BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.541 of 2015
Date of Instt. 24.12.2015
Date of Decision: 24.01.2018
Kewal Krishan son of Shri Nathu Ram, aged about 49 years, resident of House No.ES-412/2, Bajwa Street, Mohalla Makdumpura, Jalandhar.
..........Complainant
Versus
1. M/s ICICI Lombard General Insurance Company Ltd., Birla Towers, 5th Floor, 25, Barakhamba Road, New Delhi-110001, through its M.D/Director/Manager etc.
2. M/s ICICI Lombard General Insurance Company Ltd., (Registered Office) ICICI Bank Towers, Bandra Kurla Complex, Mumbai-400051, through its M.D/Director/Manager
etc.
3. M/s ICICI Lombard General Insurance Company Ltd., Nirmal Complex, G.T. Road, Jalandhar through its Manager/Branch Head etc.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh (President)
Smt. Harvimal Dogra (Member)
Present: Sh. APS Pathania, Adv Counsel for the Complainant.
Sh. RK Sharma, Adv Counsel for the OP No.1 to 3.
Order
Karnail Singh (President)
1. This complaint filed by the complainant, wherein alleged that the OPs are engaged in the business of providing services of Insurance through out the territory of India for consideration to the General Public at large and also doing the business of insurance at Jalandhar and accordingly, the complainant get a home insurance policy from OP No.3, who is working under the OPs No.1 and 2, on the payment of premium amount of Rs.899/- with a sum insured of Rs.8 lakh with a cover of fire and special perils and earth quack for the period from 25.06.2007 to 24.06.2008. The OPs 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 and after receiving the said amount, the complainant immediately got repaired his house building in order to make it live worthy.
2. That the previous Home Insurance Policy, provided by the OPs was going to be expired on 24.06.2008. Thus, the complainant again got renewed the said policy on 20.06.2008 and in this regard, a policy No.4013/212048/00/000 was issued by the OPs on 25.06.2008 for the cover of fire and special perils, earth quack, to the tune of Rs.8 lakh by accepting the premium of Rs.899/- from the complainant. The said insurance policy was valid for the period from 24.06.2008 to 23.06.2009. That on 27.06.2008, due to the heavy rain falling in the area of residence of the complainant in the flood like situation, the rainy water stormed into the house of the residents of the area including the house of the complainant and due to the above said reason, the building structure of the house of the complainant was badly damaged. This act of the God was sudden and caused heavy loss. Due to the said sudden floody situation of heavy rain, the cracks developed in the walls of the house, the floor was also damaged to such an extent that as per the building expert report, the entire portion, which was badly damaged was required to be reconstructed and for that purpose, the earlier walls of the specific portion were required to be removed and after removing the same, those structures were to be rebuilt for supporting the entire building of the house. The flooring was also required to be made a fresh in order to make the same as living worthy and for the safe residence of the complainant and his family in order to avoid any physical injury to its cohabitants. The above said fact was also published in the various Newspapers of the area, in which the name of the complainant was also mentioned in the Newspapers. Thereafter, the complainant immediately informed the OPs and apprised them about the damage caused by the heave rain water in the nearby areas. The claim registration number was given as 280608394 by the OP to the complainant. Thereafter, the complainant also wrote a letter dated 26.08.2008 to the OPs for making the payment of the claim immediately in order to make his house live worthy, which were sent through courier and the same are attached herewith. But inspite of making any registration of the claim by the complainant, no immediate relief was provided by the OPs as assured by them at the time of giving the insurance to the complainant. In order to make it living worthy, the complainant some how managed to get some repairs of his house in order to safeguard the life of the building construction and for the safety of the family of the complainant, 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 photographs showing the loss and damage caused to the house of the complainant were also taken which are also attached herewith.
3. That the OPs 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 times to the house of the complainant, but instead of settling the entire insurance claim, the complainant received a letter dated 03.10.2008 from the OPs, wherein 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 the same falls outside the purview of the policy.
