State Consumer Disputes Redressal Commission
Bajaj Allianz General Insurance Co. ... vs Sh. Sanjeev Kumar. & Anr. on 24 February, 2020
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 317/2018
Date of Presentation: 21.11.2018
Order Reserved on : 01.08.2019
Date of Order : 24.02.2020
......
1. Bajaj Allianz General Insurance Company Limited Head
Office GE Plaza Airport Road Yerawada Pune-411 006
through its Zonal Manager.
2. Bajaj Allianz General Insurance Company Limited near
Sindhi Gate Bank Mandi HP-175 001 through its Manager
(Legal) Bajaj Allianz General Insurance Company Ltd. SCO
No.156-159 2nd Floor Sector-9C Chandigarh-160 009.
...... Appellants/Opposite Parties No.1 & 2
Versus
1. Sanjeev Kumar son of Shri Teerath Ram R/o Shri Durge
Vaishno Dhaba Chintpurni Tehsil Amb District Una (H.P).
......Respondent No.1/Complainant
2. Himachal Gramin Bank Chintpurni Tehsil Amb District Una
(H.P) through its Branch Manager.
......Respondent No.2/opposite party No.3
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Ms. Sunita Sharma Member
Whether approved for reporting?1 Yes.
For Appellants : Mr. Jagdish Thakur Advocate.
For RespondentNo.1 : Mr. Rajesh Kashyap Advocate.
For Respondent No.2 : Ex-parte.
1
Whether reporters of the local papers may be allowed to see the order? Yes.
Bajaj Allianz General Insurance Co. Ltd. & Anr. Versus Sanjeev Kumar & Anr.
F.A. No.317/2018
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed against order dated 19.09.2018 passed by Learned District Consumer Forum/Commission in consumer complaint No.153/2015 titled Sanjeev Kumar Versus Bajaj Allianz General Insurance Co. Ltd. & Ors.
Brief facts of consumer complaint:
2. Sh. Sanjeev Kumar Complainant filed consumer complaint under Consumer Protection Act pleaded therein that complainant is resident of Village Chintpurni Tehsil Amb District Una (H.P). It is pleaded that complainant applied for loan for building purpose to opposite party No.3. It is pleaded that opposite party No.3 sanctioned the loan to the tune of Rs.500000/-(Five lac) to complainant. It is pleaded that complainant opened loan account No.88620100000520 with opposite party No.3. It is further pleaded that opposite party No.3 directed complainant to insure building in question. It is pleaded that thereafter complainant insured building in question with Insurance company for consideration amount of Rs.700000/-(Seven lac). It is pleaded that Insurance policy was operative w.e.f. 24.01.2015 to 23.01.2016. It is pleaded that complainant also paid premium to the tune of Rs.1046/-
(One thousand forty six) to Insurance company and insured 2 Bajaj Allianz General Insurance Co. Ltd. & Anr. Versus Sanjeev Kumar & Anr. F.A. No.317/2018 the building in question. It is further pleaded that on dated 06.04.2015 at about 2.05 AM accidentally fire took place in building in question and front portion of building in question was burnt in fire incident. It is pleaded that Fire Brigade also came on the spot and controlled the fire. It is pleaded that complainant sustained loss to the tune of Rs.350000/-(Three lac fifty thousand). It is pleaded that Insurance company did not settle the claim and committed deficiency in service.
3. Complainant sought relief to the effect that Insurance company be directed to pay Insurance claim to the tune of Rs.361615/-(Three lac sixty one thousand six hundred fifteen) to complainant. In addition complainant sought compensation to the tune of Rs.20000/-(Twenty thousand) for mental agony and tension. In addition complainant sought Advocate fee to the tune of Rs.10000/- (Ten thousand) and sought other litigation costs to the tune of Rs.2000/-(Two thousand). Prayer for acceptance of consumer complaint sought.
4. Per contra version filed on behalf of opposite parties No.1 & 2 pleaded therein that Surveyor has assessed loss to the tune of Rs.986.53/-(Nine hundred eighty six rupees & fifty three paise) and same was sent by way of cheque to complainant but complainant refused to accept the cheque. It is pleaded that complainant did not approach 3 Bajaj Allianz General Insurance Co. Ltd. & Anr. Versus Sanjeev Kumar & Anr. F.A. No.317/2018 learned DCF/DCC with clean hands and concealed the material facts. It is further pleaded that complainant has no locus standi to file present consumer complaint. It is admitted that building in question was insured for a sum of Rs.700000/-(Seven lac). It is further pleaded that Surveyor namely Sh. Vishal Kumar has assessed loss to the tune of Rs.78475.28/-(Seventy eight thousand four hundred seventy five rupees & twenty eight paise). It is further pleaded that market value of building in question was Rs.5000000/-(Fifty lac). It is pleaded that Surveyor cum Loss Assessor has assessed loss to the tune of Rs.986.53/-(Nine hundred eighty six rupees & fifty three paise). It is pleaded that Insurance company did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought.
