Tamil Nadu
South Chennai
CC/18/2016
M/s.Lakshminarayanan - Complainant(s)
Versus
SBI General Insurance Co Ltd - Opp.Party(s)
M/s.Indhumathi
30 Jan 2023
ORDER
Date of Complaint Filed : 06.01.2016
Date of Reservation : 12.01.2023
Date of Order : 30.01.2023
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,
CHENNAI (SOUTH), CHENNAI-3.
PRESENT: TMT. B. JIJAA, M.L., : PRESIDENT
THIRU. T.R. SIVAKUMHAR, B.A., B.L., : MEMBER I
THIRU. S. NANDAGOPALAN., B.Sc., MBA., : MEMBER II
CONSUMER COMPLAINT No. 18/2016
MONDAY, THE 30th DAY OF JANUARY 2023
Mr.Lakshmi Narayanan A.P,
Plot No.7, Varadhapuri Nagar,
Thirumudivakkam Post,
Chrompet,
Chennai-600 044
Erumaiyur Village,
Sriperumbudur Taluk,
Kancheepuram District. ... Complainant
..Vs..
1.SBI General Insurance Co. Ltd,
Rep. by its Manager,
Service Branch Office,
New No.64, Old No.149,
Ground & Mezzanine Floors,
Greams Road, Chennai-600006.
2.State Bank of India- RACPC, OMR Chennai,
Rep. by its Asst. General Manager,
Door No.4952,4952A, Third Floor,
Rajiv Gandhi Salai,
Old Mahabalipuram Road,
Perungudi, Chennai-600096. ... Opposite Parties
******
Counsel for the Complainant : M/s. S. Indhumathi
Counsel for the 1st Opposite Party : M/s. M.B. Gopalan Associates
Counsel for the 2nd Opposite Party : M/s. L. Ramkumar
On perusal of records and after having heard the oral arguments of the Counsel for the Opposite Parties, we delivered the following:
ORDER
Pronounced by the President Tmt. B. Jijaa, M.L.,
1. The Complainant has filed this complaint as against the Opposite Parties under section 12 of the Consumer Protection Act, 1986 and prays to direct the Opposite Parties to approve the insurance claim of the Complainant and to pay the damage of Rs.2,10,000/- towards his house building and to pay a sum of Rs.1,00,000/- towards compensation for mental tension and mental agony of the Complainant along with cost.
2. The averments of Complaint in brief are as follows:-
The Complainant submitted that he had constructed the house in Plot No.7, Varadhapuri Nagar, Thirumudivakkam Post, Chromepet, Erumaiyur Village, Sriperumbudur Taluk, Kancheepuram District in June to September 2013 by obtaining loan from the State Bank of India, Pallavaram Branch to the tune of Rs.8,20,000/-. The said house was constructed by the Complainant through a qualified building contractor. The Complainant had spent his hard earned money/ savings and also borrowed loan as aforesaid. The Complainant submitted that the construction of the house was completed in September 2013. Thereafter the representatives of the 1st Opposite Party approached the Complainant and persuaded him to take home insurance coverage for the said constructed building since the same would help in case of unforeseen loss or damage to the building. The Complainant had taken home insurance with the 1st Opposite Party in policy No 0000000001600500 by paying the amount of Rs.3,838/- (one time final premium). The sum insured is Rs.9,42,000/- valid up to 26.02.2028. Due to heavy and abnormal rain on 6.8.2015, a staircase portion in the aforementioned building was heavily damaged, collapsed and sunk inside the earth. Immediately the Complainant lodged a complaint (Claim No.195240) with the customer care of the 1st Opposite Party on 13.8.2015. The 1st Opposite Party has sent an email dated 14.8.2015 stating that one Mr.G.Subash Chandra Bose from Chennai, an IRDA licensed independent surveyor would inspect, evaluate, examine and assess the loss sustained by the Complainant. Thereafter the said Mr.G.Subash Chandra Bose inspected the premises twice on 14.8.2015, and 25.8.2015. Further, as instructed by the said IRDA surveyor, the Complainant had assessed the damages and the reason and causes for the damage, through an independent licensed surveyor and consulting engineer namely Mr.N.Krishnamurthy the engineer inspected the premises on 20.8.2015 and on 27.8.2015 and submitted reports dated 20.8.2015 and 27.8.2015. The said reports were submitted to the licensed surveyor of the 1st Opposite Party. After submission of the survey report to the 1st Opposite Party, there was no response from the 1st Opposite Party. The Complainant has repeatedly followed with the concerned personnel of the 1st Opposite Party. Later, one of the customer care executives of the 1st Opposite Party had called the Complainant over phone and said that the claim of the Complainant has been rejected. But no reason was stated for the said rejection. Also no written communication or any other intimation was given to the Complainant with reference to his grievance. The acts of the Opposite Parties in rejecting the claim of the Complainant without lawful reasons amounts to unfair trade practice and also gross deficiency in service. The Complainant therefore sent a legal notice dated 8.9.2015 through his counsel. The notice was received by the Opposite Parties. The Opposite Parties even after receiving the notice have neither replied nor settled the amount. Hence the complaint.
