IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Thursday the 2nd day of March, 2023.
Filed on 30.03.2022
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. C.K. Lekhamma, B.A.L, LLB (Member)
CC/No.74/2022
between
Complainant:- Opposite parties:-
Sri. Balu.C 1. Canara Bank
S/o Chandrahasan Rep by its Chief Manager
Kanukattusseril B.J.Road Alappuzha
Chungam East, (Adv. M.P.Venugopal)
Thirumala P.O
Alappuzha-688011 2. United India Insurance Co. ltd
(Adv. Leena L.S) Rep by its Divisional Manager
2nd Floor, Sarada Complex,
Mullackal, Alappuzha
(Adv. Thomson Pulthakady)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.35 of the Consumer Protection Act, 2019.
1. Material averments briefly stated are as follows:-
Complainant is the owner and in possession of 8 cents of property and the building therein having No.29/63 of AMC. During 2008 he had availed a housing loan from the 1st opposite party. He had availed an insurance policy from the 2nd opposite party and when the tenure was over, on 01.12.2020the policy was renewed up to 30-11-28.
2. The property in which the building is situated belongs to Chandrahasan who is the father of complainant. For the last 12 years he is missing and he could not be traced inspite of enquiry. Since mutation was not affected the property is lying in the name of Chandrahasan. At the time of availing housing loan and at the time of insurance these matters were informed to the opposite parties and loan and policy was issued after necessary enquiry.
3. A claim petition was filed for damages occurred during the flood of August 2020 and on 09.09.2020 notices were issued to the opposite parties. On 20.01.2021 an amount of Rs.10,855/- was approved and the 2nd opposite party demanded to produce building tax receipt by a letter. Complainant had issued consent letter accepting the amount. However the amount was denied on a contention that the building tax receipt is not in the name of complainant and 2nd opposite party sent a letter on 28.09.2021 denying the amount. At the time of granting housing loan and at the time of issuing the insurance policy these contentions were not taken and now it is taken to exonerate from the liability. During the flood of 2018 considerable damage was caused to the house of the complainant for which he filed CC 182/2019 before this Commission and amount was granted. In spite of repeated request opposite parties have not paid the amount allotted to the complainant which amounts to deficiency of service. Hence the complaint is filed for realizing an amount of Rs.10,855/- along with interest and Rs.5000/- as compensation and Rs.5000/- as cost.
4. 1st opposite party filed a version mainly contenting as follows:-
The complaint is filed without any bonafides suppressing material facts. Complainant is not a consumer of the 1st opposite party. The complaint is vague and evasive. Complainant has no any absolute title, right, interest and possession over the 8 cents of property and the building therein. The property with the said building belongs to his father Chandrahasan and the complainant is only a borrower in the said loan transaction. Complainant has taken a housing loan from the 1st opposite party and he has availed an insurance policy from the 2nd opposite party from 30.09.2008 to 29.09.2018.
5. Complainant has clearly admitted that the property belongs to his father Chandrahasan and that his whereabouts are not known for about 12 years. At the time of availing the loan Chandrahasan was present before the 1st opposite party bank. He had executed equitable mortgage in favour of the bank. 2nd opposite party insurance company is the final authority to allow the claim. Hence there is no deficiency of service from the part of this opposite party. In CC 182/2019 as per the direction of this Commission Rs.16,500/- was given as compensation by this opposite party. There is no cause of action for this complaint against this opposite party. Hence this false complaint filed on an experimental basis may be dismissed with cost.
6. 2nd opposite party filed a version mainly contenting as follows:-
There is no deficiency of service from the part of this opposite party. Policy was issued as per the records provided by the 1st opposite party for covering the housing loan. On receipt of the claim form this opposite party conducted investigation and there after the claim was approved for Rs.10,855/-. For enabling the payment complainant was directed to furnish building tax receipt as per letter dated 20.01.2021. The copy of building tax receipt produced was in the name of Chandrahasan. The policy is issued in the name of the complainant. Several remainders were issued to the 1st opposite party for clarification. But no reply was given by the 1st opposite party. Hence this opposite party is not in a position to settle the claim as the insured must have insurable interest at the time of loss. Hence the claim was rejected. Since the claim was rejected for non production of building tax receipt there is no deficiency of service. Hence this frivolous and vexatious complaint may be dismissed with cost.
