Haryana

Ambala

CC/168/2022

Desh Bandhu Jindal - Complainant(s)

Versus

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

Sanjeev Gera

18 Jul 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case No.	:	168 of 2022
Date of Institution	:	27.05.2022
Date of decision	:	18.07.2024

Desh Bandhu Jindal S/o Sh. Amarnath Jindal R/o Ward No.1 Naraingarh, Distt. Ambala.

          ……. Complainant.

                                                Versus

1. The New India Assurance Company Ltd. Branch Office Jagadhari Road Yamunanagar.
2. Branch Manager, UCO Bank Naraingarh Distt. Ambala.
3. Pankaj Goel (Surveyor & Loss Assessor) (sole proprietor of M/s Pankaj Goel and Company) Co # 947, Sector 17 HUDA Jagadhari Distt. Yamunanagar 135003

 

….…. Opposite Parties

Before:        Smt. Neena Sandhu, President.

                      Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:      Shri Vivek Sagar and Shri Sanjeev Gera, Advocates, counsel for the complainant.

                   Shri Nikhilesh Bhagi, Advocate, counsel for the OP No.1

                   Defence of OP No.2 already struck off.

                   OP No.3 already proceeded against ex parte.                         

Order:        Smt. Neena Sandhu, President.

                   Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

a) To pay Rs.9.30 lacs (estimate amount for repair and construction of insured premises) alongwith interest @18% p.a.

b) To pay Rs.1,00,000/- as compensation to the complainant on account of harassment and agony.

c) To pay Rs.50,000/- as cost of litigation

                                      Or

Grant any other relief, which this Hon’ble Commission may deems fit.

2.             Brief facts of the case are that the complainant has availed a home loan/ house construction loan facility from OP No.2. The complainant has also availed the new India Insurance (Fire claim) vide policy no. 35350311180100000571 for the period of 20 years, under which the said house was got insured.  On 12.12.2021 two rooms along with furniture, AC, electrical equipment etc. etc. installed in the house of the complainant was got burned/damaged due to fire, upon which, DDR was also recorded in the police of PS Naraingarh. The incident was also reported to OPs No.1 and 2, upon which, OP No.1 appointed surveyor to assess loss to the premises in the said fire. OP No.3 inspected the building of house of the complainant and clicked the picks of the burnt rooms and articles of house of the complainant and also took the required documents regarding the house in question from the complainant i.e. copy of DDR, site plan etc and assured the complainant to pass the loan within a week after estimating the loss amount. Thereafter the complainant contacted through telephone and email to OPs No.1 and 3 regarding the claim of above said policy. OP No.3 put a query regarding the above said house, which was duly replied by the complainant through email. OP No.3 also asked him to provide estimate amount for construction and repaire of the said house. As such, through email the complainant sent report of architecture, which was valued to Rs. 9,30,000/-. After that, on asking of the OPs No.1 and 3, the complainant started work in the insured premises and again contacted the OP No.3 for payment of the claim under the above said policy but to no avail.  Hence, the present complaint.
3.           Upon notice, the OP No.1 appeared and filed written version wherein it raised preliminary objections to the effect that this Commission did not have territorial jurisdiction to decide this complaint; the complaint is false, frivolous, vague and vexatious in nature;  there is no cause of action in favour of the complainant; the complaint is not maintainable as the complainant has not come to this Commission with clean hands and suppressed the material facts; it is a settled law decided by Hon'ble National Commission in case titled as National Insurance Co. Vs Surinder Lal Arora reported ina 1995(2) CLT 374 that there is General tendency to lodge false claim before consumer forum as there is no court fees are payable for processing it and filling of such false complaint are abuse of the process of consumer protection act; the complainant is estopped by his own act and conduct to file this complaint etc. On merits, it has been stated that the complainant had purchased Standard Fire and Special Perils Policy from OP No.1 on 18-11-14 and at the time of purchase of said policy, all terms and conditions were informed/communicated to the complainant including the documents required for claim. The complainant had purchased the insurance policy for superstructure of building only and there is no insurance of accessories, fitting of fixtures including household items. The complainant wrongly deliberately claimed amount of accessories or house hold items including cash which are not insured under policy in question. After receiving the intimation from the complainant regarding alleged loss fire, OP No.1 immediately registered the claim and deputed well experience Surveyour/Valuer/Loss Assessor-Sh. Pankaj Goel i.e. OP No.3 for conducting the survey at the spot and to assess the loss due to fire. Sh. Pankaj Goel -OP No.3 visited the place of incident on 13-12-2021 and inspected the building, in presence of the complainant, also discussed in detail the mode, manner and reason of fire and also regarding the loss due to that fire and also conducted physical verification of the building and also clicked the photographs of the concerned area of the building in question. As a matter of fact, after receiving survey reports and after completion of all the formalities, the insurer has every right to consider the claim under terms and conditions of the insurance policy. During the survey the above said surveyor found major discrepancies and contradiction in the claim lodged by the complainant. Some of which are hereunder:

1) Intensity of fire is very low and its corresponding effect is that the fire lasted within 10 to 12 minutes and during this it could not cause any damage to civil construction.

