State Consumer Disputes Redressal Commission
. United India Insurance Co. Ltd., vs Jacob Steephen. on 21 December, 2012
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/12/432 (Arisen out of Order Dated 29/12/2011 in Case No. Cc/10/69 of District Kollam) 1. The United India Insurance Co Ltd Ranni,Pathanamthitta Pathanamthitta Kerala 2. The United India Insurance Co Ltd Ranni,Pathanamthitta ...........Appellant(s) Versus 1. Jacob Stephen Kavumkal Veedu,Neelikkamon,Angadi,Ranni,Pathanamthitta Pathanamthitta Kerala 2. Anitha Poulose Kavumkal Veedu,Neelikkamon,Angadi,Ranni,Pathanamthitta 3. The Manager,SBT Kavumkal Veedu,Neelikkamon,Angadi,Ranni,Pathanamthitta ...........Respondent(s) BEFORE: SRI.M.K.ABDULLA SONA PRESIDING MEMBER PRESENT: ORDER
THE KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACADU THIRUVANANTHAPURAM
NO. FA 432/2012.
JUDGMENT DTD: 21-12-2012.
PRESENT
SRI. M.K. ABDULLA SONA - MEMBER (PRESIDENT IN CHARGE)
1. United India Insurance Co. Ltd.,
Ranni, Pathanamthirta District.
2. United India Insurance Co. Ltd., -APPELLANT
Kollam Division.
(By Adv. Jagadish Kumar)
Vs.
1. Jacob Steephen.
S/o. Uppai, Kavumukal Veedu,
Neelikkamon. P.O., Angadi village,
Ranni, Pathanamthitta District.
2. Anitha Poulose, W/o.Jacob Stephen
Kavumkal Veedu, Neelikkamon P.O.
Ranni, Pathanamthitta Dist.
3. The Manager, State Bank of Travancore, -RESPONDENTS
Thottam Branch, Ranni,
Pathanamthitta District.
(R3 by Adv. Kollamkode D.S. Jayachandran)
JUDGMENT
SRI. M.K. ABDULLA SONA - MEMBER (PRESIDENT IN CHARGE) This appeal prefers from the order passed by the CDRF Kollam in CC No. 69 / 2010 dated 29-01-2012. The appellants, are the second and third opposite parties and the respondent was the complainant 1 and 2 the Manager State Bank of Travancore , Thottaman Branch of Ranni, Pathanamthitta District. The appellant prefers this appeal from the order of the Forum below is; opposite parties 1, 2, 3 are directed to pay Rs. 27,230/- towards cost of construction of the retaining wall and compound wall. Since it created mental agony to the complainants they are entitled to get Rs.5000/- towards compensation from the opposite parties. They are also entitled to get Rs.1,000/- towards cost of the proceedings from the opposite parties.
2. In brief the first and second respondents (complainants) availed a loan from the third respondent (Bank). In spite the construction of the building whose estimated cost is Rs.8,62,527/-. Further the complainants obtained a policy on the basis of an agreement through the Bank from the appellant (Insurance company) During the pendency of the policy the retaining wall and the compound wall erected at the south western corner of the property constantly collapsed. When the claim is to be forward by the complainants to the appellant insurance company which repudiates the claim and that they are entitled to an amount of Rs. 27,230/- and Rs. 25,000/- towards mental agony and Rs.5,000/- towards cost. The third respondent/ first opposite party remains ex party before the lower Forum. The appellant repudiated the claim before the lower Forum mainly on the ground that as per the policy conditions there is insurance coverage only for the residential building and for the compound wall and retaining wall. The proposal form submitted by the complainants would also show that the insured property is of residential one. These defenses were strongly taken before the lower Forum also. But the Forum below has negatived the contention of the appellants and has gone outside recitals of the policy erected a new contract and as award of compensation. The order passed by the lower forum is not according to the provision of law and has no legal sanctity and the same is challenged on the grounds that the lower Forum has gone outside the recitals of the policy conditions erected a new contract and has award compensation and the same is having no legal sanctity.
3. Regarding the loan agreement with the first opposite party/Bank, the insurance company is unaware that what is terms and conditions of the first opposite party agreed towards the complainant. The first opposite party remain ex party before the Forum below. When a proposal form the insurance is accepted the contract of insurance will be formed and all the conditions of the contract are of binding on both parties. The Forum below has passed the order not on the basis of the law and evidence. The Forum below has passed the order not on the basis of the law and evidence. The Forum below is not even perused the conditions of the policy, hence the appeal with a prayer to set side the order passed by the Forum below by allowing this appeal.
