Haryana

Karnal

CC/250/2022

Balwant Singh - Complainant(s)

Versus

SBI General Insurance Company Limited - Opp.Party(s)

Jagmal Singh Mandhan

22 Aug 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

                                                        Complaint No. 250 of 2022

                                                        Date of instt.27.04.2022

                                                        Date of Decision:22.08.2023

 

 

Balwant Singh aged about 65 years son of Shri Amar Singh, resident of Village Rindal, Tehsil and District Karnal.

 

                                               …….Complainant.

                                              Versus

 

1.     SBI General Insurance Co. Ltd. Regd & Corp. Office at “Natraj” 301, Junction of Western Express Highway & Andheri Kurla Road, Andheri (East), Mumbai-400069.

 

2.     SBI General Insurance Co. Ltd. Branch Office, at Ist Floor, BD International SCO No.388-389, Karan Commercial Complex, Near Guru Harkishan School, Sector-13, Karnal, through its Divisional Manager.

 

3.     SBI General Insurance Co. Ltd. SCO No.101, 102 and 103, 2^nd Floor, Batra Building, Sector-17D, Chandigarh, 160017, through its Ombudsman Officer. 

 

                                                                      …..Opposite parties

 

 

Complaint Under Section 35 of Consumer Protection Act, as amended up-to-date.

 

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

      Dr. Rekha Chaudhary….Member

 

 Argued by: Shri J.S.Mandhan, counsel for the complainant.

Shri R.K.Chauhan, counsel for the OPs.

 

                    (Dr. Rekha Chaudhary, member)

ORDER:  

 

                The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant alongwith other five person namely Subhash Chand, Sukh Lal, Roshan Lal sons of Shri Ramji Lal son of Shri Raja Ram, resident of Village Pathera, Tehsil Indri, District Karnal and Babu Ram son of Shri Amar Singh son of Shri Mangal Ram and Madan Lal (since deceased) through its legal heirs namely Smt.Sheela Devi-widow Akshay, Jatin-sons and Annu daughter of late Shri Madan Lal, residents of Village Rindal, Tehsil and District Karnal, are the joint owner of a showroom situated near Ware House Indri, District Karnal. The other owners of said shop executed a power of attorney in favour of the complainant for getting claim from the OPs. The said showroom was insured by complainant from the OPs which is valid from 20.02.2021 to 19.02.2022. The said policy commenced from 2012 continuously without any default/break and premium amount has been deducted from the bank account of son of complainant. In the said policy covers Earthquake (Fire and Shock) and RSMD Fire Add. The sum insured value of above under cover in the policy is Rs.60,00,000/- It is pertinent to mention here that the said showroom has been rented out by the complainant and other owners of showroom to Rajiv Kumar and he is running the business under the name and style of Amar Autos for his livelihood. On 02.12.2021, at about 11:30 AM, the showroom was closed and suddenly the shop of complainant set on fire and the whole articles, equipment and vehicle were ablaze and became into ash and in the said fire accident the building of the complainant also damaged badly and caused huge loss to the building of the complainant. Immediately the information in this regard sent to the Fire Brigade Officer, Indri, Karnal, and the fire brigade succeeded to stop the fire and they prepared their report. Thereafter, Rajiv Kumar son of complainant got lodged a DDR No.9 by the policy of Police Station, Indri, District Karnal on 02.12.2021 under Section 427 of IPC. Information qua the said incident sent to the OPs immediately and the OPs sent their surveyor for the spot inspection and after inspecting the spot, a report was prepared by the surveyor and told the complainant that a huge loss has been caused to the building due to fire in the building and the insurance company very soon pass the claim of the complainant. Thereafter, complainant got estimated his loss due to ablaze in building from the architect and as per report of architect the loss of building due to fire of complainant become Rs.46,61,800/- and articles lying in the building of the complainant also got damaged. Thereafter, on many occasion, the complainant visited to the OPs and requested to pass the claim of damage to the building due to fire to complainant as complainant already suffered a huge financial loss and badly in need of claim amount and further requested to disburse the claim amount, but the OPs always postponed the matter on one false pretext or the other. Thereafter, the complainant moved applications under RTI Act to many authorities, but till today no information was supplied by the OPs to the complainant. In the first week of April 2022, the complainant further approached the OPs and asked about the status of his claim application, but the OPs has not given any positive response to the complainant and also refused to issue any letter by mentioning the reason for not passing the claim of the complainant.  The OPs has wrongly assessed the damage of complainant and forced the complainant to settle the claim in very low price. Said act of the OPs is totally negligent, deficiency in service and unfair trade practice. The complainant purchased the said insurance policy from the OPs by giving premium and thus, the complainant definitely comes within the definition of customer of the OPs. Hence, the present complaint. 

