BEFORE THE DISTRICT FORUM: KURNOOL
Present: Sri. T.Sundara Ramaiah, B.Com B.L., President
And
Sri. M.Krishna Reddy, M.Sc., M.Phil., Male Member
And
Smt. S.Nazeerunnisa, B.A., B.L., Lady Member
Wednesday the 18th day of January, 2012
C.C.No.113/2010
Between:
T.K.Gangamma, W/o T.K.Kumara Swamy,
H.No.4/64, Near TATA Tower, Mantralayam Village and Mandal - 518 345, Kurnool District.
…Complainant
-Vs-
1. The Branch Manager, New India Assurance Company Limited,
No.19/19, 20/21, Municipal Main Road, Adoni - 518 301, Kurnool District.
2.The Branch Manager, State Bank of India,
Mantralayam - 518 345, Kurnool Distirct.
...Opposite ParTies
This complaint is coming on this day for orders in the presence of Sri B.Amarnath, Advocate for complainant and Sri P.Ramanjaneyulu, Advocate for opposite party No.1 and Sri M.Parameshappa, Advocate for opposite party No.2 and upon perusing the material papers on record, the Forum made the following.
ORDER
(As per Sri. M.Krishna Reddy, Male Member)
C.C. No. 113/2010
1. This complaint is filed under section 12 of C. P. Act, 1986 praying to direct the opposite party No.1:-
- To pay claim amount of Rs.5,64,000/- with interest at 12% per annum from the date of claim till the date of realization;
- To pay Rs.50,000/- towards mental agony suffered by the complainant;
- To pay Rs.2,000/- towards costs of the complaint;
And
- Grant such other relief or reliefs as the Honourable Forum deems fit and proper in the circumstances of the case.
2. The case of the complainant in brief is as under:- The complainant is a resident of Mantralayam. He owns a building bearing No.4/64 in Mantralayam Village. The complainant availed building loan from opposite party No.2 bank. He insured his building with opposite party No.1 for the period from 02-10-2009 to 01-10-2010. The sum assured is Rs.10,00,000/-. In the month of October, 2009 there were floods in Mantralayam Village and flood water entered up to the level of 15 feet. The building of the complainant was total inundated in the flood water. The complainant informed about the damage to the opposite parties 1 and 2. Opposite party No.1 appointed a surveyor to note down the damage. The complainant submitted claim to opposite party No.1. The complainant submitted necessary documents to settle the claim. The surveyor demanded several documents to settle the claim. The complainant spent about Rs.5,64,000/- for removal of Silt and Painting ect. Opposite party No.1 did not settle the claim of the complainant with in reasonable time. There is deficiency of service on the part of opposite party No.1. Hence the complaint.
3. Opposite party No.1 filed written version stating that the complaint is not maintainable. It is admitted that the policy was issued in favour of the complainant for the period from 02-10-2009 to 01-10-2010 for an assured amount of Rs.10,00,000/-. The Demand Draft from opposite party No.2 bank for renewal of the policy was received at 8.33 A.M. on 02-10-2009. As the building of the complainant was affected with flood and rain water from 30-09-2009 to 01-10-2009, opposite party No.1 is not liable to pay assured amount to the complainant. The loss suffered by the complainant is outside the scope of the policy. On intimation given by the complainant the surveyor was appointed to assess the loss. The surveyor assessed the loss at Rs.12,070/- only. The claim of the complainant is excess. The complainant is not entitled to a sum of Rs.5,64,000/-. There is no deficiency of service on the part of the opposite party No.1. The complaint is liable to be dismissed.
Opposite party No.2 filed written version stating that the complaint is not maintainable. The complainant availed loan of Rs.2,25,000/- and executed hypothecation agreement. The complainant insured the building for the period of 01-10-2009 to 30-09-2010 for Rs.10,00,000/-. Opposite party No.2 paid the premium amount to opposite party No.1 on 01-10-2009 through Demand Draft. The said Demand Draft was handed over to the clerk of opposite party No.1 at 8.00 A.M. on 01-10-2009 through its business facilitator by name U.Veeresh. Opposite party No.1 accepted the premium and issued the insurance policy in favour of the complainant. Floods hit Mantralayam at early hours on 02-10-2009 only. The damage to the building of the complainant occurred when the policy was in force. Opposite party No.1 is liable to pay the loss sustained by the complainant. Opposite party No.2 is not liable to pay any amount to the complainant. The complaint is liable to be dismissed.
