Haryana

Panchkula

CC/278/2015

M/S SUNITA RANI. - Complainant(s)

Versus

UNITED INDIA INSURANCE COMPANY LTD. - Opp.Party(s)

B.S NEGI.

23 Jun 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.

                                                         

Consumer Complaint No.	:	278 of 2015
Date of Institution	:	14.01.2015
Date of Decision	:	23.06.2016

 

Ms/ Sunita Rani and others, through its Proprietor Sh.Vijay Bansal s/o Sh.Firangi Lal, R/o House No.369, Sector-10, Panchkula.

                                                                                      ….Complainant

Versus

1. United India Insurance Company Ltd., Divisional Office, SCO 177-178, Sector-8C, Chandigarh through its Divisional Manager.

2.       Union Bank of India, Sector-8, Panchkula through its Branch Manager.

                                                                        ...Opposite Parties

 

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

Before:                 Mr.Dharam Pal, President.

              Mrs.Anita Kapoor, Member.

              Mr.S.P.Attri, Member.

 

For the Parties:     Complainant in person alongwith Mr.B.S.Negi, Adv.

                             Mr.G.D.Gupta, Adv., for the Op No.1.

                             Mr.Vishal Taneja, Adv., for the Op No.2.

 

ORDER

(Anita Kapoor, Member)

