BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.645 of 2008/120 of 2015

Date of Instt. 3.11.2008/25.03.2015

Date of Decision :17.04.2015

Kewal Krishan son of Nathu Ram aged about 47 years, R/o H.No.ES 412/2, Bajwa Street, Mohalla Makdumpura, Jalandhar City.

..........Complainant

Versus

1. M/s ICICI Lombard General Insurance Company Limited, Birla Towers, 5th Floor, 25, Barakhamba Road, New Delhi-1100001 through its MD/Director/Manager etc.

2. M/s ICICI Lombard General Insurance Company Ltd, (Registered Office) ICICI Bank Towers, Bandra Kurla Complex, Mumbai-400051 through its MD/Director/Manager etc.

3. M/s ICICI Lombard General Insurance Company Limited, Nirmal Complex, GT Road, Jalandhar through its Manager/Branch Head etc.

.........Opposite parties

Complaint Under the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.APS Pathania Adv., counsel for complainant.

Sh.Raman Sharma Adv., counsel for opposite parties.

Order

J.S Bhatia (President)

1. The complainant has filed the present complaint under the Consumer Protection Act against the opposite parties on the averments that the complainant took a home insurance policy from the opposite party No.3 which is working under the opposite parties No.2 and 3 on the payment of premium amount of Rs.899/- with a sum insured of Rs.8 Lacs with a cover of fire and special perils and earth quack for the period from 25.6.2007 to 24.6.2008. The opposite parties after taking due consideration of the proposal of the above said policy opted by the complainant, issued a policy No.4013/137724/00/ 000. Thereafter, due to the construction raised in the nearby locality by the DLF authorities under the site project name The Galleria Project Site and some portion of the house of the building of the complainant was damaged and at that time the DLF authorities negotiated with the insurance company and with the intervention an amount of Rs.5,50,000/- was given as compensation and damages caused to the building of the complainant in the month of November,2007. On the receipt of the above said amount the complainant immediately got repaired his house building in order to make it live worthy. The previous home insurance policy taken by the complainant was going to be lapsed on 24.6.2008. Thus the complainant again got renewed the said policy vide proposal of the opposite parties on 20.6.2008 and in this regard a policy No.4013/212048/00/000 was duly issued by the opposite parties on 25.6.2008 for the cover of fire and special perils, earth quack to the tune of Rs.8 Lacs by accepting the premium of Rs.899/- from the complainant. The said policy was valid from 24.6.2008 to 23.6.2009. On 27.6.2008 due to the heavy rain fall in the area and due to the construction raised by DLF authorities in the nearby area of the house of the complainant, again number of building structures were damaged badly and building of the complainant was again badly damaged. The above said fact was also published in the various newspapers of the area. Thereafter, the complainant immediately informed the opposite parties and apprised them the damage caused by the collected rain water in the nearby area of the site buildings constructed by the DLF, The claim registration number by the opposite parties was given as 280608394. The complainant also wrote a letter dated 26.8.2008 to the opposite parties for making the payment of the claim immediately in order to make his house live worthy. But inspite of making any registration of the claim by the complainant, no immediate relief was provided by the opposite parties as assured by them at the time of providing insurance to the complainant. In order to make it live worthy, the complainant some how managed to get some repairs of his house, but still the above said building of the complainant has developed big cracks in the floor as well as in the walls of the house and thus it has become unsafe for human habitation. The opposite parties deputed its surveyor to prepare the survey report about the loss caused to the building of the complainant. The said surveyor of the insurance company visited number of time to the house of the complainant and demanded a share in the compensation claim amount to which the complainant did not agree. After the lapse of some time, the complainant received a letter dated 3.10.2008 from the opposite parties wherein he was told that his claim has been repudiated and his file has been closed being No Claim. The complainant was told that the loss caused to the building of the complainant is not due to the insured perils and same falls outside the purview of the policy. The complainant also got an estimate from M/s RK Verma & Associates, a Government approved surveyor and building engineer, who has also given an estimate to the tune of Rs.4,92,958.56paise for the repair of the house of the complainant vide his estimate letter dated 10.7.2008, which is attached. Thereafter aggrieved by the said negligence and unfair trade practice of the opposite parties, the complainant filed a consumer case No.645/03.11.2008 and the same was decided by the Additional Bench of this Forum vide order dated 26.5.2010 with the directions to reconsider the claim of the complainant within two months from the receipt of copy of the said order alongwith litigation cost of Rs.2000/- against the opposite parties. The complainant was also given liberty to file fresh complaint for any deficiency in service. But neither the opposite parties have reconsidered the claim of the complainant nor has paid the amount of the cost of litigation. On such like averments, the complainant has prayed for directing the opposite parties to pay him the claim amount of Rs.12 Lacs. He also claimed damages and litigation expenses.

2. Upon notice, the opposite parties appeared and filed a written reply, inter-alia, pleading that terms and conditions of the policy are binding on the insurer and the insured. Every claim is payable, if it falls within the ambit of policy conditions, but no claim is payable, if it falls outside the preview of terms and conditions of the insurance policy. In the present case, loss was not due to the insured perils. Hence, the same falls outside the preview of the policy. After proper application of mind and due investigation, the claim has been repudiated. This is not the proper forum for adjudication the matter. Only civil court has the jurisdiction as complex question of fact and law is involved. The condition of the building can not be imagined before or after the incident. This matter can not be adjudicated in the summary trial and require proper adjudication. Earlier one complaint was filed but the same was decided and an opportunity was given to the complainant to file a fresh claim but the complainant has failed to comply with the orders. They denied other material averments of the complainant.