4. That thereafter, the complainant filed a consumer complaint before the District Forum and the same was earlier decided by the predecessor of this Forum that the above said claim requires to be adjudicated by the Civil Court and aggrieved by the said order, the complainant preferred an appeal before the Hon'ble State Commission and vide order dated 19.12.2014, it was ordered that the findings of the order passed by the District Forum that the OPs while rejecting the claim as no claim on the ground that the loss was not due to the insured peril and the same falls outside the preview of the policy and the said dictum of the District Forum was not challenged by the OPs and has attained finality. Thereafter, the State Commission further directed that as per the Insurance Act, the appointment of the Surveyor and Loss Assessor of more than Rs.20,000/- was necessary under the Insurance Act, which is mandatory provision and accordingly, the District Forum was directed to decide the matter a fresh and as per the findings of the Hon'ble State Commission, the predecessor of this Hon'ble Forum, vide order dated 17.04.2015, again directed the OPs to appoint the Surveyor and Loss Assessor to assess the loss of the house of the complainant and to settle the claim of the complainant, on the basis of the documents already given by the complainant to the insurance company or on the judicial file within 15 days and it was further directed to complete the entire process within 4 months from the date of receipt of the copy of order. Thus, the OPs appointed their surveyor and he started visiting the house of the complainant and as per his directions, the fresh experts opinion was obtained as due to rising prices, the reconstruction and renovation of the building expenses were to be incurred as per the latest market prices of the building material. Accordingly, the said Expert/Loss Assessor approached Sh. RK Verma, Government approved valuer, who assessed the loss for reconstruction not below an amount of Rs.15,29,200/-. The said surveyor was not satisfied with the said report and he again approached an other expert M/s Vij Engineers and Enterprises and he assessed the loss of Rs.7,28,014/-, after deducting the depreciation amount. As a matter of fact, both these technical expert reports were again not accepted the OPs and did not make the payment of the insurance claim and after the above said period, they filed an application before District Forum for making the payment of Rs.3,25,000/- approx. for the said claim, which was very minimum and as per the loss of the surveyors in the said amount, the entire portion of the walls, floors, wooden work, which were badly damaged and requires reconstruction and renovation, the said amount is very meager and is not acceptable. However, the complainant made the statement before the Forum that the said amount was received by him under protest reserving his rights to agitate before the Forum again with regard to not making the entire payment of the claim. Under the above circumstance, the OPs have harassed the complainant for the last about 8 years and he has approached piller to the post and the OPs dilly dallied the matter on one pretext or the other, for the reasons best known to them. The OPs conduct is absolutely negligent, they are indulged in unfair trade practices and are rendering deficiency in services. The complainant has started believing that there is no use to take insurance cover from any insurance company under the law and to pay huge premiums regularly. The OPs have caused a great mental tension and agony to the complainant, which is clear cut deficiency in service on the part of the OPs, which gave cause to file the present complaint and accordingly, the instant complaint filed with the prayer that the complaint of the complainant may be accepted and the OPs be directed to pay the claim of the complainant for the loss and damages caused to the house of the complainant, to the tune of Rs.15.50 lakh and also to pay damages of Rs.1,00,000/- for causing mental tension, agony harassment and inconvenience to the complainant in the interest of justice, equity and fair play with cost throughout.