2) Actual Construction on the location did not match with the Site Plan submitted by your client to the bank alongwith valuation report of Er. J.S. Garg.

3) As per Bank Record, the complainant's bank had provided financial assistance for the construction of Residential Double Story House, however during survey, it was found that there was such structure at the spot meaning there by the building for which the bank had taken the Insurance cover from my client don't exist and infact never existed.

4) As per the news cutting in the news paper, fire brigade report, there was loss of I Air conditioner, 1 LED TV, 1 Laptop, & record of shop of Bandhu & Company and there is nowhere mentioning regarding loss/damage to the building structure. Moreover the alleged claimed loss of Air Conditioner, Led TV, Laptop, cash etc. is not covered under insurance policy. The complainant failed to remove the discrepancies despite repeated reminders and he filed the complaint in Consumer Forum on the wrong facts which is liable to be dismissed.

Sh. Pankaj Goel Surveyor met with the complainant several times and requested him to provide the relevant records for verification and to provide mandatory documents in support of the claim but the complainant  failed to do so.   The documents submitted by the complainant were found to have various discrepancies with regard to location and construction of the insured place and actual spot. The surveyor vide email dated 30.12.2021 requested the complainant to inform regarding repair schedule alongwith clarification with regard to damaged building which is single story building whereas per building plan the aforesaid building is double story building. Sh. Pankaj Goel again vide email 08.01.2022, 16.02.2022 and 20.01.2022 requested to remove the discrepancies but the complainant tried to put pressure upon the surveyor to pass his claim by ignoring all major discrepancies. The surveyor vide letter dated 04.04.2022 requested the complainant to clear the position on the discrepancies of the claim but to no avail and as such, the surveyor left with no option except to submit his report to OP No.1. After receiving survey report dated 15.05.2022, OP No.1 vide registered letter dated 01-06-2022 requested the complainant to remove the said discrepancies but to no avail, as a result of which, vide letter dated 13.06.2022 his claim was repudiated and claim was closed on account of non compliance with queries/formalities.  Rest of the averments of the complainant were denied by OP No.1 and prayed for dismissal of the present complaint with costs.

4.           When despite availing number of opportunities, written version and evidence was not filed on behalf of OP No.2, its defence was struck off, vide order dated 30.01.2023.
5.           Upon notice, none appeared on behalf of the OP No.3 before this Commission, therefore, it was proceeded against ex-parte vide order dated 11.01.2023.
6.           Learned counsel for the complainant tendered affidavit of complainant and affidavit of Jatin Mangal, Architecture C/o Refine Architect, Near Trilokpur Chowk, Raipur Rani, District Panchkula as Annexure CW1/A and CW2/A respectively alongwith documents as Annexure C-1 to C-9 and closed the evidence on behalf of complainant.  Learned counsel for OP No.1 tendered affidavit of Raj Kumar Mittal, The New India Assurance Co. Ltd., Legal Suit Division Karnal as Annexure RW1/A alongwith documents as Annexure R-1 to R-23 and closed the evidence on behalf of OP No.1.
7.           We have heard the learned counsel for the complainant and learned counsel for the OP No.1 and have carefully gone through the case file and also written arguments filed by the learned counsel for the OP No.1.
8.           Learned counsel for the complainant submitted that by not making payment in respect of the damage caused to the insured premises alongwith accessories kept therein, the OPs are deficient in providing service, negligent and adopted unfair trade practice. 
9.           On the contrary, the learned counsel for the OP No.1 submitted that the claim of the complainant was rightly rejected because the complainant failed to provide necessary documents sought for, by the Surveyor. He further submitted that even only the super structure of the building was insured but the complainant had also claimed the accessories kept therein, which was not payable under the policy in question. He further submitted that the complainant failed to prove that the insured building caught fire because the site/layout plans did not match with the insured premises.
10.           The first question that falls for consideration is as to whether this Commission has territorial jurisdiction to entertain and decide this complaint. It may be stated here that from the policy document Annexure C-1, it is evident that the insured is resident of Naraingarh, which false within the territorial jurisdiction of District Ambala. Thus, this objection taken by the OP No.1, is not tenable, hence, rejected.    
11.           The next question which falls for consideration is, as to whether, the  complainant is entitled to get any amount under the policy in question, in respect of the fire which took place in the insured premises or not. It may be stated here that we have gone through the terms and conditions of the policy in question, Annexure C-1 and found that only  Building-Superstructure of the premise i.e. RESIDENTIAL BUILDING INCLUDING FFF AND EF AND BOUNDARY WALLS AND GATES  were got insured by the complainant for the sum assured of Rs.15 lacs.  However, despite that it is coming out from, the report dated 14.12.2021, Annexure C-2 and C-3 of Ar.Jatin Mangal submitted with the OP No.1 that over and above damage shown to be caused to the civil work (new slab casting) to  the tune of Rs.1,80,000/- in the fire which took place on 12.12.2021, other accessories like laptop, wood work, A.C., paints and finishes, electrical and lighting, cash etc. totaling to Rs.9.30 lacs has also been shown to be gutted in fire. It may be stated here that in the first instance, the complainant has not been able to prove as to how he is also entitled to claim damage caused to the accessories referred to above, when under the policy in question, Annexure C-1, only Building-Superstructure of the premise i.e. RESIDENTIAL BUILDING INCLUDING FFF AND EF AND BOUNDARY WALLS AND GATES were got insured by him for the sum assured of Rs.15 lacs.
12.           Now coming to the damage caused to the civil work/building/super structure, which was insured under the policy in question, it may be stated here that we have gone through the report dated 15.05.2022, Annexure R-18 prepared by Sh.Pankaj Goel, Surveyor and Loss Assessor, perusal of which reveals that net  assessed amount of loss has been arrived at Rs.72000/-. It is significant to mention here that this report, Annexure R-18 is a detailed one and not even a single document has been placed on record by the complainant to rebut the opinion given by the Surveyor therein. Moreover, the complainant has not pointed out any discrepancy or lacunae in the report of the surveyor.  Hence without any reasons, the report of the surveyor who assessed the loss to the tune of Rs.72,000/-, cannot be disregarded.  The Hon'ble Supreme Court in the case of Sri Venkateswara Syndicate vs. Oriental Insurance Company Limited &Anr., (2009) 8 SCC 507, has observed the following:-

