The complainant has obtained Insurance Policy from the respondents vide Policy No.OG- 20-1102-4014-00000017, w.e.f. 30/04/2019 to 29/04/2020 against the premium of Rs.1594/- and all risk cover amount Rs.30,00,000/- of his residential individual building-all risk cover under Nagar, diamond plan-1, Situated at Jagdish Gali No.3, Pehlwan Chowk, Kutani Road, Panipat having locality near Pipal tree. After obtaining the premium amount from complainant, the respondents have issued a valid and effective policy in favour of the complainant. The respondents have issued the said insurance policy in favour of the complainant regarding his residential house after verify the spot properly and house of the complainant was in well maintained condition. In the rainy season of the month, July- August 2019 there was a heavy rain in District Panipat beyond the expectation and have crossed the record of several years. All the roads and locality were full of water and the same has also been reported by the newspaper. Due to such heavy rain, the complainant has also suffered huge loss in his insured house and there was a great seepage in the whole house and the cracks were also seen with the open eyes. The complainant has reported his claim to the respondents vide claim No.OC-2-1101-4014- 00000681 regarding the loss dated 05/08/2019 against the transcript of Proposal for Home for Building-All Risk Cover vide Policy No.OG-20- 1102-4014-00000017 w.e.f. 30/04/2019 to 29/04/2020 for total amounting to Rs.30.00 Lac against premium of Rs.1,594/- of Bajaj Allianz General Insurance Company Limited. Earlier the respondents had sent 13 quarries upon the complainant relating the loss and the same were duly replied the complainant by completing all the quarries and the respondents were fully satisfied with the documents submitted by the complainant in fulfilling the quarries of respondents. The complainant had submitted the estimate of loss with site-plan of building from the local contractor, valuation reports consisting comments on 13 quarries, online record of rainy water, news cuttings and comments. The respondents have also deputed their surveyor, who has inspected the spot and has collected the necessary documents from the complainant. He has also assured to the complainant that his claim is legal and genuine and the company will release the claim of the complainant at the earliest after completing legal formalities. He has also taken the cross cheque of the complainant for necessary proceedings as required by the respondents. But no report has been prepared by the valuer of the respondents and after completing query of the respondent, the complainant prepared a report of loss of his house by an authorized valuer at Panipat. The complainant has no sufficient source of income to renovate his house and was in need of money and thus he approached the respondents through E-mail as well as by registered post and has also fulfilled the entire quarries of the respondents. But the respondents lingered on the matter on one or the other false pretext. Thereafter the complainant has received a letter dated 17/10/2019 issued by the respondents in which they have refused the claim of the complainant by making lame excuse. Due to this act and conduct of respondents, the complainant has come to this Commission with the following prayers to direct the respondents;

• To pay claim amount of Rs.18,61,000/- for the loss of his house.
• To pay compensation of Rs.1,00,000/- on account of mental pain and agony.
• To pay litigation expenses of Rs.33,000/-.

2.                Upon notice, respondents appeared and filed written statement. In reply, respondents took preliminary objections regarding maintainability, jurisdiction, cause of action and suppression of true and material facts. It is submitted that the insurance company had appointed an IRDA Licensed Surveyor S. Soni and Co. (S.L.A. 15006) to assess and verify the damages caused to the building of the insured. During survey, the surveyor had made following observations:

1. Building is having pre-existing cracks/damages and therefore the claim  is falling under policy Exclusion No.2

Policy Exclusion No.2 read as follows: "Damages which are Pre-existing in nature (Applicable to Contents and Building)"

2. Building is ground + 2 floors and having burnt bricks walls without beams and I columns, and without proper plastering as well as there was lot of pre-existing wear and tear in building was hence the falling under Exclusion clause no. 3.

                   During Course of Survey, they observed various old wear and tear and improper plastering and poor maintenance of building without any pre construction approval of Competent Government Authority, and thereby is violating (policy General Condition No. 2). The Insured confirmed the loss is due to accumulation/inundation of torrential rain flood water from dated 25.07.2019 To 06.08.2019, But in case of rain water flood there should be damage of two or more properties by water or mudflow, but apparently, there was no other building damage is being recorded in nearby location where damaged building located. Therefore, the peril operated in happening of loss is not sufficiently justified under the claim. It is further submitted that as per observation damage to building not seems to be occasioned due to fortuitous cause of rain water, instead of, were developed over the period of time. At the time of survey, they had asked the Insured that whether Building is having valid Occupancy Certificate and/or Building Completion Certificate and the right to Reconstruction Certificate issued by the competent Government authority; then Mr. Sat Narain Aggarwal (complainant) replied there is no such certificate or approval available with them. Therefore, with reference to above mentioned facts and figures, it is evident that the claim is falling under the policy Exclusion as well other logical points as detailed above which are not justified under the claim, and therefore loss is not covered under the policy. It was also observed by the surveyor that as claimed by the complainant there was heavy rain from 25-Jul-2019 to 06-Aug-2019 but no such damage reported by any of the houses in the locality. It was further observed by the surveyor that the policy period started from 30.04.2019 and the damages to the building were within a short period of three months of inception of the policy coupled with the observation that there were pre-existing damages and cracks to the building gives a conclusive finding that the complainant is trying to cover the pre-existing losses, poor construction quality of building and improper maintenance of the building through the insurance policy.