2.             On notice, OPs appeared and filed its written version raising preliminary objections regarding cause of action, concealment of true and material facts, etc. On merits, it is submitted that complainant obtained Standard Fire and Allied Perils Policy from the OPs covering the building including Plinth and Foundation with description “Showroom Building/Two Wheeler Dealer” the premises given in the policy schedule situated at Ladwa-Karnal Road, Indri, Karnal, Haryana. On 3.12.2021, the complainant intimated the OPs regarding the incident and OPs appointed surveyor for the spot inspection and assess the net liability of OPs.  The complainant is representative of co-owners in the present complaint whereas no such NOC or POA was ever submitted with the OPs and they have jointly rented out the premises to a partnership firm business entity indulged in business of motorcycles sales, repair and authorized service centre of Hero Motorcorp, therefore, they are not illiterate persons, even despite this if the complainant signed the blank papers then he cannot blame the answering OPs for his/their own negligence and fault. It is denied that complainant got estimated his loss due to fire in building and as per architect report the loss of building due to fire is Rs.46,61,800/-. It is submitted that the architect nowhere stated in his report about the estimate of damages to the building, rather he merely estimated the cost of construction of a new building similar to the existing building as on the date of estimate and nothing more, the architect had not given any explanation in the estimate regarding the pricing of construction material and labour are taken from where and for which period, nor any estimate is given for repairing of the existing premises, even otherwise the estimate is not a reliable source to assess the actual damages, therefore, not relevant in the present case, as the building was more than 10 years old and for last 10 years, it was being occupied by the M/s Amar Auto, whereas no depreciation is applied in the estimate, therefore, the survey report is reliable source for assessment of actual damages and the net liability of OPs. It is submitted that the complainant and other owners of building failed to submit all the necessary documents despite repeated requests by the surveyor and even during joint meeting held at the office of intermediary SBI Karnal on 27.04.2022 and the minutes of meeting were recorded, the surveyor specifically mentioned the dates they made attempts to collect the documents, but the complainant intentionally failed to submit the same as observed by the surveyor in its report dated 30.05.2022, therefore, the claim was closed relying upon the survey report as per the terms and conditions of the policy and the claim was decided within 30 days from the date of final survey report as per agreed procedure, therefore, nothing survives now. It is submitted that neither there is any illegality nor any negligence nor deficiency in service nor unfair trade practice on the part of OPs, rather, there is gross negligence and malafide on the part of complainant as the present complaint is filed without any cause of action, even otherwise, the complainant is using the building for business activity by renting it out to business entity therefore, no question arise for any kind of mental agony or harassment, therefore, complainant is not entitled to any compensation from the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Learned counsel or the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, postal receipts Ex.C1 to Ex.C3, copies of legal notices Ex.C4, C4/A and Ex.C4/B, copy of terms and conditions Ex.C5, copy of Fire report Ex.C6, copy of SPA Ex.C7, copy of estimate cost of fire loss Ex.C8, copy of map Ex.C9, copy of estimate of cost of construction Ex.C10, copies of applications moved to Insurance Co. Ex.C11 to Ex.C14, copies of quotations Ex.C15 to Ex.C17, copy of application moved to Fire Brigade Officer Ex.C18, copy of fire report Ex.C19, copy of DDR Ex.C20, copy of application written to Insurance Co. Ex.C20/A, copy of receipt of postal order Ex.C21, copy of application written to Insurance Co. Ex.C22, copy of receipt of postal order Ex.C23, copy of application written to Insurance Co. Ex.C23/A, copy of receipt of postal order Ex.C24, copy of information of bank account and insurance Ex.C25, copy of application written to Insurance Co. Ex.C26, copy of receipt of postal order Ex.C27, copy of application written to Insurance Co. Ex.C28, copies of receipts of postal order Ex.C29 and Ex.C39,  copy of property tax Ex.C31, copy of site plan Ex.C32, copies of photographs Ex.C33 to Ex.C41, copy of sale deed Ex.C42, copy of plan of building Ex.C43, copy of sale deed Ex.C44, copy of plan of building Ex.C45, copy of e-challan Ex.C46, copy of payment receipt of electricity bill Ex.C47, copy of rent agreement Ex.C48, copy of birth certificate Ex.C49, copy of affidavit Ex.C50, copy of nambardar report Ex.C51, copy of application of issue of legal heirs report Ex.C52, copies of Aadhar Card and PAN Ex.C53 to Ex.C70, copy of acknowledgment Ex.C71, copy of postal envelope Ex.C72 and closed the evidence on 12.12.2022 by suffering separate statement.

