Tamil Nadu

South Chennai

CC/19/2015

M/s.Rail Nagar Flat-Owner Association - Complainant(s)

Versus

The Manaager, Claims, The New India Assurance Co ltd., - Opp.Party(s)

R.JayaRaj

31 Oct 2022

ORDER

Date of Complaint Filed : 04.12.2014

Date of Reservation      : 27.09.2022

Date of Order               : 31.10.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:    TMT. B. JIJAA, M.L.,                                           : PRESIDENT

                       THIRU. T.R. SIVAKUMHAR, B.A., B.L.,           :  MEMBER  I 

                       THIRU. S. NANDAGOPALAN., B.Sc., MBA.,    : MEMBER II

 

CONSUMER COMPLAINT No. 19/2015

MONDAY, THE 31^st DAY OF OCTOBER 2022

Rail Nagar Flat -  Owners Association,

Rep. by its Member, Mr.S. Lakshminarayanan,

Rail Nagar, Koyambedu,

Chennai – 107.                                                                    …Complainant

 

 

-Vs-

1.The Manager,

   The New India Assurance Co. Ltd.,

   Claims Hub, Macmillan House, 1^st Floor,

   B-Block, No.21, Patullos Road,

   Chennai – 02.

 

2.The Manager,

   The New India Assurance Co. Ltd.,

   Spencers Tower 2^nd Floor,

   770/A, Anna salai,

   Chennai – 600 002.                                                  ...  Opposite Parties

 

******

Counsel for the Complainant             : M/s. R. Jayaraj

Counsel for the Opposite Parties        : M/s. S.P. Chockalingam

 

        On perusal of records and having heard the oral arguments of the Counsel for the Complainant and the Counsel for the Opposite Parties, we delivered the following:

 

 

ORDER

Pronounced by the President Tmt. B. Jijaa, M.L.,

1.      The Complainant has filed this complaint as against the Opposite Party under section 12 of the Consumer Protection Act, 1986 and prays to direct the Opposite Parties to settle the claim of Rs.6,42,880/- towards repair of compound wall and directing the Opposite Party to pay a sum of Rs.2,00,000/- for deficiency in service and Rs.1,00,000/- for mental agony and loss suffered by the Complainant on account of deficiency of service and directing the Opposite Party to pay cost of Rs.25,000/-.

2.     The averments of Complaint in brief are as follows:-

 

The Complainant had insured the assets of their Rail Nagar with the Opposite Party under a Standard Fire and Special Perils vide Policy No.71290011110100000118 valid from 02.06.2011 to 01.06.2012. The common assets covered under the policy included structures relating to compound wall, the total insured value was arrived at Rs.39,60,000/- and the total sum insured is Rs.4,24,86,000/-. The said insurance policy provides cover for loss against 12 perils such as storm cyclone, typhoon, tempest, hurricane, tornado, flood or inundation. The Complainant had been periodically renewing the policy time to time. On 06/07.06.2011 during night a portion of compound wall collapsed on account of heavy wind accompanied by heavy rain. The Complainant provided temporary struts to prevent the falling of the other portion of the compound wall, but as a result of heavy rain on 05.11.2011 the other portion of the compound wall collapsed. The Complainant intimated the collapse of the compound wall to the Opposite Party on 11.06.2011 and subsequent collapse of the wall on 08.11.2011. The Complainant had also submitted the claim form to the Opposite Party under the said insurance policy. The Opposite Party appointed two surveyors for assessing the nature and extent of the claim. The Complainant complied with the demands made by the surveyors appointed by the Opposite Party. The Complainant had also obtained certificate of the meteorological department as sought by the Opposite Party. The Opposite Party finally repudiated the claim of the Complainant by its letter dated 19.12.2012 stating that the claim falls outside the purview of the Standard Special Peril Policy. The Complainant had also sent letter to Grievance cell of the Opposite Party on 23.05.2012, which claim was repudiated by the Opposite Party by its letter dated 11.07.2012. The Complainant submitted that while issuing the Policy the Opposite Party deliberately concealed the fact that the masonry structure of the compound wall could not covered under the Fire Policy. The Complainant had made an application before the office of the Ombudsman, Chennai on 10.12.2013, which was not decided by the Ombudsman for the reason that “No Complaint to the Ombudsman shall lie unless the complaint is made not later than one year after the rejection of the claim”. The Complainant had sent notice to the Opposite Party on 14.02.2014, which was not replied by the Opposite Party. Hence the complaint.

