Chandigarh

DF-I

CC/205/2019

Dr. O.P. Sihag - Complainant(s)

Versus

SBI General Insurance Co. Ltd. - Opp.Party(s)

In Person

01 Dec 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

 

                    

Consumer Complaint No.	:	CC/205/2019
Date of Institution	:	28/03/2019
Date of Decision	:	01.12.2022

 

Dr.O.P.Sihag, Resident of House No.933, Sector 7B, Chandigarh-160019.

… Complainant

V E R S U S

1.   SBI General Insurance Co. Ltd., 1^st & 2^nd Floor, SCO 335-336, Sector 35-B, Chandigarh-160022 through its Manager.

2.   State Bank of India, earlier State Bank of Patiala, Rambagh Road, Kalka Branch, Kalka (Haryana) through its Manager.  

… Opposite Parties

CORAM :	PAWANJIT SINGH	PRESIDENT
	SURJEET KAUR	MEMBER
	SURESH KUMAR SARDANA	MEMBER

                        

ARGUED BY		Complainant in person.
		Sh. Gaurav Bhardwaj, Vice Counsel for Sh.Inderjit Singh, Counel for OP No.1 Sh.Raj Kumar, Vice Counsel for Sh.K.S.Arya, Counsel for OP No.2.

Per Suresh Kumar Sardana, Member

1.      As per complainant, in the insured part of his house, the lower retaining wall collapsed on 07.08.2018 and the intimation about the same was given to the SBI General Insurance Co. Ltd. (OP No.1) on 08.08.2018 through customer care email ID. The surveyor, Sh.Mukesh Mahajan, visited the site on 11.08.2018 and he was told everything including the use of Iron in the retaining wall for reinforcement. The 2^nd retaining wall also collapsed in the mid night on 15.08.2018 and the same was intimated to the OP No.1 on 16.08.2018. After confirming he sent mail on 16.08.2018. The official got convinced and the surveyor was sent for the inspection of 2^nd retaining wall. The two retaining walls were reconstructed as per the guidelines of the surveyor and the two estimates, one of Rs.310254/- for lower retaining wall against claim No.548203 and the other of Rs.79572/- for upper retaining wall against claim No.565623, prepared by the qualified Engineer were also submitted to the surveyor as per the requirement. The two bills, one of Rs.290015/- against estimated amount of Rs.310254/- for lower retaining wall in respect of claim No.548203 and the other of Rs.105944/- against the estimated amount of Rs.79572/- for upper retaining wall in respect of claim No.565623, were submitted to the surveyor on 16.10.2018 after completion of the reconstruction of the two retaining walls. In case of claim of lower retaining wall claim of Rs.290015/- against the estimated amount of Rs.310254/- the surveyor deducted, Rs.9960.09 for the use of iron, Rs.83444.49 i.e. 35.50% of considered claim for the average clause and Rs.45,000/-as expenditure on removal of debris rendering  the amount only to Rs.1516 for removal of debris. The deduction of claimed amount of Rs.9960.09/- out of Rs.13060/- vide bill dated 08.08.2018 is illogical. It is further submitted that the photo of the iron as desired by Sh. Mukesh Mahajan was sent to the surveyor’s mail ID on 12.08.2018. The iron weighing 198.60kg along with 1kg MS wire was used in the steps of retaining wall.  The iron weighing nearly 30KG was obtained from the debris of collapsed retaining wall used in the joints of old retaining wall was also reused along with some new iron in the joints of three blocks of retaining wall to strengthen it.  Hence, the amount spent on iron is justified and deserves to be refunded. Regarding the deduction of RS.83444.49 i.e. 35.50% of the considered claim as average clause, this deduction is because of under insurance of the house i.e. the house has been got insured for Rs.2500000/- which is 35.50% less than actual value of Rs.3875700/- (excluding plot value). It means the house cost the complainant of Rs.2500000/- in 2007. If the house has been got under insured by the bank or under insured by the insurance company then one of them is responsible as complainant was never consulted in this regard. The deduction of Rs.83444.49/- the 35.50% of the considered claim is arbitrary and illegal and the same is refundable to it by the Bank or the insurance company. Hence, the complainant filed the said complaint. 
2.      In its written statement the OP No.1 while admitting the factual matrix of the case stated that the complainant is alleging deficiency of insurance company in two different claims without taking any prior permission to adjudicate the same in single complaint from this Hon’ble Court. It is further submitted that cause of action, date of loss, quantum of claim and circumstances of each claim are different in nature and it requires separate adjudication of each claim. It is also submitted that upon receipt of claim intimation of claims, the insurance company immediately appointed an IRDA approved surveyor twice for making an assessment of loss to the complainant who prepared the assessment of loss in accordance with policy terms and conditions by applying necessary clauses of insurance contract and others necessary conditions relevant to the claims of the complainant. The complainant is trying to take excessive amount of debris in both the claims despite knowing the fact that the claim amount for debris is limited up to 1% of admissible claim amount as per the terms and conditions of insurance of contract. It is submitted that the complainant has prepared huge and excessive amount for removal of debris from the spot so as to take extra claim amount from the insurance company. Moreover, it is further submitted that surveyor after going through each part of the policy document has assessed 1% of admissible claim amount for removal of debris from the spot as per policy terms and conditions. Denying all other allegations leveled in the complaint it is prayed that the complaint be dismissed.
3.  In its written statement OP No.2 stated that the documents placed on record, undoubtedly prove that the complainant alongwith wife approached the Bank for financial assistance primarily for the purchase of property and thereafter for the construction of the same for their use and benefits. After considering their demands, housing loan for purchase of the plot was sanctioned and granted to the tune of Rs.6.25 lakhs on 9.12.2005 and thereafter, housing loan for construction was sanctioned and granted to the tune of Rs.13.75 lakhs on 10.08.2006. The loan documents were duly executed by the borrowers in this regards, whereby acknowledging and agreeing upon various terms and conditions. The OP Bank had only acted accordingly to the agreed terms and conditions and under the circumstances, the instant complaint is not maintainable before this Hon’ble Commission and deserves to be dismissed. The complainant is also bad for non-joinder and misjoinder of necessary parties. The wife of the complainant had also been one of the borrowers who has not come into this complaint, hence no grievances to her. It is also submitted that the complainant availed the housing loans from the branch of OP Bank at Kalka. The loan accounts were adjusted and finally closed at Kalka. The property purchased and constructed with the help of finances from the OP Bank at Parwanoo. The claim of insurance lodged qua the property situated at Parwanoo.  The alleged dispute, if any, arose at Parwanoo. Whereas the complainant had lodged the instant complaint at Chandigarh. All other allegations made in the complaint against the OP No.2 have been denied being wrong.  A prayer for dismissal of the complaint has been made.
4.      Rejoinder was filed and averments made in the consumer complaint were reiterated.
5.      Contesting parties led evidence by way of affidavits and documents.
6.      We have heard the learned counsel for the contesting parties and gone through the record of the case.
7.      We have perused the Annexure OP-1, which contain the terms of policy. The relevant part of agreed terms is as under:-