5.             On the other hand, learned counsel for the OPs have tendered into evidence affidavit of Rohit Ranjan, Assistant Manager Legal as Ex.OP1/1, copy of Specific Power of Attorney Ex.OP2, affidavit in evidence of Shri Rohit Singhal, Director of Ravi K. Singhal Associate Insurance Surveyor and Loss Assessor Pvt. Ltd. Ex.OPW3, copy of form IRDAI Ex.OPW2/A, copy of GST Number Ex.OP2/B and closed the evidence on 29.03.2023 by suffering separate statement.

6.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant alongwith other five persons are the joint owner of a showroom situated near Ware House Indri, District Karnal. The said showroom was insured by complainant from the OPs which is valid from 20.02.2021 to 19.02.2022. The said policy commenced from 2012 continuously without any default/break and premium amount has been deducted from the bank account of son of complainant. On 02.12.2021, at about 11:30 AM, suddenly the shop of complainant set on fire and the whole articles, equipment and vehicle were ablaze and became into ash and in the said fire accident the building of the complainant also damaged badly and caused huge loss to the building of the complainant. He further argued that the information with regard to the incident was sent to the Fire Brigade Officer, Indri, Karnal. Son of complainant also got lodged a DDR No.9. Information qua the said incident sent to the OPs immediately and the OPs sent their surveyor for the spot inspection and after inspecting the spot, a report was prepared by the surveyor. Thereafter, complainant got estimated his loss due to ablaze in building from the architect and as per report of architect the loss of building due to fire of complainant become Rs.46,61,800/- and articles lying in the building of the complainant also got damaged. He further argued that all the documents as per instructions of the insurance company of OPs from time to time were provided by the complainant. Even after submission of documents, the complainant number of times visited the premises of OPs but the OPs closed the claim intentionally in order to escape from its liabilities and prayed for allowing the complaint. In support of his contention, learned counsel for the complainant placed reliance upon the judgments titled as The New India Assurance Co. Ltd. Versus M/s Protection Manufacturers Pvt. Ltd. 2010 (3) Apex Court Judgments 537 (SC), Sri Venkateswara Syndicate Versus Oriental Insurance Co. Ltd. And another 2009 (3) Apex Court Judgments 566 (SC).

8.             Per contra, learned counsel for the OPs, while reiterating the contents of written version, has vehemently argued that complainant obtained Standard Fire and Allied Perils Policy from the OPs covering the building including Plinth and Foundation with description “Showroom Building/Two Wheeler Dealer” the premises given in the policy schedule situated at Ladwa-Karnal Road, Indri, Karnal, Haryana. On 3.12.2021, the complainant intimated the OPs regarding the incident and OPs appointed surveyor for the spot inspection and assess the net liability of OPs.  He further argued that the complainant got estimated his loss due to fire in building and as per architect report the loss of building due to fire is Rs.46,61,800/- and in the report merely estimated the cost of construction of a new building similar to the existing building as on the date of estimate and nothing more, the architect had not given any explanation in the estimate regarding the pricing of construction material and labour are taken from where and for which period, nor any estimate is given for repairing of the existing premises, even otherwise the estimate is not a reliable source to assess the actual damages, therefore, not relevant in the present case, as the building was more than 10 years old and for last 10 years. He further argued that complainant and other owners of building failed to submit all the necessary documents despite repeated requests by the surveyor, therefore, the claim was closed relying upon the survey report as such, there is no deficiency in service and unfair trade practice on the part of OPs, hence, prayed for dismissal of complaint.