5. Per contra separate version filed on behalf of opposite party No.3 pleaded therein that present consumer complaint is not maintainable against opposite party No.3. It is pleaded that opposite party No.3 did not commit any deficiency in service. It is further pleaded that there is no privity of contract between complainant and opposite party No.3. It is pleaded that complainant applied for the loan to the tune of Rs.500000/-(Five lac) for construction of house purpose. It is pleaded that loan was sanction and loan was payable in 84 monthly installments @ Rs.9500/-(Nine 4 Bajaj Allianz General Insurance Co. Ltd. & Anr. Versus Sanjeev Kumar & Anr. F.A. No.317/2018 thousand five hundred) per month as per loan agreement. It is pleaded that complainant insured the house in question with Insurance company in consideration amount of Rs.700000/-(Seven lac). It is further pleaded that fire took place and building in question was damaged. It is pleaded that immediately information was sent to Insurance company through registered post for taking immediate action. It is pleaded that an amount of Rs.154490/-(One lac fifty four thousand four hundred ninety) alongwith interest is due against complainant to opposite party No.3. It is pleaded that building in question was hypothecated with opposite party No.3. It is pleaded that amount of compensation if any awarded to complainant may be enrouted through opposite party No.3 to adjust loan amount. Prayer for dismissal of consumer complaint against opposite party No.3 sought.
6. Complainant filed rejoinder and reasserted allegations mentioned in consumer complaint. Learned DCF/DCC directed opposite parties No.1 & 2 to pay an amount of Rs.78475/-(Seventy eight thousand four hundred seventy five) to complainant alongwith interest @ 9% per annum from date of filing of consumer complaint till actual payment. In addition learned DCF/DCC ordered opposite parties No.1 & 2 to pay punitive compensation to complainant to the tune of Rs.5000/-(Five thousand). In addition learned 5 Bajaj Allianz General Insurance Co. Ltd. & Anr. Versus Sanjeev Kumar & Anr. F.A. No.317/2018 DCF/DCC ordered opposite parties No.1 & 2 to pay litigation costs to complainant to the tune of Rs.5000/-(Five thousand).
7. Feeling aggrieved against order passed by learned DCF/DCC Insurance company filed present appeal before State Commission.
8. We have heard learned Advocates appearing on behalf of appellant and opposite parties No.1 and we have also perused entire record carefully.
9. Following points arise for determination in present appeal.
1. Whether appeal filed by Insurance company is liable to be accepted as mentioned in memorandum of grounds of appeal?
2. Final order.
Findings upon point No.1 with reasons:
10. Complainant filed affidavit Annexure-C11 in evidence. There is recital in affidavit that deponent applied for loan to opposite party No.3. There is recital in affidavit that opposite party No.3 sanctioned loan to the tune of Rs.500000/-(Five lac) to deponent. There is recital in affidavit that opposite party No.3 directed deponent to insure building in question. There is recital in affidavit that thereafter deponent insured building in question with Insurance company for consideration amount of Rs.700000/-(Seven lac). 6
Bajaj Allianz General Insurance Co. Ltd. & Anr. Versus Sanjeev Kumar & Anr. F.A. No.317/2018 There is recital in affidavit that Insurance policy was operative w.e.f. 24.01.2015 to 23.01.2016. There is recital in affidavit that deponent has also paid premium to Insurance company to the tune of Rs.1046/-(One thousand forty six). There is recital in affidavit that on dated 06.04.2015 at about 2.05 AM fire incident took place in the building in question and front portion of building in question was burnt. There is recital in affidavit that Fire Brigade controlled the fire. There is recital in affidavit that information to police was also given on dated 06.04.2015. There is recital in affidavit that deponent sustained loss to the tune of Rs.350000/-(Three lac fifty thousand). There is recital in affidavit that Insurance company did not settle the Insurance claim and committed deficiency in service.