3. Written Version filed by the 1st Opposite Party in brief is as follows:-
The Complainant availed a "Long Term Home Insurance Policy bearing No. 0000000001600500 on 28.02.2014 covering the premises in Plot No. 7, Sri Varadha Puri Nagar, Near Kishkintha, Tambaram for a total Sum Insured of Rs.9,42,000/- against Standard Fire & Special Perils as stipulated in the terms and conditions of the Policy filed by the Complainant himself. The Policy of insurance is to be strictly construed in order to determine admissibility of any claim that may be made under the same. In the event of any claim it is incumbent upon the Insured/Complainant to establish that it suffered a loss due to occurrence of insured peril during the period of insurance at an insured location. In the present case, neither at the stage of the claim, nor in the present complaint, has the Complainant stated which risk of the Policy covers the damage to the staircase of his house for which clam was made. The fundamental burden of proof is upon the Complainant to unequivocally establish such loss and cause thereof within the scope of the Policy which the Complainant has miserably failed to establish. For this very reason the claim of the Complainant is untenable and liable to be rejected. On 13.08.2015, the Complainant reported a claim for damage to staircase of the insured premises. Immediately the Opposite Party had appointed Mr.G.Subash Chandra Bose, an independent Surveyor duly licensed by Insurance Regulatory & Development Authority for the purpose of survey and the Surveyor conducted inspection on 14.08.2015 and 24.08.2015 during which thorough inspection was made to verify, inter alia, the extent of cause of damage. The Surveyor ultimately submitted Survey Report dated 31.08.2015. In addition to Survey, the Complainant was required to submit Claim Form and supporting documents to substantiate the validity of the claim. The Complainant submitted Claim Form and Estimate/opinion of one Mr.N.Krishnamurthy a Civil Engineer regarding the cause of damage.
The Opposite Party therefore, after thorough examination of the claim repudiated liability and duly communicated by letter dated 20.10.2015 sent by Registered Post to the Complainant's address mentioned in the Policy. The allegation in the complaint as if there was no decision communicated on the Complainant's is absolutely false. It has dealt with the claim without delay and in the absence of any loss/damage due to an insured peril, the claim has been duly repudiated and intimated without delay to the Complainant. The conduct of the Opposite Party and the repudiation of claim in such circumstances cannot be construed as deficiency in service. Hence prayed to dismiss the complaint.
4. Written Version filed by the 2nd Opposite Party in brief is as follows:-
The Complainant had taken a "Long Term Home" Policy from the 1st Opposite Party vide a Policy bearing No.0000000001600500 on 28.02.2014. The period of the said policy is 14 years commencing from 27.02.2014 to 26.02.2028(Midnight). The sum insured by the complainant was Rs.9,42,000/- and as per the policy this Opposite Party is an Intermediary. As per the terms of the said insurance policy, if there is any money that has become payable by the 1st Opposite Party in the event of claim from the complainant the same be honoured by the 1st Opposite Party. At the same time if there is any default in payments to this Opposite Party by the Complainant then the 1st Opposite Party shall pay such money that has become payable under the policy directly to this Opposite Party. If at all any money remains after adjusting the dues of this Opposite Party, then the same shall be credited to the account of the Complainant. All such payments made by 1st Opposite Party to this Opposite Party shall be in full discharge of their liability to make any payments to the claimant under the policy. It is submitted that the claimant defaulted in paying the EMI's for the months of January and February 2016. In such a situation it is understood that the claimant has made a claim with the 1st Opposite Party and certain sum has become payable to the claimant by the 1st Opposite Party under the above mentioned policy pursuant to the claim made by the Claimant. As there was a due of two months EMI's by the complainant to this Opposite Party, this Opposite Party was entitled to receive under the terms of the above mentioned policy such sum that had become due and payable by the complainant to this Opposite Party from the 1st Opposite Party. Therefore this Opposite Party made a claim with the 1st Opposite Party and pursuant thereto the 1st Opposite Party had credited a sum of Rs.1,32,652/- with this Opposite Party on 15.02.2016. This Opposite Party after adjusting the EMI's payable for the months of January and February 2016 on 19.02.2016 and the balance of a sum of Rs.1,14,948/- was credited to the claimants Saving Account bearing No 10565363592. After crediting the said sum of Rs.17,704/- to the complainant's loan account the complainant's loan account was regularised. The 1st Opposite Party and the 2nd Opposite Party are two distinct companies and each of them cannot overlap the obligations or functions of the other. There is absolutely no obligation cast upon the 2nd Opposite Party to compensate the complainant under the above mentioned policy towards the alleged damages said to have been suffered by him. The 2nd Opposite Party issued a reply dated 08.03.2016 through their counsel in response to the notice issued by the Complainant. The 2nd Opposite Party has clearly narrated all the facts in the reply and inspite of the same adding this Opposite Party in the above case is only with a view to arm twist and extort money from them. Hence prayed to dismiss the complaint.
