DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: BHADRAK : (ODISHA).

Consumer Complaint  No.54 of 2020.

Date of hearing     :   03.06.2024.

Date of order                 :   25.06.2024.

Dated the  25^thday of June 2024.

                   Sri Kalpataru Parida, S/o:- Late GolakBihari Parida,

       At/Po:-Kuansh, P.S:- Bhadrak (T),Dist:- Bhadrak.

                                                . .  .  .  . Complainant.                                                                 

           Vrs.

1.         The Branch Manager, Axis Bank Ltd., Bhadrak Branch,

At:- Behera Mansion-Bypass, Po/ P.S:- Bhadrak (T),

Dist:- Bhadrak, Pin-756100.

2.    The Branch-In-Charge, Bajaj Allianz General Insurance

       Co. Ltd., 2^nd Floor, Mittal Tower, O.T. Road,

       ITI Chowk, Dist:-Balasore, Pin-756001.

3.         Bajaj Allianz General Insurance Co. Ltd.,

                  One Janpath, 3^rd Floor, 2C, Janpath, Sriya Square,

                  Kharvel Nagar, Unit-3, Bhubaneswar, Pin-751001                                     .……..Opp. Parties.

                           P R E S E N T S.

          1. Sri Shiba Prasad Mohanty, President,

           2. Smt. Madhusmita Swain, Member.

                   Counsels appeared for the parties.

Counsel for Complainant :- Sri Debasis Nayak, Advocate& Associates,

Counsel for O.P. No.1      :- Sri Prafulla Kumar Raut, Advocate,

Counsel for O.P.No.2 & 3 :- Sri Amarendra Ku. Panda, Advocate.

                                                J U D G M E N T.

SRI SHIBA PRASAD MOHANTY, PRESIDENT.

          In the matter of an application filed by the complainant alleging deficiency of service against the Opposite Parties under Consumer Protection Act, 2019.

          A fact of the case is that, the complainant is the legal heir & successor in interest of Late Golak Bihari Parida. During the life time of Golak Bihari Parida the complainant constructed a building over Plot No.2098/2409/2668, Khata No.723/1502 in Mouza-Kuansh. The said house was insured at O.P.1 bearing Insurance Policy No.OG-12-2411-6801-00000018 on dtd.31.05.2011 with a validity period from 28.05.2011 to 27.05.2021 & accordingly the premium has been paid with service tax. On 02.09.2018 during the currency of the policy there was inundation in the area due to heavy rain fall. The flood & rain water entered into the house of the complainant & due to water logging there was also moisture resulting in badly affecting the rooms & building, on account of which the complainant suffered a loss of Rs.4,64,100/-. During course of time the complainant submitted the claim form & the O.P.2 accepted the claim & O.P.2 appointed the surveyor namely M/s. Esen Insurance Surveyors, Loss Assessors Pvt. Ltd. to evaluate loss of the complainant. The surveyor visited the spot on dtd.07.09.2018 & as per the requirement of the surveyor the complainant submitted the photos which have taken while the water was there in the premises. On 14.12.2018 the O.P.2 issued a letter to the complainant & requested to provide the documents as follows :- A) The claim estimate of the building which should consist of the description of the items damaged, quantity, cost of repair, (B) Weather report from any competent authority regarding the heavy rain of 02.09.2018 including Newspaper clipping if you have regarding rain & (C) The photos & the videos you have taken while the water was there in the premises. After getting the letter the complainant submitted details estimate for repair & renovation of existing residential building of complainant to the O.P.2 on 23.12.2019 & requested O.P.2 to collect weather report from any competent authority regarding heavy rain of 02.09.2018. The complainant insisted the O.P.2 to provide the copy of acknowledgement which he received from the complainant but he refused to do & told that he will provide the same through postal. The O.P.2 should be settled the insurance claim of the complainant within a reasonable time after receipt of the survey report. The O.P.2 has not followed the direction of the IRDA & till yet has not settled the claim which is a deficiency in service. For the interest of justice O.P.2 should direct the O.P.3 to disbursement of claim amount for damages. The O.P.3 made a deaf hearing to the genuine claim of the complainant & cause delay. The complainant never committed any willful default or negligence in performance of his obligation, in other hand a serious responsibility under law has been cast against the O.Ps to fulfill the terms & conditions but no effective steps has yet been made which amounts to deficiency in service on the part of O.Ps. The complainant suffers with both mental & physical agony as well as financial loss for the activity of the O.Ps for which the complainant compelled to filed this case & prayed to direct the O.P.2 to pay Rs.4,64,100/- with 12% interest from 23.12.2019 till actual payment to the complainant. The cause of action arose on dtd.02.09.2018 when the flood water rushed into the premises of the complainant. The complainant has filed the documents  i.e. (1) Certificate-Cum-Policy No.OG-12-2411-6801-00000018 on dtd.31.05.2011 issued by O.P.2, (2) Copy of ROR 723/1502 of Mouza-Kuansh, (3) letter to complainant by O.P.2 dtd.14.12.2018, (4) Details estimate for repair & renovation of existing residential building of complainant by J.E. & (5) Death certificate of Golak Bihari Parida, (6) Letter & Representation of complainant to O.Ps.

