IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Friday the 31st day of December, 2021.
Filed on 17.07.2019
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. Smt.C.K.Lekhamma, B.A, LLB (Member)
In
CC/No.182/2019
between
Complainant:- Opposite parties:-
Sri.Balu.C 1. The Chief Manager
S/o Chandrahasan Canara Bank
Kanukattusseril Boat Jetty Road
Thirumala.P.O Alappuzha
Alappuzha-688001 (Adv. M.P.Venugopal)
(Adv. Leena.L.S) 2. M/s United India Insuarnce Co
Ltd., Rep by its
Divisional Manager
Divisional Office, 2nd Floor
Sarada Complex, Mullackal, Alappuzha.
(Adv. T.S.Suresh)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.12 of the Consumer Protection Act, 1986.
1. Material averments briefly stated are as follows:-
During 2008 complainant obtained a housing loan from the 1st opposite party. At the time of availing the loan a Uni home care policy was availed from 2nd opposite party whereby the house was insured. An amount of Rs.2253/- was paid being the insurance premium, service tax and stamp duty and it is valid from 30-9-2008 to 29-9-2018.
2. During the unprecedented flood occurred during August 2018 damage sustained to the house furniture such as sofa, diwan cot, furniture etc. Electric connection also sustained damage due to the flood.
3. Complainant approached the 1st opposite party several times for obtaining the insurance amount but there was no positive action. Thereafter on 17-9-18 he filed an application before the 1st opposite party. Since there was no reply on 26-12-18 another application was given to the 1st opposite party for which also there was no reply. Due to the act of opposite parties, complainant sustained heavy loss and there was deficiency of service. Hence the complaint is filed for realizing an amount of Rs.25,000/- to re-plaster the house, Rs.30,000/- for reconstructing the chimney of the kitchen, Rs.25,000/- for painting, Rs.50,000/- for repairing the furniture, Rs.30,000/- for purchasing granite slab for kitchen, Rs.20,000/- for repairing the door, windows and shutters, Rs.50,000/- for rewiring, Rs.50,000/- for purchasing sanitary fittings. Complainant has also seeking an amount of Rs.50,000/- as compensation and Rs.20,000/- as litigation expenses.
4. 1st opposite party filed version mainly contenting as follows:-
This opposite party is an unnecessary party in the complaint and there was no cause of action against this opposite party. Insurance policy was taken from the 2nd opposite party and so it is a contract between the complainant and the insurer. Complainant had availed a housing loan and had also taken a standard fire and perils policy with effect from 30-9-2008 to 29-9-2018 from the 2nd opposite party. There was no assurance from this opposite party that the insurance coverage is to the house and house hold articles. The damages and repairing charges shown are exaggerated and vague. Complainant is staying in Mullackal village which was less affected area during 2018 flood. Complainant has not approached this opposite party on 17-9-18. For the 1st time on 26-12-18 complainant filed an application and it was forwarded to the 1st opposite party. The copy of application dated 17-9-18 produced is false and fabricated one. There is no cause of action against this opposite party and this opposite party is not liable to indemnify and compensate the complainant. Hence the complaint may be dismissed with compensatory cost.
5. 2nd opposite party filed version mainly contenting as follows:-
There is absolutely no deficiency of service as alleged by the complainant. It is admitted that complainant had availed a standard fire and perils insurance policy with effect from 30-9-08 to 29-9-18. Complainant’s house is situated at Mullackal village which was less affected area of the flood. The averment that on 17-9-18 an application was given is not correct. The applications produced along with complaint dated 17-9-18 and 26-9-18 are fabricated.
6. There was no intimation to this opposite party regarding the damages. As per general conditions 6 (1) of standard fire and peril policy, on happening of any loss or any damages the insured shall forthwith give notice thereof to the company and shall within 15 days after the loss or damage or such other time hence the company may in writing allowing that behalf deliver to the company. Here no notice was issued within 15 days. Insurance is a contract of indemnity and the benefit under policy is accordance with the policy condition. Policy conditions forms the part of the policy and the company as well as the insurer can never deviate from the policy conditions.