3.    Written Version filed by the Opposite Parties in brief are as follows:-

           The Opposite Parties submitted that the Complainant has no locus standi to lodge this complaint. The Complainant was put to strict proof that Mr.Lakshminarayanan has been authorised and empowered to file the instant complaint. The Opposite Parties denied that the compound wall collapsed on account of heavy wind and rain on 06/07.06.2011 and 05.11.2011. The portion of compound wall have collapsed that owing to the fact that mud (earth) were accumulated in the adjacent plot upto a height of 4 to 5 feet which is almost to the level of the compound wall and the accumulated mud had created a lateral pressure on the wall with rain with the heap of mud had become more dense and exerted uneven higher lateral load which has resulted in collapse of the compound wall. This fact was corroborated by surveyor’s report. The Complainant had insured to cover losses taking place due to FST Perils (Flood, Storm and Tempest perils), however on the alleged dates of occurrence, as per the certificate of metrological department there was no storm or tempest. The speed of the wind on the relevant date was only 32 per KMPH, which is, as per the Beaufort Wind Scale”, is only a Fresh Wind. The Opposite Party at no point of time had stated that masonry structure like the compound wall are not covered under the Fire Policy. The estimation for the loss by the Complainant to the tune of Rs.6,42,880/- is incorrect. The Opposite Parties have acted within the terms and conditions of the policy and therefore the issue of deficiency of service does not arise. Hence prayed to dismiss the complaint.

4.   The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents Ex.A-1 to Ex.A-19  were marked. The Opposite Parties submitted their Proof Affidavit and Written Arguments. On the side of the Opposite Parties, documents Ex.B-1 to Ex.B-4, were marked.

 

Points for Consideration:-

1. Whether the complaint is barred by limitation?

2. Whether the Complainant is a consumer as defined under the Consumer Protection Act, 1986?

3. Whether there is deficiency in service on the part of the Opposite Parties?

4. Whether the Complainant is entitled for the reliefs claimed?

5. To what other reliefs the Complainant is entitled?

Point No.1:-

        The Complainant had taken Standard Fire and Special Perils Policy vide policy No.71290011110100000118 from the Opposite Party and had insured the assets including the compound wall with the Opposite Party for the period from 02.06.2011 to 01.06.2012. The contention of the Complainant was that on 06/07.06.2011 during night a portion of the Compound Wall was collapsed due to heavy rain, which was intimated to the Opposite Party on 11.06.2011. Further on 05.11.2011, the other portion of the Compound Wall also collapsed as a result of heavy rain which was informed to the Opposite Party on 08.11.2011. The claim submitted by the Complainant was repudiated by the Opposite Party of 19.12.2011, as could be seen from Ex.A-6, in response to the letter issued by the Complainant dated 29.01.2012, Ex.A-7 the Opposite Party had reiterated their stand of repudiation, vide letter dated 18.06.2011, Ex.A-9.

        As per sec.24A of the Consumer Protection Act, 1986 the period of limitation is two years from the date on which the cause of action has arisen for filing of the complaint.

        In the case at hand, it is alleged by the Complainant that the collapse of Compound Wall happened on 06/07.06.2011 and on 05.11.2011. On submission of claim by the Complainant, the Opposite Party had repudiated the claim on 19.12.2011, from which date the complaint ought to have been filed on 19.12.2013. Even if the letter reiterating the repudiation, dated 18.06.2012 is taken into consideration, this complaint being filed on 04.12.2014 is beyond the period of limitation.

        The Opposite Party had placed reliance on the Judgement of the Hon’ble Supreme Court reported in (2009) 7 SCC 768 titled Kandimalla Raghavaiah and Co., Vs. National Insurance Co., and others and of the Judgement reported in (2009) 5 SCC 121 titled State Bank of India Vs B.S Agricultural Industries, wherein it was held that the complaint before the Commission against the Insurance Company for deficiency  in service ought to have been filed within 2 years thereof and hence the complaint is barred by limitation which cases are applicable to the case at hand. The Counsel for Complainant brought to the attention of this Commission Ex.A-5, letter dated 25.03.2015 by the surveyor addressed to the Opposite Party, which is  subsequent to the filing of the Consumer Complaint and hence the letter cannot save  limitation to file the Consumer complaint by the Complainant which was already barred by limitation. Hence the complaint is barred by limitation.

Point No.2:-

        The Opposite Party pleaded and contended that the complaint is neither a consumer nor a recognized Consumer Association and hence cannot maintain the complaint. The Opposite Party relied on the Judgement reported in III (2017) CPJ 494 (NC), Moulivakkam Trust Heights Flats Affected Buyers Association and others Vs Prime Sristi Housing Pvt Ltd., & others and another Judgement reported in (2020) 11 SCC 328, Sobha Hibiscus Condominican Vs. Managing Director, Sobha Developers Ltd., and others, wherein it was held that Voluntary Consumer Association is a body formed by a group of persons coming together of their own will without any pressure or influence from anyone and that the Appellant Association has come into existence pursuant to a declaration which is required to be made compulsorily under the provisions of 1972 Act cannot be said to be a voluntary association to maintain the complaint. The contention of the Opposite Party is that in the instant case the Complainant formed as per the Tamil Nadu Flat Owners Association, 1994 is not a Voluntary Consumer Association as defined in Section 2(1) (d) of the Consumer Protection Act, 1986.

        In the case at hand the Complainant Association had taken Insurance Policy in its name from the Opposites Party as per Ex.A-1. The Complainant had availed the services from the Opposite Party by payment of premium, and hence falls under the definition of the Consumer as defined under the Consumer Protection Act.

