Haryana

Ambala

CC/361/2021

Narain Agro Industries - Complainant(s)

Versus

The Branch Manager NIC Ltd - Opp.Party(s)

A.B. Kapoor

02 Nov 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	361 of 2021
Date of Institution	:	26.11.2021
Date of decision	:	02.11.2023

Narain Agro Industries, Maujja Brahaman Majra, Tehsil Naraingarh, District Ambala-134203 (Haryana) through its Partner, Manish Chanana.

          ……. Complainant

                                                Versus

1. The Branch Manager, National Insurance Company Limited, Second Floor, LIC Building, Branch Office, Ambala City-134003 (Haryana)
2. The Branch Manager, Axis Bank, 1st Floor, Khanna Motors, Ambala - Hissar Rd, Manav Vihar, Ambala City, Haryana 134003

                                                                                                    ….…. Opposite Parties.

Before:        Smt. Neena Sandhu, President.

                    Smt. Ruby Sharma, Member,

           Shri Vinod Kumar Sharma, Member.           

 

Present:      Shri A.B. Kapoor, Advocate, counsel for the complainant.

                   Shri Mohinder Bindal, Advocate, counsel for OP No.1.

                    Shri Amar Singh, Advocate, counsel for OP No.2.

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To pay a sum of Rs.6,63,000/- towards loss of building/structure of the insured premises.
2. To pay Rs.1,00,000/- as compensation for mental harassment and torture etc.
3. To pay Rs.55,000/- towards cost of litigation;
4. Alongwith interest @ 18% p.a on the above amounts from the date of death of the life assured till payment.

                             OR

Grant any other relief which this Hon’ble Commission may deems fit.

 

