Tamil Nadu

South Chennai

CC/289/2014

V.V.Balasubramanian - Complainant(s)

Versus

M/s. Tata AIG General Insurance Co Ltd., - Opp.Party(s)

K.P.Kiran Rao

03 Jul 2017

ORDER

                                                                        Date of Filing :   07.07.2014

                                                                        Date of Order :   03.07.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

PRESENT: THIRU. M.MONY, B.Sc., L.L.B. M.L.,                     : PRESIDENT            

                  TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

             DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

C.C.NO. 289/2014

MONDAY THIS  3RD   DAY OF JULY 2017

 

V.V. Balasubramanian,

No.A.K.17, 11^th Main Road,

Anna Nagar,

Chennai 600 040.                                               .. Complainant

                                        ..Vs..

 

1.  M/s. Tata AIG General Insurance Co. Ltd.,

Rep. by its Divisional Manager,

Raheja Towers, 9^th Floor,

No.177, Anna Salai,

Chennai 600 002.

 

2. E.K. Suresh Babu,

Manager,

Home Secure Insurance,

Tata AIG General Insurance Co Ltd.,

Raheja Towers,

9^th Floor,

No.177, Anna Salai,

Chennai 600 002.                                             .. opposite parties.

 

Counsel for Complainant           :    M/s. K.P. Kiran Rao   

Counsel for opposite parties      :    M/s. M.B. Gopalan & others.  

ORDER

THIRU. M. MONY, PRESIDENT

          This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act 1986 seeking direction to pay a sum Rs.3,64,700/- towards claim amount with interest and also to pay a sum of Rs.10,00,000/- towards  compensation for mental agony and damages and also to pay cost of the complaint.

 1. The averment of the complaint in brief are as follows:

         The complainant submit that he took a home secure insurance policy with the first opposite party in respect of building and moveable properties at the residential premises bearing door No.A.K. 17, 11^th  Main Road, Anna Nagar, Chennai for the period 3.4.2013 to 2.4.2014 for a sum of Rs.85 lakhs.    The insurance coverage included damage to loss of property by fire or theft / burglary.  A premium of Rs.5590/- including a sum of Rs.2247/- for burglary and theft coverage, was paid by the complainant to the first opposite party on 2.4.2013.    The complainant also submit that he has also took an overseas Health insurance Policy for his wife and himself for the period 13.4.2013 to 9.10.2013 for a coverage of $ 1,00,000 & $ 50,000 respectively on payment of a premium of Rs.1.20 lakhs appromiately on 2.4.2013.    Both these policies were processed by the 2^nd opposite party.     The 2^nd opposite party as fully aware of all details of the building and complainant’s travel plans to USA with his wife.  

2.     The complainant further states that his wife and he left the country on 13.4.2013.   The complainant domestic worker visited the house every day  and the complainant’s son visited the house and the complainant brother in law and his wife visited the house every Sunday and had the house cleaned.    On 13.8.2013 burglary and theft was detected at his house and the first opposite party and the local police station were immediately informed about the same.   A claim was registered by the first opposite party on 25.8.2013.    The loss estimated by the complainant for damage to the building was Rs.51,000/- and theft of articles was Rs.3,13,700/- in all  a sum of Rs.3,64,700/-.    The complainant sent a letter to the Commissioner of Police to expedite the investigation on 26.8.2013.    The complainant states that  he sent a detailed reply to all the queries raised by the surveyor on 14.9.2013 pointing out that most of the details had already been furnished and some of the queries seemed to be irrelevant.    The complainant also states that to his shock, he was informed by the first opposite party, vide email dated 27.9.2013 that the claim cannot be entertained in view of the fact that the house was unoccupied for the period exceeding 120 days.   He was also informed that there was no insurance cover for loss or damage to jewellery, cash and watches.     The complainant state that the complainant and his wife returned to Chennai on 7.10.2013.  On 8.10.2013 first opposite party’s surveyor visited the premises and all these details were furnished by the complainant on 15.10.2013.    He received a letter dated 6.11.2013 from the 1^st opposite party rejecting the claim on the ground that the house cannot be treated as occupied.   Accordingly the complainant to issue notice through his counsel calling upon the opposite parties to settle the claim and pay compensation of Rs.5 lakhs for wrongful repudiation and the agony.       As such the act of the opposite parties clearly amounts gross deficiency in service and thereby caused harassment, mental agony  and hardship to the complainant.  Hence the complaint is filed.

