SMT.G. VASANTHAKUMARI, PRESIDENT.
Complainant’s case is that, the complainant has constructed a residential building and hypothecated the same with the Union Bank of India, Kottiyam branch and insured the same with the opp.party through the Bank on 29-12-05, that during the active period of the above policy as a result of lightening wall beside the shade portion of kitchen demolished and front portion of it was broken, interior rooms were cracked and electrical wiring and home appliances such as TV, Telephone , Fan, Mixie, Electric meter etc were destroyed and RCC roof of the building was broken, that the officers of Fire and Rescusation Kundara came and prepared a report stating that the complainant sustained a loss of Rs.2 lakhs, that the Kundara Police also visited the spot, that on 1.5.09 the above incident was reported in all news papers having circulation in Kollam, that on 15.5.09 the complainant submitted an application before the opp.party for getting the claim amount but not responded, that on 10.8.09 an advocate notice was issued, that the complainant has sustained a loss to the tune of Rs. 2 lakhs and the opp.party is bound to compensate the complainant since the incident occurred during the active period of insurance policy and this complaint since the opp.party has not turned up.
Opp.party entered appearance and filed version stating that the complaint as framed is not maintainable either in law or on facts, that the complaint is bad for non-joinder of necessary party, that the complainant has not impleaded the bank, who has submitted the proposal form and the declaration for the insurance policy and against whom the policy has been assigned in this case, that the opp.party had issued a a New Home Care Policy to the complainant on the basis of the proposal form submitted by the assignee M/s. Union Bank of India, from whom the complainant had availed a housing loan facility, that the sum insured under the policy is Rs.2,00,000/- for which the premium was paid by the assignee M/s Union Bank of India, that the risk covered under the policy is subject to the terms and conditions of the policy, which is binding to the contracting parties in deciding the rights and liabilities arising under the contract of insurance, that it is the bounden duty of the insured or the assignee under the policy to give intimation in writing to the insurer immediately after the occurrence of any incident in the event of any claim arising under the policy that in this case even though the alleged damages sustained on 30.4.09 either the complainant or the assignee bank have not intimated the above incident to the opp.party immediately after the occurrence of the incident enabling the opp.party to initiate the claim procedure, that in fact the complainant got repaired the alleged damages sustained to her residential building without intimating the same before the opp.party and without giving an opportunity to the opp.party to inspect the alleged damages and to assess the extent of loss sustained to the complainant by deputing surveyor and loss assessor, that the complainant had violated the policy condition without giving proper intimation in writing to the opp.party immediately after the occurrence of the alleged incident, that the allegation that she has suffered a loss to the tune of Rs.2 lakhs is not sustainable, that the claim is not supported by any legally acceptable report of a licensed loss assessor and surveyor or any other documentary evidence, that the minor cracks alleged to have sustained to the walls of the residential building of the complainant can be rectified with minor repairs with meager expense, that there is no evidence to prove the extent of damages allegedly sustained , that the electrical equipments and home appliances are not insured items under the policy and the complainant has no manner of right to claim any compensation for the damages if any sustained for those items from this opp.party and that the complaint is only to be dismissed with compensatory cost.
The points that would arise for consideration are:
1. Whether the complaint is bad for non-joinder of necessary party?
2. Whether there is any deficiency in service on the part of the opp.party?
3. Reliefs and costs?
For the complainant PW1 to 3 were examined and marked Exts. P1 to
P19
Ext. P5 marked subject to proof on the basis of the objection raised by the opp.party regarding the admissibility of the same.
For the opp.party DW.1 was examined and marked Ext. D1.
The Points:
According to the complainant her residential building sustained damages due to an alleged lightening that occurred on 30.4.09. But according to the opp.party either the complainant or the Bank have not intimated the above incident to the opp.party in writing in order to get the claim procedure in motion and the opp.party got intimation only through an Advocate notice Ext. P6 on 10.8.09 after rectifying the alleged damages. In Ext. P6 it is alleged that the complainant moved an application before the opp.party on 15.5.09 intimating the incident . But it is denied by the opp.party. Let us examine whether any written intimation given to the opp.party on 15.5.09? The complainant as PW.1 has admitted in cross examination that she has given only oral intimation about the claim before the bank and has not given any intimation in writing to the opp.party. She further down admitted that she did not know whether the bank has intimated the claim in writing to the opp.party. Further according to the complainant she has visited the office of the opp.party near Benzigar hospital on one Saturday and not given in writing to the said branch office about the incident. According to the opp.party Saturday is a holiday for opp.party and the above version is utter false-hood and when the above aspect was put to the witness she has retracted from her earlier version and said that she had given intimation to bank on one Saturday and the bank by telephone intimated the matter to the opp.party then and there. That also cannot be believed since Saturday is a holiday to the opp.party. More over Bank who ought to have been a necessary party is not a party in this case. Further down in box she had admitted that she has not collected any claim form from the company and not submitted any claim form duly filled before the opp.party. She has also no case that the bank has not given the claim form to here, when she had intimated the incident to the bank as alleged in the complaint. She has also admitted that she issued advocate notice after repairing the alleged damages . As per condition No.4 in Ext. D1 policy on the happening of any loss of damage the insured shall forthwith give notice there of to the company and shall be within 15 days after the loss or damages. But it is in evidence that the complainant has not intimated the incident to the company in writing as contemplated under the above condition of the policy enabling the opp.party to asses the loss through licensed surveyor and loss assessor. In 2006 CPJVol. III page 155 it has been held that if the claim intimation is not immediately after the incident and if there is belated intimation of claim, it is a sufficient ground for repudiation of the claim by the insurance company In the case on hand also the complainant has violated the terms and conditions of the policy and the repudiation of the claim by the company is justifiable. There is no deficiency in service.
In the result, the complaint is dismissed but without cost.
Dated this the 31st day of December, 2012.
I N D E X
List of witnesses for the complainant
PW.1. – Valsala
PW.2. – Jojo Hari
PW.3. – Arun Das
List of documents for the complainan
P1. – Copy of policy
P2. – Report of Fire and Rescue
P3. – GD report
P4. - Copy of Mathrubhoomi daily
P5. – Application dated 25.1.09
P6. – Advocate notice
P7. – Acknowledgement card
P8.- Photograph
P9. – Photograph of the insured wall
P10. – Photograph of the wall Bed room
P11. – Photograph
P12. – Photograph
P13. – Photograph
P14. – Photograph to the damaged building
P15.- Photograph to the damaged building
P16. – Photograph to the damaged building
P17. – Photograph to the damaged building
P18. – Photograph to the damaged building
P19. – Photograph to the damaged building
List of witnesses for the opp.party
DW.1. – Alexander K.I
List of documents for the opp.party
D1. – Policy with conditions
