  to the poly house, got the said poly house insured from OP No.1 and 2 and the sum assured was Rs.22,50,000/-. The said insurance policy was obtained for the  period from 16.2.2018 to 15.2.2019 and the premium through OP No.3 was paid amounting to Rs.13,370/- from the loan account No. 8142AH00021487 of the complainant.  It is further argued  that on 1.06.2018 poly house of the complainant has been badly damaged due to rain and storm and the intimation regarding the loss sustained by the complainant was given to the OPs and the Ops deputed their surveyor who visited the premises of the poly house and prepared the loss estimate amounting to Rs.4,60,000/-  and further assured to disburse the claim amount to the complainant immediately.  In addition to the damaged estimated by the OP through their surveyor, the complainant also got assessed the loss caused to the poly house of the complainant through Jeet Water Bank Private Limited, Kurukshetra who estimated the loss to the tune of Rs.4,47,498/-. It has specifically   been argued by the complainant that the Ops got the premium amount and never  issued any policy to the complainant.  It is further argued that on the directions of the surveyor, the complainant submitted the claim form alongwith all required/requisite documents to the Ops  on account of claim of the damages caused to the poly house of the complainant and the Ops on receipt of documents assured to pay the claim very soon but the Ops have illegally repudiated the claim of the complainant vide their letter dated 26.10.2018 which is  deficiency in services on the part of the Ops.  Reliance has been placed on the authority Bharat Watch Company Vs. National Insurance Co.  Civil Appeal No.(s)3912 of 2019 ( @ SPL © No.25468/2016  decided on 12.4.2019 by the Hon’ble Supreme Court of India wherein the Hon’ble Supreme Court has held that if the exclusion clause and specific condition has not been brought to the notice of insured,  the same shall not be binding upon the insurer.

10.            On the other hand, learned counsel for the Ops while reiterating the submissions made in the written statement has argued that that on receiving the intimation of claim, answering OP deputed an independent IRDA approved surveyor Team Insurance Surveyors and Loss Assessor LLP, New Delhi     for assessment and  survey of loss. It was argued that it was found by the surveyor that the complaint is not maintainable as the captioned poly house  got  damaged due to storm accompanied with rains and upon perusal of policy, it was noted that STFI (Storm Tempest, Flood, Indundation) perils are excluded from the  scope of cover , so the claim of the complainant is not maintainable and stands excluded under the preview of the policy. It was also communicated to the complainant that if complainant has another policy which covers the subject claim, then please lodge the claim under the relevant policy.  Surveyor, vide letter dated 11.6.2018, demanded certain  documents such as newspaper cutting confirming storm in the area, copy of estimates for damages, copy of proof of affected poly house and land, claim support with repair/replacement invoices and salvage offer for damages but the  complainant has not provided the same. It is also argued that the  Ops vide letter dated 7.6.2018 confirmed the complainant  that the complainant poly house got damaged  due to storm accompanies with rains and upon perusal of the policy, it is being noted that the STFI (Storm, Tempest, Flood and inundation) perils are excluded from the cover of the policy and as such the claim of the complainant has been rightly  repudiated and communicated to the complainant vide letter dated 26.2.2019. Reliance has been placed on the authorities United India Insurance Co.Limited Vs.Roshan Lal Oil Mills and others (SC) Law Finder Doc Id # 189680, M/s Industrial Promotion and Investment Corp. Vs.New India Assurance Co.Limited Law Finder Doc Id # 785937, M/s Suraj Mal Ram Niwas Oil Mills Vs. United India Insurance Co.Limited and another Law Finder Doc Id # 219912 and  United India Insurance Co.Limited Vs.M/s Harchand Rai Chandan Lal  (SC) Law Finder Doc Id # 79540.

11.            In this case,   Ops repudiated the claim of the complainant on the ground that  poly  house of the complainant  got damaged  due to storm accompanied  with rains and repudiated the claim of the complainant vide repudiation letter Ex.R-3 dated  26.02.2019. However, the  Ops got assessed the loss of the complainant vide  report of surveyor Ex.R-1.  The  stand of the complainant is that that the complainant was not supplied the insurance policy and that’s why the exclusion clause so pointed out by the Ops is not binding upon the complainant. In para no.10 of the complaint, the complainant has specifically mentioned that the Ops got the insurance premium but never supplied the copy of the insurance policy. The Ops have not placed on record any documentary evidence to show that the policy was ever dispatched or delivered to the complainant.  In the authority cited on behalf of the complainant, Bharat Watch company’s case (Supra) it is so held by the Hon’ble Supreme Court that if the terms and conditions of the exclusion and special conditions were not brought to the notice of the insured, then the same are not binding upon the complainant. Therefore, having regard to the averments made in the para no.10 of the complaint and in view of the law laid down in  Bharat Watch Company’s case (Supra), it is held that” We find from the judgment of the District Forum that it was the specific contention of the appellant that the exclusionary conditions in the policy documents had not been communicated by the insurer as a result of which the terms and conditions of the exclusion were never communicated. The only issue is whether the exclusionary conditions were communicated to the appellant. The District Forum came to a specific finding of fact that the insurer did not furnish the terms and conditions of the exclusion and special conditions to the appellant and hence, they were not binding. When the case travelled to the SCDRC, there was a finding of fact again that the conditions of exclusion were not supplied to the complainant.”  Therefore, in view of our above discussion and authority cited on behalf of the complainant, it is held that the terms and conditions and exclusion clause which were not brought to the notice of the complainant are not binding upon the complainant and the authority Bharat Watch Company’s case (Supra),  is fully applicable to the fact of this case.The authorities cited on behalf of the Ops are not applicable to the facts of the present case.     

 12.        Perusal of the report Ex.R-1 shows that the Ops have analyzed the loss  in question properly.  In the report ExR-1 the surveyor has shown the gross loss assessed at Rs.58224/-. However, the complainant has placed on the file report Ex. C-7 prepared by the Jeet Water Banks Pvt. Limited showing the damages of Rs.4, 47,495/- to the poly house of the complainant, but the report of the surveyor Ex.R-1 is a vital  document and it cannot be brushed aside without any cogent evidence  to set aside the same which is missing in this case. Therefore, the complainant is entitled to Rs.58224/- on account of damages caused to the poly house of the complainant. For not paying the claim amount of Rs.58244/- to the complainant, there is deficiency in services on the part of the OP No.1 and 2.  Therefore, the  present complaint is liable to be accepted and the complainant is also entitled to compensation for the mental harassment caused to the complainant alongwith  litigation expenses.

 

13.            In view of our above discussion and findings, we accept the present complaint and direct the OP No.1 and 2 to make the payment of claim of Rs.58224/- ( as per surveyor report) to the complainant alongwith interest @ 6% per annum from the date of this order till its actual realization.  The OP No.1 and 2 shall also pay compensation of Rs.10,000/-  to the complainant for the mental harassment caused to him and the  Rs.5000/- for the litigation expenses.  The OP No.1 and 2 are further directed to make the compliance of this order within a period of 30 days from the date of preparation of the certified copy of this order, failing which the complainant shall be entitled to initiate proceedings u/s 25/27 of the Consumer Protection Act. The complaint qua OP No.3 stands dismissed. Certified copy of this order be supplied to the parties concerned as per the rules and the file be consigned to the record room after due compliance.

Announced in the open commission.

Dated: 22.02.2022.                                                 President.

 

 

                        Member               Member.