PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer case is as under –
The Complainant has insured his flat under assignment to LIC Housing Finance Ltd., and paid premium of 15 years. The Complainant has received insurance cover under Awasiya Rin Bima Kawach Policy between LIC Housing Finance Ltd. and the Opposite Party – The Oriental Insurance Co. Ltd. by which housing loans are covered. As per Insurance Certificate No.12221 of Policy No.121802/46/99/031, the Complainants flat is insured for Rs.2,45,000/- for 15 years. Alongwith complaint the Complainant has produced photo copy of insurance certificate issued by Opposite Party.
2) It is the case of the Complainant that due to erection of two new Railway Lines near the building in which the Complainant’s flat situated, the building gets vibration when heavy goods train passes in speed. The main reason to the damage of Complainant’ flat is vibration due to goods train and other reason of damage are rain water force and concealed pipe leakage. Alongwith the complaint the Complainant has produced photographs of his building to show the damaged caused to the flat.
3) The Complainant had lodged written claim with the Opposite Party on 02/12/04. Thereafter the Opposite Party appointed surveyor. The said surveyor contacted the Complainant on telephone and fixed day of survey on 06/12/04. On that day the Complainant was waiting for surveyor from 2.00 p.m. till 4.30 p.m. Then at about 4.50 p.m. surveyor Shri.S.K. Agarwal came to the flat of the Complainant and surveyed it hurriedly within 10 minutes. Surveyor verbally explained to the Complainant that the damage to the Complainant’s flat is resultant effects of “Wear and Tear” only and refused to accept repair quotation letter which was brought by the Complainant from Civil Contractor M/s. Neha Enterprises.
4) After passing of about 18 days after the certificate, the Complainant could not get any reply from the Opposite Party. The Complainant sent reminder but there was no reply to the reminder. Therefore, the Complainant lodged complaint with Insurance Ombudsman on 20/01/05. Insurance Ombudsman vide letter dtd.25/01/05 repudiated claim of the Complainant. Being aggrieved by the award of the Complainant, the Complainant has filed this complaint alleging that Insurance Ombudsman without giving opportunity of hearing to the Complainant decided the complaint. Undue importance was given to the report of the surveyor. It is wrongly observed that the building is 15 years old. It was not taken into consideration that LIC Housing Finance Ltd. provided loans up to 10 years only and the Complainant purchased flat before only about 6 years.
5) The Complainant has prayed to direct the Opposite Party to pay Rs.58,800/- as insurance claim to the Complainant. The Complainant has prayed for interest on aforesaid amount till receipt of entire payment.
6) Alongwith complaint the Complainant has filed copies of the documents at Exh. ‘A’ to ‘J’ and affidavit in support of the complaint.
7) Opposite Party has filed written statement and thereby resisted claim of the Complainant contending interalia that complaint is misconceived and false and therefore, deserves to be dismissed. It is admitted by the Opposite Party that the Complainant has insurance cover under “Aqasiya Rin Bima Kavach” policy between LIC Housing Finance Ltd. and Oriental Insurance Co. Ltd. by which all housing loans are covered. The insurance cover is provided to the Complainant’s flat upto Rs.2,45,000/- for 15 years. It is alleged by the Opposite Party that the Complainant has not paid premium in time and there is also break in the policy.
8) Surveyor was appointed by Opposite Party. The surveyor in his report has given description of the building in which Complainants flat is situated and stated that the building is 15 years old. He has mentioned that building is not maintained well. He noticed plaster peeling out, cracks on the columns etc. The other buildings in the vicinity were found in good condition. Cracks were observed on the columns along the height, bathroom water concealed pipeline leaking, resulting in the dampening of the common room wall. The surveyor has given opinion to the cause of damage due to “Wear and Tear only” which is not covered under the policy.
9) It is submitted by the Opposite Party that Complainant has admitted that the building is constructed on soft land and there is not direct impact from rail/road vehicle. Depression wear and tear is excluded under the general exception. The Opposite Party has denied the allegations made by the Complainant and stated that the surveyor appointed by the Opposite Party has obtained claim form dully signed by the Complainant and also obtained photographs of the alleged damaged. Surveyor noticed cracks on the column height, bathroom water concealed pipeline. According to the Opposite Party, claim preferred by the Complainant is not covered under the terms and conditions of the insurance policy and therefore, claim of the Complainant was repudiated by the Opposite Party. Therefore, present complaint deserves to be dismissed.
