State Consumer Disputes Redressal Commission
Sh. Hukam Chand. vs Reliance General Insurance Co. Ltd. & ... on 20 December, 2023
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA.
RBT/CC No.: 45/2019
Date of Presentation: 08.11.2017
Order reserved on: 23.11.2023
Date of Decision: 20.12.2023
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Sh.Hukam Chand S/o late Sh. Mangtu, resident of Village and
Post Office Dharampur, Tehsil Dharampur, District Mandi,
Himachal Pradesh Proprietor Saklani Nursery, Village and Post
Office Dharampur, Tehsil Dharampur, District Mandi, Himachal
Pradesh
.......... Complainant.
Versus
1. Reliance General Insurance Company Limited, Reliance
Centre, 4th Floor, South Wing, Off. Western Express Highway,
Santa Cruz (East), Mumbai 400055
2. Reliance General Insurance Company Limited, SCO 147-148,
2nd Floor, Sector 9-C Chandigarh.
3. Reliance General Insurance Company Limited, 126/12, 1st
Floor, Mangwari, Near Namdhari Gurudwara, Ramnagar
175001 District Mandi, H.P.
4. UCO Bank, Lower Bazar, Village and Post Office Sarkaghat,
District Mandi, Himachal Pradesh. Through its Branch
Manager
.......... Opposite parties.
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Coram
Hon'ble Justice Inder Singh Mehta, President
Hon'ble Mr. R.K. Verma, Member
Whether approved for reporting?1 Yes.
For the complainant: Mr.Vijay Chaudhary, Advocate
For Opposite Parties No.1 to 3: Mr.Jagdish Thakur, Advocate.
For Opposite Party No.4: Mr. Sanjay Dalmia, Advocate.
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Whether Reporters of the local papers may be allowed to see the order?
Hukam chand Vs. Reliance General Insurance Co. Ltd.& Ors.
RBT/CC/45/2019
Justice Inder Singh Mehta, President
O R D E R:
The complainant has filed the instant complaint seeking directions to the opposite parties to pay the insured amount of Rs.20,00,000/-, a sum of Rs.2,00,000/- on account of harassment and Rs.1,00,000/- as cost of litigation.
Brief facts of Case.
2. Brief facts stated are that the complainant with intent to set up a horticulture nursery unit at his village Dharampur, District Mandi, got prepared a project report in the name of Saklani Nursery. Thereafter, the complainant approached the opposite party No.4/UCO Bank alongwith the detailed project report for sanctioning of loan. After accepting the project report of the complainant, the opposite party No.4/UCO Bank sanctioned a loan of Rs.17,41,001/- in favour of the complainant. The opposite party No.4/UCO Bank got insured the nursery/green house of the complainant from opposite parties/insurance company for Rs.22.00 lacs and the premium of Rs.6,580/- was also deducted.
In the midnight of 06.06.2017, a massive storm and rain hit the area where nursery was installed and 2 Hukam chand Vs. Reliance General Insurance Co. Ltd.& Ors.
RBT/CC/45/2019 consequently, nursery of the complainant was totally damaged. The complainant duly informed the loss to the opposite party No.4/UCO Bank. The intimation was also given to the insurance company and surveyor of the insurance company visited the site. Thereafter, the complainant time and again visited the office of the opposite parties/insurance company to settle his claim, but nothing has been done. Hence, the present complaint.
3. The complaint was contested by the opposite parties No.1 to 3/insurance company by filing reply. The opposite parties/insurance company has taken preliminary objections that the complainant is not consumer and alleged loss/claim is not covered under the scope of policy.
On merits, it is submitted that the respondent No.4/UCO Bank in order to secure the loan amount sanctioned in favour of the complainant insured the water tank at nursery for a sum of Rs.22.00 lacs under standard fire and special perils policy. The opposite parties No.1 to 3/insurance company denied that nursery/green house of the complainant was insured vide the aforesaid policy. The perusal of the proposal form indicates that subject matter/description of the property is "water tank at nursery." 3
Hukam chand Vs. Reliance General Insurance Co. Ltd.& Ors.
RBT/CC/45/2019 The certificate of insurance which was issued after acceptance of proposal form shows that water tank at nursery was insured for a sum of Rs.22.00 lacs. On receipt of the intimation regarding alleged loss/damage, the insurance company appointed Protech Insurance surveyor and Loss Assessor to conduct the survey, who submitted his survey report and assessed the loss to the tune of Rs.10,71,117/- subject to the terms and conditions of the insurance policy. After due application of mind, the insurance company repudiated the claim of the complainant on the ground that green house/poly house was not covered under the policy in question. Hence, a prayer for dismissal of complaint has been made.