7. On the above pleadings following points were raised for consideration:-
- Whether there is any deficiency of service from the part of opposite parties as alleged?
- Whether the complainant is entitled to realise an amount of Rs.10,855/- along with interest from the opposite parties as prayed for?
- Whether the complainant is entitled realise an amount of Rs.5,000/- as compensation from the opposite parties as prayed for ?
- Reliefs and costs?
- 8. Evidence in this case consists of the oral evidence of PW1 and Ext.A1 to A12 from the side of the complainant and the oral evidence of RW1 and Ext.B1 and B15 from the side of the opposite parties.
9. Point Nos.1 to 3:-
PW1 is the complainant. He filed an affidavit in tune with the complaint and marked Ext.A1 to A12. During cross examination Ext.B1 to B3 were marked. Opposite party No.2 has not adduced any oral evidence Ext.B4 to B10 were marked from their side.
10. RW1 is the Manager of 1st opposite party. He filed an affidavit in tune with the version and marked Ext.B11 to B15.
11. PW1, the complainant is in possession of house no. 29/63 of Alappuzha Municipality. During 2008 for construction of the house he had availed a loan from the 1st opposite party M/s Canara Bank, Alappuzha Branch. As a security for the loan as per the direction of the 1st opposite party he availed a Uni Home Care Policy from the 2nd opposite party M/s United India Insurance Co. Ltd. On expiry of initial policy it was renewed and now the policy is valid upto 30/11/2028. The property in which the building is situated belong to one Chandrahasan who is the father of complainant. Sri. Chandrahasan is missing for the last 12 years and his where abouts are not known. The property tax receipt as well as the building tax receipt are in the name of Sri. Chandrahasan since mutation was not affected. While so during August 2020 damage occurred to the building during the flood and on 19/8/2020 registered letters were issued seeking compensation. After assessing the damage 2nd opposite party allowed an amount of Rs. 10,855/- and obtained a consent letter of the complainant. However later amount was not released on a contention that the building tax receipt is in the name of Sri. Chandrahasan and that complainant has no insurable interest in the building. Aggrieved by the act of 2nd opposite party the complaint is filed seeking an amount of Rs. 10,855/- along with interest and Rs. 5000/- as compensation. Opposite parties 1 and 2 filed separate version. In the version filed by the 1st opposite party it is admitted that a housing loan was given to the complainant and his father was a co-obligant since the property belonged to him. It was also admitted that to secure the loan a policy was taken from the 2nd opposite party. However it was contended that there was no deficiency of service from their part. Damage if any caused to the building is to be indemnified by the 2nd opposite party who is the insurer. 2nd opposite party filed a version admitting the policy. They also admitted that when the claim petition was filed it was approved for an amount of Rs. 10,855/- and the matter was duly intimated to the complainant on 20/1/2021. However the complainant was directed to produce the building tax receipt. On verification of the same it was seen that the building is in the name of Sri. Chandrahasan who is the father of the complainant. Since complainant had no insurable interest they repudiated the claim. Hence according to them there is no deficiency of service from their part and they prayed for dismissal of the complaint. Complainant got examined as PW1 and marked Ext.A1 to A12. During his cross examination Ext.B1 to B3 were marked from the side of 2nd opposite party. 2nd opposite party has not adduced any oral evidence. They marked Ext.B4 to B10. The present manager of 1st opposite party was examined as RW1 and marked Ext.B11 to B15. Relying upon the oral evidence of PW1 coupled with the documents marked the learned counsel appearing for the complainant pointed out that complainant duly insured the house by paying premium and it was for securing the housing loan. When damage occurred it was intimated to opposite parties and 2nd opposite party assessed an amount of Rs. 10,855/-. Sri.Chandrahasan who is the owner of the property and the building therein is missing for the last 12 years. Sri. Chandrahasan is the father of the complainant and the loan was availed by the complainant and insurance policy was also availed by him. Hence