1. The complaint filed by the complainant against the Ops with the averments that at the time of construction of building/godown, he got insured his building/godown vide policy No.110300/11/12/11/00000193 which was valid w.e.f. 01.09.2012 to 31.08.2013 for a sum of Rs.7,00,00,000/- (Annexure C-1) through agent of Op No.1. The complainant paid a premium of Rs.72,418/- to the Op No.1. Unfortunately, in the night of 14.09.2012, the complainant suffered a loss of some portion of the godown due to heavy rain and intimation in this regard has been reported to the Ops. The Ops appointed the surveyor to access the loss occurred at the site of godown who visited the site and demanded the bills of loss occurred at the site and the complainant submitted the bills of Rs.10,66,326/- to the Op No.1. The Op No.1 was to pay Rs.10,13,010/- after deducting 5% on account of compulsory excess but the Op No.1 wrongly paid the claim of Rs.5,18,300/- after deducting the amount of Rs.4,94,710/- whereas the Op No.1 was duty bound to pay the amount of Rs.10,13,010/- as per terms and condition of the insurance policy. The complainant requested the Ops several times to pay the remaining claim amount of Rs.4,94,710/- but the Op No.1 refused to pay the remaining amount vide their letter No.D.O.II/ Chandigarh dated 20.12.2013. Thereafter, the complainant also requested the Ops to pay the remaining claim amount but to no avail. This act of the Ops amounts to deficiency in service on their part. Hence, this complaint.
2. The Op No.1 appeared before this Forum and filed written statement by taking some preliminary objections and submitted that the present complaint is barred by limitation under the policy of insurance as the complaint has been filed on 14.12.2015 i.e. after two years from the date of receipt of payment of the claim in full and final settlement of claim of Rs.5,18,300/- after deduction of excess clause as applicable under the policy on 16.08.2013 from the Op No.1 through NEFT. It is submitted that the present complaint is not maintainable as the claim of the complainant has been settled and paid in full and final settlement of all claims and nothing more is payable beyond the amount assessed & settled by the surveyor under the survey report Lt.Col.GPS Bagga (Retd) & Associates surveyor and loss assessors vide survey report dated 20.02.2013. It is submitted that the surveyor has already clarified all the issues raised by the complainant in his representation dated 25.10.2013 vide its comments dated 02.12.2013 which were duly sent to the complainant. It is submitted that the surveyor has deducted 25% of the expenses for improvement in the subject matter of insurance. It is submitted that some bills for purchase of 350 bags of cement bearing No.741 dated 10.02.2013 were not considered as the constructions could not be prolonged till 01.03.2013. It is submitted that the angles/channels were not found to be damaged and were only rusted. It is submitted that the complainant has already been paid a claim of Rs.5,18,300/- vide NEFT on 16.08.2013 in full and final settlement as per the survey report and nothing more was payable under the policy of insurance. It is submitted that the complainant made a representation for payment of less claim vide letter dated 25.10.2013 which was referred to the surveyor for his comment on 26.10.2013 which was replied on the points raised by the complainant vide his letter dated 02.12.2013 and the same was also replied to the complainant vide letter dated 20.12.2013. It is submitted that the building/godown of the complainant was insured under policy No.110300/11/12/11/00000193 which was valid from 01.09.2012 to 31.08.2013. It is denied that the complainant has spent Rs.10,66,326/- on construction. It is submitted that the demand of additional amount of Rs.4,94,710/- is illegal. Thus there is no deficiency in service on the part of the Op No.1 and prayed for dismissal of the complaint.
3. The Op No.2 appeared before this Forum and filed written statement by taking some preliminary objections and submitted that the complainant approached the Op No.2, the Union Bank of India, for the grant of credit facility for construction of Rural Godown at village Pabnawa, Tehsil Dhand, District Kaithal, Haryana. It is submitted that on 16.01.2012, the terms and conditions duly accepted by the complainant, which contained in sanction letter. It is submitted that the insurance in question was got done by the complainant from the Op No.1. It is submitted that the Op No.2 being the mortgagee of the property in question has nothing to do with the damages claimed by the complainant. It is submitted that only requirement as per the terms and conditions of the sanction letter of the term loan to the complainant was that the fixed asset financed by the OP No.2 was to be insured with all risks with bank clause and there was no requirement that the insurance be got done only from the Op No.1. It is submitted that the complainant reported his loss to the Op No.2. It is submitted that the damages claimed by the complainant were to be looked into by the OP No.1. It is submitted that the dispute was between the complainant and the OP No.1 and the Op No.2 has nothing to do with the disbursal or refusal of the balance/remaining claim amount as claimed by the complainant. It is submitted that there has been no harassment, mental agony, loss of business or financial loss on the part of the OP No.2. Thus there is no deficiency in service on the part of the Op No.2 and prayed for dismissal of the complaint.
4. In order to prove his case, the counsel for the complainant has tendered into evidence by way of affidavit Annexure C-A alongwith documents Annexure C-1 to C-17 and closed the evidence. On the other hand, counsel for the Op No.1 has tendered into evidence by way of affidavit Annexure R1/A & R1/B alongwith documents Annexure R1/1 to R1/7 and closed the evidence. The Op No.2 has tendered into evidence by way of affidavit Annexure R2/A alongwith documents Annexure R2/1 & R2/2 and closed the evidence.
5. We have heard learned counsel for the parties and have gone through the record carefully and minutely.
6. Annexure R1/3  is ‘Settlement Intimation Voucher’ vide which the complainant has accepted the payment of Rs.5,18,300/- “ in full and final discharge of my/our claim upon the company”.
7. Faced with the predicament of having to wriggle out of the contents of Annexure R1/3, the learned counsel for the complainant argued during the course of hearing that the execution thereof was a result of fraud and undue influence because the complainant and OP No.1 were not equally placed and OP No.1 had an upper edge in the matter of exercise of bargaining power.  In support of the contention that Annexure R1/3 may be ignored on that count, reliance can be held on the decision of the Hon’ble National Consumer Commission in a judicial pronouncement reported as Shankar Woolen Pvt. Ltd. vs. National Insurance Co. Ltd., decided on 05.10.2012.
8. We have not been able to persuade ourselves to find any force in the plea. There are no averments in the complaint that any fraud or undue influence has been used by Op No.1 upon the complainant due to which the latter may have been induced/duped into acceptance of the claim amount in “full and final discharge” of its claim against the insurance cover, the factum of it having been entered into between the complainant and Op No.1 is beyond the pale of controversy on the point of fact.
9. For want, thus, of any averment regarding fraud or undue influence, the plea made during the course of hearing cannot be held to be tenable.
10. This Forum is not legally competent to adjudicate upon the factual controversy between the parties about whether proper material had been used in the construction of the godown or whether the amount assessed as salvage is adequate or not. There are disputed question of fact which can be adjudicated upon by a civil court.
11. The complainant, even otherwise deserves to be non-suited because it has not come to the Forum with clean hands. The non-mention of an averment in the complaint about the amount paid by the OP No.1 having been accepted by the complainant in full and final discharge of the claim (made by it) proves that a very important fact had been withheld from mention by the complainant.
12. For the reasoning recorded in the preceding paras of this order, we do not find any force in the complaint. It shall stand rejected accordingly.
13. A copy of this order be sent to the parties free of costs and file be consigned to record room after due compliance.

 

Announced

23.06.2016     S.P.ATTRI            ANITA KAPOOR        DHARAM PAL

                       MEMBER                       MEMBER                     PRESIDENT

 

Note: Each and every page of this order has been duly signed by me.

         

                                 

                                                         ANITA KAPOOR

                                                          MEMBER