Punjab

Ludhiana

CC/22/29

Ramjan Mohammad - Complainant(s)

Versus

HDFC Ergo General Ins.Co.Ltd - Opp.Party(s)

Afsana khatun

04 Nov 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                             Consumer Complaint No:  29 dated 21.01.2022.                               Date of decision: 04.11.2024. 

 

Ramjan Mohammad (Aged about 53 years) S/o. Ali Mohammad, R/o. Matania Gernal Store, Near Bus Stand, Ward No.1, Payal, Distt. Ludhiana-141416. M. No.7837874502, MOHRAMZAN74@GMAIL.COM.                                                                                                                     ..…Complainant

                                                Versus

1. HDFC Ergo General Insurance Co. Ltd., Office situated at Surya Tower, 5^th Floor, 88, The Mall Road, Ludhiana-141001.
2. HDFC Ergo General Insurance Co. Ltd., Regd. Office, situated at HDFC House, 1^st Floor, 165-166, Back By Reclamation, HT Parekh Marg, Church Gate, Mumbai-400020.  
3. Bharti Axa General Insurance Co. Ltd., Unit No.6 & 7, Office situated at 3^rd Floor, Kunal Tower, The Mall Road, Ludhiana-141001.                                                                                       …..Opposite parties 

Complaint U/s. 35 of Consumer Protection Act, 2019.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Tejwant Singh, Advocate

For OP1 and OP2          :         Sh. Vyom Bansal, Advocate.

For OP3                         :         Exparte.

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Briefly stated, the facts of the case are that the complainant took loan from HDFC Bank, Branch Ludhiana of the property having value of Rs.80,00,000/- and to secure the loan amount, the bank gave general insurance policy from OP1 for sum assured of Rs.13,00,000/- in the year 2016, covering the risk which is reproduced as under:-

i)       Fire and Allied Perils, Earthquake and Terrorism (A) Building (B)   Contents

ii)      Burglary, Housebreaking, Theft (A) Contents

iii)     Major Medical Illness and Procedures, Personal Accident

iv)      Accidental Death and Permanent Total Disablement

v)       Loss of job.

For the policy in question, Rs.1000/- was to be paid as yearly premium till 2019. The complainant stated that OP1 breached the contract as in the year 2020, OP1 transferred the said policy to OP3 Bharti Axa without any intimation. OP3 totally changed the nature and contract of the policy and its premium. As the complainant was not well educated, so he was unable to read and understand the English language of the policy sent by OP3 in the year 2020. However, the premium was changed from Rs.1000/- to Rs.1500/-.

                   The complainant further stated that on 15.09.2020, at about 06.00 PM, his building caught fire due to which his property suffered of Rs.7,00,000/- approximately. Even he got unconscious due to fire incident of his building and he slipped from stairs due to which his ankle got fractured. The shop of the complainant was destructed which was the only source of his income and due to which the complainant suffered loss of income. The complainant further stated that on 16.09.2021, he went to OP1 who further sent him to OP3. The complainant approached OP3 who conveyed him that the policy only covers the losses on building and not what was his policy with OP1 HDFC ERGA. Then OP3 conducted survey/inspection, took photograph and after verification called out the complainant and fraudulently took his signatures on some printed documents but did not disclose the contents of the same. On 21.11.2021, OP3 by way of a text message called the complainant for ‘OK Process” of the claimed amount that the same will be transferred to his bank within 2-3 days. However, on 24.12.2021, OP3 only paid Rs.1,18,853/- through bank transaction instead of Rs.7,00,000/-. According to the complainant, the OPs in connivance with each other acted fraudulently and committed breach of contract due to which he has suffered mental agony, harassment and trauma. In the end, the complainant has prayed for issuing direction to the OPs to pay the loss of Rs.7,00,000/- along with damages of Rs.1,50,000/- and litigation expenses of Rs.22,000/-

2.                Upon notice, none appeared on behalf of OP3 despite service and as such, OP3 was proceeded against exparte vide order dated 10.05.2023.

3.                OP1 and OP2 appeared and filed joint written statement. Under the column of factual submission, OP1 and OP2 assailed the complaint on the grounds of maintainability; the complaint being bad for non-joinder and mis-joinder of parties; lack of jurisdiction and cause of action; the complainant being not their Consumer; suppression of material facts etc. OP1 and OP2 stated that HDFC Bank has not been impleaded as party to adjudicate the claim. Ramjan Mohammed was insured for the period of 26.05.2016 to 25.05.2017 vide policy No.2918201405945800000 under ‘Home Suraksha Plus’ by them for benefits as per policy conditions and exclusions. According to OP1 and OP2, the benefits under the policy are governed by the terms and conditions of the policy and their liability is limited to the insured perils occurring within the policy period subject to conditions and exceptions. OP1 and OP2 further stated that the policy was issued in good faith on the basis of the data provided by the bank and the policy was issued against Loan Account Number 81960109. Moreover, whenever a policy is issued against a loan, it is the discretion of the Financer to allocate the policy to any insurance company. The insurance company issues the policy in good faith as per the data and fund received from the financer and on the basis of which they issued the policies i.e. a) Home Suraksha Policy and b) Standard Fire and Special Perils Insurance. The Home Suraksha Policy was valid from 26.05.2017 to 25.05.2017 and the Standard Fire and Special Perils Insurance Policy No.2111202043101300000 was valid from 16.12.2017 to 15.12.2018. OP1 and OP2 further stated that thereafter, they did not receive any requisite data and premium from the Financer to cover the complainant. Even the complainant never raised any dispute/grievance with them and willingly paid premium for the said policy to OP3. As the complainant was covered from 26.05.2016 to 25.05.2017 under Home Suraksha Policy and then from16.12.2017 to 15.12.2018 under Standard Fire and Special Perils Insurance and thereafter, he was not covered with them. Therefore, OP1 and OP2 are not liable for the period for which the complainant was not covered.