11. Complainant also filed affidavit of Sh. Jagdish Malik in evidence. There is recital in affidavit that deponent is performing work of aluminium fabrication. There is recital in affidavit that on dated 08.04.2015 front portion of building in question was burnt in the fire and deponent has performed aluminium fabrication works. There is recital in affidavit that complainant has paid an amount of Rs.361615/-(Three lac sixty one thousand six hundred fifteen) to deponent for performance of aluminium fabrication works. State 7 Bajaj Allianz General Insurance Co. Ltd. & Anr. Versus Sanjeev Kumar & Anr. F.A. No.317/2018 Commission has carefully perused all annexures filed by complainant.
12. Insurance company filed affidavit of Sh. Sarpreet Kaur Assistant Manager Legal in evidence. There is recital in affidavit that Insurance company has settled the claim to the tune of Rs.986.53/-(Nine hundred eighty six rupees & fifty three paise) and same was sent by way of cheque to complainant but complainant did not accept the cheque. There is recital in affidavit that complainant has not approached learned DCF/DCC with clean hands and has concealed the material facts. There is recital in affidavit that complainant has no locus standi to file consumer complaint. There is recital in affidavit that Insurance company appointed Sh. Vishal Kumar Surveyor cum Loss Assessor and Surveyor cum Loss Assessor has submitted report that building in question was under insured building. There is recital in affidavit that market value of building in question was Rs.5000000/-(Fifty lac). There is recital in affidavit that Surveyor cum Loss Assessor has recommended payment of loss to the tune of Rs.986.53/-(Nine hundred eighty six rupees & fifty three paise) which was tendered to complainant but complainant refused to accept the claim assessed by Surveyor cum Loss Assessor.
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Bajaj Allianz General Insurance Co. Ltd. & Anr. Versus Sanjeev Kumar & Anr. F.A. No.317/2018
13. Insurance company also filed affidavit of Shri Vishal Kumar Surveyor in evidence. There is recital in affidavit that deponent was deputed by Insurance company to assess the damage sustained by complainant. There is recital in affidavit that deponent has assessed loss to the tune of Rs.78475.28/-(Seventy eight thousand four hundred seventy five rupees & twenty eight paise). There is recital in affidavit that building in question was under insured. There is recital in affidavit that market value of building in question was Rs.5000000/-(Fifty lac). There is recital in affidavit that building in question is triple storey building. State Commission has carefully perused all annexures filed by Insurance company.
14. Shri Y.P Sharma Branch Manager filed affidavit on behalf of H.P. Gramin Bank in evidence. There is recital in affidavit that complainant applied for loan to the tune of Rs.500000/-(Five lac) for construction of building. There is recital in affidavit that loan was sanctioned and loan was repayable in 84 installments of Rs.9500/-(Nine thousand five hundred) per month as per loan agreement. There is recital in affidavit that complainant availed loan facility from opposite party No.3 to the tune of Rs.500000/-(Five lac). There is recital in affidavit that building in question was insured for a sum of Rs.700000/-(Seven lac) and Insurance 9 Bajaj Allianz General Insurance Co. Ltd. & Anr. Versus Sanjeev Kumar & Anr. F.A. No.317/2018 policy was operative. There is recital in affidavit that complainant has paid premium to the tune of Rs.1046/-(One thousand forty six) to Insurance company. There is recital in affidavit that privity of contract is between complainant and Insurance company relating to building in question. There is recital in affidavit that building in question is hypothecated with opposite party No.3 and opposite party No.3 has a lien over building at present. There is further recital in affidavit that as of today loan amount to the tune of Rs.154490/-(One lac fifty four thousand four hundred ninety) is due to opposite party No.3 from complainant. State Commission has carefully perused all annexures filed by opposite party No.3.
15. Submission of learned Advocate appearing on behalf of Insurance company that value of building in question was Rs.5000000/-(Fifty lac) and building in question was insured for Rs.700000/-(Seven lac) and on this ground appeal filed by Insurance company be allowed is decided accordingly. There is no evidence on record in order to prove that average clause No.10 was explained to insured by insurer. In the absence of evidence that average clause No.10 was explained to insured by insurer State Commission is of the opinion that it is not expedient in the ends of justice and on the principles of natural justice to allow Insurance company to take benefit of average clause No.10 of Insurance 10 Bajaj Allianz General Insurance Co. Ltd. & Anr. Versus Sanjeev Kumar & Anr. F.A. No.317/2018 policy. It is well settled law that when exclusion clause of Insurance policy was not explained to insured then Insurance company is not legally competent to take benefit of exclusion clause of Insurance policy. See 2007(III) CPJ 34 NC National Insurance Company Ltd. Versus D.P. Jain. See 2019(6) SCC 212 Apex Court titled Bharat Watch Versus National Insurance Co. Ltd. See 2000(2) Supreme Court Cases 734 Modern Insulators Ltd. Versus Oriental Insurance Company Ltd.