the contention of opposite parties is to be rejected and so the complainant is entitled for realizing the amount. It was also pointed out that there was an earlier case as CC.182/2019 (Ext.A12 order). It was a case with regard to flood occurred during 2018. As per the order of this Commission opposite parties paid the amount and the circumstances are similar. Now opposite parties cannot turn round and say that since building tax is in the name of Chandrahasan complainant is not entitled for the amount. Per contra the learned counsel appearing for the 1st opposite party pointed out that to secure the housing loan issued in favour of PW1 policy was taken from the 2nd opposite party. On expiry of the 1st policy Ext.A2 2nd policy was issued which is valid upto 30/11/2028. During currency of the Ext.A2 policy damage occurred and so it is for the insurer to pay the amount. There is no negligence from their part and so the complaint against them is only to be dismissed. The learned counsel appearing for the 2nd opposite party pointed out that on getting the claim petition they duly appointed a surveyor and he assessed the damage and an amount of Rs. 10,855/- was approved. As per Ext.B2 letter dtd. 20/1/2021 complainant was requested to produce the building tax receipt for enabling the payment. However Ext.B2 property tax receipt produced by the complainant showed that the property is in the name of Sri. Chandrahasan. Since complainant had no insurable interest the claim was repudiated and so there was no deficiency of service from their part.
12. The fact that during 2008 PW1 availed a housing loan from the 1st opposite party and to secure the loan, it was insured with the 2nd opposite party is not in dispute. Ext.A1 is the insurance policy from 30/9/2008 to 29/9/2018 and Ext.A2 (B1) is the subsequent policy from 1/12/2018 to 30/11/2028. Ext.A1 and Ext.A2 policies are issued in the name of Sri. Balu who is the complainant in this case. It is an admitted fact the damage occurred due to the house during the flood of 2020 and a claim petition was filed. Ext.A3 letter dtd. 20/1/2021 of the 2nd opposite party shows that the claim was approved for an amount of Rs. 10,855/- and a letter was issued to PW1 for producing the building tax receipt. Ext.A10 is the copy of consent letter signed by PW1 for Rs. 10,855/- as full and final settlement. Ext.B3 shows that on 20/1/2021 a letter was issued to the complainant to produce the building tax receipt . Ext.B6 is the reminder issued to 1st opposite party and Ext.B7 is the letter issued to complainant to produce the necessary document. It is an admitted fact that the property belongs to Sri. Chandrahasan who is the father of PW1. In the chief affidavit it is stated by the complainant that Sri. Chandrahasan is missing for the last 12 years and his where abouts are not known.
13. Ext.B11 is the loan application dtd. 16/1/2008 from which it is seen that complainant is the applicant and Sri. Chandrahasan is a joint applicant/ guarantor /co-obligant. From Ext.B2 copy of tax receipt it is seen that the property belongs to Sri. Chandrahasan. It is true that PW1, Balu is not having any insurable interest of the building since the property belongs to his father. However from Ext.A1 and A2 it can be seen that policy was issued by the 2nd opposite party in his favour originally from 30/9/2008 to 29/9/2018 and thereafter it was renewed from 1/12/2018 to 30/11/2028. The flood occurred during the currency of Ext.A2 policy. From Ext.B3 it is seen that Rs. 10,855/- was approved by the 2nd opposite party considering the claim. However it was not disbursed on a contention that PW1 is not having any insurable interest. As discussed earlier it is seen that Ext.A1 and A2 policies are issued by the 2nd opposite party in the name of complainant Sri. C. Balu. They had also collected premium from him through the account of 1st opposite party. It was their duty to enquire whether complainant had any insurable interest at the time of issuing the policy. After issuing the policy and collecting the premium now they cannot turned round and say that they are repudiating the claim on a contention that complainant is not having insurable interest. Admittedly the property owner who is the father of complainant is missing for the last 12 years. Since Ext.A2 policy was issued on 1/12/2018 during that time also Sri. Chandrahasan was missing. Without enquiring about the same 2nd opposite party renewed the policy infavour of complainant.