          The O.P.No.1 submits that, the complaint petition is wrong, illegal ineffective & baseless against the O.P.1. There is no cause of action against the O.P.1 to file this case. The O.P.1 has not committed any deficiency of service. The complainant neither himself nor his late father is not a consumer under the O.P.1. As per the instruction of the late father of the complainant, premium of insurance was deducted by the O.P.1 and remitted to the O.P.2 insurance company and the O.P.1 is no way concerned or connected to the service of the insurance company i.e. O.P. 2 & 3 for providing to the complainant. There is no claim against the O.P.1 by the complainant for any deficiency of service. The O.P.1 is no way responsible or liable for any deficiency if any committed by the O.P.2 & 3. The complainant has unnecessary dragged this O.P. in to his litigation causing a lot of time and financial loss since this O.P.1 is a commercial bank.

          The O.P.No.2 & 3 submit that, the insurance company had issued the Policy No. OG-12-2411-6801-00000018 valid from 28.05.2011 to 27.05.2021 wherein Kalpataru Parida is the insured and sum insured is Rs.30,00,000/- subject to the terms & conditions. On receipt of claim intimation dated 06.09.2018 with regard to alleged loss dtd.03.09.2018, the insurance company without any delay immediately appointed an IRDA licensed surveyor M/s Esen Insurance Surveyors Pvt. Ltd. to conduct survey & assess the loss sustained by the complainant. The independent IRDA licensed surveyor contacted the complainant on the same day on his cell phone No.9437107934 provided by the O.P.3 visited the alleged affected building on the next day i.e. 07.09.2018 & in presence of the complainant surveyor has inspected the building thoroughly and took photographs. The overflowing water entered into the residential building of the insured & inundated the ground floor which is about 28 years old. There is no visible damage to the infrastructure. Due to water logging on the roof top of the building, there were slippages in the first floor room those are 14 years old. The leakages were through hairline cracks, those seems to have been due to normal wear & tear or may be the building has not been maintained properly. The residential building of the complainant is a double stories RCC roof building, 01 AC sheet roof building & 01AC sheet roof outside toilet in the land area of 21,178 Sqft approximately, which is separate from each other. The double stories roof building is about 2150 Sqft. (Ground foor=1185 Sqft.& 1^st floor = 968 Sqft.) AC sheet roof boiling is 120 Sqft. & AC Sheet roof outside toilet is about 80 Sqft. The age of the ground floor of double stories RCC roof building is 28 years old & age of the 1^st floor of the building is about 14 years. AC sheet roof building is about 28 years & toilet is about 14 years old. Water level in the ground floor of double stories building is about 3” inch & water mark on the inner wall to be about 03 feet. The 1^st floor inner wall of bed room & dining hall had some minor cracks on the wall & there were signs of water soaking. During survey the complainant submitted claim form dully filled in & signed by him and his written statement with the deputed surveyor. The O.Ps insurance company & deputed surveyor repeatedly asked the complainant to submit the documents as per letter dtd.12.09.2018 & again vide letter dtd.16.12.2018, 14.12.2018 & 22.12.2018. But the complainant did not submit the required documents.  The appointed independent IRDA licensed surveyor submitted his report on the basis of the survey conducted by him & available documents vide his report dtd.12.11.2018. As per the report of licensed surveyor - “the loss/damage to the residential building of the complainant located at Kuansh, Bhadrak was ascertained to the tune of Rs.25,000/- only which was caused due to inundation of overflowing of rain water in the ground floor and leakage of rain water from the roof of the 1^st floor on 02.09.2018. After repudiation of the claim the complainant has not taken any action against the said repudiation within the period of 12 calendar months from the date of disclaimer i.e. on 04.01.2019. Hence the claim for all the purpose be deemed to have abandoned & the benefits flowing from the policy stand extinguished & subsequent action is time barred as per General Condition No.6(ii) of Standard Fire & Special Perils Policy. But the complainant has filed this case on dtd.17.08.2020 which is barred by time. There is no deficiency of service at any point of time on the part of the O.Ps & for the purpose of claim the complainant with an ulterior motive leveled the allegation against the O.Ps for that the complaint is not maintainable. The O.Ps have filed the documents as below :-