3. The brief averments in the Written Version of  the opposite parties    are as follows:

        The opposite parties state that the opposite party denies all the allegations contained in the complaint except those which are specifically admitted herein and this opposite party puts the complainant to strict proof of each and every allegation.   The opposite parties submit that the complainant availed Home secure insurance for the period from 3.4.2012 to 2.4.2014 for insuring Building and contents under various benefits, against various risks, subject to detailed terms and conditions stated therein.   At the time of proposal, the complainant had given a list of contents for value of Rs.10,00,000/- based on which policy was issued.  No other item is deemed covered by the policy.     The complainant also produced the policy schedule alone which clearly specifies that it was issued subject to the policy terms and conditions attached.     The opposite party also state that the benefit of Burglary & Theft issued the Building and contents for a sum of Rs.10,00,000/- it was clearly stipulated that the opposite party will not cover any loss in specific  circumstances as per relevant portion of the policy extracted hereunder from page 18 of the policy “ a) if the loss or damage occurs while your home is unoccupied”.    If the home is accordingly “unoccupied for more than 30 days, the opposite party will not be liable for any Burglary or theft.  

4.     Further the opposite parties submit that the complainant reported a claim for theft of some contents from his Home in August 2013.  The opposite party appointed Surveyor and on verification it was found that the complainant had gone abroad on 13.4.2013 and there was no Family in occupation of the Home.     The opposite party also state  that the claim was clearly inadmissible as it fell within the policy exclusion stipulated under the Burglary & Theft benefit extracted above.   Hence the opposite party declined liability for the claim.   However due to a mistake the clause was mentioned as 120 days instead of the above.    The decision of the opposite party cannot be considered as deficiency in service,  having been taken in good faith, as per terms of the policy.   The opposite parties submits that he complainant had furnished a list of items to be insured at the time of insurance, to arrive at the value of Rs.10,00,000/- for which policy was taken.    However as against claim of Rs.3,15,700/- for items alleged stolen, several items amounting to Rs.2,37,000/- towards valuables and Jewellery were not included in the list furnished at the time of insurance as pointed out by the surveyor.  Hence the claim made by the complainant itself is far beyond the items covered by the policy.   Only items worth Rs.78,700/- was declared for insurance.  Even the same is not payable for the reasons elaborated above.   Hence there is no deficiency in service on the part of the opposite parties   of and therefore this complaint is liable to be dismissed in limine.

5.      In order to prove the averments of the complaint, the complainant had filed proof affidavit as his evidence and documents Ex.A1 to Ex.A27 marked.  Proof affidavit of opposite parties  filed and Ex.B1 to Ex.B4 marked on the side of the opposite parties and also oral arguments let in. 6.   The point for the consideration is:  

 

1. Whether the complainant is entitled to a sum of Rs.3,64,700/- towards the damaged house and loss of articles as prayed for ?
2. Whether the complainant is entitled compensation of Rs.5,00,000/- towards mental agony and a sum of Rs.5,00,000/- towards unfair trade practice  with cost of the complaint as prayed for ?

 