5. Notice of the complaint was given to the OPs, who appeared through their counsel and filed written reply, whereby contested the complaint by taking preliminary objections that the present complaint is not maintainable against the OPs in the circumstances, when the Hon'ble State Commission, Chandigarh, vide order dated 19.12.2014 in First Appeal No.911 of 2012 remanded back the complaint No.645 of 2008 to the District Forum, Jalandhar, for deciding the same in accordance with law and the District Forum, Jalandhar decided the same, vide order 17.04.2015 under the complaint No.645 of 2008/120 of 2015 and the OPs having complied with the directions of the District Forum, Jalandhar of dated 17.04.2015 by settling the claim and paying Rs.3,30,000/- to the complainant through District Forum, Jalandhar and as such, the complaint is liable to be dismissed. It is further averred that in compliance of order dated 17.04.2015, the Surveyor and loss Assessor namely Jasjeet Singh Hora and Co. was deputed to assess the loss, who submitted its report dated 27.07.2015, assessing the loss to the tune of Rs.3,30,000/-, after deducting depreciation as per rules and further estimated loss assessed by the M/s Vij Engineers Enterprises of Rs.4,47,000/- without deducting depreciation, has further been endorsed by the Surveyor and Loss Assessor namely Jasjeet Singh Hora & Co., vide its report dated 27.07.2015 and has deducted applicable depreciation. However, the valuation report of M/s Vij Engineers Enterprises dated 04.07.2015 showing depreciated cost of construction of Rs.7,28,014/- referred in the Survey Report of Jasjeet Singh Hora & Co. dated 27.07.2015 is with regard to total reconstruction of the house and not of the proposed area for reconstruction allegedly damaged due to rains, as such, the complainant has been adequately compensated as per loss assessed in compliance of the order dated 17.04.2015. It is further alleged that the complainant has not come to this Forum with clean hands rather he has concealed the material facts because the complainant has not explained the mode and proof of expenses of Rs.5,50,000/- on repairs of the house in November, 2007 and has filed this complaint in order to extract money from the OPs and therefore, the complaint is liable to be dismissed and further submitted that there is neither any negligence nor any deficiency in service and nor any unfair trade practice on the part of the OPs. The OPs in compliance of the order dated 17.04.2015 passed by District Forum, Jalandhar in complaint No.645 of 2008/120 of 2015, titled “Kewal Krishan Vs. ICICI Lombard Gen. Insurance. Co. Ltd.” have settled the claim and has paid Rs.3,30,000/- to the complainant through the District Forum, Jalandhar and as such the complaint is liable to be dismissed. On merits, the factum in regard to purchase of the insurance policy as well as submission of claim and repudiation of the claim of the complainant as well as appointment of the Surveyor is not denied by the OPs, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.
6. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavits of the complainant Ex.CA and Ex.CB alongwith documents Ex. C1 to Ex.C36 and closed the evidence.
7. In order to rebut the evidence of the complainant, counsel for the OP No.1 to 3 tendered into evidence report of the building damage loss survey report dated 27.07.2015 as Ex.O-1, Annexure-1 as Ex.O-2 and copy of estimate report dated 04.07.2017 of M/s Vij Engineers Enterprises as Ex.O-3 and also tendered affidavit of the Amandeep Singh, Manager Ex.OA and Insurance Policy Ex.O-4 and Payment Receipt Ex.O-5 and then closed the evidence.
8. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.
9. From the scanning of the file, it has become clear that the complainant Kewal Krishan firstly filed a consumer complaint, on the same cause of action on 18.10.2010, which was decided by the District Consumer Forum, vide order dated 15.05.2012 and copy of the order is available on the file Ex.C-9, whereby the complaint of the complainant was dismissed, with the observation that the complaint of the complainant cannot be decided in summary way and therefore, a direction was issued to the complainant that “he can seek his remedy in a Civil Court”.