4. On behalf of the complainant Ex.A1 to A8 are marked and sworn affidavit of the complainant is filed. On behalf of the opposite parties Ex.B1 to B16 are marked. Sworn affidavits of the opposite parties1 and 2 and third party affidavits of Surveyor M.Putushothama Reddy and U.Veeresh are filed.
5. Both sides filed written arguments.
6. Now the points that arise for consideration are:
- Whether there is deficiency of service on the part of Opposite Parties?
- Whether the complainant is entitled for the reliefs as prayed for?
- To what relief?
7. POINTS i and ii:- Admittedly the complainant is the owner of the building bearing No.4/66 in Mantralayam Village. He obtained loan of Rs.2,25,000/- from opposite party No.2 bank. Opposite party No.1 insurance company, issued Ex.B1 insurance policy in favour of the complainant. The sum assured under the policy is Rs.10,00,000/-. The period of the policy is at 8.33 A.M. on 02-10-2009 to 01-10-2010. It is the case of the complainant that there were floods in the month of October, 2009, that flood water entered into his building and he sustained damage. The complainant in his sworn affidavit clearly stated that in the month of October, 2009 there were floods, and due to the said floods his building was damaged. The complainant relied on Ex.A8 certificate issued by Tahsildar Mantralyam where in it is mentioned that the building of the complainant was badly affected with flood water on 02-10-2009 due to heavy rain received from 30-09-2009 to 01-10-2009 Midnight. Opposite party No.2 filed Ex.B15 certificate issued Thasildar Mantralayam to show that the State Bank of India, Mantralayam Branch was also badly affected with flood water on 02-10-2009 at 1.00 A.M. As seen from the evidence available on record it is very clear that the entire town of Mantralayam was submerged in the flood water on 02-10-2009. It is not the case of the opposite parties that the building was not damaged due to floods. Admittedly on intimation given by the complainant, opposite party No.1 appointed a surveyor and the surveyor submitted his report Ex.B4. The surveyor noticed damage caused to the building of the complainant due to floods. No satisfactory evidence is placed by opposite party No.1 that the building of the complainant was damage due to flood water prior to 02-10-2009.
8. It is the contention of the complainant that he submitted claim to insurance company and that the insurance company did not settle the same Ex.B1 is the policy issued by opposite party No.1 in favour of the complainant. It is mentioned in Ex.B1 that the policy commenced at 8.33 hours on 02-10-2009. It is contention of opposite party No.1 that the floods started from 30-09-2009. The date on which the building of the complainant was damaged is crucial. In Ex.A8 certificate issued by Tahsildar, Mantralayam there is no mention that the Mantralayam Town was affected in the flood water on 30-09-2009
and 01-10-2009. There is clear mention in Ex.A8 that the building of the complainant was badly affected in the flood water on 02-10-2009. The contention of the opposite party No.1 that the building of the complainant was damaged prior to 02-10-2009 cannot be accepted. Merely because there was heavy rain in the area on 30-09-2009 and 01-10-2009 it cannot be said that the building of the complainant was damaged prior to 02-10-2009. It is clearly stated in the affidavit filed in support of opposite party No.2 that the Demand Draft towards the premium amount was handed over to opposite party No1 at 8.00 P.M. on 01-10-2009 through business facilitator of opposite party No.2 bank by name U.Veeresh. U.Veeresh also in his affidavit clearly stated that he handed over the Demand Draft towards the insurance premium to opposite party No.1 at 8.00 P.M. on 01-10-2009. Opposite party No.1 is not certain through whom it received the Demand Draft.
9. It is submitted by the learned counsel appearing for the complainant that policy becames operative from the date of commencement. In support of his contention he relied on a decision reported in [1995] 2 CPR 40. The said decision was rendered basing on the Supreme Courts decision reported in New India Assurance Company Limited (Versus) Ram Dayal and others. In the said decision the Apex Court held that when the policy is taken on a particular date its effectiveness is from the commencement of the date. In the present case also the policy Ex.B1 commenced on 02-10-2009. It is deemed to have commenced from 00 hours of 2nd October. 2009. As already stated the entire town of Mantralayam was affected with flood water on 02-10-2009. The same is supported by Ex.A8 and Ex.B15 certificates issued by Tahsildar
Mantralayam. The contention of the opposite party No.1 that the flood occurred prior to 02-10-2009 and that it is not liable to pay the assured amount to the complainant is not just and proper. The complainants building was damaged due to floods on 02-10-2009 when the policy Ex.B1 was in force. Opposite party No.1 without any justification closed the claim of the complainant. The surveyor in his preliminary report Ex.B4 assessed the net loss at Rs.12,070/-. Opposite party No.1 is liable to pay the said amount to the complainant.
