Before the District Consumer Disputes Redressal Commission, Rohtak.
Complaint No. : 458.
Instituted on : 15.10.2020.
Decided on : 10.05.2022.
Sachin age 28 years, son of Sh. Suraj Prakash, resident of House no.852, Sector-15, Sonipat.
……….………..Complainant.
Vs.
Tata AIG General Insurance Co. Ltd., 2nd Floor, Narayana Complex, Civil Road, Rohtak-124001, through its Divisional Manager.
..…….……….Opposite party.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
DR. TRIPTI PANNU, MEMBER.
DR.SHYAM LAL, MEMBER.
Present: Sh. Mannu Malik, Advocate for the complainant.
Sh. Gulshan Chawla, Advocate for the opposite party.
ORDER
NAGENDER SINGH KADIAN PRESIDENT:
1. Brief facts of the case are that the complainant is owner of plot No.1061, Sector 47 Urban Estate, Gurgaon-II, measuring 51.70 sq. mtrs., which was allotted to him vide Re-allotment letter memo no.Z0002/E0018/UE029/REALL/0000001378 dated 27.12.2019. Complainant is serving as Assistant Manager in Canara Bank, Bahadurgarh and he decided to construct his house in the aforesaid plot in Gurgaon, for which the complainant availed a loan facility from the bank and thereafter, he started raising the construction of his house on his aforesaid plot. The construction of the house was almost completed. In order to secure the risk, complainant contacted the authorized person of the respondent company to insure the aforesaid house of the complainant. He informed the complainant that the house of the complainant would be insured for 10 years and the risk claim would be of Rs.32 lakhs. Thereafter, complainant got insured his house and had paid the premium of Rs.7363/- in the account of respondent vide Fund Transfer on 19.08.2020. The receipt dated 20.08.2020 showing policy No.19016482470000 was issued by the opposite party. Unfortunately, it was a heavy rain fall in the midnight of 19/20.08.2020 and due to which the constructed building of the complainant was damaged and tilted by 6 inches. Complainant sent an email to the opposite party duly narrating the fact that NDRF, HSVP, Police departments came to the spot and it was ordered by all authorities that building has to be demolished for safety of the public. Complainant also requested the respondent to send the surveyor and settle down his claim. Complainant also filed his claim with the opposite party and submitted all the requisite documents. But the opposite party vide its letter dated 25.09.2020 had repudiated the claim of the complainant on the ground that as on the date of loss 19.08.2020, the policy did not incepted &/or an under construction building cannot be termed as a Home as per the above policy definition &/or above stated important policy warranty was not complied with &/or the intent of insuring a under construction building on 19.08.2020(On the very day of heavy rainfall) could not be understood, thus, it seems that reported loss is not tenable as per terms and conditions of the policy”. The act of opposite party of repudiating the genuine claim of the complainant is illegal and amounts to deficiency in service as the complainants has got deposited the premium with the respondent on 19.08.2020 and thus, once the payment has been received by the respondent, the proposal and acceptance in regard to a contract has been completed between the parties and thus the respondent is liable to full his obligation in regard to the contract of insurance by way of settling the claim of the complainant. Hence this complaint and it is prayed that opposite party may kindly be directed to pay Rs.3200000/- alongwith interest, compensation and litigation expenses to the complainant as explained in relief clause.
2. After registration of complaint, notice was issued to the opposite party. Opposite party appeared and filed its written reply submitting therein that as per the complainant, the construction of the plot was almost completed whereas as per the email dated 21.08.2020 the construction was almost 90% competed but in actual, as per the photographs collected by the surveyor the property in question was not plastered till date. Meaning thereby, major work in the completion of the house was yet to be done including paint work electricity work, wood work, floor work etc. The policy was issued from 21.08.2020 to 20.08.2021 after receipt of premium from the complainant via NEFT on 20.08.2020. It is further submitted that the content regarding issuance of the receipt no.109071015499234 dated 20.08.2020, as the document showing the deposit of amount by the complainant and same does not mean/refer to acceptance of the proposal submitted by the complainant. The contents regarding tilting of the building and demolishing of the property for safety purpose is a matter of record. It is further submitted that based on the rain data available, it is noted that there was heavy rainfall in Gurugram on 19 Aug-2020 morning, which means that the loss occurred before the inception of the present policy. It is further submitted that answering opposite party registered the claim of the complainant and appointed an Independent IRDA licencsed Surveyor to inspect the premises and to submit its report as per the terms and conditions of the policy. The independent surveyor collected the written statement of the complainant and also submitted its detailed report dated 26.10.2020 while assessing the loss for Rs.1549750/- without admission of liability with the observations that the loss had occurred prior to the inception of the policy. Thus the claim was not tenable as per terms and conditions of the policy. Thus the opposite party vide its letter dated 28.10.2020 had repudiated the claim of the complainant. All the other contents of the complaint were stated to be wrong and denied and opposite party prayed for dismissal of compliant with costs.