2.             Brief facts of the case are that   the complainant is doing the job of Rice Shelling and other allied jobs to earn his livelihood. The complainant firm was availing the loan facility with the Canara Bank, Naraingarh who has been getting the premises/goods etc. insured on their own for security of the loan and also for coverage of any un-assumed risks to the hypothecated property/goods in future at any point of time if any untoward incidence occurs. In this regard the Policy of Insurance valid from 2.8.2019 to 01.08.2020 was taken by the Canara Bank, Naraingarh, from the then financier-M/s Bajaj Allianz General Insurance Company Limited. The entire risk of building/premises of the property/goods etc. was covered therein. However, in the year 2020, on expiry of the loan facility, OP No.2 contacted the complainant and persuaded them that the loan facility along with all other allied benefits with better convenience and lessor rates etc. can be granted by them if the loan facility is availed from it. OP No.2 had also assured the complainant that the Policy of Insurance shall be obtained by it on behalf of complainant by getting coverage of all the risks under the Insurance Policy, by way of debiting the amount of premium to the loan account. On being satisfied under the bona fide belief, the complainant agreed to get the loan facility availed from the OP No.2 and in turn OP No.2 subscribed a Policy of Insurance from OP No.1 i.e. National Insurance Company Limited, Ambala City and assured that the Policy would be covering all the risks was covered by the previous insurer through the financier. At the time of getting the Insurance done and papers of loan including blank papers got signed from the complainant/partners, OP No.1 had re-assured the complainant that comprehensive Insurance of the property/building and goods etc. shall be got done and the complainant should not worry at all. Therefore, OP No. 2 on its own got the Insurance of the premises/goods effective from OP No. 1, who vide Policy No. 420401112010000113 insured the same valid from 08.02.2021 to 07.02.2022. However, no policy of Insurance with terms and conditions was given to the complainant either by OP No. 1 or OP No.2. Unfortunately, on 29.05.2021 the building/premises etc. of the complainant suffered heavy losses, due to bad weather resulting into typhoon and storm with rain etc. The intimation of loss was given to the OPs immediately with estimated loss of Rs. 6,63,000/- as prepared by M/s Modern Design Architect and approved valuer/structural engineers being experts. The matter was duly published in the News Papers and copies of News Papers are annexed as Annexure C-5. However, though all relevant information and documents were supplied by the complainant to OPs, yet, the OPs did not bother to settle and pay the claim of the complainant amounting to Rs.6,63,000/- as per the estimated loss. The Surveyor had also promised to give a copy of Policy of Insurance as well as Survey Report on behalf of OP No. 1 to the complainant but nothing transpired. Despite repeated requests and visits to the office of OPs and also the Surveyor & Loss Assessor, the claim was not paid. Under those circumstances, the complainant sent a registered / speed post letter dated 9.9.2021 to OP No.1 calling upon to settle the claim but to no avail.   However, on the other hand, OP No.1 supplied copy of letter dated 17.09.2021, whereby it was informed that the claim stood repudiated as the policy did not cover the risk of storm which fell under the additional coverage of STFI under the Policy of Insurance and no extra premium was paid by OP No. 2 in that regard. OP No. 2 in connivance with OP No.1, without watching the interest of the complainant, took the step of getting the Insurance done without the Insurance of the premises in question for the risk other than fire and earth quake, contrary to the interest of the complainant. It is a matter of general prudence that once the entire building with fixtures and goods/stocks is insured, the banker is duty bound to get all the risks covered as was promised by OP No.2 while taking over the loan from the previous banker i.e. Canara Bank. However, OP No.2 without informing the complainant, on its own, by way of misuse of the authority signed the papers given to it and obtained the Insurance Policy which was not favourable to the complainant. Hence this complaint.
3.           Upon notice, OP No.1 appeared and filed written version raising preliminary objection to the effect that the complaint is not maintainable; the complainant has not approached this Commission with clean hands and has suppressed the material facts; the present complaint is ex-facie misconceived, vexatious, untenable and devoid of any merit; the present complaint has been filed without any cause of action etc. On merits, it has been stated that the reported claim of the complainant was duly entertained immediately on receipt of the Intimation of alleged loss and an independent and IRDA approved surveyor M/s Kumar Raj & Associates, Surveyors & Loss Assessors was also immediately deputed to assess the loss and to give its fact finding report without considering/going into the maintainability aspect of the reported claim. The said surveyor visited the premises of the insured on 01.06.2021 to survey and assess the alleged loss caused on 29.05.2021 due to storm. The said surveyor discussed the matter in detail with the representatives of the complainant firm and carried out a detailed inspection of the spot. During inspection of the insured premises and the submission made by the authorized person/representative of the complainant himself, it was observed that the alleged loss had occurred on account of heavy storm lashed the area on 29.05.2021 due to which shed in the premises in question was badly damaged. After thorough investigation and verification, the said surveyor submitted his detailed report dated 28.06.2021 whereby he evaluated each and every facet of this case and the limitation and scope of the insurance policy with the recommendation that since no insured peril has operated and the alleged loss had occurred only due to storm thus the reported loss found to be not covered under the policy and liable to be rejected, as  the complainant had availed the insurance policy against the loss from fire and earthquake only. However, for the sake of assessment only although the loss found to be not covered under the said insurance policy in question, the said surveyor also submitted his observation with the assessment of actual loss to the tune of Rs.3,03,306/- suffered by the complainant. After scrutinizing and elaborating the whole facts, situation, records and the scope of the said insurance policy, the competent authority, repudiated the said reported claim of the complainant as per the terms and conditions of the insurance policy. The complainant was duly informed about the fate of its claim vide letter dated 06.08.2021 and 31.08.2021 and even the complainant further clarified about the fate of the claim with legal bindings as per terms of the insurance policy vide letter dated 17.09.2021 in reply to its letter dated 09.09.2021. It is very important and necessary to mention here that the loss due to storm, tempest, flood and inundation (STFI) are extended under an insurance policy if the insured avail specific endorsement and coverage for STFI by paying an additional premium in this regard. The complainant had earlier policy for the preceding year availed similar policy for fire with add on cover for earthquake only and while obtaining the insurance policy from OP No.1 he made a specific written request for the same and paid the Insurance premium according to availed coverage. But the complainant has now in order to put undue pressure filed this present false complaint by exploiting the process of law with concocted version just to make a case inspite of being fully aware of the scope and limitations of the insurance policy' in question. Rest of the averments of the complainants were denied by the OP No.1 and prayed for dismissal of the present complaint with costs.
