IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Wednesday the 27th day of October, 2021.
Filed on 13-02-2019
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. P.R Sholy, B.A.L,LLB (Member)
In
CC/No.53/2019
between
Complainant:- Opposite parties:-
Sri.Biju.C 1. The Manager
Late Chellappan United India Insurance Co. Ltd
Kopparathu House Perumbavoor Branch
Ambalappuzha(N) (Adv. Sri. T.S.Suresh)
Kanjippadam.P.O 2. The Manager
Alappuzha-5 Union Bank of India
(Party in person) Alappuzha Branch
(Adv. Sri. Jayan C.Das))
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.12 of the Consumer Protection Act, 1986.
Material averments briefly stated are as follows:-
On 19.10.2006 complainant availed a housing loan of Rs.3,35,000/- from 2nd opposite party M/s Union Bank of India Alappuzha branch and a building was constructed. The building was insured with the 2nd opposite party M/s United India Insurance Co. Ltd., Perumbavoor branch for an amount of Rs.4,00,000/- from 14.12.2006 to 13.12.2021. During the flood occurred on 16.08.2018 damage occurred to the house and the matter was informed to the manager of 1st opposite party on 03.09.18. A surveyor deputed by the 1st opposite party prepared a report. 1st opposite party granted an amount of Rs.5,500/- only which is very much on the lower side. An amount of Rs.3,00,000/- was spent for reconstruction. 2nd opposite party had assured that the building is insured against flood, fire etc. and the entire amount will be reimbursed. Hence an amount of Rs.3,00,000/- may be granted which was spent for reconstruction.
2. 1st opposite party filed a version mainly contenting as follows:-
The complainant has approached this Forum with unclean hands and suppressing material facts. There is no deficiency of service from the 1st opposite party. A policy was issued to the complainant and the sum assured was Rs.4,00,000/-.
3. When the claim of the complainant was received this opposite party appointed a qualified surveyor to assess the damage caused to the building and surveyor assessed the market value of the building as Rs. 20 lakhs and loss was assessed as Rs.27,500/-. Applying the pro-rata average as per the policy condition No.12 applicable to Sec.1 liability of the company is only Rs.5,500/-. So as per the above condition of policy the eligible amount is Rs.5,500/- and it was paid to the complainant and obtained a consent letter as full and final satisfaction. Hence the complaint is estopped from raising any further claim since the amount was received without any protest. Complainant claims that he had spent Rs.30,00,000/- for the construction of the building and the surveyor assessed the value as Rs.20,00,000/-. The sum assured of the policy is only Rs.4,00,000/- so there is under insurance. There is absolutely no foulplay, fraudulent act, misrepresentation and deficiency of service from the part of this opposite party and hence the complaint may be dismissed with cost and compensatory cost.
4. 2nd opposite party filed a version through its manager mainly contenting as follows:-
This opposite party has not insisted complainant to insure the house with the 1st opposite party. Complainant was only told to insure the house for getting housing loan. There was no assurance that balance loan amount will be written off after the insurance amount. There was no deficiency of service alleged in the complaint against this opposite party and hence the complaint may be dismissed with cost.
5. On the above pleadings following points were raised for consideration :-
- Whether there is any deficiency of service from the part of the opposite parties as alleged in the complaint?
- Whether the complainant is entitled to realise an amount of Rs.3,00,000/- from the 1st opposite party as prayed for?
- Reliefs and cost?
6. Evidence in this case consists of the oral evidence of PW1 and Exts.A1 to A4 from the side of the complainant. Opposite parties have not adduced any oral evidence and Ext.B1 was marked from the side of 1st opposite party.
7. Point Nos.1 & 2
PW1 is the complainant in this case. He filed an affidavit in tune with the complaint and marked Ext.A1 to A3. Ext.A4 policy was also marked later.