10. Opposite party No.2 is the bank. It is argued by the learned counsel appearing for the opposite party No.2 that the bank is not under obligation to get the policy renewed. In support of his contention he filed Ex.B9 arrangement letter between the complainant and opposite party No.2 bank where in clause 6, it is stated that the renewal of the policy should be done by the borrower. The learned counsel also cited a decision of National Commission in First Appeal No.272/2010 (Shri Subhash Chand Jain, Late Shri Hiralal Jain, United India Insurance Company Limited and Bank of Maharashtra). Where in it is held that it is not obligatory of the bank to get policy of the borrower renewed. Merely because opposite party No.2 bank did not send premium to renew the policy to opposite party No.1, it cannot be held responsible. Ex.B1 policy was issued by opposite party No.1 Insurance Company. The building of the complainant was damaged due to floods on 02-10-2009 when the policy was in force. The opposite party No.1 refused to pay the amount to the complainant. There is deficiency of service on the part of the opposite party No.1.
11. In the result, the complaint is partly allowed directing the opposite party No.1 to pay an amount of Rs.12,070/- to the complainant along with cost of Rs.500/- within one month from the date of the order. The complaint against opposite party No.2 is dismissed.
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 18th day of January, 2012.
Sd/- Sd/- Sd/-
MALE MEMBER PRESIDENT LADY MEMBER
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant : Nil For the opposite parties : Nill
List of exhibits marked for the complainant:-
Ex.A1 Flood Loss Intimation Letter to opposite party No.1
dated 27-12-2009.
Ex.A2. Letter dated 10-02-2010 by complainant to
opposite party No.1.
Ex.A3 Letter dated 16-02-2010 by opposite party No.1 to
complainant.
Ex.A4 Building damage repair bills.
Ex.A5 Photo copy of Letter dated 08-04-2010 by complainant to
opposite parties 1 and 2.
Ex.A6 Letter dated 19-04-2010 by opposite party No.1 to complainant.
Ex.A7 Photo copy of Paper Clippings Showing the Flood condition.
Ex.A8 Photo copy of Certificate issued by Tahsildar, Mantralayam, dated 11-01-2010.
List of exhibits marked for the opposite parties:-
Ex.B1 Policy No.610702/11/09/11/00000243 issued by
opposite party No.1 to the complainant.
Ex.B2 Office copy of Fire Claim Form submitted by the complainant dated 10-02-2010.
Ex.B3 Photo copy of Email Statement dated 02-10-2009.
Ex.B4 Office copy of Surveyor Report dated 21-04-2010 to
opposite party No.1.
Ex.B5 Letter dated 10-02-2010 by complainant to
opposite party No.1.
Ex.B6 Photo copy of Daily News Paper Eenady dated 02-10-2009
along with press reports and copies of claim
correspondence submitted by various policy holders which
confirm the operation of the insured peril prior to
commencement of policy issued to the complainant.
Ex.B7 Photo copy of Statement sent to opposite party No.2 by
opposite party No.1 for renewals for the month of
September, 2009 dated 04-09-2009.
Ex.B8 Photo copy of Acknowledgement dated 09-09-2009.
Ex.B9 Photo copy of Arrangement Letter dated 27-06-2008.
Ex.B10 Statement of Account of the complainant
dated 19-07-2010.
Ex.B11 Photo copy of D.D.No.791558 for Rs.60,523/-
dated 01-10-2009.
Ex.B12 Photo copy of Statement showing Transfer Transactions dated 01-10-2009.
Ex.B13 Photo copy of Download Massage List of
opposite party No.1 dated 02-10-2009.
Ex.B14 Photo copy of Confirmation Letter of SBI Manager, Adoni
to show that opposite party No.1 withdraw the DD amount
of Rs.60,523/- on 06-10-2009.
Ex.B15 Photo copy of Certificate issued by Tahsildar, Mantralayam, dated 17-06-2010.
Ex.B16 Photo copy of Letter addressed to opposite party No.2 to
the opposite party No.1 dated 18-04-2010.
Sd/- Sd/- Sd/-
MALE MEMBER PRESIDENT LADY MEMBER
// Certified free copy communicated under Rule 4 (10) of the
A.P.S.C.D.R.C. Rules, 1987//
Copy to:-
Complainant and Opposite parties :
Copy was made ready on :
Copy was dispatched on :