4. The opposite party No.4/UCO Bank in its separate reply has submitted that green house of the complainant was insured for a sum of Rs.22.00 lacs with the opposite parties No.1 to 3/Insurance company and premium of Rs.6580/- was deducted from the loan account of the complainant. The opposite party No.4/UCO Bank received information regarding loss from the complainant and the opposite party No.4/UCO immediately informed the insurance company about the damage of poly house of the 4 Hukam chand Vs. Reliance General Insurance Co. Ltd.& Ors.
RBT/CC/45/2019 complainant. The complaint is bad for mis-joinder of parties. Hence, a prayer for dismissal of complaint against the UCO Bank has been made.
5. Rejoinders were filed on behalf of the complainant to the replies filed by the opposite parties denying the contents of the replies and reiterated the contents of the complaint.
6. Parties led evidence in support of their respective pleadings. The complainant Hukam Chand has filed his affidavit Ext. C-1 in evidence, besides the documents Annexure C-1 to C-11. The opposite parties No.1 to 3/insurance company tendered in evidence affidavit of Suryadeep Singh Thakur, Manager (Legal) alongwith documents and the opposite party No.4/UCO bank filed affidavit of its Sr. Manager as Ext. OP4-I in evidence.
7. We have heard the learned counsel for the parties and have gone through the entire case file carefully and also perused the written arguments filed on behalf of the opposite party No.4/UCO Bank.
8. Learned counsel of the complainant has submitted that the loan amount of Rs.17,14,001/- was sanctioned in favour of the complainant by the opposite party No.4/UCO Bank. In reply to the complaint, the UCO 5 Hukam chand Vs. Reliance General Insurance Co. Ltd.& Ors.
RBT/CC/45/2019 bank has admitted in paragraph No.3 that the green house of the complainant was insured for a sum of Rs.22.00 lacs with opposite parties No.1 to 3/insurance company and the premium of Rs.6580/- was deducted from the loan account of the complainant. In order to secure the loan amount, poly house in question was to be insured for which the Proposal Form was filled up and submitted by the Manager of UCO Bank. In the said Proposal Form, the Manager of the UCO Bank instead of insuring the poly house in question insured the water tank at nursery which is negligence on the part of the official concerned. The water tank's estimated cost as assessed by the IPH Department was Rs.3,04,177/- whereas poly house' estimated cost is much more than the water tank. He further submitted that intimation of the loss was duly forwarded to the bank vide Annexure C-5 dated 17.06.2017. Therefore, it is quite apparent on the record that because of the negligence on the part of the bank, the complainant could not receive the insured amount. He further submitted that the recovery proceeding for an amount of Rs.28,34,250/- has also been initiated by the UCO bank against complainant before DRT Chandigarh whereas the loan amount was Rs.17,14,001/-. He further submitted that on account of the negligence on the part of 6 Hukam chand Vs. Reliance General Insurance Co. Ltd.& Ors.
RBT/CC/45/2019 the opposite party No.4/UCO bank, complainant has to suffer a lot and prays that the complaint filed by the complainant be allowed.
9. On the other hand, learned counsel of the opposite party No.4/UCO bank has relied upon the letter Annexure C-3 (at page No.81) issued by the insurance company to the borrower, wherein the policy has also been attached (policy pertains to the tank and not of the poly house). Learned counsel has further submitted that during the pendency of the complaint, borrower/complainant approached the UCO bank for settlement and considering the same. UCO Bank agreed to settle his loan under one time settlement scheme and has paid all the settled amount of Rs.19,19,000/- against the outstanding amount of Rs.28,34,250/- and has agreed to the terms and conditions of the settlement, whereby there is a condition that borrower shall withdraw all the cases filed against the bank. So far as the insurance is concerned as per hypothecation agreement (page 150), it was the duty of the complainant to insure the loan amount and not the duty of the bank, however, in the instant case the steps for securing the loan were done by the bank. Learned counsel has further 7 Hukam chand Vs. Reliance General Insurance Co. Ltd.& Ors.
RBT/CC/45/2019 submitted that the loss assessor's report be seen while assessing of loss. He prays for dismissal of complaint.
10. Learned counsel of the opposite parties No.1 to 3/insurance company has submitted that the insurance company is not liable for the insured amount as what has been insured with the insurance company is the water tank and not the poly house. He prays for dismissal of complaint. FINDINGS:
11. In the instant complaint, the complainant claims the insured amount of Rs.22.00 lacs on the basis of project report prepared in the name of Saklani Nursery, which was insured with the Insurance company vide insurance policy No.2008662111033450 (Annexure C-3).
