Order-14.

Date-26/04/2016.

This is an application u/s.12 of the C.P. Act, 1986.

          In brief, the complainant’s case is that the complainant is a bona fide policy holder and a valid customer having Customer ID No.0000000000551890 and his Policy No.00000000004888841 of the OP SBI General Insurance Company Ltd. and it is significant to mention that as per the Designation of property Clause in insurance policy which contains that .Insurance company agreed to accept the designation of property which has been entered into Insured’s Book. that means the property is in insurable status/order.  OP issued that policy against premium of Rs.5,074/- which is one time premium after fulfilling the mandatory formalities of local inspection in favour of the complainant prior to the construction for his newly constructed building at New Town, Bidhannagar Municipal Corporation, Narayanpur, Kolkata – 700 136 and the aforesaid premium is being issued on the insurance and/or indemnity against any sorts of damage of the building upto which 09-10-2027 from the date of completion of the building which means that the said building is covered under the policy for any damaged under any circumstances and/or special peril and the policy is valid upto 09-10-2027 and this insurance company is liable to pay during this period if any damage occurred with this insured building for any reason or whatsoever.

          On 18-07-2014 complainant lodged his 1^st complain to OP after locating some cracks over the wall of the said building which may occur due to heavy rain in October, 2013 during Durga Puja and afterwards due to earthquake and OP pleased to send one Mr. Tirthankar Mukherjee, who represented him as authorized surveyor but not paid the claim amount and even no survey report is served to the complainant and by their letter dated 23-07-2015 they said . you could not evince operation of a covered peril and the damages as come across in the building entirely standing on an unapproachable low lying wet land, were structural/design/construction related only.  The building in question indicates every chance of cracks/fractures due to a natural building settlement and weakening of foundation.  After inspecting .This ground of refusal is barred by legal principal or estoppels and res judicata since the insurance company has already issued policy on this project.

          As per IRDA rules/laws before acceptance and/or issuance f any insurance policy the insurance company have to satisfy about the viability/legitimacy/logical/commercial/economical aspect before issuance of any policy in any segment whatsoever and here Insurance company is duty bound to observe all such queries on the aforesaid aspect before sanctioning the insurance policy in respect of House and building at the first instance, so, the plea of land on which the building is erected/constructed in unapproachable low land cannot be taken after insurance policy.  Because of faulty policy of Management, that every borrower must have a insurance policy to avail loan facility became unwritten practice for said SBI group, they are trying to avoid the settle the genuine claim on any fictitious concocted reasons, their only interest to sell such insurance policy to those person who are badly in need of house loan but when time come to give effect of such policy terms the insurance company for any reasons declined to honour such bona fide claim which is illegal, arbitrary and for such inaction of the OP complainant filed this case praying for repairing charges, compensation cost etc. and other relief as the Ld. Forum may deem fit and proper.

          On the other hand OP by filing written statement submitted that complainant purchased one Long Term Home Insurance policy vide policy no.488841 which is valid from 10-10-2012 at 10.27 hrs to 09-10-2027 midnight and the said property was hypothecated to SBI, RACPC Bidhannagar Ultadanga Branch. 

          Complainant lodged his first claim on18-07-2014 and Mr. Tirthankar Mukherjee, an independent Surveyor licensed by IRDA was appointed for survey the area of claim.  But the licenses surveyor of IRDA has formed his opinion on the claim strictly on the basis of his physical verification and findings as have been apparent on the day of survey only and there was no evidence of any natural peril either at the time of survey.  The findings of the final survey report from the concerned surveyor on careful scrutiny vis-a-vis terms and conditions of the policy is –

1. The claim for leaving all relevant portions like date, time of loss, cause of damages etc. blank.  As observed during survey, complainant was not in a position to specifically highlight any these aspect to the surveyor.  In his own written declaration the insured Pradip Kumar Pal herein complainant wrote to the surveyor that rains and water logging in October, 2013 that too showing as ‘expected’. Not and sure of such an event during October, 2013.  He further went that he had been feeling that Earthquake might have struck his newly constructed building at that time.  All these show that he was neither aware of any natural calamity nor such thing had such events any effect on his premises.
2. The complainant further submitted a few news paper clippings which report about Earthquake in Delhi NCR Kolkata West Bengal on 21-05-2014 and have categorically confirmed that it was not high and there were no reports of any damage/casualty from Kolkata/West Bengal.  As per considered opinion of the licensed Surveyor type of damages (line of cracks) internal floors, walls as seen by them, could not be due to any storm/inundation and furthermore, the place or say, the City has no record of any Seizable rains/inundations in October, 2013 and were found to be routine structural ones, not covered under a Long Term Home Insurance Policy. 
3. That after considering the statement of the insured and going by it that there was inundation in October, 2013 the claim is intimated to insurer after more than nine months without allowing proper and sufficient opportunity for insurer or the surveyor to verify facts and circumstances of any incident, event, whatsoever.  This amounted to violation of the relevant condition of policy which read as under General Condition No.6. 