7. On the above pleadings following points were raised for consideration:-
- Whether there was any deficiency of service on the part of opposite parties as alleged?
- Whether the complainant is entitled to realize an amount of Rs.2,80,000/- from the opposite parties as alleged?
- Whether the complainant is entitled to realize an amount of Rs.50,000/- as compensation from the opposite parties as alleged?
- Reliefs and cost?
8. Evidence in this case consists of the oral evidence of PW1 to PW3 and Exts.A1 to A3 from the side of the complainant and the oral evidence of RW1 and Ext.B1 to B3 from the side of opposite parties. Ext.C1 commission report and C1 (a) series photographs were marked.
9. Point No.1 to 3:-
PW1 is the complainant in this case. He filed an affidavit in tune with the complaint and marked Ext.A1 to A3.
10. PW2 is the advocate commissioner cum expert in this case. On 15-3-21 he visited the property and prepared a report and work sketch. It is marked Ext.C1. He had taken photographs and it is marked as Ext.C1 (a) series.
11. PW3 filed an affidavit stating that during 2015-2020 he was the councilor of Thirumala Municipal ward. Complainant Balu is a native of that ward. During the flood occurred in 2018 there was water logging at the house of PW1 at a level of 1 meter. The house and furniture sustained heavy damage. Complainant along with his family were residing at a relief camp at the Govt. Girls high school, Alappuzha. Insurance company is liable to compensate complainant.
12. RW1 is the senior manager of 1st opposite party bank. He filed an affidavit in tune with the version. Opposite party No.2 has not adduced any oral evidence and Ext.B1 to B3 were marked.
13. PW1, the complainant constructed a house availing housing loan from the 1st opposite party M/s Canara Bank, Boat Jetty road Alappuzha. The house was insured (standard fire and peril insurance policy) with the 2nd opposite party for a period of 10 years from 30/9/2018 to 29/9/2018 and the insured amount was Rs. 5 lakhs. While so during the un precedent flood occurred during August 2018, there was water logging in and around the house by which the house and furniture there in sustained considerable damage. Complainant informed the matter with the 1st opposite party M/s Canara Bank as per Ext.A2 letter dtd. 17/9/2018 and Ext.A3 letter dtd. 26/12/2018. Through Ext.B2 letter dtd. 1/12/2018 1st opposite party informed the matter to the 2nd opposite party with a request of condoned delay considering that PW1 was not in good health. However the claim was repudiated by Ext.B3 letter 16/5/2019 on a contention that there is violation of policy condition by not informing the matter within 15 days. (General condition 6(i)). Aggrieved by the act of opposite parties the complaint was filed alleging deficiency of service and demanding an amount of Rs.2,80,000/-, Rs.50,000/- as compensation and Rs.20,000/- as litigation expenses. 1st opposite party filed a version admitting the loan transaction and admitting the policy. However according to them once the property is insured it is liability of the insurance company and they have no role. It is for the complainant to contact 2nd opposite party directly and demand the amount. However on getting a letter they had informed the matter to the 2nd opposite party and the claim was repudiated by the 2nd opposite party and infact they are unnecessary party. 2nd opposite party filed a version admitting the policy. However according to them as per general condition 6(1) of standard and special policy issued to the complainant. “ On happening of loss of damages the insured shall forthwith give notice thereof the company and shall within 15 days after the loss or damages or such other time as a company make in writing allow in behalf deliver to the company.” Since there was no claim within the prescribed period they are not liable to compensate the complainant and hence requested to dismiss the complaint. Complainant got examined as PW1 and Ext.A1 to A3 were marked. As per the request of complainant PW2 Advocate cum expert commissioner inspected the property on 15/3/2021 and prepared Ext.C1 commission report and Ext.C1(a) photographs. The then ward councilor of the Alappuzha Municipality was examined PW3 to prove that there was water logging in the house of PW1 and that PW1 and his family were residing in a relief camp for about 1 ½ months. From the side of opposite parties the present manager of the 1st opposite party was examined as RW1. 2nd opposite party has not adduced any oral evidence, Ext.B1 to B3 were marked.