"31. The assessment of loss, claim settlement and relevance of survey report depends on various factors. Whenever a loss is reported by insured, a loss adjuster, popularly known as loss surveyor, is deputed who assesses the loss and issues report known as surveyor report which forms the basis for consideration or otherwise of the claim. Surveyors are appointed under the statutory provisions and they are the link between the insurer and the insured when the question of settlement of loss or damage arises. The report of the surveyor could become the basis for settlement of a claim by the insurer in respect of the loss suffered by the insured.

 

13.           As far as repudiation of claim of the complainant by the insurance company vide repudiation letter dated 13.06.2022, Annexure R-21, on the ground that the complainant has failed to provide certain documents sought for by the surveyor i.e. detailed estimate of loss; copy of ownership proof of the building; copy of site plan; copy of valuation certificate of entire building; copy of fire brigade report; etc. is concerned, it may be stated here that first coming to  providing copy of fire brigade report and copy of detailed estimate of loss  is concerned, it may be stated here that the surveyor himself in his report, Annexure R-18 has mentioned that he has gone through the contents of Fire Brigade Report and found that the accessories referred to above were gutted in fire and that there is no mention of any loss/damage to the building, which means that he was in custody of the Fire Brigade Report. Similarly, it is also found mentioned in this report Annexure R-18 under the heading ENCL;- that estimate of loss is attached alongwith other documents.

                   As far as documents like; copy of ownership proof of the building; copy of site plan; copy of valuation certificate of entire building are concerned, in our considered opinion, these documents should have been asked for by the OP No.1 at the time of issuance of the policy in question and not at the time of making payment of claim amount, arising out of the said policy. Under these circumstances, it is held that the claim of the complainant was wrongly repudiated by OP No.1 under the garb of non supply of documents referred to above, which amounts to deficiency in service. It is therefore held that the complainant is entitled to Rs.72,000/- as assessed by the surveyor. 

14.           Since the claim amount is to be payable by the insurer i.e OP No.1 only and not by the OPs No.2 and 3, therefore, the complaint filed by the complainant against them, is liable to be dismissed.
15.           In view of the aforesaid discussion, we hereby dismiss the present complaint against OPs No.2 and 3 and partly allow the same against OP No.1 and direct it, in the following manner:-
    1. To pay claim amount to the tune of Rs.72,000/- as assessed by the surveyor, alongwith interest @6% p.a. from the date of repudiation of the claim i.e 13.06.2022, till its realization.
    2. To pay Rs.5,000/-, as compensation for the mental agony and physical harassment suffered by the complainant.
    3. To pay Rs.3,000/-, as litigation expenses.

The OP No.1 is further directed to comply with the aforesaid directions within the period of 45 days, from the date of receipt of the certified copy of the order, failing which the OP No.1 shall pay interest @ 8% per annum on the awarded amount, from the date of default, till realization. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced:- 18.07.2024

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President