Therefore, the 1^st claim of the insured Pradip Kumar Pal was repudiated by letter dated 22-12-2014.

          Thereafter on 06-05-2015 complainant lodged his 2^nd claim for home insurance and that time also surveyor submitted his final investigation report and the concerned surveyor on careful scrutiny vis-a-vis terms and conditions of the policy is ,

1. After a detailed physical verification, the deputed Surveyor is of considered opinion that the damages now exhibited and stated to be due to Earthquake on 25-04-2015 by the complainant were not fresh ones, not attributable to Earthquake from its nature/type and rather these were the same old ones, which were exhibited by the complainant during previous survey of the same premises during July, 2014 in response to his claim dated 18-07-2014.
2. The complainant referred to his previous claim of July, 2014 in the Home Insurance Claim Forum submitted to the Surveyor and stated that the damages/defects had occurred were since October, 2013.  The surveyor was of firm view that there were no new damages to the building this time except those which were already show to him during his previous survey.  As per his independent opinion, the complainant has shown the damages in a bid to cash his policy in an even of Earthquake.
3. In addition, the concerned Surveyor held a detailed local probe as to the alleged earthquake in the locality of the insured premises but there was no findings or evidence of damages due to earthquake in the locality.  According to him, for a building perennially standing on a low lying wet land, the root cause of all damages may be faulty design.
4. As per Surveyor’s recommendation entire damages, as seen by him during his recent inspection were old and accumulated ones not triggered by any recent insured occurrence including earthquake as alleged and damages being claimed were not payable.

Hence, the second claim also repudiated by letter dated 23-07-2015 and thereafter the third claim also repudiated on the same ground.

          OP further stated that company is not liable to pay for normal cracking, settlement or bedding down of new structures as per Clause 8 of the terms and conditions.  Therefore, the complainant is not entitled to any claim for which OP prayed for dismissal of this case.

Decision with Reasons

On proper evaluation of the complaint and the written version and also considering the fact that complainant is no doubt an insured under OP in respect of the premises and complainant’s claim is that there was inundation on October, 2013 but fact remains, complainant intimated the insurer after more than 9 months without writing proper and sufficient particular to the insurer or the surveyor to verify the facts and circumstances of that alleged incident.  Considering that fact it is clear that as per general condition no.6 complainant is compelled to report the matter/event within 14 days of alleged inundation in October, 2013 and as per General Condition No.6 it is the mandatory on the part of the insured to report on the happening of any loss or damage by giving notice thereof to the companies and shall within 15 days after the loss or damage caused to the insured and no doubt the cause for delay in filing such information after lapse of 9 months as per claim of the complainant is not explained but OP engaged surveyor and as per surveyor’s report the claim was repudiated on 22-12-2014 and that was reported to the complainant.  Fact remains, thereafter, complainant lodged 2^nd claim on 06-05-2015 and that claim was taken up again appointed independent surveyor who inspected the premises at Hatiara Narayanpur, New Town on 10-05-2015 and during survey in presence of the complainant the surveyor examined the defects or damages of the building as exhibited to him and that those defect or damages occurred due to earthquake as claimed by the complainant but surveyor on close scrutiny of the topography or surrounding of the building and found that the place is mostly uninhabited and constructed on low lying, marshy patch prone to the natural subsidence and consequent faults in the structure and the surveyor submitted his final investigation report and on a detailed physical verification the surveyor passed his opinion that the damages now exhibited and stated to be due to Earth       quake on 25-04-2015 by the complainant was not fresh one so not attributable to earthquake from its nature or type rather that was the same old ones which was exhibited by the complainant during previous survey of the same premises during July 2014 in response to his claim dated 18-07-2014.

          Surveyor also held a detailed local probe as to the alleged earthquake in the locality of the insured premises but there was no findings or evidence of damages due to earthquake in the locality.  According to surveyor for a building perennially standing on a low lying wet land the root cause of all damages may be faulty design, so that, the 2^nd claim was repudiated on 23-07-2015.