3. In support of his complaint, learned counsel for complainant has tendered into evidence affidavits Ex.CA to Ex.CC alongwith copies of documents Ex.C1 to Ex.C30 and closed evidence

4. On the other hand, learned counsel for opposite parties has tendered affidavit Ex.OP1/A alongwith copies of documents Ex.OP1 to Ex.OP5 and closed evidence.

5. After going through the evidence on record and hearing learned counsel for the parties, the Additional Bench of this Forum vide its order dated 15.5.2012 held that this complaint can not be decided in a summary way and complainant was given liberty to seek remedy in a Civil Court. Aggrieved with this order, the complainant filed appeal before the Hon'ble State Commission and the Hon'ble State Commission vide its order dated 19.12.2014 remanded back this case to this Forum to decide the complaint on merits in accordance with law.

6 We have carefully gone through the record and also heard the learned counsels for the parties.

7. Now the first question which falls for determination is, whether the claim raised by the complainant falls within purview of the policy or not?

8. In this regard while remanding the case to this Forum, the Hon'ble State Commission has observed as under:-

"It is pertinent to mention here that before receiving/filing the complaint, earlier complaint was filed by the complainant i.e complaint No.645 dated 18.10.2010(Complaint No.645 dated 3.11.2008) which was decided by the District Forum, Jalandhar on 26.5.2010 wherein it was observed that the peril by which the damage has been caused to the house of the complainant falls within the purview of the policy and the opposite parties were not justified in repudiating the claim of the complainant on the ground that it falls outside the purview of the policy. Thus findings have became final because those findings were not challenged by the opposite parties in any appeal".

9. So, Hon'ble State Commission has already held that the earlier findings given by the District Forum in the above said earlier complaint has become final. Now the next question which fall for determination is, assessment of damage to the house of the complainant. The complainant is only replying upon estimate dated 10.7.2008 given by M/s RK Verma & Associates. The opposite parties have not led any evidence in this regard. Counsel for the opposite parties contended that no surveyor to assess the loss was appointed. Regarding above said estimate dated 10.7.2008 given by M/s RK Verma & Associates, the Forum in the above said earlier complaint had observed as under:-

" So far as, the claim of Rs.8 Lac made in this complaint by the complainant is concerned, no doubt the complainant has placed on record estimate dated 10.7.2008 Ex.C-32 prepared by RK Verma & Associates building engineer, yet the perusal of the same reveals that it is an estimate of the cost for the re-new construction of the residential house(Ground Floor). The description of the work to be undertaken as well as the expenditure has been given by item wise. It includes excavation in foundation, PCC Work in foundation, cement concrete brick work in foundation, damp proof course, brick work, wood work, RCC Beam, RCC Slab roofing, marble flooring, tile terracing etc etc. Admittedly, the house of the complainant was not completely demolished which required its reconstruction. From the photographs Ex.C-12 to Ex.C30 also though certain cracks in the walls of the building as well as roofs and floor of the house are visible, yet the estimate Ex.C-32 does not indicate that the damage to the building was not repairable and the building required its reconstruction. Even in the complaint, the complainant has alleged that in order to make the house live worthy, he had got the repairs done the house and thereafter lodged the claim with the opposite parties. In such circumstances, the claim of the complainant requires to be considered by the opposite parties on merits on the basis of documents produced by the complainant as well as investigation if any to be conducted by the opposite parties at the spot".

10. No party filed any appeal against these findings and these findings has also become final. Even otherwise on the basis of estimate dated 10.7.2008 the loss to the house of the complainant can not be properly assessed. While remanding the case, the Hon'ble State Commission has also observed as under:-

"In the written statement they have not referred whether any surveyor was appointed to assess the loss, otherwise according to Section 64(UM) of the Insurance Act provides for appointment of surveyor and loss assessor and in case the loss is more than Rs.20,000/- then appointment of the surveyor/loss assessor is necessary. But no case is made out on the basis of pleadings filed by the opposite parties whether any surveyor or loss assessor was appointed by them to assess the damage according to the guidelines for assisting, disposal of claims. The relevant clause 2.1 reads as under:-

2.1. The Insurance Act stipulates that all claims of Rs.20,000/- and above are to be surveyed by a licensed surveyor. Therefore, for claims less than Rs.20,000/-, survey by a licensed surveyor is not mandatory. Such losses may be surveyed by the company's officials (In-house survey) if survey is required".

11. So in this case, surveyor was not appointed by the opposite party insurance company to assess the loss. So in these circumstances, it is fit case where the opposite party insurance company should be directed to appoint surveyor and loss assessor who shall visit the spot after intimating the complainant in this regard and assess the loss to the house of the complainant in the incident in question.

12. In view of above discussion, the present complaint is partly accepted and opposite parties are directed to appoint the surveyor and loss assessor to assess the loss to the house of the complainant after giving notice to the complainant regarding his visit on the spot and after receiving report of surveyor and loss assessor, the opposite parties shall decide the claim of the complainant on the basis of report of surveyor and loss assessor and further on the basis of documents already given by the complainant to the insurance company or produced during the trial of the present or earlier complaint and further on the basis of documents which he may further submit to the insurance company within 15 days. The opposite party insurance company is directed to complete all this process within four months from the date of receipt of copy of this order. However, in the circumstances of the case, there shall no order as to cost. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia

17.04.2015 Member Member President