7. POINTS 1 & 2:

        The learned counsel for the complainant contended that this is a case in which the opposite party insurance company repudiated the claim knowing fully that two policies Ex.A1, Ex.A2 and Ex.A5 issued on the same date by the same office  by same person; one  Travel Insurance Policy and another Home Secure policy.  The learned counsel for the complainant contended that the complainant and his wife decided to go Abroad and availed a Home secure insurance policy Ex.A5 for the period 3.4.2013 to 2.4.2014 for assured sum of Rs.85 lakhs.   (Rs.75 lakhs for building and Rs.10 lakhs for its contents)   As per Ex.A6 insurance covered for the entire building and its  contents in that building; similarly the overseas Health Insurance Policy covers the assured amount of Rs.1,50,000/- $ respectively;  for that the complainant paid a sum of Rs.1.20 lakhs towards premium.  Hence it is very clear that after availing the policy of Overseas Heath Insurance Policy and also Home secure Insurance policy the complainant proceeded to Abroad.  The learned counsel for the complainant further contended that the ground floor house was cleaning by a person regularly and their relative visiting every week, which is not denied.  The 1^st floor was occupied by a tenant and the relatives of the complainant and their son also visited the house every Sunday.   Even though there was such due occupation of the house in entirety on 13.8.2013 a burglary was happened and the matter was duly informed to the 1^st opposite party  and a complaint registered between the local police station in 66/ CSR/K4xP8/2013  Ex.A17.   The 1^st opposite party also appointed a surveyor for due enquiry and assessment on 22.8.2013.   Due claim form also submitted to the 1^st opposite party Ex.A11 claiming a sum of Rs.3,64,700/- (Rs.51,000/- towards damages of house Rs.3,13,700/- theft of articles).  The surveyor  also submitted a report Ex.B4 stating that the house was closed for more than 120 days without any authenticated records and proper enquiry.  After perusing the records on the sole basis of surveyor report the opposite party/insurance company repudiated the claim as per Ex.A22.  The learned counsel  for the complainant further contended that the repudiation of the claim by the opposite party/insurance company is against law and it is squarely coming under the purview of unfair trade practice because the opposite party/insurance company issued the  Overseas travel policy as well as Home Secure Insurance policy on the same date for the same person by the same insurance and the property Due premium to the tune of Rs.1.20 lakhs also collected for overseas medi claim policy and Rs.85 lakhs towards the Home Secure Policy.  After issuing such policy on the same day repudiated the claim on the ground that the complainant is out of station and the house was closed and the house was not occupied and suppressing the occupation of tenant in a portion of the building and visitors like Home Secure Makers and relatives is totally against public policy and principle of natural justice amounts to unfair trade practice.  

8.     Further the contention of the learned counsel for the complainant is that the opposite parties raising a flimsy ground that  several articles has not included in the list; is not acceptable because in the home secure policy it is very clear that the entire house building and its contents was duly insured. The learned counsel for complainant cited a decision reported in

1. (2000) 2 Supreme Court Cases 734

MODERN INSULATORS LTD.

..Vs..

ORIENTAL INSURANCE CO. LTD

2. (2009) 9 Supreme Court Cases 159

ORIENTAL INSURANCE COMPANY LIMITED

..Vs..

OZMA SHIPPING COMPANY AND ANOHTER

The learned counsel for the complainant further contended that the complainant is claiming a sum of Rs.3,64,700/- towards damages for  house and articles and a sum of Rs.5,00,000/- towards mental agony and unfair trade practice.  But the learned counsel for the complainant has not substantiated the claim towards mental agony in such manner known to law.      

9.  The learned counsel for the opposite parties contended that admittedly the complainant availed Home Secure Insurance Policy for damages to house and its contents and overseas travel policy for going Abroad with the same Insurance Company by the same office by same persons and paid the premium amount in full.  As per the complainant, house was burgled on 13.8.2013 and there are damages to the building and its contents tune of Rs.34,577/- as per surveyor report and their staff assessment. Further the learned counsel for the opposite parties contended that the claim of Rs.3,64,700/- by the complainant is exorbitant and imaginary.  The loss of such large number of articles has not been listed to the insurance company at the time of availing the policy.  But it is seen from the records that the policy was issued covering the entire building and its contents in full; requires no list of articles.   There shall be no identification of any articles in the house requested specifically.  Further the learned counsel for the opposite parties contended that the damage claimed towards the building is imaginary and exorbitant.   The real value of  damage and its repair has not been explained to the opposite parties.   But it is very clear from the inspection and in the claim form Ex.A11 the damage of Rs.3,64,700/- claimed including estimate of repair charges.   Further the learned counsel for the opposite parties contended that since the complainant locked the door for more than 120 days the insurance company rightly repudiated the claim; but it is seen from policy that the entire building and its contents was insured there was no such restriction also.  The alleged restriction of 120 days is beyond the scope of policy, since both the parties are issued by one and the same office by the same company.    Equally the first floor was occupied by the tenant has not vacated.   Every day sweeper came to the building and cleaned, the relatives of the complainant and their son visited the house every week proves that the building was not closed always and was duly occupied.  Further the learned counsel for the opposite parties contended that the claim towards mental agony and alleged unfair trade practice is imaginary and exorbitant.   Considering the facts and circumstances of the case this Forum is of the considered view that the opposite parties 1 & 2 are jointly and severally liable to pay a sum of Rs.3,64,700/- towards damages to building and other articles and compensation of Rs.25,000/- for mental agony and cost of Rs.5,000/- and points 1 & 2 are answered accordingly.  