8. PW1, the complainant on 19/10/2006 availed Rs.3,75,000/- as housing loan from the 2nd opposite party M/s Union Bank of India and constructed a house. It was insured with the 1st opposite party M/s United India Insurance Co. ltd, Perumbavoor branch from 16/12/2006 to 13/12/2021 and the sum assured was Rs.4,00,000/-. During the massive flood occurred on 16/8/2018 damage occurred to the house and the matter was informed to the manager of the 1st opposite party. On 3/9/2018 a surveyor assessed the damage and the 1st opposite party granted an amount of Rs. 5,500/-. According to PW1 for renovating the housed he had spend an amount of Rs.3,00,000/-. He insured the house with the 1st opposite party as per the direction of the 2nd opposite party. It was assured by the 2nd opposite party that if the house is insured the insurance company will indemnify the complainant against flood, fire occurrence etc and the remaining loan amount will be written off. Since he has received only Rs.5,500/- he has filed this complaint for realizing an amount of Rs.3,00,000/- out of Rs.4,00,000/- which was the sum assured. 1st opposite party filed version admitting the policy and the sum assured under the policy. However according to them the loss assessed by the surveyor was only Rs.27,500/-. Surveyor assessed the value of the building as Rs.20,00,000/- and since the sum assured was only Rs. 4,00,000/- there was under valuation. So as per Sec.1 condition No.12 complainant is only entitled to proportionate amount which was calculated as Rs. 5,500/-. The said amount was given to PW1 and so according to them he is not entitled to claim any amount. 2nd opposite party filed a version denying that the insurance was taken as per there instigation. There was no assurance from their part that the loan will be written off after the insurance amount. There was no deficiency of service from their part and hence the complaint is only to be dismissed with cost. Complainant got examined as PW1 and Ext. A1 to A4 were marked. Opposite parties have not adduced any oral evidence. Ext. B1 survey Report was marked from the part of 1st opposite party.
9. The fact that PW1 availed a housing loan of Rs. 3,75,000/- from the 2nd opposite party on 19/10/2006 and constructed a house is not in dispute. It is also an admitted fact that the house was insured with the 1st opposite party from 14/12/2006 to 13/12/2021 and the sum assured was Rs. 4,00,000/-. It was also admitted that damage occurred to the house during the flood occurred on 16/8/2018. According to PW1 he renovated the building by spending about Rs.3,00,000/-. Since he had insured the house for Rs.4,00,000/- against flood, fire occurrence etc. he is entitled to claim Rs. 3,00,000/-. Per contra according to 1st opposite party from Ext.B1 assessment report of the surveyor the loss was only Rs. 27,500/-. The estimate of the house assessed by the surveyor was Rs.3,02,000/-. However the value assessed after depreciation is Rs. 20,00,000/-. Since the Insured Declared Value (IDV) was only Rs.4,00,000/-. Pw1 is entitled to Rs. 5,500/- being the proportionate value and the said amount was already paid. While giving evidence PW1 admitted that he has received Rs.5,500/-. Though according to PW1 he spend about Rs.3,00,000/- for renovating the house no evidence is available except his solitary interested testimony. PW1 has not taken out any commission to assess the damages. He has also not examined any witness to show that he has spend Rs.3,00,000/- for renovating the house. As per Ext.B1 report it is seen that the estimate amount of the building was Rs. 3,02,000/- and after depreciation the surveyor calculated the value as Rs. 20,00,000/-. However the IDV was only Rs.4,00,000/-. Hence according to learned counsel appearing for the 1st opposite party there was under valuation. Ext.A4 is the policy issued to PW1 by 1st opposite party. Sec.1 Condition No.12 of the Ext.A4 reads as follows:-
If the Banks/Financial institution interest to the extent of principle loan amount of the property hereby insured shall at the breaking out of any fire or at the commencement of any destruction of or damage to the property by any other peril hereto insured against be collectively of greater value than the sum insured thereon, then the insured shall be considered as being their own insurer for the difference and shall bear a rateable proportion of the loss accordingly. Every item, if more than one, of the policy shall be separately subject to this condition.
10. So as pointed out by the learned counsel appearing for the 1st opposite party though the value of the building assessed by the surveyor after depreciation is Rs. 20,00,000/- it was insured only for an amount of Rs.4,00,000/-. Hence applying condition No.12 of Sec.1 of the policy complainant is only entitled for Rs. 5,500/- being the proportionate amount of damage assessed by the surveyor. As stated earlier as per Ext.B1 the surveyor assessed the damage as Rs.27,500/- and 1st opposite party had paid Rs. 5,500/- being the proportionate amount. As discussed earlier except the testimony of PW1 no evidence is available that he had spend Rs.3,00,000/- for renovating the house. In said circumstances as rightly pointed out by the learned counsel appearing for the 1st opposite party there is no deficiency of service and the amount entitled by PW1 was already disbursed to him. In said circumstances complainant is not entitled for any amount and so these points are found against the complainant.
11. Point No.3:-
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 27th day of October, 2021.
Sd/- Sri.S.Santhosh Kumar(President)
Sd/-Smt.Sholy.P.R(Member)
Appendix:-Evidence of the complainant:-
PW1 - Biju.C( Complainant)
Ext.A1 - Photo graphs(Sub to Obj)
Ext.A2 - Copy of Certificate dtd.19/11/2019
Ext.A3 - Statement of Account
Ext.A4 - Insurance Policy(United India Insurance Co. Ltd)
Ext.B1 - Survey Report.
Evidence of the opposite parties:- NIL
///True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-