IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Wednesday the 17th day of November, 2021.
Filed on 21-05-2020
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. P.R Sholy, B.A.L,LLB (Member)
In
CC/No.87/2020
between
Complainant:- Opposite parties:-
Sri.Thomas Philip 1. Divisional Manager
S/o Late Thomas Philip Division Office
Mallekkal Thakadiyil United India Insurance Co.Ltd
Kodukulanji.P.O-689508 Kottayam, KK. Road
Ala Village, Chengannur, Kottayam-68001
Alappuzha
(Adv. Sri. K.R Rajesh Kumar)
2. The Divisional Manager
Divisional Office
United India Insurance Co Ltd
Alappuzha
3. The Branch Manager
United India Insurance Co. Ltd
Branch Office
Karuvelil Buildiing,
Parumalakadavu, Mannar
(Adv. Sri.T.S.Suresh Op 1 to3)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed u/s 12 of the Consumer Protection Act, 1986
1. Material averments briefly stated are as follows:-
Complainant is the owner of a house at Kodukulanji, Ala Village, Chengannur Taluk. It was reconstructed in the year 2008 and it was insured with the opposite party M/s United India Insurance Co. Ltd on 12/5/2010 for a period of 10 years. The policy was taken through Syndicate bank , Chengannur Branch in connection with a housing loan.
2. Due to heavy rain during the month of August 2018 the house and premises were immersed in water and the water lever raised inside the rooms more than 3 feet height. Complainant and his family vacated the house and stayed temporarily in the relatives house for more than 15 days. Due to heavy flood and current of water, erosion of soil caused damage to foundation of the house and cracks are formed. For the purpose of cleaning the house and rooms complainant had to spend Rs.65,000/-. The house hold articles inverter, water pump motors, washing machine, etc were ruined completely . The estimated loss of such house hold articles are more than 3 lakhs rupees. For the purpose of maintenance repairing, strengthening and for painting etc complainant had to spend more than 2 lakhs.
3. After the flood immediately the complainant informed to the officers of the opposite party and invited them to visit the site for action and fulfill the policy condition for indemnifying the insured. Since there was no response on 16/8/2019 a registered notice was sent. On 27/2/2020 a lawyers notice was sent claiming an amount of Rs.5,65,000/-. Complainant received a letter dtd. 16/3/2020 with untrue facts. Hence the complaint is filed for realizing an amount of Rs. 5,65,000/- along with interest.
4. Opposite parties filed a version mainly contenting as follows:-
The complaint is filed with unclean hands and suppressing material facts. It is admitted that complainant had taken a policy with effect from 12/5/2010 to 11/5/2020 and the sum assured was Rs.11,80,000/-. The policy will cover only the building. There is absolutely no deficiency of service as alleged. Even if any damage was caused to the house hold article it will not cover under the policy. As per policy building alone is covered. Allegation regarding the damages are exaggerated and not supported by any documentary evidence. The alleged repairing charges of the building in the tune of Rs.3,00,000/- is not correct. Complainant never submitted any claim form to this opposite party. A registered letter dtd. 16/8/2019 from the complainant was received. Thereafter it was informed over phone that the last date for submission of claim was 30/9/2018. The reply notice was sent to the Advocate notice on 16/3/2020.
5. As per General Condition 6(1) “On happening of any loss of damages the insured shall forth with give notice thereof to the company and shall within 15 days after the loss or damages, or such further time as the company may in writing allow in that behalf, deliver to the company”
6. During 2018 flood, the time was extended up to 30/9/2018. Since no claim form was filed survey could not be conducted. There is no deficiency of service illegal acts, fraud, misrepresentation from the part of opposite parties and hence the complaint may be dismissed with compensatory cost.
7. On the above pleadings following points were raised for consideration:-
1. Whether there was deficiency of service from the part of opposite parties.?
2. Whether the complainant is entitled to realize an amount of Rs. 65,000/- for cleaning and clearing the house rooms?
3. Whether the complainant is entitled to realize an amount of Rs.3,00,000/- on account of loss of the house hold articles?