12. It is coming on record that complainant has submitted project report Annexure C-1 in the name and style of Saklani Nursery to the opposite party No.4/UCO Bank and on the basis of said report, loan of Rs.17,14,001/- was sanctioned in favour of the complainant.
13. The complainant alleges that to secure the said loan, the opposite party No.4/UCO Bank got insured the poly house of the complainant for a sum of Rs.22.00 lacs 8 Hukam chand Vs. Reliance General Insurance Co. Ltd.& Ors.
RBT/CC/45/2019 from the opposite parties No.1 to 3/Insurance company vide insurance policy No.2008662111033450 (Annexure C-3).
14. It is also coming on record that in the midnight of 06.06.2017 due to a missive storm and rain hit the area, nursery/poly house of the complainant was damaged. Intimation of loss/damage was given to the opposite parties and the opposite parties/Insurance company appointed surveyor, who assessed the loss to the tune of Rs.10,71,117/- (Ten lacs seventy one thousand one hundred and seventeen).
15. However, claim of the complainant was repudiated by the insurance company vide repudiation letter dated 29.12.2017 (Annexure OP-1) on the ground that claim of the complainant is not covered under the policy. The claim is based on damage to the green house/nursery which is not covered under the policy in question.
16. The insurance company in its reply specifically stated that what was insured was the water tank at nursery for a sum of Rs.22.00 lacs and not the poly house/green house and the complainant is not a consumer under Section 2(1)(d) of the Consumer Protection Act as the 9 Hukam chand Vs. Reliance General Insurance Co. Ltd.& Ors.
RBT/CC/45/2019 complainant has constructed the insured property for the commercial purpose.
17. The insurance company in para-3 of its reply (preliminary objections) has specifically stated that certificate of insurance under Standard Fire and Special Perils policy was issued in the name of M/s Saklani Nursery, Prop. Hukam Chand, Village and Post Office Dharampur, Tehsil Sarkaghat, District Mandi, H.P.
18. The opposite party No.4/UCO Bank in its preliminary objections has taken the objection that complaint is bad for mis-joinder. The opposite party No.4/UCO in its preliminary objection has also specifically stated that complainant has approached the respondent- Bank for setting up a Poly House and on this request, the replying respondent has agreed to provide him financial assistance for setting up a poly house.
19. However, in para-4 of its reply on merits, the respondent No.4/UCO Bank has admitted that poly house of the complainant was insured for a sum of Rs.22.00 lacs with the opposite parties/insurance company and premium of Rs.6,580/- was deducted from the loan account of the complainant.
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Hukam chand Vs. Reliance General Insurance Co. Ltd.& Ors.
RBT/CC/45/2019
20. Thus, the whole dispute hinges around in the instant complaint is that what was insured under the policy in question? "Whether it was water tank at nursery or the poly house/nursery".
21. The answer to the aforesaid question is "poly house" and not the "water tank".
22. The reasons for the said answer are as under:-
i). The factum that complainant availed loan of Rs.17,14,001/- from the respondent No.4/UCO Bank is not disputed by the opposite parties.
ii). To secure the said loan, the opposite party No.4/UCO Bank got insured the poly house of the complainant for a sum of Rs.22.00 lacs from the opposite parties No.1 to 3/Insurance company vide insurance policy No.2008662111033450 (Annexure C-3).
iii). The aforesaid factum is evident from the pleadings of the respondent No.4/UCO Bank in para-2 and para-3 of its reply. The relevant portion of para-2 and 3 of the reply are reproduced as under:-
"2. That the contents of para 2 of the complaint is admitted to the extent that the complainant 11 Hukam chand Vs. Reliance General Insurance Co. Ltd.& Ors.
RBT/CC/45/2019 approached to the respondent No.4 for financial assistance for setting up a Horticulture Nursery/Unit in the name and style of Sakalani Nursery and according a loan of Rs.17,14,001/- was sanctioned and disbursed in favour of the complainant.."
3. That the contents of para-3 are admitted to the extent that the Green House of the complainant was ensured for a sum of Rs.22 lakh with the respondent No.1 to 3 and premium of 6,580/- was deducted from the loan account of the complainant...."
iv). The complainant in his rejoinder which is duly supported with an affidavit has specifically alleged against the respondent No.4/UCO Bank that he does not possess the proposal form as the same was filled up by the officials of the UCO Bank and to secure the loan, the UCO Bank got insured the poly house of the complainant with the insurance company.