14. The fact that PW1 availed a housing loan from the 1st opposite party and constructed the house is not in dispute. It is also an admitted case that through the 1st opposite party bank the house was insured for an amount of Rs.5 lakhs with the 2nd opposite party for a period of 10 years from 30/9/2018 to 29/9/2018. The case advanced by PW1, the complainant is that during the flood occurred in August 2018 the house and surrounding were immersed in water and inside the house at a height of 1 ½ meters. PW1 is claiming an amount of Rs.2,80,000/- as compensation for damages and Rs.50,000/- as compensation for deficiency of service. PW2 an advocate cum expert commissioner inspected the property and as per his assessment the total loss sustained to PW1 is Rs.1,88,138/-. The evidence of PW3 the then ward councilor shows that there was water at a height of 1 ½ meters inside the house of PW1. PW1 and his family were residing at a temporary relief camp opened at the Government Girls High School, Alappuzha for about 1 ½ months. So the evidence of PW1 , 2 and 3 shows that there was water logging at the house of Pw1 and considerable damage occurred to the house and house hold articles. As discussed earlier the policy is admitted by both opposite parties. According to RW1 the manager of 1st opposite party they are not liable since it is the liability of 2nd opposite party insurance company to indemnify the complainant with respect to any damage in accordance with the policy. 2nd opposite party admitted the policy but their only contention is that it was not timely informed to them and so they are not liable as per clause 6(1) of the policy. Ext.A1(Ext.B1) is the policy issued by 2nd opposite party to the complainant. As per condition No. 6(1) the matter has to be informed within 15 days from the date of occurrence. Admittedly the flood occurred during August 2018. Ext.A2 is a letter dtd. 17/9/2018 alleged to have been issued to the 1st opposite party by PW1 claiming the insurance amount. Similarly Ext.A3 is a letter dtd. 26/12/2018 alleged to have written to the 1st opposite party by complainant requesting to take appropriate action for getting the insurance amount. However there is no evidence on record to show that either Ext.A2 of Ext.A3 reached the 1st opposite party bank. 2nd opposite party has produced Ext.B2 letter dtd. 1/12/2018 issued from the 1st opposite party to them. Since the date of letter is 1/12/2018 it is to be presumed that it is on the basis of Ext.A2 letter 17/9/2018. As stated earlier Ext.A3 is dtd. 26/12/2018 and since Ext. B2 is dtd. 1/12/2018 it can be presumed that it was on the basis of the Ext.A2 letter dtd. 17/9/2018. It is true that reference of Ext.A2 letter is conspicuously absent in Ext.B2 letter. However since it is dtd. 1/12/2018 it can be presumed that it was on the basis of Ext.A2 letter otherwise bank will not be able to know regarding the damage occurred due to flood to the complainant. In Ext.B2 letter the bank had requested to condone delay and look into the matter with utmost priority as the party was not in good health.
15. We do agree that condition specified in insurance policy is to be strictly adhered to and it is not permissible for the court to substitute terms of the contract itself under the garb of construing terms incorporated in the agreement of insurance. But here in this case it is to be noted that from the evidence of PW3 then councilor it can be seen that due to the flood PW1 and his family were residing in a relief camp for about 1 ½ months. So it was impossible for Pw1 to contact the opposite parties and claim the benefit. However as discussed earlier though receipt of Ext.A2 dtd. 17/9/2018 is not admitted by 1st opposite party it can be seen that since Ext.B2 dtd 1/12/2018 it was issued on the basis of Ext.A2 letter. So it is seen that even though PW1 was under difficult situation he has informed the matter within a short time to the 1st opposite party bank claiming the benefit.
16. There is yet another hurdle in this case. As held by the Hon’ble Supreme Court of India in M/s Modern Insulators Ltd. Vs. The Oriental Insurance Co. ltd (2000 (1) CCC 61(NS)
“Insurance – principle of utmost good faith - insurance clam not settled on the basis of exclusion clause – said clause not communicated to appellant – whether the respondent insurance company can claim the benefit of the said exclusion clause? – held no.”