4. Whether the complainant is entitled to realize an amount of Rs.2,00,000/- for maintenance , repairing and strengthening of the building?
5. Reliefs and costs?
8. Evidence in this case consists of the oral evidence of PW1 and Ext.A1 to A9 from the side of the complainant. Opposite parties has not adduced any oral evidence Ext.B1 and B2 were marked.
9. Point No 1 to 4:-
PW1 is the complainant in this case. He filed an affidavit in tune with the complaint and marked Ext.A1 to A7. Ext.B1 and B2 were marked from the side of opposite party . Later Ext.A8 and A9 were marked.
10. PW1, the complainant insured the house for a period of 10 years from 12/5/2010 to 12/5/2020 with the opposite party M/s United India Insurance Co. Ltd. During the massive flood occurred in August 2018 water entered his house and PW1along with family shifted their residence. According to PW1 he had spend an amount of Rs.65,000/- to clean the house. He sustained loss of Rs. 2 lakhs due to damage occurred during the flood. Though the matter was informed to the opposite party no amount was paid. Hence he sent Ext.A1 notice on 16/8/2019 and Ext.A2 lawyers notice on 27/2/2020. Opposite parties sent Ext.A4 reply notice on 16/3/2020 informing that the matter was not informed in time and so they are unable to give any amount. Aggrieved by the same the complaint is filed. Opposite parties filed a version admitting the policy with effect from 12/5/2010 to 11/5/2020 and the sum assured is Rs.11,80,000/-. It was contented that the claim of the complainant is exaggerated. According to them as per policy general condition No.6 (1) the matter has to be informed within 15 days. Considering the situation of flood the time was extended till 30/9/2018. However complainant did not informed the matter to them and they came to know the incident only as per Ext.A1 letter dtd. 16/8/2019. Since it was after about one year, they are unable to process the claim and hence they prayed to dismiss the complaint with compensatory cost. Complainant got examined as PW1 and Ext.A1 to A9 were marked. Opposite party did not adduce any oral evidence Ext.B1 and B2 were marked from their side.
11. The fact that PW1 had insured the house is admitted and Ext.B1 is the policy from which it is seen that it is from 12/5/2010 to 11/5/2020. It is also admitted fact that during the massive flood there was water logging at the house of PW1. Ext.A7 series are two photographs from which it is seen that there was water logging and Almirah sustained damage. Ext.A8 is a letter dtd. 14/9/2021 issued by the Village Officer , Ala showing that Rs.10,000/- was given to complainant by the Government as flood relief. Ext.A9 is a certificate issued by Secretary, Ala Panchayath on 10/9/2021 showing that on 9/10/2019 complainant had filed a petition for compensation. But the last date was on 30/6/2019 and so they were unable to give any compensation.
12. In the complaint PW1 is claiming an amount of Rs.3,00,000/- on account of loss of house hold articles. Admittedly the house hold articles were not insured and only the house was insured as per Ext.B1 policy. From Ext.B2 letter dtd. 16/3/2020 (Ext.A4) it is seen that the matter was informed to the insurance company on 16/8/2019 by Ext.A1 registered letter by the complainant. Since the last day for the submission of the claim form was on 30/9/2018 they could not process the claim. Though PW1 has got a case that immediately after the flood he informed the matter at the office of opposite parties there is no evidence for the same excepted his solitary interested testimony. From the evidence on record it is seen that the 1st intimation about the flood was on 16/8/2019 as per Ext.A1 registered letter which was received by the opposite party on 19/8/2019. Since Ext.A1 evoked no response, Ext.A2 lawyers notice was issued on 27/2/2020. Opposite parties sent Ext.B2 reply notice on 16/3/2020 in which it is stated that since the matter was not informed to them within 15 days and as per general condition no.6 they are unable to pay any compensation. General condition No. 6(i) of Ext.B1 policy reads as follows:-
“On the happening of any loss or damage the insured shall forthwith give notice thereof to the company and shall within 15 days after the loss or damage, or such further time as the Company may in writing allow in that behalf, deliver to the Company .”