1. Copy of Generic Contingency Policy No.OG-12-2411-6801-00000018 from 28.05.2011 to 27.05.2021 with terms & conditions (Annex-A).
2. Copy of the claim form submitted by the complainant (Annex-A).
3. Written statement of the complainant dtd. 07.09.2018 (Annex-C).
4. Copy of E-mail dt.12.09.2018 of the deputed surveyor through the e-mail (Annex-D).
5. Copy of letter dtd.06.12.2018 of the deputed surveyor  (Annex-E).
6. Copy of letter dtd.14.12.2018 of the deputed surveyor (Annex-F).
7. Copy of letter dtd.22.12.2018 of the deputed surveyor (Annex-G).
8. Survey report of the deputed surveyor (Annex-H).
9. 7 Nos. of photographs of the residential building of the complt taken by the deputed surveyor during his survey on dtd.07.09.2018 (Annex-I).
10. Copy of letter dtd.04.01.2019 of the O.P.2 to the complainant (Annex-J).
11. Postal receipt No.8279777991813, dtd.07.01.2019 towards registration of the letter dtd.04.01.2019 to the complainant (Annex-K).

Having heard the rival contentions and after careful scrutiny of the case record and documents filed, we are of the considered opinion that the present complainant is maintainable and filed within time. The benefits of the policy can’t extinguish under the general conditions of the case policy as the complainant has filed this instant complaint within 2 years from the date of repudiation. In normal parlance, the damaged or destroyed property shall be reinstated and the insurance company shall indemnify the loss to the extent which has been expended to reinstate the property. Estimate of a work and actual expenses incurred are all to gather quite different. In absence of any bills, receipts and vouchers, it is difficult to quantify the expenses incurred by the complainant to reinstate the damaged property. In absence of any such evidence in the case record, this commissions resorts to the finding of the IRDA licensed surveyor of M/s Esen Insurance Surveyors Pvt. Ltd who has opined that the maximum expenditure that would be required to repair the building shall be Rs.25,000/-(Rupees Twenty Five Thousand only). The OP No.2 & 3 being duly informed on 12/11/2018 by their Surveyor of their choice, preferred to go against his report and repudiated the claim which this commission found to be deficiency in service. The OP Insurance company could have paid the amount to the complainant basing on the survey report. After vivid survey by their own men, the OP Insurance Company should not have insisted not so important documents like photographs and news clipping of heavy rain on the date of occurrence. Such act has subjected the complainant into unnecessary harassment and mental agony for which the OP Insurance company needs to compensate the complainant.

O R D E R.

In the result, the complaint be & same is allowed. The OP No.2 & 3 are directed to pay the complainant Rs.25,000/- with 6% interest from 12/11/2018 to this date of order i.e. Rs.25,000/-+ Rs.8438/- = Rs.33,438/-and an amount of Rs.25,000/- towards compensation and Rs.5,000/- towards cost of the litigation within 30 days from the date of order, failing which it shall entail an interest of 6% interest over the amount till the actual day on which the payment is made. No order against OP No.1.

This order is pronounced in the Open Court on this the 25^th day of June 2024 under my hand and seal of the Commission.