17. Here in this case Ext.A1 is the policy produced by PW1. Iit is only having a single page and the conditions are not mentioned. Ext.B1 is the policy produced by 2nd opposite party . Ext.B1 also the conditions are not specified. Only in the version filed by 2nd opposite party the conditions and the reason for repudiation is mentioned. Since the conditions were not communicated to the complainant 2nd opposite party cannot take shelter under the same. Hence we are of the considered view that complainant is entitled the claim insurance amount.
18. As held by the Hon’ble Supreme Court in Omprakash Vs. Reliance General Insurance on 4/9/2017 in Civil Appeal No.15611 of 2017 .
“Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy-holders in the insurance industry. It needs no emphasis that the Consumer Protection Act aims at providing better protection of the interest of consumers. It is a beneficial legislation that deserves liberal construction. This laudable object should not be forgotten while considering the claims made under the Act.”
19. Now the question regarding the quantum PW1 is claiming an amount of Rs.2,80,000/- on various accounts. PW2 advocate Commissioner on the basis of Ext.C1 report stated that the total loss is Rs. 1,88,138/-. However it is noticed that PW2 has calculated an amount of Rs. 10,700/- for painting works of the furniture. It is to be noted the house alone was insured and so PW1 cannot claim such damage. If that is so the total loss will be Rs. 1,77,438/-(188,138-10,700). As pointed out by the learned counsel appearing for the 2nd opposite party there was under valuation in this case. During cross examination PW1 stated that the total construction cost of his house was Rs. 20 lakhs. However the policy was taken only for Rs. 5 lakhs. Since there was under valuation PW1 is entitled to claim only on pro-rata basis. For a house of 20 lakhs the policy is only for Rs. 5 lakhs. Hence PW1 is entitled to claim only ¼ th of the amount ie, Rs. 44,359.50/-(1,77,483 / 4).
20. PW1 is claiming an amount of Rs.50,000/- on account of deficiency of service from the part of opposite parties. As discussed earlier though PW1 was living under trouble in a relief camp, Ext.A2 letter was given to the 1st opposite party on 17/9/2018. Though receipt of Ext.A1 is denied it is seen that Ext.B2 letter was issued by 1st opposite party to the 2nd opposite party on 1/12/2018 requesting to condone delay on account of bad health of complainant. Ext.A3 letter is dtd. 26/12/2018. So it is pellucid that Ext.B2 letter was issued on the basis of Ext.A2 letter dtd. 17/9/2018. Though Ext.A2 letter is dtd. 17/9/2018, Ext.B2 by which the 1st opposite party informed the 2nd opposite party is dtd. 1/12/2018. So there was considerable delay on the part of 1st opposite party in informing about the damage to the 2nd opposite party and it will amount to deficiency in service. So the 1st opposite party is liable to compensate complainant on account of deficiency of service and we are limiting the same to Rs.15,000/-. These points are found accordingly.
21. Point No. 4:-
In the result complaint is allowed in part.
A) Complainant is allowed to realize an amount of Rs.44,360/- along with interest @ of 9% from 16/5/2019(Ext.B3 repudiation letter) till realization from the 2nd opposite party.
B) Complainant is allowed to realize an amount of Rs.15,000/- from the 1st opposite party as compensation.
C) Complainant is allowed to realize an amount of Rs. 3000/- as cost from the opposite parties.
The order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 31st day of December, 2021.
Sd/- Sri.S.Santhosh Kumar(President)
Sd/-Smt. C.K.Lekhamma (Member)
Appendix:-Evidence of the complainant:-
PW1 - Balu.G (Complainant)
PW2 - Dileep Rahman (Expert Commissioner)
PW3 - Jayaprasad (Witness)
Ext.A1 - Copy of Policy
Ext.A2 - Copy of application dtd.17/9/2018
Ext.A3 - Copy of Application dtd. 26/12/2018
Ext.C1 - Commission Report
Ext.C1(a) - Photographs
Evidence of the opposite parties:-
RW1 - Prasoon.P.S
Ext.B1 - Copy of Policy
Ext.B2 - claim settlement letter dtd. 1/12/2018
Ext.B3 - Letter dtd.16/5/2019
//True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Assistant Registrar
Typed by:- Br/-
Compared by:-