13. Here admittedly the 1st intimation was as per Ext.A1 letter which was received by the opposite party on 19/8/2019. Since there was a massive flood the time was extended up to 30/9/2018, relaxing the condition 6.(i) that the claim has to be submitted within 15 days. However complainant omitted to inform the opposite party about the claim within the prescribed time and the extended period. Without getting an intimation opposite party will not be able to depute the surveyor to assess the damage. It is also noticed that PW1 has not taken out a commission to assess the damage. He has simply given a statement that he had spend Rs.65,000/- for cleaning and clear the house rooms and he loss house hold articles worth Rs.3 lakhs and Rs. 2 lakhs is required for maintenance of the building. The total claim amount is Rs.5,65,000/-. Excepted the interested testimony of PW1 no evidence is available to prove the amount.
14. Admittedly the matter was not intimated to the opposite party as prescribed in condition .6(i) of Ext.B1 policy. Though the time was extended till 30/9/2018 due to the massive flood within that time also PW1 did not informe the matter to the opposite party. On the other hand the evidence on records shows that he intimated the matter only on 16/8/2019 through Ext.A1 letter ie , after about one year. The law in this regard is settled by judicial pronouncements. It was held by the Hon’ble Supreme Court in Export Credit Guarantee Corporation of India Ltd. Vs. M/s Garg Sons International ( 2013 KHC 4040)
“Thus, it is not permissible for the court to substitute the terms of the contract itself, under the garb of construing terms incorporated in the agreement of insurance. No exceptions can be made on the ground of equity. The liberal attitude adopted by the court, by way of which it interferes in the terms of an insurance agreement, is not permitted. The same must certainly not be extended to the extent of substituting words that were never intended to form a part of the agreement.”
15. It was held by the Hon’ble High Court in National Insurance Co. Ltd Vs. Sudhakaran and others(2018 (5) KHC 661)
“ Insurance Law- Contract of Insurance – Interpretation of- Held, normal rule is that the conditions specified in a policy, which is contract of insurance statutory in nature has to be strictly construed.”
16. So applying the principles laid down by the Hon’ble Supreme Court and Hon’ble High Court it can be safely concluded that this Commission has no authority to relax the condition specified in Ext.B1 policy. As discussed earlier as per Ext.B1 policy condition 6(i) the matter has to be informed immediately or within 15 days. Since there was a massive flood the time was extended by Insurance company till 30/9/2018. However in this case the 1st intimation was given to the opposite party as per Ext.A1 letter only on 16/8/2019. Though Pw1 has got a case that he had informed the matter during the last of August and 1st week of September it is not supported by any evidence except his solitary interested testimony. If the matter was informed to the opposite party in time there is no reason as to why it should be declined. In said circumstances we are of the view that complainant is not entitled for any relief and so these points are found against the complainant.
17. Point No.5:-
In the result complaint is dismissed. Parties are directed to bear their respective cost.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 17th day of November, 2021.
Sd/-Sri.S.Santhosh Kumar(President)
Sd/- Smt. Sholy.P.R (Member)
Appendix:-Evidence of the complainant:-
PW1 - Thomas Philip (Complainant)
Ext.A1 - Registered Letter& Postal Receipt dtd.16/8/2019
Ext.A2 - Advocate Notice dtd. 16/3/2020
Ext.A3 - Postal Receipt
Ext.A4 - Reply Notice dtd.16/3/2020
Ext.A5 - Envelop
Ext.A6 - Photograph(Subject Proof)
Ext.A7 - Photograph(Subject Proof)
Ext.A8 - Letter dtd.14/9/2021
Ext.A9 - Certificate issued from Ala Grama Panchayath dtd. 10/9/21
Evidence of the opposite parties:-
Ext.B1 - Copy of Policy
Ext.B2 - Copy of Reply Notice dtd. 16/3/2020
///True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Assistant Registrar
Typed by:- Br/-
Compared by:-