        Further the Opposite Party contended that the said Mr.S, Lakshminarayanan was not authorised to file the complaint. The Opposite Party relied on the order of the High Court, Delhi decided on 06.03.1990 in the case of Nibro Limited Vs National Insurance Co., Ltd, wherein it was held that unless a power to institute a suit is specifically conferred on a particular director he has no authority to institute a suit.

        In the present case the Complainant had filed the authorisation letter Ex.A-19, authorising him to institute the present complaint. Hence this issue is answered in favour of the Complainant.

 

Point No.3:-

        The undisputed facts are that on the dates i.e., 06/07.06.2011, 05.11.2011 when the alleged incident of collapse of Compound Wall occurred, the Standard Fire and Special Peril Insurance Policy bearing No. 71290011110100000118 taken by the Complainant covering for the period from 02.06.2011 to 01.06.2012 existed as per Ex.A-1. It also not in dispute that the assets covered under the Policy is inclusive of the Compound Wall. The dispute arose when the Complainant informed the Opposite Party about the collapse of Compound Wall due to heavy rains on 11.06.2011 and 08.11.2011, and also submitted claim form to the Opposite Party, which was repudiated on 19.12.2011.

        The contention of the Complainant was that the Weather Report issued by the India Meteorological Department for the date on 07.06.2011 was sufficient to settle the claim of the Complainant. A perusal of Ex.A-4, the Weather Report dated 25.08.2011 goes to show that the wind speed, rain fall did not Constitute the Perils covered under policy. Moreover, the survey Report Ex.B-1 goes to show that the reported damage to compound wall on 15.11.2011 night, which was surveyed on 29.11.2011 was due to accumulated mud on the adjacent land, to a height of about 4 to 5 feet, which has created a lateral pressure on the wall, with rain the heap of mud had become more dense and executed an even higher lateral load and the Survey Report concluded that collapse of compound Wall did not take place due to any of the insured perils. The accumulated mud on the adjacent land is supported by the photographs submitted along with Survey Report.

        The Opposite Party relied on the order dated 07.07.2008, passed by the Hon’ble Nation consumer Disputes Redressal commission in the case of United India Insurance Co., Ltd., Vs. Sri Dwarika Dhees Industries wherein it was held that disputed questions of facts and law relying to forgery are involved requiring recording of voluminous evidence and hence the matter could not be dealt with any Consumer Fora and directed to approach the Civil Court which is not applicable to the present case.

        Further the Opposite Party relied on the Judgements reported in (2010) 10 SCC 567, titled Suraj Mal Ram Niwas Niwas Oil Mills (P) Ltd., Vs United India Insurance Co., Ltd and (2004) 8CC 644, United India Insurance Co., Ltd Vs. Harchand Rai Chandan Lal, wherein it was held that in a contract of insurance, right and obligations are strictly governed by the terms and conditions of the Policy and repudiated the claim which is applicable to the present case at hand.

        In view of the above discussions this Commission is of the considered view that the Opposite Party had not committed deficiency of service and was right in repudiating the claim of the Complainant based on the survey Report, Ex.B-1., as the claim does not fall under only of the perils enumerated under the Policy. Accordingly, Point No.3 is answered.

         

Point Nos 4 and 5:-

As discussed and decided above  the Complainant is not entitled for any relief claimed in the Complaint and/or for any other relief/s. Accordingly, Point Nos. 4 and 5 are answered.

In the result the complaint is dismissed. No costs.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 31^st of October 2022. 

 

S. NANDAGOPALAN              T.R. SIVAKUMHAR                 B.JIJAA

         MEMBER II                       MEMBER I                        PRESIDENT

 

List of documents filed on the side of the Complainant:-

 

Ex.A1	30.05.2011	Copy of Policy Copy
Ex.A2	-	Terms and condition of Policy
Ex.A3	27.07.2011	Letter issued by the Meteorological centre
Ex.A4	25.08.2011	Report issued by the Meteorological centre
Ex.A5	08.11.2011	Letter sent by the Complainant
Ex.A6	19.12.2011	Repudiation letter by the Opposite Party
Ex.A7	29.01.2012	Letter sent by the Complainant
Ex.A8	16.04.2012	Letter sent by the Complainant
Ex.A9	18.06.2012	Letter sent by the Opposite Party
Ex.A10	06.02.2014	Estimate bill for the construction of compound wall
Ex.A11	08.06.2011	Paper publication
Ex.A12	-	Photocopies
Ex.A13	10.12.2013	Complainant filed before Ombudsman
Ex.A14	-	e-mail from Ombudsman
Ex.A15	14.02.2014	Notice sent by the Complainant
Ex.A16	24.02.2014	Acknowledgement card
Ex.A17	31.10.2014	Copy of Rail Nagar Flat Owners Association
Ex.A18	-	Photocopies of damaged compound wall
Ex.A19	-	Copy of concern form of Rail Nagar Flat owners Association

 

List of documents filed on the side of the Opposite Party:-

 

Ex.B1	27.08.2012	Survey report
Ex.B2	-	Beaufort Wind Force Scale
Ex.B3	-	Terminologies and Glossary issued by Indian Metrological Department (Synoptic System)
Ex.B4	25.03.2015	Copies of Photographs

 

 

 

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                   B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT