.BEFORE THE KARNATAKA STATE CONSUMER DISPUTES

REDRESSAL COMMISSION, BENGALURU. (ADDL. BENCH)

DATED THIS THE 13^th DAY OF JUNE, 2024

PRESENT

SRI RAVI SHANKAR, JUDICIAL MEMBER

SMT. SUNITA C.BAGEWADI, LADY MEMBER

COMPLAINT NO.172/2010  

B.L.Kashyap & Sons Ltd,

#245, F-002, Eden Hall

Defence Colony, 80 feet Road,

Indiranagar, Bengaluru -50 038                       ….Complainant/s

Represented by

1. R.S.Vidyashankar – Head Admin.

2. Supriya.R.Rao-Sr.Officer-Admin.

(By Miss.Rajeshwari, Advocate)

                                          -Versus-

HDFC Ergo GI Company Ltd,

#108 to 111, #14,

HM Geneva House,

1^st Floor, Cunningham Road,                    … Opposite party/s  

Bengaluru – 560 052

Represented by its Manager,

(By Sri.O.Mahesh, Advocate)

O R D E R

BY SMT.SUNITA C.BAGEWADI, MEMBER

       The complainant filed this complaint against the Opposite Parties alleging deficiency in service and unfair Trade Practice and prays to direct the Opposite Party to pay a sum of Rs.43,91,226/- together with interest @18% per annum with cost and grant such other relief as deemed fit, in the interest of justice and equity.  

2. The brief facts of the complaint is that, the complainant was awarded the Contract of construction of block –F2 at Manyata, Special Economic Zone (SEZ), the notice of award dated 30.7.2007 was for the construction of concrete and block work package for a sum of Rs.53,49,99,999/-. Subsequently the complainant obtained a Contractor’s All Risk Insurance Policy vide policy No.CAR0000111000100, commencing from 0.0.01 hours of 5^th September 2007 and valid up to Midnight of 4^th October, 2008 and has paid a sum of Rs.6,82,634/-  as premium in three installments which is generally given for a CAR policy of 13 months period. On 30^th, 31^st of May, and 1^st June, 2008, there was heavy rain in Bengaluru as a result of which the 10^th floor and the roof of the same was damaged and there was a partial collapse of the roof slab of 10^th floor and terrace. This was immediately informed to the respondent on 2.6.2008 by mail and in fact the complainant took immediate measures to prevent further damage and collapse of 10^th floor and the 11^th floor. After intimation to the respondent, the respondent appointed the surveyor through an agency called Cunningham Lindsey International Pvt. Ltd, #332 MN Arcade, 2^nd Floor, 14^th main, 15^th Cross, JP Nagar, Bengaluru whose surveyor visited the project site and after due enquiry/explanations/production of documents was pleased to assess the net adjusted loss as Rs.30,41,226/- the surveyor took more than an year to assess the loss. Instead of settling the claim loss assessed as per respondents appointed agency, the respondent has sent a mail on 7.9.2009 wherein he has stated “we have evaluated the claim files as per the terms and conditions of the policy. Regret to inform you that claims fall outside the scope of the policy as mentioned in the attached file. The matter is referred to its head office in Mumbai and is pending there. In fact till the rejection was made there are no communications either in writing or orally by the respondent that the policy has become invalid due to nonpayment of premium installment. From 2.3.2008 to 20.3.2009 the respondent has never ever has disclosed about non-deposit of the cheque and also invalidity of the policy in any fashion or manner. In the mean while the respondent receives a sum of Rs.8,08,000/- and extends the policy for a period of 3 months.  Hence, this complaint.

3. After service of notice, the Opposite Party has appeared through his counsel and filed version and denied that the complainant is a “Consumer” under the CP Act and their transaction with the Opposite Party which is the subject matter of the present dispute falls under the purview of CP Act.

The Opposite Party further contended that the complainant being neither a consumer nor transaction between the Opposite Party and the complaint fall under the purview of CP Act.  The complainant is a registered company under the Companies Act and does not fall definition of “Person” as defined u/s.2(m) of the CP Act. 

The Opposite Party further contended that the complainant has not paid the 2^nd and 3^rd installments of the premium supposed to be paid towards the balance premium amount, inspite of the obligation on their part and also reminders from the Opposite Party. Engaging or authorizing the survey by the Opposite Party is only as an obligatory act for an insurer in either assessing or quantifying the damages and to process the claim in accordance with the insurers formalities. The Opponent have evaluated the claims as per policy terms and conditions and claim was rejected as the complainant had not paid installment premium as stated in the policy within the stipulated time.

The Opposite Party further contended that, on the complainant seeking extended coverage or risk for the new portion of the site and agreeing to send the cheque for Rs.8,08,000/- which is a fresh premium a provisional receipt was generated and since the complainant did not send the cheque the said receipt was constrained to be cancelled. It is the complainant who is guilty of fraud and misrepresentation by not ensuring the payment of the premium amount in advance. Since the complainant has complained commission of fraud by the Opposite Party this Hon’ble Commission has no jurisdiction to try this complaint and the complainant be directed to approach Civil Court for remedy.   Hence prays to dismiss the complaint, in the interest of justice and equity.

4. Both parties filed their evidence affidavit and marked documents as Exs.C1 to C13 and Ex.R1 to R7.  

5. Inspite of sufficient opportunities provided to both parties, they have not submitted arguments. Hence, posted for orders.

6. On perusal, the following points will arise for our consideration;

(1)     Whether the complainant has proved the deficiency of service on the part of the Opposite Party?

(2)     Whether the complainant is entitled for the reliefs as sought?

(3)     What order?

7. The findings to the above points are;

                   (1)     In the negative

                   (2)     In the negative  

(3)     As per the final order

R E A S O N S

8. Point Nos.1 and 2:- Perused the contents of the complaint, objection filed by the Opposite Party, evidence affidavit filed by both parties and documents produced by both parties. The Opposite Party has admitted certain allegations of the complainant and denied all other allegations. The Opposite Party has admitted a Contractor’s All Risk Insurance Policy vide policy No.CAR0000111000100, commencing from 0.0.01 hours of 5^th September, 2007 and valid up to Midnight of 4^th October, 2008 and agreed to pay a sum of Rs.6,82,634/- as premium in three installments. Further the Opposite Party contended that the complainant is registered company under the Companies Act and does not fall under the definition of “Person” as defined under Section 2(31) of the CP Act.  Regarding that we have to read definition of “person” as per the CP Act;

                   “Section 2 (31) "person" includes—

(i) an individual;

(ii) a firm whether registered or not;

(iii) a Hindu undivided family;

(iv) a co-operative society;

(v) an association of persons whether registered under the Societies  Registration Act, 1860 or not;

(vi) any corporation, company or a body of individuals whether incorporated or not;

(vii) any artificial juridical person, not falling within any of the preceding sub-clauses”.

         9. Means, the company falls under the definition of “person” under CP Act, hence as per definition the complainant is a “Consumer” under the CP Act.

10. Further the Opposite Party contended that the complainant has not paid the 2^nd and 3^rd installments of the premium inspite of several reminders. Perused the documents produced by the complainant, we noticed that the complainant has stated that he has issued a cheque of Rs.4,53,950/-  in favour of the Opposite Party towards 2^nd and 3^rd installments under the policy to the employee of the Opposite Party. However the employee of the Opposite Party has not a presented the same in the account of the Opposite Party and the same were returned on 20-3-2009 backend, the same was denied by the Opposite Party.    

11. Perused the documents of the complainant, the complainant in letter dated 9.9.2009/Ex.C6 stated that he has handed over the cheque of Rs.4,53,950/-  to the employee of the Opposite Party on 3.3.2008, but the said employee has not presented the same to the account of the Opposite Party  also stated that as per request letter/Ex.C9 the complainant has paid Rs.8,08,000/- through NEFT dated 20.3.2009 towards extension of project F2 block policy NO.CAR0000111000100 and LPL0000316000100 and L5 block policy No.CAR0000110000100 and LPL00003150001000 for three months.

12. Perused the documents it is true that as per Ex.C9 the Opposite Party has made the request through letter to pay the installments by NEFT to the complainant and the complainant has paid Rs.4,53,950/- as per Ex.C11 dated 20.3.2009 means the complainant has made the second and third installments of premium to the Opposite Party after lapse of the policy through NEFT. Further the Opposite party contended that the complainant sought extended coverage of risk for the new portion of the site and agreed to send the cheque of Rs.8,08,000/- which the fresh renewal but did not sent the cheque, hence receipt was cancelled.

13. Perused the document the Opposite Party has issued the provisional receipt of Rs.8,08,000/- to the complainant on 20.11.2008 for extension of project and perused the Ex.R4 on the same day the Opposite Party has cancelled the receipt for non-receipt of the amount. Anyhow the complainant had availed the policy No.CAR0000111000100 valid from 5.9.2007 to 4.10.2008 and he has paid one installment and paid other two installments after 4.10.2008 i.e. lapse of policy amount. The complainant has stated that he has issued cheque of Rs.4,53,950/-  towards 2^nd and 3^rd installments to the employee of the Opposite Party and the same were returned on 20.3.2009. However the complainant not produced any document regarding the same. Due to heavy rain the 10^th floor and the roof of the same was damaged and collapse of the roof slab of 10^th floor and terrace. The surveyor assessed the loss of Rs.30,41,226/-. However the Opposite Party has repudiated the claim of the complainant of Rs.8,08,000/- for the extension of the project which is not paid by the complainant and the same was cancelled by the Opposite Party. The complainant has failed to pay installments inspite of reminders by the Opposite Party. Hence the complainant has violated the terms and conditions of the policy. Hence, the complainant is not entitled for the loss as assessed by the surveyor under the policy and repudiation made by the Opposite Party is just and proper. Considering the facts and discussion made here, we are of the opinion that, the complainant has failed to prove the deficiency of service on the part of the Opposite Party.

14. Point No.3: In view of above discussion, we proceed to pass the following:-

O R D E R

The complaint filed by the complainant is dismissed. No order as to costs.

    Send a copy of this order to both parties.

MEMBER                                            JUDICIAL MEMBER