                   On merits, OP1 and OP2 reiterated the crux of averments made in factual submission. OP1 and OP2 have denied that there is any deficiency of service and have also prayed for dismissal of the complaint.

4.                In evidence, the complainant tendered her affidavit as Ex. CA and reiterated the averments of the complaint. The complainant also placed on record documents i.e. Ex. CX1 is the copy of is the copy of welcome letter of HDFC ERGO GIC, Ex. CX2 is the copy of policy schedule of Home Suraksha Plus policy of HDFC ERGO GIC, Ex. CX3 is the copy of welcome letter and policy schedule issued by Bharti Axa, Ex. CX4 is the copy of policy wordings of policy issued by Bharti Axa, Ex. CX5 are the copies of photographs and bills/invoices, Ex. CX6 is the copy of letter dated 28.10.2021 written by the complainant to Bharti AXA GIC  and closed the evidence.

5.                On the other hand, the counsel for OP1 and OP2 tendered affidavit Ex RA of Sh. Manoj Prajapati, Manager Legal-Claims of OP1 and OP2 along with documents i.e. Ex. R1 is the copy of policy schedule of Home Suraksha Plus policy, Ex. R2 is the copy of policy schedule of Standard Fire and Special Perils Insurance policy and closed the evidence.

6.                 We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents as well as written statement, affidavit and documents produced on record by both parties. We have also gone through written arguments submitted by the complainant.

7.                Admittedly, in the year 2016, the complainant availed loan facilities having loan account No. 81960109 from HDFC Bank, branch Ludhiana. The complainant got loan secured by subscribing to the Home Surasksha Policy Ex. CX2 from 26.05.2016 to 25.05.2017 and Standard Fire and Special Perils Insurance Policy having validity from 16.12.2017 to 15.12.2018 from HDFC ERGO General Insurance Company. However, in the year 2020, a Standard Fire and Special perils Policy Ex. CX3 was issued to the complainant by OP3, detail of which is reproduced as under:-

Policy Details
Policy No.	14400253
Period of Insurance from	00:00 on 05/10/2020 to	23:59 on 04/10/2021
Policy issue date	24/10/2020
Branch Name/code	Bharti AXA- Ludhiana      Code :P1

 

Sum Insured and Premium Details
Description of Property Insured	Sum Insured (in Rs.)	Premium (in Rs)
Building	1,300,000.00	Premium excluding Terrorism Premium	1,248.00
Plant and Machinery	Not Opted	Terrorism Premium	Not Opted
Stocks	Not Opted	Net Premium	1,248.00
Others	Not Opted	Add: CGST	112.32
		Add: SGST	112.32
Total Sum Insured	1,300,000.00	Total Premium	1,472.64

 

Unfortunately, on 15.09.2020 at about 06.00 PM, the building housing the manufacturing unit of the complainant gutted into fire and according to the complainant, a loss of Rs.7,00,000/- was suffered by him. On intimation, OP3 deputed a loss surveyor who visited the spot, received the documents and prepared survey report. He also sought the consent of the complainant on the assessed loss of Rs.1,18,853/-. On 24.12.2021, the said amount was credited to the account of the complainant.

8.                Now the complainant has raised the grievance with regard to partial settlement of his claim and sought the payment of remaining amount out of the claimed amount Rs.7,00,000/- along with compensation and litigation expenses etc.

9.                The fire took place during the currency of the policy issued by OP3 and admittedly, no loss or damage occurred during the existence of previous policies issued by OP1 and OP2. Therefore, at the time of occurrence, the complainant was not having any insurable interest qua OP1 and OP2. Further contention of the complainant that it is OP1 and OP2 who transferred the policy to OP3, defies the logic. Firstly, no insurance company would prefer to lose its customers by transferring the policy to another insurance company. Secondly, it is apparent that the policies are being availed by the complainant with the aid and advice of HDFC Bank. Further for the reasons best known to the complainant, the lender bank i.e. HDFC Bank has not been made a party to this complaint. As such, the complaint against OP1 and OP2 is hereby dismissed.

10.              The complainant was required to lead evidence with regard to lodging of claim of amount of Rs.7,00,000/- along with supporting documents. The complainant was required to plead and prove that how the surveyor has wrongly assessed the loss and under what circumstances. From the evidence on record, it can be concluded that after obtaining the consent of the complainant, an amount of Rs.1,18,853/- was credited as full and final settlement of the claim of the complainant. Although the complainant has propounded that his signatures were obtained on certain printed documents and he was not made aware of its contents but the complainant has not divulged the name of the official who allegedly got his signatures on the printed documents without explaining its contents. No such official has been made party to this complaint. Even no immediate representation or legal notice was ever sent to OP3 for lodging its protest against the partial settlement of the claim.  So the complainant has failed to discharge initial onus to prove the deficiency in service on the part of the OPs by any cogent and convincing evidence.  The Hon’ble Supreme Court of India in its judgment in SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon’ble Supreme Court of India while relying upon on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. As well as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544), has held as under:-

“19. The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.”

 

11.              As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.   

12.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

 

(Monika Bhagat)                              (Sanjeev Batra)               Member                                         President  

 

Announced in Open Commission.

Dated:04.11.2024.

Gobind Ram.