          “Specific Exclusion

          This section does not cover

          4. Expenses necessarily incurred on (i) Architects, Surveyors and Consulting Engineer’s Fees and(ii) Debris Removal by the insured Consulting Engineer’s Fees and (ii) Debris Removal by the insured following a loss, destruction or damage to the Property insured by an insured peril in excess of 3% and 1% of the claim amount respectively.”

         Thus, it is crystal clear that liability of insurance company for removal of debris cannot be more than 1% of admissible claim amount and therefore, the claim on account of removal of debris has been rightly restricted by the OP No.1 to the extent of 1% of the claim amount.

8.     Now we proceed to pursue the second point regarding reduction of claim amount by 35.5%. We have perused the terms of policy; we do not find any mention of average clause in the insurance policy. The terms of the policy are very important. It is a contract between the parties. Both the parties are expected to abide by the terms of insurance. In United Insurance Co. Ltd. vs. Harchand Rai Chandan Lal, AIR 2004 SC 4974, Hon'ble Supreme Court in para 13 observed that, "It is settled law that terms of the policy shall govern the contract between the parties, they have to abide by the definition given therein and all those expressions appearing in the policy should be interpreted with reference to the terms of policy and not with reference to the definition given in other laws. It is a matter of contract and in terms of the contract the relation of the parties shall abide and it is presumed that when the parties have entered into a contract of insurance with their eyes wide open, they cannot rely on definition given in other enactment."

         We are at loss to understand as to why did not the insurance company insure the house as per their present calculation at the time of insuring the house? When the claim was presented for release of the loss, the OP No.1 deducted an excessive amount of Rs.83444 + 23920 =107364/-. We are of the view that the value of house for insurance lays the upper limit of the claim to be reimbursed. If the house was insured for Rs.25 lac then the upper limit for claim would be Rs.25 lac and it cannot go beyond Rs.25 lac like 38.76 lac even if there is complete loss of the house. Hence we are of the view that the OP No.1 have illegally deducted an amount of Rs.83444 + Rs.23920 = Rs.107364/- and hence has indulged in unfair trade practice, which has caused loss to the complainant & caused immense mental agony & harassment & needs to be compensated for the same.

9.     In view of the above discussion, the present consumer complaint deserves to be allowed and the same is accordingly allowed. OP No.1 is directed as under :-

1. to pay Rs.1,07,364/- to the complainant with an interest @ 9% p.a. from the date of filing of this complaint till realization.
2. to pay an amount of Rs.7000/- to the complainant towards compensation.
3.  to pay an amount of Rs.5000/- towards litigation costs.

10.     Since no deficiency in service or unfair trade practice has been proved against OP No.2, therefore, the consumer complaint qua it stands dismissed with no order as to costs.
11.     This order be complied with by the OP No.1 within thirty days from the date of receipt of its certified copy, failing which, it shall make the payment of the amounts mentioned at Sr.No.(i)&(ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
12.     Certified copies of this order be sent to the parties free of charge. The file be consigned

			Sd/-
			[Pawanjit Singh]
			President
			Sd/-
			[Surjeet Kaur]
			Member
Ls			Sd/-
			[Suresh Kumar Sardana]
			Member