Dt. 27.08.2015
JAGANNATH BAG, MEMBER
The petition of complaint has been filed under Section 17 of the Consumer Protection Act, 1986, with prayer for direction upon the OP Insurance Company for payment of (1) Rs. 23,64,100/- towards the loss suffered on account of damage to their insured property , (2) Rs. 10 lakh as compensation for delay in settlement of the claim and also (3) Rs.50,000/- as litigation cost.
The Complainant’s case , in brief, is as follows:
The Complainant is a company engaged in the floriculture business with financial assistance from United Bank of India, Siliguri Branch. They took a Standard Fire and Special Perils Policy for indemnification of actual loss of their business in the year 2006 - 2007. The insurance policy has been renewed since then with almost the same terms and conditions except in the year 2010 when a slight modification was effected. The policy was last renewed for the period from 14.04.2010 to 13.04.2011 . Premium amount of Rs. 14,365/- was paid for the total sum insured of Rs.74,00,000/- without deletion of Storm, Tempest , Flood and Inundation (STFI), or Riot, Strike and Malicious Damages (RSMD) . In April 2011 just before expiry of the Insurance Policy for the year 2010-2011 there had been a major accident due to storm and tempest . There were damages to the Green Houses of the Complainant which was the primary coverage area. The damage was informed to the Insurance Company and claim for compensation was lodged. The Insurance Company appointed a Surveyor who assessed the loss suffered by the Complainant. The Insurance Company after getting the report of the Surveyor denied to settle the claim saying that the risk was not covered under the storm and tempest for Greenhouse as the Polyhouse warranty was put to effect in the said period. Allegedly , the Complainant was not notified or made aware of the warranty. The coverage provided under the renewed policies was as per the expiring policies and on the same terms as of the earlier policies. The policy No. OG-09-2404-4001-00001368 comprising of Super St Building with the exclusion of Plant and Machinery and other ZAC Machines which was renewed as policy No. 0G-11-2404-4001-00000029. The OP / Insurance Company vide their letter dated 30.06.2011 informed that the Complainant was not eligible for any compensation as the alleged loss of the property had occurred due to storm was not payable as per terms and conditions of the policy. The refusal to indemnify the loss suffered by the Complainant due to storm is absolutely misconceived and purposive. Hence, the complaint.
The complaint has been contested by the OP by filing W.V and denying material allegations. In their W.V. it has been emphasized that there is no deficiency in service on the part of the Insurance Company . Admitting that a Standard Fire and Special Peril Policy was issued to the Complainant for the year 2010 -2011, it has been asserted that a specific warranty for Polyhouse / Greenhouse was issued with modification of clause (vi) of the Insurance Policy by virtue of which the policy stood modified to cover only loss, destruction or damage directly caused by flood or inundation but excluding those resulting from storm, cyclone , tempest or other convulsions of nature. The policy was received by the Complainant but never challenged or disputed . The Surveyor in his report dated 06.05.2011 observed that such damage was specifically excluded from the scope of policy and accordingly , the claim was repudiated by the Insurance Company vide their letter dated 20.05.2011. The exclusions as stated were made at the instance of the Complainant / Insured for the policy period 2009-10 and the Poly-house endorsement was made in the policy of 2010-11 . The Insurance Company has acted strictly in accordance with the terms and conditions of the policy. As such, the Complainant can not raise any dispute at this stage. The complaint having no merit deserves to be dismissed.
The Complainant has submitted evidence on affidavit with enclosures where upon questionnaire was put by the OP and replies thereto have been furnished by the Complainant. The OP has also filed evidence on affidavit and the Complainants having raised questions, replies have been furnished by the Complainant. Both parties have filed their respective BNA . Ld. Advocates of the Complainant and the OP have been heard.
Ld. Advocate appearing for the Complainant submitted that the policy was taken in the year 2006 and since then it is being renewed from year to year . The terms and conditions are almost the same except for the year 2010 when the policy was renewed with a slight modification with deletion of STFI and RSMD for the rose plants only but for the subsequent year no such deletion was asked for or carried out. The policy for the year 2010 -11 was issued with Poly-house warranty endorsement and in the said endorsement it was clearly stated that the words ‘excluding those resulting from earth quake volcanic eruption or other convulsion of nature’ shall stand deleted . As there was, add-on coverage of earthquake with plinth and foundation . The Insurance Company has intentionally avoided to entertain the complaint with an ulterior motive which is against the terms of the policy contract.