16. In the present matter Insurance company has been impleaded through its Zonal Manager and through its Claim Manager. Zonal Manager and Claim Manager did not file their personal affidavits in present matter to the effect that exclusion clause of Insurance policy were read over and explained to the insured. Hence adverse inference is drawn against Insurance company for non filing of personal affidavits of Zonal Manager and Claim Manager. Insurance company has filed affidavit of Sh. Sarpreet Kaur Assistant Manager (Legal) who has not been impleaded as co-party in the present consumer complaint. See AIR 1999 SC 1441 titled Vidyadhar Versus Mankik Rao & Anr. See AIR 1999 SC 1341 titled Ishwar Bhai C. Patel Versus Harihar Bahera.
17. Submission of learned Advocate appearing on behalf of Insurance company that Insurance company appointed Surveyor cum Loss Assessor and Surveyor cum 11 Bajaj Allianz General Insurance Co. Ltd. & Anr. Versus Sanjeev Kumar & Anr. F.A. No.317/2018 Loss Assessor has assessed loss to the tune of Rs.986.53/- (Nine hundred eighty six rupees & fifty three paise) and same amount was sent to the complainant by way of cheque but complainant refused to accept cheque sent by Insurance company and on this ground appeal filed by Insurance company be allowed is decided accordingly. State Commission has carefully perused report submitted by Surveyor cum Loss Assessor. Surveyor cum Loss Assessor has invoked provisions of exclusion clause in Insurance policy. There is no evidence on record that exclusion clause of Insurance policy was explained to insured by insurer. State Commission is of the opinion that it is not expedient in the ends of justice and on the principles of natural justice to allow Insurance company to take benefit of exclusion clause of Insurance policy in view of ruling cited supra.
18. As per report submitted by Revenue Department annexure-C2 front portion of building in question measuring 11 X 15 feet was damaged in the fire. Revenue Department has assessed loss to the tune of Rs.300000/-(Three lac). State Commission is of the opinion that Revenue Department has submitted the report while discharging official duty and same is a relevant fact. Fire Brigade report annexure-C3 also placed on record and there is recital in the report that building in question was damaged in fire. Report submitted 12 Bajaj Allianz General Insurance Co. Ltd. & Anr. Versus Sanjeev Kumar & Anr. F.A. No.317/2018 by Fire Brigade is also a relevant fact because Fire Brigade has submitted the report in discharge of official duty. Even version of complainant is corroborated by report of criminal investigating agency annexure-C5 wherein it has been specifically mentioned that building in question was burnt in fire. It is held that present claim is genuine claim and Insurance company is under legal obligation to pay genuine claim. See AIR 2017 SC 4836 (DB) titled Om Prakash Versus Reliance General Insurance & Anr. See 2019(1) CPR 471 NC titled ICICI Lombard General Insurance Company Ltd. Versus Honest Bio-vet Pvt. Ltd.
19. Surveyor cum Loss Assessor has recommended loss to the tune of Rs.986.53/-(Nine hundred eighty six rupees & fifty three paise) which is ipso facto contrary to the factual position. It is well settled law that report of Surveyor cum Loss Assessor is not sacrosanct document and could be disbelieved if same is ipso facto contrary to factual position. See 2009(VII) SCC 787 Apex Court DB titled New India Assurance Company Ltd. Versus Pradeep Kumar. Also see 2012(3) CPC 50 NC titled National Insurance Company Ltd. Versus Naina Un-Employed Transport Co-operative Society Ltd.
20. Submission of learned Advocate appearing on behalf of Insurance company that learned DCF/DCC has 13 Bajaj Allianz General Insurance Co. Ltd. & Anr. Versus Sanjeev Kumar & Anr. F.A. No.317/2018 imposed excessive punitive compensation to the tune of Rs.5000/-(Five thousand) is decided accordingly. State Commission is of the opinion that learned DCF/DCC has imposed equitable punitive compensation and it is not expedient in the ends of justice and on the principles of natural justice to interfere in punitive compensation order passed by learned DCF/DCC.
21. Submission of learned Advocate appearing on behalf of Insurance company that learned DCF/DCC has granted excessive litigation costs to complainant to the tune of Rs.5000/-(Five thousand) and on this ground appeal filed by appellants be allowed is decided accordingly. State Commission is of the opinion that complainant has engaged Advocate and has also paid litigation costs & other expenses and learned DCF/DCC has granted reasonable litigation costs to complainant.