5.The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents were marked as Ex.A-1 to Ex.A-11.
The Opposite Parties submitted its Proof Affidavit and Written Arguments. On the side of 1st Opposite Party no documents was marked and on the side of 2nd Opposite Party documents were marked as Ex.B-1 to Ex.B-3.
Points for Consideration:-
1. Whether there is deficiency in service on the part of the Opposite Parties?
2. Whether the Complainant is entitled for reliefs claimed?
3. To what other reliefs the Complainant is entitled to?
Point No.1:-
The undisputed facts are that the Complainant had put up construction of house of plot No.7, Varadhapuri Nagar, Thirumudivakkam Post, Chrompet, Erumaiyur Village, Sriperumbudur Taluk, Kancheepuram District by obtaining loan from the State Bank of India and necessary planning permit was also obtained. It is was also not in dispute that the Complainant had taken home insurance policy with the 1st Opposite Party. The dispute arose when the staircase of the house was collapsed due to heavy rains and the claim of the Complainant was rejected by the 1st Opposite Party.
The Complainant had taken home insurance policy bearing No.0000000001600500 which is valid for the period From 27.02.2014 to 26.02.2028 covering Standard Fire And Special Perils. According to the Complainant due to heavy rains on 06.08.2015 the stair case of his house was damaged, collapsed and sunk inside the earth, and that he had lodged a claim to the 1st Opposite Party. The 1st Opposite Party informed by email dated 14.08.2015 that one Mr.G.Subash Chandra Bose, an IRDA licensed independent surveyor would inspect and assess loss of the building.
According to the Complainant his house is covered under the insurance Policy and the damage caused to the building is assessed of Rs.2,10,000/- which the Opposite Parties are liable to provide to the Complainant. However the 1st Opposite Party contended that the staircase portion of the building belonging to the complainant was not damaged or collapsed due to heavy rains as there was no heavy rains on 06.08.2015 as alleged by the Complainant but due to stagnation of water and deposit of lift due to flow of water, which circumstances would not bring under the coverage of policy.
The contention of the 2nd Opposite Party is that the Complainant had availed loan from the 2nd Opposite Party vide Loan Account No.33014161628 agreeing to repay the same in equated monthly instalment of Rs.8852/-. The Complainant had taken Long Term Home Insurance Policy from the 1st Opposite Party for a period of 14 years from 27.02.2014 to 26.02.2028 and the sum insured is Rs.9,42,000/-. The Complainant had made a claim with the 1st Opposite Party and certain sum became payable to the Complainant by the 1st Opposite Party. As the Complainant had defaulted in payment of EMIs for the months of January and February 2016, the 2nd Opposite Party had made a claim to the 1st Opposite Party and pursuant there to the 1st Opposite Party had credited a sum of Rs.1,32,652/- with the 2nd Opposite Party on 15.02.2016, which the 2nd Opposite Party after adjusting the EMI’s payable had credited the balance amount of Rs.1,14,948/- to the Savings Account of the Complainant on 19.02.2016 as evident from Ex.B-3.
The 2nd Opposite Party further contended that the 1st and 2nd Opposite Parties are 2 different entities, there is no obligation on the 2nd Opposite Party to compensated, the Complainant order the insurance policy towards the allegation damages suffered by the Complainant.
The surveyor of the 1st Opposite Party had inspected the house and submitted his survey report dated 31.08.2015, Ex.B1 clause VII of the Survey Report is extracted hereunder.
“The cause of loss/damage to the staircase is due to the loose nature of the soil. The bed of the foundation actually lies at 12 feet, however the house is constructed in the loose soil at 7 feet. Since the bed is at 12 feet below the ground level and the house foundation is laid only up to 7 feet without using pile foundation, the soil beneath the construction was still kept loose and susceptible to further damage due to soil movement beneath the house.