9.             Admittedly, the complainant alongwith other five person namely Subhash Chand, Sukh Lal, Roshan Lal sons of Shri Ramji Lal son of Shri Raja Ram, resident of Village Pathera, Tehsil Indri, District Karnal and Babu Ram son of Shri Amar Singh son of Shri Mangal Ram and Madan Lal (since deceased) through its legal heirs namely Smt.Sheela Devi-widow Akshay, Jatin-sons and Annu daughter of late Shri Madan Lal, residents of Village Rindal, Tehsil and District Karnal, are the joint owners of a showroom situated near Ware House Indri, District Karnal vide sale deed Ex.C42. It is also an admitted fact that the said showroom had been rented out by all the owners to Shri Rajiv Kamboj and Smt.Rita Kamboj, partners of M/s Amar Autos, Indri vide rent agreement Ex.C48. It is also admitted that the said showroom was insured with the OPs vide policy Ex.C5. Admittedly, during the subsistence of the insurance policy, the incident of fire took place. It is also admitted that the intimation was given to the OPs without any delay.

10.           The OPs have closed the claim of the complainant vide letter dated 02.06.2022, which is reproduced as under:-

“We are now in receipt of the survey report confirming that requisition documents/information has not been provided to SBIG/Surveyor despite repeated requests by them. Your claim towards building and supporting documentation were also discussed during your meeting with surveyor and underwriter in meeting dated 27.04.2022 and minutes of meeting were shared vide Loss Assessor mail dated 28.04.2022 and you were requested to get your building/ damages verified by Structural/Civil Engineer as to extent of damages in view of your claim for total loss of building. However, you did not provided any opportunity/ appointment to structural Engineer appointed by surveyor despite repeated requests/calls made for same. Thus in given case you have failed to prove/substantiate your loss and also requisite documents as solicited by surveyor have not been provided, despite repeated requests made by them.

Please note that loss is to be substantiated through documents and Company can make payments only after being satisfied, by production of the necessary documents and bills. The relevant General Condition of the policy in this regard is reproduced herewith for your ready reference.

The insured shall also at all times at his own expense produce, procure and give to the Company all such further particulars, plans, specification books, vouchers, invoices, duplicates or copies thereof, documents, investigation reports (internal/external) proofs and information with respect to the claim and the origin and cause of the loss and the circumstances under which the loss or damage occurred and any matter touching the liability or the amount of the liability of the company as may be reasonably required by or on behalf of the Company together with a declaration on oath or in other legal form of the truth of the claim and of any matters connected herewith.

 

No Claim under this policy shall be payable unless the terms of this condition have been complied with.

       

We would like to inform you that you have not substantiated the alleged loss with valid documents and hence is in violation to the above said condition. We therefore, express our inability to proceed further with the claim and are constrained to treat this claim as closed. We would like to place on records our concern for the loss and would look forward to serving you once again in future.”

 

 

11.           In the repudiation letter, the OPs have alleged that the complainant had not supplied the requisite documents despite repeated requests. On the other hand, as per the complainant he had supplied all the requisite documents as and when demanded by the surveyor of the OPs. Vide final reminder dated 24.03.2022, the OPs had demanded the following documents from the complainant:-

                i)      Statement of Mr.Subhash Chand

ii)     NOC from all the owners that the claim amount can be paid in Account of that person with NEFT Form and cancelled cheque of that person.

iii)    Photocopy of PAN card and Aadhar Card of all the policy holders.

iv)    Brief History of the building.

v)     Detail of loss building with full specification and dimensions.

vi)    Estimate/quotation in support of loss of building with full specification and dimensions from any Architect.

vii)   Salvage Value of damaged building items, your offer and 03 quotations from outsiders.

viii)   Confirmation regarding reinstatement of damaged portion of building.

ix)    Any other information which may be useful in the assessment of loss.

x)     All the photocopies should be certified by any owner. 

 12.          The complainant has tendered into evidence photocopies of all the above said documents (i.e. Ex.C13 NOC, Ex.C14 NOC, Ex.C63 to Ex.C70 PAN and Aadhar Cards of all the owners, Ex.C11 brief history of building, Estimate/quotations of loss Ex.C15 to Ex.C17) and the copies of the same were supplied to the OPs. When the complainant has placed the photocopies of said documents on file as to why he would not supply the original documents to the surveyor of the OPs. It is also not possible for the surveyor to prepare/settle the claim of the complainant without the alleged documents. Meaning thereby, that the complainant has supplied all the requisite documents upon which the surveyor of OPs has prepared the survey report. Hence, it appears that the demand of the alleged documents is only just to harass the complainant and in order to delay the claim of the complainant. Furthermore, it is common fact that a person whose personal interest is involved in form of the huge claim amount, then, as to why, he would not supply the requisite documents to the OPs. Hence, the plea taken by the OPs with regard to the non-supplying of requisite documents has no force.