23. Relevant portion of para-2 of the rejoinder is reproduced as under:-
"2. It is humbly submitted that it is opposite party No.4 who while sanctioning loan of the complainant has approached Opposite parties No.1 to 3 for insuring green house of the complainant and even the proposal form was filled up by the opposite party No.4 and premium of Rs.6580/- was deducted from the loan account of the complainant.." 12
Hukam chand Vs. Reliance General Insurance Co. Ltd.& Ors.
RBT/CC/45/2019
v). The aforesaid version of the complainant is duly proved on record by the affidavit-evidence of the complainant as well as the statement of account, Annexure C-2 and also by the admission made by the respondent No.4/UCO Bank in para-2 and 3 of its reply as aforesaid.
vi). On the basis of project report, Annexure C-1, the opposite parties No.1 to 3/Insurance company also did not deny the issuance of insurance policy in question in favour of the complainant and also not denied the receipt of premium amount of Rs.5,680/- through the respondent No.4/UCO Bank.
vii). The existence of nursery/poly house at the spot and damage caused to the nursery due to storm on 06.06.2017 is proved by the photographs placed on record by the complainant as well as the photographs annexed by the Surveyor alongwith his final survey report Annexure OP-5.
24. Thus, from the aforesaid facts proved on record indicates that what was insured by the respondent No.4/UCO Bank was the poly house/green house of the complainant and not the water tank at nursery. 13
Hukam chand Vs. Reliance General Insurance Co. Ltd.& Ors.
RBT/CC/45/2019
25. The opposite parties/respondents failed to prove on record that proposal form was also got signed from the complainant. The proposal form Annexure OP-1 placed on record indicates that same is signed by the Official of the UCO Bank and not by the complainant.
26. It is crystal clear proved on record that before issuing the policy in question, the Insurance company did not verify the fact that proposal form is duly signed by the complainant or not. The Insurance company also did not verify the spot to know whether the water tank or the Poly house/nursery was insured for a sum of Rs.22.00 lacs. Rather, the insurance company has accepted the proposal form submitted by the bank in the office itself.
27. Therefore, the respondents No.1 to 4 are jointly and severally liable to indemnify the complainant for loss/damage on account of acts and conduct of the opposite parties.
28. So far as the plea of the opposite parties that complainant is not consumer under the Consumer Protection Act, the same looses its significance, as the opposite parties have failed to lead any evidence that the complainant has not set up the said poly house for his personal use.
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Hukam chand Vs. Reliance General Insurance Co. Ltd.& Ors.
RBT/CC/45/2019
29. As far as the plea of the respondent No.4/UCO Bank that complaint of the complainant is bad for mis- joinder of necessary party is concerned, the respondent No.4/UCO has not specifically stated that who was the necessary party in the instant complaint, without whom the issue involved in the present complaint cannot be determined. Perusal of the complaint indicates that all the parties necessary for the adjudication of the present complaint have been impleaded by the complainant.
30. In the instant complaint, on receipt of intimation regarding loss/damage, the insurance company appointed surveyor to assess the loss. Surveyor Pukhraj submitted his survey report Annexure OP-5 (Colly) vide which he has assessed the loss to the tune of Rs.10,71,117/- (Ten lacs seventy one thousand one hundred and seventeen).
31. It is also admitted fact that the amount of Rs.10,71,117/- (Ten lacs seventy one thousand one hundred and seventeen) as assessed by the Surveyor has not been paid to the complainant. The said act and conduct of the opposite parties amounts to deficiency in service and unfair trade practice.
32. In view of the above discussion, complaint of the complainant is allowed. The opposite parties are jointly 15 Hukam chand Vs. Reliance General Insurance Co. Ltd.& Ors.
RBT/CC/45/2019 and severally directed to pay a sum of Rs.10,71,117/- (Ten lacs seventy one thousand one hundred and seventeen) to the complainant along with interest @ 9% per annum from the date of institution of the instant complaint i.e. 08.11.2017, till realization of aforesaid amount.
33. The opposite parties are further directed to pay Rs.2,00,000/- (Two lacs) as compensation for mental harassment etc., besides litigation charges to the tune of Rs.1,00,000/- (One lac).
34. The opposite parties are directed to comply the order within 45 days from the date of receipt of the copy of this order.
35. Certified copy of this order be sent to the parties and their counsel(s) strictly as per rules. Pending applications, if any, also disposed of. File after due completion be consigned to the record-room.
Justice Inder Singh Mehta President R.K. Verma Member Manoj 16