4. On this day, this appeal came before this commission for final hearing, both the Counsel for the appellant and the respondent/complainant and third respondent / first opposite party/Bank appeared and argued their own cases in detail. The evidence adduced by both parties in this case before the Forum below such as the oral evidence of the complainant a Stephen as PW1 and marked Ext.P1 and P1 A, P2 A, P3, P4 series P5, P6, P7, P8, P8 A, P8 B, P8 C, P8 D. P9, P9 A etc. for the complainant. In the part of the opposite parties one witness was examined as DW1 and marked D1 to D2. The counsel appearing on behalf of the appellant argued that there is no direct relationship between the complainants and the appellant insurance company. The first opposite party / Bank who provided the loan to the complainants for the construction of the house and the first opposite party had taken the policy for the coverage of risk of the building then after collected the premium of the complainants. The first opposite party / Bank done everything on behalf of the complainants to taken the insurance policy. But the appellant insurance company is bound to settle the claim of the complainants only as per the conditions of the policy. According to the complainants, his compound wall is damaged. Their claim is also for this damage of compound wall. As per the policy conditions the insurance coverage is only for the residential building of the complainants. For the insurance coverage even for the compound wall also be given by the appellant insurance company only on the payment of the additional premium. But in this case there is no such additional premium was paid by the Bank on behalf of the Insurance Company even though this compound was also came under the subject matter of the building as per the plans and sketch provided by the complainant to the first opposite party/Bank. This is the reason for the repudiation of the claim by the appellant/ Insurance Company. The complainants appeared party in person and argued their case in detail. The complainant submitted that the insurance coverage should covers risk of the building which includes the compound wall also. The complainant who given the plan in sketch to the first opposite party to getting the loan which included that the building and the compound wall also. According to the complainant he need not bother about whether the first opposite party/Bank paid the additional premium or not. He is a policy holder of the opposite party/ Insurance company. It is an admitted fact. To this reason he is entitled to get the claim for the damage of the compound wall also. He further submitted that the compound wall also the part and parcel of the residential building. Otherwise this fact should be specifically mentioned in the policy conditions. He prays to dismissed the appeal and to be confirmed the order passed by the Forum below.
r5. The first opposite party who remained absent before the Forum below. But in the appeal the third respondent, he appeared and argued his case. But he didn't file any version before the Forum below. He didn't take any step to set side ex-party order passed by the Forum below against the Bank. Even he didn't approach to this Commission with a revision petition. These are nothing but an admission from the part of the Bank. The counsel for the appellant Insurance Company cited a decision of the Hon. Supreme Court; in the Vikram Grieve take Vs. New India Insurance Company(2009 KHC 4613). As per the decision, the Insurance company is only liable for the payment of claim as per the conditions of the policy. It is a previtive contract between the complainant and Insurance Company. The Forum below did not find any deficiency from the part of the first opposite party. The first opposite party is liable for the entire loss and damages sustained by the complainants. At the time of given the proposal form to the Insurance Company by the Bank they can very easily pay the additional premium for the coverage of the compound wall etc. and also they can collect this amount, along with the amount already collected from the pocket of the complainants. The premium paid by the first opposite party/Bank collected the premium amount from the part of the complainants. Here the first opposite party is responsible for the entire damages caused to the complainants. The first opposite party/Bank do not prefer any appeal from the order passed by the Forum below. It shows that they have no hesitation to accept the order of the forum below. It is nothing but an admission from the part of the first opposite party/bank.
6. This Commission heard in detail and perused the entire evidence adduced by both parties before the Forum below and seeing that the complainants who sustained huge loss due to the deficiency in service committed by the first opposite party/Bank. The Insurance Company is not necessary to settle the claim due to the reason that the damage sustained due to the non payment of the additional premium which did not paid by them to the Insurance Company/appellants. The compound wall of the house of the complainant is not coming under the policy conditions which issued by the appellants. But the complainant definitely entitled to get this compensation from the part of the first opposite party/Bank. They are liable for the entire damages sustained to the complainants as per the provision of the Consumer Protection Act. The Forum below as per their order found that the first opposite party is liable for the damages. But it cannot be understood that why the Forum below did not fix the entire liability against the first opposite party alone. Instead of this order the Forum below fixed the liability against the all opposite parties equally. As per the evidence, this Commission is seeing that the order passed by the Forum below is not legally sustainable and as per the provisions of law and evidence. This Commission decides to interfere and modify the result portion of the order passed by the Forum below. The first opposite party remained absent before the Forum below and set exparte. They did not prefer either any revision from the exparte order or from the decree of the Forum below.
7. In the result this appeal is allowed in part and totally modified the order passed by the Forum below. This first opposite party and the third respondent represented before this Commission through the counsel. The Opposite party 1, 2, 3 are directed to pay Rs.27,230/- towards the cost of the construction of the retaining wall and compound wall. Since it caused mental agony to the complainants they are entitled to get Rs.5,000/- towards compensation from the opposite parties and also entitled to get Rs.1,000/- towards the cost of proceedings. This order is modified this Commission as per the principle of law and evidence. This commission directed that the first opposite party/Bank shall pay Rs.25,000/- as a compensation as for the deficiency in service and unfair trade practice committed by the first opposite party/Bank towards the complainants by non payment of the additional premium for the insurance coverage of the compound wall also. It also directed to pay Rs.5,000/- as a cost of the proceedings by the first opposite party/bank to the complainants. This Commission is also directed to pay an interest at the rate of 12% for the entire amount of the compensation Rs.25,000/- per annum from the date of the complainant, 29-4-2010 to till the date of realization of the amount. The first opposite party is directed to comply the order within 15 days after the receipt of copy of this judgment. Failure from the part of the first opposite party to realize this order passed by this commission; the complainant is having the right to proceed against the first opposite party under Section 25 and 27 of the Consumer Protection Act for revenue recovery as well as the prosecution.
The points of this appeal discussed one by one and answered accordingly. This appeal is disposed accordingly.
SRI. M.K. ABDULLA SONA - MEMBER (PRESIDENT IN CHARGE) NB [ SRI.M.K.ABDULLA SONA] PRESIDING MEMBER