          Subsequently, complainant again lodged 3^rd claim, 3^rd claim was taken up for survey and another surveyor Sri Chandan Sen was deputed, he opined that building is being on an unapproachable wet patch with water all around was quite prone to natural subsidence and ongoing structural deformity and after inspection the surveyor concluded his findings and in that case also surveyor observed that the building was not as per approved plan based on which the bank loan was sanctioned.  Thus, the structure was not in line with the approved plan nor confirmed to the safeguards taken in the plan and as per surveyor’s report that claim was also repudiated vide letter dated 23-07-2015.

          So, considering the surveyors’ reports and repudiation it is clear that as per policy condition, insurance company is not liable to pay for normal cracking, settlement or bedding down of new structures as per Clause 8 of the terms and conditions.  So, apparently it is found that in the three occasions different BE Engineers surveyors were appointed and they observed same opinion that it was not caused due to earthquake but that damage was caused due to construction of the said building beyond the sanctioned plan which was submitted by the complainant at the time of taking loan.

          Further it is found that there was no question of any doubt to any earthquake and there was all other houses surrounding the place were found intact position, only in this building several cracks were found in view of the fact that the building was not based on approved plan on which the bank loan was sanctioned and the structure was not in line with the approved plan nor confirmed to the safeguards taken in the plan.  Considering that fact we are convinced to hold that there is sufficient ground to believe that the damage or loss caused to the said building was not for any earthquake or for any natural calamities but it was damaged due to construction of the said building beyond the approved sanctioned plan and moreover, the building was constructed on low land wet patch with all around water which is quite prone to natural subsidence and ongoing structural deformity when that is the fact then invariably three reports of three surveyors confirmed that the damages was not due to earthquake not only that the incident alleged to have been taken place in the month of October, 2013.  First claim was made by intimating the incident after lapse of 9 months but cause of delay was not explained, thereafter, 2^nd claim was further re-investigated by surveyor, he also passed such opinion that the damage was not caused due to earthquake and no earthquake was held on that time and, moreover, the surrounding houses was not found damaged by so called earthquake. 

          So, considering all the above facts, it is clear that complainant has failed to prove by any cogent evidence the cause for delay for filing such claim i.e. after lapse of 9 months after alleged date of incident and first such claim was repudiated on 22-12-2014, 2^nd claim was repudiated on 23-07-2015 and lastly 3^rd claim was also repudiate on same ground on 23-07-2015.

          Considering all the reports of the surveyors it is found in all the cases it is proved that it was caused not for any earthquake and there was no proof that there is any earthquake took place in the month of October, 2013.  On the contrary, it is proved that entire damage was caused due to construction of the building violating the sanctioned plan which plan was submitted by the complainant to the Bank at the time of taking loan and it is also proved that the structure was not in line with the approved plan nor confirmed to the safeguards taken in the plan.  Further the said building was constructed on unapproachable wet, patch with water all round and is quite prone to natural substances and ongoing structural deformity.  No doubt the OP insurance company after considering all the reports of the surveyors time to time and also considering the material facts rightly repudiated the same and at the same time it is also proved that the incident took place in the month of October, 2013 but after delay of 9 months it was informed and claim was submitted.

          Moreover, condition had been printed in the policy bond but complainant did not report damages after incident so, in fact by present case delay of 9 months never be condoned particularly when insurance company had been debarred to see the actual cause at that very time and to investigate by the matter invested by some surveyors to assess loss at that point of time but in the present case insurance company gave all help to the complainant deputed three surveyors on three occasions and all the surveyors came to a conclusion that the damage was not caused due to earthquake but on the contrary complainant had violated the general condition No.6 of the policy and at the same time as per Clause 8 (Subsidence and Landslide including Rock slide) complainant is not entitled to any claim.

          In view of the above and also relying upon the ruling reported in I(2012) CPJ 31 we are convinced to hold that the detailed terms and conditions of the policy are binding upon both the parties and for non-compliance of the terms and condition of the policy, particularly, the norms of 6 and 8 complainant is not entitled to get any relief and at the same time the delay in filing the claim after 9 months from the date of happening has not been explained and for which the present complaint fails also on the ground that OP insurance company relying upon the reports, documents and also applying their judicial mind repudiated the claim rightly, for which the complaint fails.

Hence,

Ordered

That the case be and the same is dismissed on contest against the OP but without any cost.