In the result, the complaint is  allowed  in part.   The  opposite parties  1 & 2  are jointly and severally liable to pay a sum of Rs.3,64,700/- (Rupees Three lakhs sixty four thousand and seven hundred only)  towards building and other articles and  compensation of Rs.25,000/- (Rupees twenty Five thousand only)  towards mental agony and also cost of Rs.5,000/- (Rupees Five thousand only) to the complainant.     

The above  amount shall be payable within six weeks from the date of receipt of the copy of the order, failing which, the said amounts shall carry interest at the rate of 9% p.a to till the date of payment.       

  Dictated by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the  3^RD day  of  July 2017.  

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainants” side documents:

Ex.A1- 2.4.2015    - Copy of Schedule of Travel Insurance.

Ex.A2- 2.4.2013    - Copy of Schedule of Travel Insurnce.

Ex.A3- 2.4.2013    - Copy of Proposal Form.

Ex.A4- 3.4.2013    - Copy of Premium receipt.

Ex.A5- 3.4.2013

1. - Copy of Home Secure Policy

 

Ex.A6- 18.4.2013  - Copy of Corporate office approval.

Ex.A7-         -       - Copy of email from 1^st opposite party.

Ex.A8- 21.8.2013  - Copy of email from the 1^st opposite party .

Ex.A9- 22.8.2013  - Copy of email from the complainant’s son.

Ex.A10- 26.8.2014  Copy of complainant’s letter to 1^st opposite party.

Ex.A11-   08.2013          -Copy of Claim Form. 

Ex.A12-  26.8.2013 –Copy of complainant’s letter to Asst. Comm. of Police.

Ex.A13- 3.9.2013  - Copy of email from 2^nd opposite party

Ex.A14-       -       - Copy of email from Surveyor to complainant.

Ex.A15- 14.9.2013         - Copy of email from complainant to Surveyor.

Ex.A16- 18.9.2013  - Copy of email from complainant to 1^st opposite party.

Ex.A17- 26.9.2013  - Copy of Police report.

Ex.A18- 27.9.2013         - Copy of email from 1^st opposite party to complainant.

Ex.A19- 10.10.2013 –Copy of repair estimate by Godrej service.

Ex.A20- 11.10.2013 – Copy of Cost of stainless steel items.

Ex.A21-  15.10.2013 –Copy of Estimate given by carpenter.

Ex.A22-  6.11.2013   -Copy of 1^st opposite party’s letter to complainant.

Ex.A23- 20.11.2013  -Copy of letter from Rotary Consumer Guidance Cell to

                                  First opposite party.

Ex.A24- 10.3.2014            -Copy of complainant’s counsel notice.

Ex.A25- 17.4.2014    -Copy of undetectable certificate from Police.

Ex.A26- 7.10.2013            -Copy of email from complainant to opposite party.

Ex.A27- 8.10.2013    -Copy of Hand written note from the Surveyor to the

                                 complainant.  

 

Opposite parties’ side document: -   

Ex.B1- 2.4.2013    - Copy of Proposal with list of household articles.

Ex.B2-         -       - Copy of Insurance policy with terms and conditions.

Ex.B3- 27.8.2013  - Copy of Intimation letter with list of items claimed.

Ex.B4- 31.10.2013         - Copy of Survey Report with enclosures.

 

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.