22. Submission of learned Advocate appearing on behalf of Insurance company that learned DCF/DCC has imposed excessive rate of interest @ 9% per annum from the date of filing of complaint till actual payment and on this ground appeal filed by Insurance company be allowed is decided accordingly. State Commission is of the opinion that learned DCF/DCC has imposed equitable rate of interest and it is not expedient in the ends of justice and on the principles 14 Bajaj Allianz General Insurance Co. Ltd. & Anr. Versus Sanjeev Kumar & Anr. F.A. No.317/2018 of natural justice to interfere in interest rate awarded by learned DCF/DCC.
23. Submission of learned Advocate appearing on behalf of Insurance company that building in question was hypothecated with opposite party No.3 for loan amount and learned DCF/DCC did not order that damage claim of building in question would be paid to financier and on this ground appeal filed by Insurance company be allowed is decided accordingly. It is proved on record that building in question was hypothecated with opposite party No.3 for loan amount. State Commission is of the opinion that in hypothecated matter financier is the owner of building in question till the loan amount is not liquidated. See AIR 1979 SC 850 titled Trilok Singh and others Versus Satya Deo Tripathi. See 2012(II) CPJ 8 (SC) titled Suryapal Singh Versus Siddha Vinayak Motors & Anr.
24. Shri Y.P. Sharma Branch Manager has filed affidavit on behalf of opposite party No.3 and there is recital in affidavit that loan amount to the tune of Rs.154490/-(One lac fifty four thousand four hundred ninety) is still due to financier from complainant. State Commission is of the opinion that it is expedient in the ends of justice and on the principles of natural justice to obtain NOC from financier and if NOC is not submitted by complainant in that eventuality it is expedient in the ends of justice and on the principles of 15 Bajaj Allianz General Insurance Co. Ltd. & Anr. Versus Sanjeev Kumar & Anr. F.A. No.317/2018 natural justice to transfer damage amount in loan account of complainant kept by financier i.e. Opposite party No.3 for liquidation of loan amount.
25. Facts of case law cited by learned Advocate appearing on behalf of Insurance company i.e. 2018(1) CPJ 6 SC titled I.C. Sharma Versus Oriental Insurance Company Ltd. and facts of present case are entirely different. It is held that ruling cited supra are distinguishable in present matter due to distinguishable facts and is not operative in present matter.
26. Submission of learned Advocate appearing on behalf of complainant that order of learned DCF/DCC is in accordance with laws and in accordance with proved facts and does not warrant any interference by State Commission is decided accordingly. State Commission is of the opinion that order of learned DCF/DCC partly warrant interference by State Commission relating to obtaining NOC from financier and if NOC is not submitted by complainant then it is equitable in the ends of justice to transfer damage amount of building in question to financier for liquidation of loan amount. In view of above stated facts point No.1 is decided accordingly.
Point No.2: Final Order
27. In view of findings upon point No.1 above appeal filed by Insurance company is partly allowed. It is ordered 16 Bajaj Allianz General Insurance Co. Ltd. & Anr. Versus Sanjeev Kumar & Anr. F.A. No.317/2018 that complainant will furnish NOC from financier i.e. Opposite party No.3 and thereafter Insurance company will pay damage amount of building in question to complainant. If complainant will not furnish NOC from financier in that eventuality Insurance company will transmit damage amount of building in question to the tune of Rs.78475/-(Seventy eight thousand four hundred seventy five) alongwith interest @ 9% per annum from the date of filing of complaint till actual payment directly to the financier i.e. Opposite party No.3 for liquidation of loan amount.
28. Order of learned DCF/DCC that Insurance company would pay punitive compensation to complainant to the tune of Rs.5000/-(Five thousand) is affirmed. Order of learned DCF/DCC that Insurance company would pay litigation costs to complainant to the tune of Rs.5000/-(Five thousand) is also affirmed. Order of learned DCF/DCC is modified accordingly. Report submitted by Revenue Department Annexure-C2 and report submitted by Fire Department Annexure-C3 shall form part and parcel of order.
29. Parties are left to bear their own litigation costs before State Commission. Certified copy of order be sent to learned DCF/DCC for information forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to 17 Bajaj Allianz General Insurance Co. Ltd. & Anr. Versus Sanjeev Kumar & Anr. F.A. No.317/2018 parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Sunita Sharma Member 24.02.2020 K.D 18