10. Aggrieved from the above order dated 15.05.2012, the complainant approached to the Hon'ble State Commission, where from the complaint having original number 645 of 2008 was remanded back to the District Forum, Jalandhar by the Hon'ble State Commission, with the direction to decide the matter afresh on merit, in accordance with law and accordingly, the complaint of the complainant was taken up by the District Consumer Forum, Jalandhar and ultimately, decided the same on 17.04.2015 and copy of the order is available on the file Ex.C-7 and in this judgment, the District Forum considered all the factors in regard to damages, caused to the building is required re-construction or only repair and even in Para No.9 at Page 7 of the said Judgment, it is categorically mentioned that the estimate given by the Surveyor Ex.C-32 does not indicate that the damages caused to the building was not repairable and the building required its reconstruction. So, one thing is clearly established from the findings of the previous judgment that the building is repairable and reconstruction is not required and even the report of the said expert RK Verma & Associates is also brought on the file by the complainant in the present complaint Ex.C-10 and further in the said judgment of the District Forum, the OP was directed to appoint the Surveyor and Loss Assessor to assess the loss of the house of the complainant and four months time was given to the OP for completing the said process and admittedly, as per pleading of the complainant in Para No.8 of the complaint that after assessment of the damages, caused to the building by the Surveyor, the OPs had already paid a sum of Rs.3,25,000/- approx. to the complainant as a claim amount of the insurance and further alleged by the complainant in aforesaid para No.8 that the complainant accepted the said amount under protest being the same is very meager amount, after reserving his right to agitate the same before the District Forum.
11. It is established and proved on the file that a sum of Rs.3,30,000/- as insurance claim amount assessed by the Surveyor had been paid by the OP to the complainant through cheque bearing No.375950 dated 20.08.2015 through District Forum, Jalandhar and in order to give strength to this observation there is an application Ex.O5 submitted by the OP to the District Forum for depositing the said amount and for further transmission to the complainant and even the complainant has admitted in Para No.8 of the complaint that he has received the said amount.
12. From the over all circumstances as discussed above, it is apparently clear that the matter in controversy in the present complaint is the same as in the previous complaint, decided by District Forum on 17.04.2015 i.e. Complaint No.645 of 208/120 of 2015 and copy of the same is available on the file Ex.C-7, if we go through the contents of the aforesaid judgment Ex.C-7 as well as the contents of the present complaint, then we can say without any hesitation that the matter in issue in both the complaints are same and one and even the documents relied upon in both the complaints are also same and even the repudiation letter dated 03.10.2008 Ex.C-4 is also same in the previous complaint and in the present complaint, so, question remains whether the complainant has any right or remedy according to law to re-agitate the matter if the same has been finally adjudicated/decided by the District Forum, for that the counsel for the complainant could not able to submit any satisfactory reply and accordingly, we analyze the same by keeping in mind the law of the land, as per settled law, if once matter is adjudicated finally between the same party by Competent Court or Forum, the same cannot be re-agitated again before the same Court or Forum, the remedy with the aggrieved party is only to file an appeal or revision, so, keeping the present complaint in the same situation and then analyze whether the same complaint is maintainable or not, the replies obviously that the second complaint is not maintainable because the matter has been already adjudicated by the Competent Forum. The complainant alleged in the complaint that he took the payment of claim amount of Rs.3,30,000/- from the OP, but under protest reserving his right to agitate the same before the Forum, but no document has been placed on the file by the complainant, wherein he gave such a statement before the District Forum. So, it means that the complainant could not able to prove the allegations as made in the complaint, if the complainant has already accepted the insurance claim amount, then he has no right to re-agitate the same again and again in the Forum, no doubt, if the District Forum gave an opportunity in the judgment Ex.C-7 dated 17.04.2015, that the OPs are directed to appoint Surveyor and after that decide the matter of the complainant within four months and further opportunity is given that if the complainant is not satisfied with the said payment of the claim amount, then the complainant is at liberty to file a fresh complaint in the District Forum, but apparently no such discretion was given by the District Forum, vide its judgment dated 17.04.2015, if so then, the remedy available with the complainant was only to go in appeal or revision against that order, within a stipulated time, not to file a fresh complaint. So, with these observations, we are of the considered opinion that the instant complaint of the complainant is not maintainable and therefore, the same is dismissed with no order of cost. Parties will bear their own cost. The complaint could not be decided within stipulated time frame due to rush of work.
13. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Harvimal Dogra Karnail Singh
24.01.2018 Member President