4.           Upon notice, OP No.2 appeared and filed written version raising preliminary objections to the effect that the present complaint is bad in law and not maintainable on facts and the same is liable to be dismissed with special cost; the present complaint filed by the complainant is nothing but an abuse of process of law and is made with an intention to enrich the complainant by raising absolutely unjust and un-tenable claim;  the present complaint of the complainant is time barred; the complainant has suppressed the true material facts from this Commission etc. On merits, it has been stated that the complainant is maintaining an Overdraft account with OP No.2. The complainant requested for an insurance policy through OP No.2 with their corporate tie up Tata AIG GENERAL INSURANCE Company. Thereafter, the complainant after accepting all the terms and conditions paid premium on 3rd February 2021 but best known to complainant, he himself got the policy cancelled and the premium amount was refunded on 23rd February 2021. It's the complainant who himself have got insured the premises from OP No.1 and OP No.2 has no role to play. In the insurance policy annexed with complaint, nowhere, the name of OP no.2 is mentioned as agent for the policy. OP No.2 was never in corporate tie up with OP No.1 for any type of insurance facilities to its customer. Otherwise also, OP No.2 is a schedule commercial bank and acts as corporate agent/facilitator of the insurance company TATA AIG GENERAL INSURANCE COMPANY. The role of OP No.2 is only that of a facilitator or/and to assist the customer to arrange to get insurance policies from the insurance company and has no further role in this matter. Rest of the averments of the complainant were denied by the OP No.2 and prayed for dismissal of the present complaint with special costs.
5.           Learned counsel for the complainant tendered affidavit of the Manish Chanana, Partner, Narain Agro Industries, Maujja Brahaman Majra, Tehsil Naraingarh, District Ambala as Annexure C-X alongwith documents as Annexure C-1 to C-11 and closed the evidence on behalf of complainant. On the other hand, learned counsel for the OP No.1 tendered affidavit of Richhpal Singh, Branch Manager and Authorized Signatory, National Insurance Company Ltd., Branch Office, Ambala City as Annexure OP2/A and affidavit of R.K. Bhola, Prop-M/s Kumar Raj and Associates, Surveyor and Loss Assessor, having its office at # 547, Sector-8, Urban Estate, Ambala City, District Ambala as Annexure OP-2/B alongwith documents as Annexures OP-1 to OP-8  and closed evidence on behalf of the OP No.1. Learned counsel for the OP No.2 tendered affidavit of Kamal Kant, Branch Manager, Axis Bank Limited as Annexure OP-2/A alongwith documents as Annexures OP-2/B to OP-2/C and closed evidence on behalf of the OP No.2.
6.           We have heard the learned counsel for complainant and learned counsel for the OP No.1 & 2 and have also carefully gone through the case file.
7.           Learned counsel for the complainant submitted that despite the fact that the said building/premises was insured under the policy in question, yet, by repudiating the genuine claim of the complainant for the damage suffered due to bad weather resulting into typhoon and storm with rain, the OPs are deficient in providing service, negligent and adopted unfair trade practice. 
8.           On the contrary, learned counsel for the OP No.1 submitted that since the premises in question was insured only for any loss occurred due to fire or earthquake, as such, the claim raised by the  complainant for the damage caused to the premises due to bad weather resulting into typhoon and storm with rain was rightly repudiated by OP No.1, strictly as per terms and conditions of the policy in question, as such, the OP No.1 is neither deficient in providing service nor adopted any unfair trade practice.
9.           Learned counsel for OP No.2 submitted that it has no concern, whatsoever, with the claim rejected by OP No.1 under the insurance policy in question. He further submitted that the complainant has failed to prove any deficiency in service or negligence on the part of OP No.2 as such, complaint against OP No.2 is liable to be dismissed.
10.           Since, neither the issuance of the policy in question by OP No.1 as per details given in the complaint by the complainant; nor the loss which took place in the premises of the complainant due to typhoon and storm with rain; nor the fact that the claim raised by the complainant was repudiated by OP No.1 vide letter dated 06.08.2021, Annexure OP-4 are  in dispute, as such, the only moot question which falls for consideration is, as to whether,  the OP No.1 was justified in rejecting the claim or not. It may be stated here that it is not in dispute that the damage caused at the premises of the  complainant was only due to bad weather resulting into typhoon and storm with rain. This fact has been fairly conceded by the complainant in para no.3 of its complaint, relevant part of which is reproduced here:- “That as ill luck would have it, on 29.05.2021 the premises of the complainant suffered heavy losses to the building/premises etc. due to bad weather resulting into typhoon and storm with rain etc.”  However, on the other hand, from bare perusal of contents of the policy in question, Annexure C-2 colly. it is openly coming out that the premises of the complainant  was covered for the loss suffered only due to fire (Standard Fire and Special Perils) with Add on cover for earthquake for the period from 02.08.2019 to 01.08.2020. At the same time, the complainant has failed to place on record any evidence to prove that other than fire and earthquake, the premises in question were also covered for any loss occurred to its building etc. caused due to bad weather resulting into typhoon and storm with rain. It is significant to mention here that the insurance policy between the insurer and the insured represents a contract between the parties and the insured cannot claim anything more than what is covered by the insurance policy. Our this view is supported by the ratio of law laid down by the Hon’ble Supreme Court of India in Oriental Insurance Co. Ltd Vs Sony Cherian (II 1999 CPJ 13 SC) wherein it was held that- ― “..The insurance policy between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy. That being so, the insured has also to act strictly in accordance with the statutory limitations or terms of the policy expressly set out therein…”. In this view of the matter, OP No.1 has rightly rejected the claim filed by the complainant, arising out of the loss suffered to the premises in question, due to bad weather resulting into typhoon and storm with rain and not because of fire and earthquake.
11.           In view of peculiar facts and circumstances of this case, it is held that because the complainant has failed to prove its case, therefore, no relief can be given to it. Resultantly, this complaint stands dismissed with no order as to cost. Certified copies of the order be sent to the parties concerned as per rules.  File be annexed and consigned to the record room.

Announced:- 02.11.2023                      

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President