10) The Complainant has filed rejoinder and thereby denied the allegations made by the Opposite Party. He has produced photo copies of the registration of the Rajeev Co-op. Hsg. Society, Copy of letter from LIC Housing Finance Ltd. etc.
11) The Opposite Party has filed written statement, report of their Surveyor M/s. Saran Engineers & Consultants, copy of the order dtd.30/11/05 passed the Insurance Ombudsman, copy of letter of repudiation dtd.25/01/05. The Opposite Party also produced affidavit of Subodh Kumar Agarwal of M/s. Saran Engineers & Consultants and affidavit of evidence. The Complainant has filed pursis and thereby requested to accept his affidavit-in-rejoinder as written argument. Opposite Party has filed written argument.
12) Following points arises of our consideration and our findings thereon are as under -
Point No.1 : Whether the Complainant has proved deficiency in service on the part of Opposite Party ?
Findings : No
Point No.2 : Whether the Complainant is entitle to recover compensation or any other relief from the Opposite Party ?
Findings : No
Reasons :-
Point No.1 :- Following pointes are admitted facts that the Complainant has obtained LIC Housing Finance for purchase of flat and LIC Housing Finance Ltd. has obtained insurance policy from the Oriental Insurance Co. Ltd. under “Awasiya Rin Bima Kawach” scheme bearing Policy No.121802/46/99/031. Under the said policy insurance cover is provided to the Complainant’s flat and Opposite Party has accordingly issued Insurance Certificate in favour of Complainant.
Insurance Certificate in which sum assured is stated as Rs.2,45,000/-. Terms and conditions of the insurance policy are printed on overleaf states that -“Nothing in this policy shall give any rights to any person other than insured and no sum payable under this policy shall carry interest.” In the instance case name of M/s. LIC Housing Finance Ltd. is stated as insured in the insurance policy. M/s. LIC Housing Finance is not joined as necessary party.
According to the Complainant, he purchased flat in the building about in the year 2001. He preferred present claim to the Opposite Party alleging damage to his flat due to the vibration resulting from new railway lines installed in the nearby vicinity and rain water force and water pipe concealed leakage. After receipt of claim from the Complainant, Opposite Party has appointed Saran Engineers & Consultants as surveyor. The Complainant has admitted that surveyor inspected his flat. However, it is alleged that the surveyor hurriedly inspected the flat within 10 minutes. Mr. Subodh Kumar Agrawal from M/s. Saran Engineers & Consultants has filed affidavit and thereby denied allegations made by the Complainant. The Opposite Party has produced a report of their surveyor. In the surveyor’s report cause of damage to the Complainant’s flat is stated as due to wear and tear. Surveyor has stated that there is no substance in the allegations made by the Complainant that damage was due to operation of new railway line resulting in vibration and rain water. After receipt of report of the surveyor, Opposite Party repudiated claim of the Complainant against which the Complainant had preferred complaint before Insurance Ombudsman. Photo copy of award of the Insurance Ombudsman dtd.30/11/05 is produced on record. Insurance Ombudsman did not find any substance in the allegations made by the Complainant and has rejected the claim of the Complainant.
In the complaint the Complainant has made grievance against the order of Insurance Ombudsman. This Forum is not an Appellate Authority over the orders of Insurance Ombudsman. The Complainant has not produced evidence of experts to support his allegations that damage of flat caused due to operation of new rail line, resulting in vibration and rain water force and also about the leakage of concealed water pipe line. Before filing of this complaint the Complainant has not obtain opinion of the expert about damage of his flat. After filing of this complaint he has not requested for the appointment of expert to ascertain cause of damage to his flat. On the contrary from the report of the surveyor appointed by Opposite Party, it appears that Complainant’s building is not maintained well and there was no substance in the allegations made in the complaint. The Complainant has not adduced any evidence to show when new rail line was installed in that area. He has not stated about distance between his building and new rail line. There is no evidence on record to support the allegations made by the Complainant. Therefore, we hold that the Complainant has failed to prove deficiency in service on the part of Opposite Party. Hence we answer point no.1 in the negative.
Point No.2 :- For the reason discussed above, we hold that the Complainant is not entitled to claim any compensation or any other relief from the Opposite Party. Therefore, we answer point no.2 in the negative. For the reasons discussed above, we pass following order -
O R D E R
i.Complaint No. 73/2007 is hereby dismissed with no order as to cost.
ii.Certified copies of this order be furnished to the parties.