14. The learned counsel also relied upon Ext.A12 order dtd. 30/12/2021 in CC.182/2019. It was a similar case in which compensation was claimed for the flood occurred during 2018. The parties in this case and in CC.182/2019 are one and the same. In the said case after considering evidence on record as per order dtd. 31/12/2021 this Commission directed opposite parties to pay compensation and the order was honoured by both opposite parties. Here the amount is only Ext. 10,855/- which was approved by the 2nd opposite party. The payment was not made only on a contention that complainant had no insurable interest. As discussed earlier Ext.A1 and A2 policies are issued in the name of PW1, the complainant and hence at the time of claiming the insured amount 2nd opposite party cannot take such a contention.
15. As held by the Hon’ble Supreme Court in Om parakash Vs. Reliance General Insurance on 4/10/2017 in Civil Appeal No. 15611 of 2017.
“Rejection of the claim on purely technical grounds in a mechanical manner will result in loss of confidence of policy – holders in the insurance industry. It needs no emphasis that the Consumer Protection Act aims at providing better protection of the interest of consumers. It is a beneficial legislation that deserves liberal construction. This laudable object should not be forgotten while considering the claims made under the Act.”
Hence assessing the evidence as a whole and in the light of the above discussion and applying the principles laid down by the Hon’ble Supreme Court we are of the opinion that complainant is entitled for the amount of Rs. 10,855/- from the 2nd opposite party.
16. Complainant is claiming an amount of Rs. 5000/- on account of deficiency of service. Admittedly a flood occurred during August 2020 as per Ext.B2 letter dtd. 20/1/2021 it is seen that 2nd opposite party had approved an amount of Rs. 10,855/- after assessing damage. It was not disbursed due to non production of building tax receipt and contenting that complainant had no insurable interest. In said circumstances there is no deficiency of service from the part of opposite parties and so complainant is not entitled for damage. These points are found accordingly.
17. Point No. 4:-
In the result complaint is allowed in part.
a) Complainant is allowed to realise an amount of Rs 10,855/- from the 2nd opposite party.
b) Complaint against 1st opposite party is dismissed.
c) Complainant is allowed to realise an amount of Rs. 2000/- as cost from the 2nd opposite party only..
The order shall be complied within one month from the date of receipt of this order
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 2nd day of March, 2023.
Sd/- Sri.S.SanthoshKumar(President)
Sd/-Smt.C.K.Lekhamma (Member)
Appendix:-Evidence of the complainant:-
PW1 - Balu.C (complainant)
Ext.A1 - Copy of Policy
Ext.A2 - Copy of Insurance policy schedule
Ext.A3 - Copy of letter dtd. 19/8/2020
Ext.A4 - Postal Receipt
Ext.A5 - Acknowledgment Card
Ext.A6 - Copy of Letter dtd. 7/9/2020
Ext.A7 - Postal Receipt
Ext.A8 - Acknowledgement Card
Ext.A9 - Copy of Letter dtd. 20/1/2021
Ext.A10 - Copy of Consent Letter
Ext.A11 - Letter dtd. 28/9/2021
Ext.A12 - Copy of Order in CC/182/2019
Evidence of the opposite parties:
RW1 - Sebin Antony(witness)
Ext.B1 - Unihome Care Insurance Policy
Ext.B2 - Copy of Tax Receipt
Ext.B3 - Copy of Letter dtd. 20/1/2021
Ext.B4 - Copy of Letter dtd. 1/3/2021
Ext.B5 - Letter dtd. 9/7/2021
Ext.B6 - Reminder dtd. 28/9/2021
Ext.B7 - Letter dtd. 28/9/2021
Ext.B8 - Copy of AD card
Ext.B9 - Copy of AD card
Ext.B10 - Copy of Consent Form Settlement of Flood claims
Ext.B11 - Copy of Loan Application dt.16/1/2008
Ext.B12 - Copy of Housing Loan Agreement
Ext.B13 - Account based Customer Details Enquiry
Ext.B14 - Copy of Sale Deed
Ext.B15 - Copy of Partition Deed
///True Copy ///
To
Complainant/Oppo.party/S.F.
By Order
Assistant Registrar
Typed by:- Br/-
Comp.by:
