BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No. 446 of 2015

Date of Instt. 14.10.2015

Date of Decision: 19.04.2017

Mr. Rajeshwar Singh S/o Late Sh. J. M. Singh, aged 56 years, resident of EH-223, Nehru Garden Road, Jalandhar.

..........Complainant

Versus

1. M/s IFFCO-TOKIO General Insurance Co. Ltd., Regd. Office:IFFCO Sadan, C1 Distt. Centre, Saket, New Delhi- 110017.

2. Branch Manager, Branch Office:IFFCO-TOKIO General Insurance Co. Ltd., Plot No.2 B & C, Sector-28A, Chandigarh.

3. Branch Manager, PNB Housing Finance Ltd., First Floor City Square, Near Kesar Petrol Pump, Jalandhar City (PB.) .........Opposite parties

Complaint Under Consumer Protection Act.

Before: Sh. Karnail Singh, (President),

Sh. Parminder Sharma (Member)

Present: Sh. Atul Malhotra, Adv. Counsel for complainant.

Sh. APS Pathania, Adv. Counsel for OP No.1 and 2.

Opposite Party No.3 exparte.

Order

Karnail Singh (President)

1. This complaint filed by complainant, wherein stated that the complainant bought a constructed house in the month of March-2009, duly approved by the Technical Adviser (Architect) of the PNB Housing Finance Ltd at a cost of Rs.13,00,000/- located at 90-Ramneek Avenue, Paragpur, Jalandhar Cantt. An amount of Rs.9,75,000/- was financed by the PNB Housing Finance Ltd after being assured that the property is legally and technically sound. The PNB Housing Ltd got the house insured by the above mentioned insurance company for a sum assured of Rs.10 lakh and charged him a premium of Rs.6320/- on 23.03.2009 and he was told that his house is insured for any damages for the entire tenure of the loan repayment.

2. That everything went normal for about three years, but after that all of a sudden, in the back wall some cracks appeared and it developed gradually. He thought it is superficial and he got it repaired but in the month of February, 2015 the cracks became quit evident and kept on increasing which might be an effect of prior shaking by Earthquake or the effect of sewage system laid down by the Jalandhar Municipal Corporation in the street at the back of the house or due to the penetration of the rain water during heavy rainfall resulting in subsidence of earth under the building. He informed the PNBHFL and asked them for the repair claim from the insurance company because they are holding all the insurance papers/policy. They kept him lingering on for quite some times and in the mean time the condition of the house reached to an alarming situation and a threat of life for the occupants of the house. Then ultimately somehow he found out the insurance company's office and intimated them about the same.

3. That then on 17.04.2015 the insurance co. deputed Mr. Jasjeet Singh Hora as Surveyor. When Mr. Hora visited the site, he took the photographs of the damaged portion and made the necessary inspections and asked him to submit the papers like copy of registry, sale deed, M.C's approved map and the tax receipts, NOC, Electricity bills which he provided the surveyor immediately. After submission of above mentioned documents Mr. Hora, the surveyor asked him to submit an estimate of the cost of repair duly prepared and approved by a govt approved architect and after depositing the same he was directed by the surveyor Mr. Jasjeet Singh Hora to start the demolition of the damaged portion and reconstruction. The surveyor also directed him to keep on informing him at the different stages of demolition and construction which are fully complied by the complainant. He kept on visiting the site and took the photographs at different stages of demolition and construction. After the completion of the work the surveyor called him and asked to submit a valuation report of the property from an approved valuer. When he went to submit the same to the surveyor's office he said that maximum claim that can be approved will be Rs.1,25,000/- because some expenses like expenses below the plinth, painting and flooring etc are not covered and he asked him to sign an undertaking that he agree to accept the above said amount which he signed in compulsion because he was too tired and harassed physically, mentally and financially. Then the surveyor told him that he is sending the final report to the insurance company and it will be settled soon. But to the limit of his patience in waiting for almost three months he did not hear any thing from the insurance company, he visited the insurance company office, PNBHFL office in Jalandhar several times to know the status of his claim, also sent an e-mail to the customer care of the insurance company but all in vain because no one was able to tell him the status of claim and finally he went to the PNB Housing Finance Ltd office and asked the Branch Manager to please get the insurance policy cancelled and refund him the premium that they have charged him because if he don't get a genuine claim, what is the point of having the insurance policy. And apart from this they have also charged him Rs.76,380/- as premium for an another insurance policy on his life. But in such situation if something happens to him and there is no one to even ask them for the claim. He asked them what will be the fate of the insurance policy? So, in the light of all the situations and the negligence of the insurance company and the PNBHFL it is quite evident that their interest in the customer rests only till they recover the premiums of the insurance and then after they don't bother to even hear or reply the customer as claim is a matter of dream and further submitted that he is physically harassed because of the negligence, irresponsible working and willful act of the cheating by the OP and accordingly this complaint filed with the prayer that the OP No.1 may be directed to pay the cost incurred on demolition and the repair of the damaged portion of the building as per the estimate by approved architect i.e. Rs.3,54,107/- and expenses incurred/fee charged by the approved architect and value to the effect Rs.20,000/- and damages/compensation on account of mental tension and harassment Rs.5000/- and litigation expenses of Rs.5000/-.

4. Notice of the complaint was given to opposite parties and despite service OP No.3 did not come present and ultimately OP No.3 proceeded against exparte whereas OP No.1 and 2 appeared through their counsel and filed joint written statement whereby contested the complaint by taking preliminary objections that the complaint is not maintainable. There is no deficiency in service or negligence or unfair trade practice on the part of the answering OPs. There is no negligence on the part of the answering OP's. From the averments of the complaint, it is crystal clear that the complainant is aggrieved if any with the act and conduct of PNBHFL and the answering OPs have been un-necessary dragged in this case and further averred that the complainant has no locus standi to file the present complaint. Infact, the damage if any received to the building of the complainant is not from any fire, earthquake, lightning, explosion, cyclone, storm, typhoon, tempest, tornado, flood, inundation, impact damage, landslide etc. vide letter dated 25.08.2015, the complainant was duly informed that his claim has been closed after receiving the surveyor report of Mr. Jasjeet Singh Hora with the observations as below:

“The policy provides cover for building against the perils mentioned in the policy wordings attached with the policy schedule. Surveyor has confirmed that the damages caused to the building, either due to the settlement or bedding down of structure which may be resultant of settlement of made up ground of the building due to defective workmanship, which is excluded under Sub-Section VIII of Section 1 of the policy”.

So, in the light of above, OP regret to inform you that the said loss does not falls under the ambit of the policy, therefore, claim is not tenable and we are closing the case.

5. As per the terms of the policy the claim if any has to be lodged by the complainant against the builder from whom he has brought the constructed house. On merits, the allegations made in the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merit and same may be dismissed.

6. In order to prove his case, the learned counsel for the complainant tendered into evidence duly sworn affidavit of complainant Ex.CA alongwith documents Ex.C1 to Ex.C24 and closed the evidence.

7. Similarly, the learned counsel for the OP No.1 and 2 tendered into evidence affidavit Ex.OP1-2/A and closed the evidence of the OP.

8. We have heard the learned counsel for the respective party and also gone through the case file very minutely.

9. It is not disputed that the complainant purchased a constructed house in the month of March, 2009 for a sum of Rs.13,00,000/-, out of which Rs.9,75,000/- was got financed from PNB Housing Finance Ltd i.e. OP No.3. The above facts has not been denied or controverted by the OP in any manner. Even the factum in regard to purchase of insurance policy from OP No.1 and 2 through OP No.3 by the complainant and paid a premium of Rs.6320/- on 23.03.2009 and copy of the insurance policy is available on the file Ex.C1. Apart from that the complainant has also brought on the file his own affidavit Ex.CA and some other documents in support of his case i.e. Ex.C2 to Ex.C24. But the insurance claim of the complainant was repudiated by the OP No.1 and 2 vide letter dated 25.08.2015, on the ground that the surveyor has confirmed that the damages caused to the building, either due to settlement or bedding down of structure which may be resultant of settlement of made up ground of the building due to defective workmanship, which is excluded under Sub-Section VIII of Section 1 of the policy and therefore the case of the complainant is closed. The OP has not intentionally and willfully tendered into evidence claim rejection letter and report of surveyor for the best known reason but the same is available on the file. The surveyor of the OP Jasjeet Singh Hora in his surveyor report dated 14.07.2015, the total damaged cost was assessed Rs.3,54,107/- but that surveyor report is not taken into consideration by the OP rather taking only a portion of that report that the case of the complainant is not covered under the term and condition of the insurance policy. For that purpose, it is required to go through the terms and conditions of the insurance policy which are available on the file Mark-C1 insurance policy and further a document produced on the file by the complainant which shows that the insurance claim is admissible and covered if any loss is caused due to Fire, Lightning, Explosion, Aircraft damage, RSMD, Storm, Cyclone, Typhoon, Tempest, Hurricane, Tornado, Flood and Inundation, Impact damage, Subsidence and Landslide including Rock Slide, Bursting and/or overflowing of Water Tanks, Apparatus and Pipes, Missile testing operations, Leakage from Automatic Sprinkler Installations, Bush Fire and Earthquake. These coverage points are very well mentioned in the letter Ex.C2 and now the question remains whether the claim of the complainant have been repudiated by the insurance company i.e. OP No.1 by taking into consideration the aforesaid points or not. We find that the cracks in the building may be caused due to sewerage water in the side of the building and moreover the case of the complainant is that Municipal Corporation constructed a Sewerage/Nala back side of the complainant's house and all the major cracks in the building was appeared on the back side of the house of the complainant and it is very well mentioned in the letter Ex.C2 that due to overflowing of water, if any damage is caused then the complainant is entitled. So, the case of the complainant is covered under the point overflowing of water and as such we find that the claim of the complainant is wrongly and illegally repudiated by the OP despite repeated request of the complainant through letter Ex.C3, Ex.C4, Ex.C5, Ex.C6 and even the estimate cost got calculated by the complainant from the Private Surveyor Government approved namely Subhash Chander and the copy of the same is available on the file Ex.C10 and Ex.C11 and as per Private Surveyor, the total damages caused to the building is Rs.3,54,107/-. So, accordingly the complainant is entitled for the damages caused to the building because the same has been got insured by the complainant with OP No.1 and 2 and accordingly the complainant is entitled for relief claimed.

10. In the light of above detailed discussion, the complaint of the complainant is partly accepted and OP No.1 is directed to pay the repair of the damaged portion of the building i.e. Rs.3,54,107/- and compensation to the tune of Rs.5000/- and litigation expenses of Rs.3000/- with interest @ 9% p.a from the date of repudiation of the claim of the complainant i.e. 25.08.2015 till realization. The entire compliance of the order be made within 30 days from the date of receiving copy of order. Complaint could not be decided within stipulated time frame due to rush of work.

11. 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 Parminder Sharma Karnail Singh

19.04.2017 Member President