Ld. Advocate appearing for the OP Insurance Company submitted that rights and liabilities of insurance contract are guided by the terms and conditions of every policy. The Poly-house warranty was issued by the Insurance Company and the same was within the knowledge of the Complainant for the entire period of insurance coverage. It is not at all true that the Complainant was not aware of the said warranty. The policy for the year 2009 -10 was issued with deletion of the coverage of risk under Storm and Tempest. The policy was renewed for the year 2010-11 with same terms and conditions as for the year 2009 - 2010. In that position , there was no question of retaining the risk of storm and tempest for the year 2010-11. Hence, there was no question of allowing the claim of the complaint caused by storm/hail storm as observed by the Surveyor. In citing the judgment of Hon’ble Supreme Court as reported in AIR 1965 Supreme Court ,1288 (V) 52 C 208 in the matter of the Civil Appeal No. 409 of 1961 and the judgment as reported in 1999 (7) Supreme 195 , Supreme Court of India in Civil Appeal No. 4913 of 1997, Ld. Advocate argued that the terms of agreement have to be strictly construed to determine the extent of liability of the insurer. The insured can not claim anything more than what is covered by the insurance policy. Ld. Advocate also emphasized that there was no deficiency in service on the part of the OP Insurance Company .The complaint deserves to be dismissed viewed from every angle.
The points for consideration are as follows:
Is the Complainant a consumer under the Consumer Protection Act?
Is there any deficiency in service on the part of the OP Insurance Company?
Is the Complainant entitled to get the relief as prayed for in their petition of complaint?
Decision with Reasons :
It is a fact that the Complainant being engaged in floriculture business took an insurance policy on payment of premium for insurance coverage for their property. Such service was not for resale or any commercial purpose. As such, the Complainant was a consumer and the complaint filed by them is adjudicable under the Consumer Protection Act.
The other two points are taken up together for brevity of discussion as they are interlinked.
Admittedly, the Complainant took a Standard Fire and Special Perils Policy in the year 2006 and the said policy has been renewed from year to year on payment of due premium except for a slight modification removing some items from the insurance cover in the year 2010.
Policy Nos. OG-09-2404-4001-00001368 (Annexure -7) and OG-09-2404-4001-00001356 (Annexure-8) , both policies being valid for the period from 07.03.2009 to 06.03.2009, as issued by the Insurance Company, did not cover STFI /RSMD risks as evident from the Renewal Intimation letter of the Insurance Company (Annexure - 9 to the petition of complaint).
The Poly-house /Green-house warranty as issued by the Insurance Company and valid for the period from 14th April 2010 to 13th April 2011 (Midnight) reads as follows:
Warranted that policy coverage under Section VI stands modified to cover ONLY loss, destruction or damage directly caused by Flood or Inundation, excluding those resulting from earthquake, volcanic eruption, storm, cyclone, tempest or other convulsion of nature. ……
It was also noted in the warranty that wherever earthquake cover is given as an ‘add-on cover’ the words ‘excluding those resulting from earthquake , volcanic eruption or other convulsions of nature’ shall stand deleted.
The Poly-house warranty (2010-11) suggests in unambiguous terms that the risk of flood or inundation was covered but that of storm , cyclone , typhoon , tempest , hurricane or tornado was not so covered. The add-on cover of earthquake covered the risk of earth quake , volcanic eruption or other convulsion of nature.
The loss of the Poly-house as shown in the claim form has, as per report of the Surveyor, been caused by a ‘devastating storm’ which was verified from a number of sources including one Mr. Subir Sarkar, the in-charge of the North Bengal University’s Weather Station and the local police.
It is apparent that STFI and RSMD were deleted from the policy for the period of 2009-10. The Complainant having enclosed the copy of the Poly-house warranty for the year 2010-2011 cannot deny receipt / acceptance or knowledge of the same , more so in view of the fact that the renewal notice issued to the Complainant by the OP Insurance Company (Annexure -9 to the petition of complaint) shows that STFI and RSMD stood deleted from the policy of 2009-2010 and renewal was made for the year 2010-2011 with the same terms and conditions with same deletion of the risk .The averment of the Complainant that they were ‘not notified or made aware of ’ the warranty (Page 8 of the petition of complaint) does not stand substantiated.
Going by the evidence produced by the OPs and the policy documents produced by the Complainant and other materials on record we are convinced that the policy in question did not cover the risk of storm by which the loss occurred. No deficiency on the part of the OP Insurance Company has been proved . The Complainant is not entitled to the relief as prayed for. The complaint fails. Hence,
Ordered
That the complaint be and the same is dismissed on contest . There shall be no order as to costs.