13.           The complainant has claimed an amount of Rs.48,90,000/- as assessed by the Architect vide its report Ex.C10, whereas the surveyor of the OPs vide his report dated 20.05.2022, has assessed the net amount payable to the tune of Rs.17,76,436/-.

14.           Now the question arises for consideration is that whether the complainant is entitled for an amount of Rs.48,90,000/- or Rs.17,76,436/-?

15.           In the architect report dated 24.03.2023, it has been clearly mentioned that “the cost of construction has been calculated as per the prevailing market rates of the construction having the above specification. The cost of furniture is not included”. Meaning thereby, cost of the material was assessed by the architect which was existing on the date of 24.03.2023, whereas the surveyor of the OPs has assessed the value of the building by applying the depreciation formula. Admittedly, the building in question was constructed in the year 2013.  There are two reports one is of Architect and another is of surveyor. It is settled principle of law that if there are two reports,  then more weightage is to be given to the report of the surveyor. Hence, the surveyor report will prevail. In this regard, we rely upon the authority of Hon’ble National Commission in case titled as H.C. Saxena Vs. New India Assurance Co. Ltd. and Anr., 1(2012) CPJ 420 (NC) Hon’ble National Commission held that report of the surveyor appointed under the provisions of law is an important document, and cannot be brushed aside without any compelling evidence to the contrary. Similar view has taken by the Hon’ble National Commission in case titled as Dabrirrudin Cold Storage Vs. New India Assurance Co. Ltd. and Anr. I(2010) CPJ 141 (NC).  Further, United India Insurance Co. Vs. Maya, 2(2008) CPJ paged 182 (NC) wherein Hon’ble National Commission held that a surveyor report should not be dismissed summarily as the surveyor is independent and qualified person under the relevant provision of Insurance Act, 1938.

16.           Furthermore, the complainant in his complaint has claimed the amount of articles lying in the shop, whereas in the rent agreement Ex.C48, it is nowhere mentioned that except the shop, any other furniture, fixture or other articles have been let out by the complainant to the tenant.  Since, the complainant has not given any articles to the tenant and no articles of the complainant are lying in the shop, thus, the same are not liable for the amount of damage of the articles lying in the shop. 

17.           Admittedly, complainant Balwant Singh alongwith other persons namely, Subhash Chand, Sukh Lal, Roshan Lal sons of Shri Ramji Lal, Babu Ram son of Shri Amar Singh and Madan Lal (since deceased) through its legal heirs namely Smt.Sheela Devi-widow Akshay, Jatin-sons and Annu daughter are the owners of the insured property. Owners have executed power of attorney in favour of present complainant Balwant Singh for filing and defending the present complaint. Furthermore, OPs have specifically taken a plea that other owners have not given no objection to disburse the claim amount in favour of Balwant Singh i.e. complainant only. On perusal of file, it reveals that complainant has placed copies of no objection on file but same are not in the form of affidavits duly attested by Executive Magistrate rather the same are only mere declaration, which are not permissible in the eyes of law. Hence, complainant and other owners are entitled for the awarded amount as per their shares.

18.           Further,  Hon’ble Punjab and Haryana High Court in case titled as New India Assurance Company Ltd. Versus Smt. Usha Yadav & others 2008 (3) RCR (Civil) 111, has held as under:-

“It seems that the Insurance Companies are only interested in earning the premiums which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance companies make the effected people to fight for getting their genuine claims. The Insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy”.

19.           In view of the above discussion, the complainant and other joint owners are entitled for the tune of Rs.17,76,436/- (loss assessed by the surveyor) alongwith interest, compensation on account of mental agony & harassment and litigation expenses.

20.           Thus, as a sequel of above discussion, we partly allow the present complaint and direct the OPs to pay Rs.17,76,436/- alongwith interest @ 9% per annum from the date of repudiation of the claim i.e. 02.06.2022 till its realization to the complainant and other owners of the property in question as per their shares. The OPs are also directed to pay an amount of Rs.25,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.11,000/- for the litigation expense. This order shall be complied within 45 days from the receipt of copy of this order. It is made clear if the awarded amount not paid within stipulated period then interest @ 12% per annum shall be charged on the awarded amount from the date of announcement of order till its realization. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 22.08.2023                                                                    

 

 

                                                                  President,

                                                       District Consumer Disputes

                                                       Redressal Commission, Karnal.

 

(Vineet Kaushik)             (Dr. Rekha Chaudhary)

                     Member                          Member