The Builder in his letter dated 27 August 2015 has mentioned that the house is located in a low lying area and in the path of the Adyar River. Hence the silt from the river gets deposited in this place and the natural bed is formed at 12 feet from the existing ground level. Due to this gradual process of silt formation, deep piles are necessary for any structure to stand firm in its place. Since the Insured's house was not constructed using deep piles foundation, the sinking of the staircase structure has occurred. Hence the cause of loss/damage to the staircase is due to the movement of the loose soil. The insured informed that there was rain on the date of loss, however there was no damage to the building due to the rain or due to act of any of the Insured perils”.
Further the Complainant had assessed the damages through an independent licensed Surveyor Mr.N.Krishnamoorthy who had inspected the premises and submitted reports dated 20.08.2015 and 27.08.2015, Exs.A-7 and A-8. The reasoning given by the Licensed Surveyor Mr.N.Krishnamoorthy is as follows:
“The site is located in an inundated area( trough of catchment area of Adyar river). In rainy days the storm water from vandalur hills, Kannadapalayam hills (upto guduvanchery) flow through this area before entering the Adyar river. This water stagnates for one or two months In this low lying area before entering the Adyar river. Due to this process the silt deposition is enormous. The natural bed will be 10 to 12 feet from the existing ground level.
Due to this process, driving of deep piles is necessary for any structure, even for ordinary building (ground + first floor). If it is an ordinary foundation (stepped footing and column footing) the structure will sink due to poor soil strength. This is the reason for the sinking of existing staircase structure”.
On considering the facts and circumstances of the case, it is clear that during the subsistence of the Insurance Policy damage to the Stair Case of the building has occurred. However as per the Surveyor Report Ex.B-1 the damage to the staircase was due to construction of house in the loose soil at 7 feet, where the house located in the low lying area and in the path of Adyar River and nature bed is formed at 12 feet from the ground level and that deep pillar are necessary for any structure to stand firm in its place. Even according to the Complainant’s independent Surveyor Report, as the site is located in the catchment area of Adyar river water stagnation is for one or two months in rainy days forming silt deposits of 10 to 12 feet from the ground level and that sinking of the staircase was due to poor soil strength.
As per the Insurance Policy loss or destruction directly caused due to flood or inundation is alone covered under the policy. Further as per clause 8, the normal cracking, settlement or bedding down of new structures are excluded under the Policy.
Hence from the above discussions, this Commission is of the considered view that damage to the staircase claimed by Complainant was not covered under the insured perils mentioned in the Policy and hence the 1st Opposite Party was right in rejecting the claim of the Complainant. As the 2nd Opposite Party is not under any obligation to compensate the Complainant under the insurance Policy availed with the 1st Opposite Party, the 2nd Opposite Party cannot be held liable for deficiency in service. Accordingly Point No.1 is answered against the Complainant.
Point Nos.2 and 3:
As discussed and decided in Point No.1 that the Opposite Parties had not committed deficiency in service, the Complainant is not liable for the reliefs claimed or for any other relief(s). Accordingly Point Nos. 2 and 3 are answered.
In the result the complaint is dismissed. No costs.
Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 30th of January 2023.
S. NANDAGOPALAN T.R. SIVAKUMHAR B.JIJAA
MEMBER II MEMBER I PRESIDENT
List of documents filed on the side of the Complainant:-
Ex.A1 | 21.01.2013 | Copy of Home Loan Agreement letter between the Complainant and the Opposite Parties |
Ex.A2 | 24.05.2013 | Operations letter |
Ex.A3 | 25.05.2013 | Confirmation letter in HTL 33014161628 |
Ex.A4 | 28.02.2014 | Copy of Insurance Policy in 0000000001600500 |
Ex.A5 | 16.07.2014 | Planning permit |
Ex.A6 | 16.07.2014 | Proceedings of the Panchay at office |
Ex.A7 | 20.08.2015 | IRDA Surveyor’s Report |
Ex.A8 | 27.08.2015 | IRDA Surveyor’s Report |
Ex.A9 | 08.09.2015 | Legal Notice issued by the Complainant |
Ex.A10 | 14.09.2015 | Reply for Ombudsman |
Ex.A11 | 20.12.2015 | Photographs |
List of documents filed on the side of the 2nd Opposite Party:-
Ex.B1 | 31.08.2015 | Survey Report with enclosures |
Ex.B2 | 20.10.2015 | Repudiation letter with postal receipts |
Ex.B3 | 27.04.2016 | Statement of Accounts |
S. NANDAGOPALAN T.R. SIVAKUMHAR B.JIJAA
MEMBER II MEMBER I PRESIDENT
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