3. Ld. counsel for the complainant in his evidence has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C8 and has closed his evidence on dated 24.09.2021. Ld. counsel for the opposite party has tendered affidavit Ex.RW1/A, Ex.RW1/B, documents Ex.R1 to Ex.R10 and closed his evidence on 14.12.2021.
4. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
5. In the present case, the first plea taken by the respondent is that this Commission has no jurisdiction to entertain the complaint. In this regard it is observed that the policy in question was issued by the respondent from its office situated at Rohtak, which is proved from the policy schedule Ex.R2. Hence this Commission has jurisdiction to entertain the present complaint. The other plea taken by the opposite party is that on the date of loss i.e. 20.08.2020, the residential property in question was not insured. In this regard we have observed the photocopy of message Ex.C2 dated 19.08.2020 at 3:25 p.m., placed on record by the complainant as per which opposite party has received the premium of Rs.7363/- from the complainant on account of insurance of residential property of Rs.32lac for 10 years. As per the statement of account Ex.C3 of the complainant’s account, the alleged amount of Rs.7363/- has been debited from the account of complainant on 19.08.2020 for insurance of residential property. But the receipt Ex.C4 was issued by the opposite party on dated 20.08.2020 for the policy no.1901648247. As per mail Ex.C5, surveyor has intimated about “No claim” to the complainant on the ground that: “Based on the rain data available, we note that heavy rainfall in Gurugram on 19Aug 2020 morning, which differs from the statement of complainant. As on the date of loss 19Aug-2020, the policy did not incepted &/or under construction building cannot be termed as a Home. Reported loss is not tenable as per terms and conditions of the policy”. The policy was issued for the period 21.08.2020 to 20.08.2030 whereas as per claim form the date of loss is 20.08.2020 at 7.00A.M. To prove their contention, ld. counsel for the opposite party has placed on record copy of claim form Ex.R3, as per which the date of occurrence is 20.08.2020. Opposite party has also placed on record copy of email Ex.R4, as per which complainant had informed that due to heavy rainfall in Gurugram on 19th August night his house titled by 6 inches. As per email Ex.R5, Premium for the building was paid on 19th August at 3.00p.m. The displacement of the building occurred on intervening night of 19-20 August. Hence from all the documents placed on record by both the parties it is proved that the occurrence had taken place in the intervening night of 19-20August 2020 whereas the insurance policy was taken by the complainant on 19 August 2020 at 3 pm i.e. before the occurrence. As the premium was received by the opposite party before the occurrence. Hence the risk covers from the date of receiving the premium by the opposite party i.e. 19.08.2020. On the other hand plea taken by the opposite party that “Based on the rain data available, we note that heavy rainfall in Gurugram on 19Aug 2020 morning” is not proved as no report of Meteorological department has been placed on record by the opposite party to prove that there was heavy rainfall in Gurugram on 19 August 2020 morning. The opposite party also inspected the site and after receiving the photographs of the building and after full satisfaction accepted the offer of complainant and received the premium from the complainant. Hence the act of opposite party of repudiating the genuine claim of the complainant is illegal and there is deficiency in service on the part of opposite party and opposite party is liable to pay the insurance claim as assessed by the surveyor as per his report Ex.R6 amounting to Rs.1549750/-
6. In view of the facts and circumstances of the case, we hereby allow the complaint and direct the opposite party to pay Rs.1549750/-(Rupees fifteen lacs forty nine thousand seven hundred and fifty only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 15.10.2020 till its realization and shall also pay Rs.5000/-(Rupees five thousand only) as compensation on account of deficiency in service and Rs.5000/-(Rupees five thousand only) as litigation expenses to the complainant. Order shall be complied within one month from the date of decision.
7. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
10.05.2022.
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Nagender Singh Kadian, President
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Tripti Pannu, Member.
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Shyam Lal, Member