                   In the light of the facts and circumstances given above and the facts brought out by the surveyor read with the terms and conditions of the policy, the claim of the complainant was duly and rightly repudiated vide letter dated 17.10.2019.

3.                In order to prove the allegations of the complaint, the complainant has filed his sworn affidavit Ex.CW1/A and closed the evidence after tendering the following documents;

4.                Respondents in evidence have tendered affidavit of Shyam Vats, Manager-Legal Claims as Ex.RW1/A and affidavit of Sanjeev Soni, Surveyor and Loss Assessor Investigator as Ex.RW2/A and closed the evidence after tendering the following documents;

5.                We have heard the arguments advanced by learned counsel for the parties and gone through the material on record thoroughly and carefully.

6.                The claim of the complainant has been repudiated by the respondents vide letter Ex.C1/Ex.R3 dated 17.10.2019 and relevant part of the same is as under;

“This is with reference to captioned claim intimated to us on 07^th August 2019 regarding loss/damage to building reportedly due to heavy rain at your premises located at Jagdish Nager Gali No.3, near Pahalwan Chowk near Pipal tree Panipat, Haryana -132103. Upon receipt of intimation, we had appointed M/s S.S. Soni Insurance Surveyor and Loss Assessors Pvt. Ltd. as a surveyor to verify the loss.

We would like to inform you that we are in receipt of final survey report at out office. On careful perusal of same along with other documents on records it has been observed by us that the reported loss is not falling under purview of the policy terms and conditions due to following reasons and same has been appraise to you via surveyor email dated 10^th October 2019. Same has been reproduce as under for your ready reference:

• Based on surveyor observation and verification it is noted that the building having pre-existing cracks/damages which is generate over the period of time.
• Building is G+2 floors and having burnt bricks wall without beams and columns and without proper plastering as well as there was lot of pre-existing damages found due to regular usage and poor maintenance.
• During survey, the appointed surveyor notice/observed various old and pre-existing damages to the building and without any preconstruction approval taken by the insured from Competent Government Authority.
• The damages to the building  not seems to be occasioned due to fortuitous cause of rain water, instead of were developed over the period of time.

Please refers following policy exclusion

1. Damages which are pre-existing in nature. (Applicants to contents and building)
2. Loss or damage or collapse of “Building” due to structural defects, latent defects, poor-maintenance, workmanship.

Policy General Condition

“Reasonable Care

The insured shall take all ordinary and reasonable precautions for the safety of the property insured and maintain it in efficient condition. The company shall have at all times free and full access to examine the insured property or any part thereof. In event of any accident or breakdown the insured property shall not be left unattended without proper precautions being taken to prevent further damage or loss and the insured property be used before necessary repairs are effected any extension of the damage or any further damage to the insured property shall be entirely at the insured’s own risk.”

In light of above explained facts, the reported loss is not falling under purview of the policy terms and conditions, hence we are repudiating the claim and closing the file as NO CLAIM in our records.”

7.                The complainant has obtained insurance policy from the respondents and got insured his house on payment of premium of Rs.1594 w.e.f. 30.04.2019 to 29.04.2020 for sum insured of Rs.30,00,000/- as per insurance policy Ex.R1, Ex.C3 and Ex.C4. The complainant has claimed that there was heavy rain in the month of July and August 2019 in district Panipat and all the roads and localities were filled with water as reported in newspaper cutting Ex.C12 to Ex.C22 and his house totally damaged due to heavy rain. It has further claimed that the insurance company was informed and complainant got estimated cost of repairing of existing house from J.P. Sharma and Associates, Surveyor and Loss Assessor who assessed the current depreciated construction value of building Rs.24,99,000/- as per report Ex.C7. The complainant lodged his claim with the respondents but his claim was repudiated by the respondents vide repudiation letter dated 17.10.2019 (Ex.C1). For claiming deficiency in service, he has filed this complaint for compensation of Rs.18,61,000/- as loss on account of damage to the house alongwith compensation for physical harassment and mental agony besides litigation expenses etc. The complainant has filed his sworn affidavit Ex.CW1/A and reiterated all the assertions as made in the complaint.

8.                The complainant had obtained insurance policy Ex.R1 covering the period 30.04.2019 to 29.04.2020 pertaining to building (all risk cover) for sum assured of Rs.30,00,000/-. The complainant had submitted the claim to the insurance company on 24.08.2019 as per claim form Ex.R6 showing torrential rain water as cause of loss of his house. The surveyor of insurance company demanded certain documents/inquiries vide letter Ex.R8. If all the documents of the respondents are appreciated on record, the insurance company demanded PCC queries/documents as reflected in document Ex.R8 which are as under:

1.       Kindly confirm Building plan was got approved or not, if yes provide copy,

2.       Whether PCC was done or we can say, proper plinth & foundation was constructed or not, if yes then why column & beams were not constructed?

3.       As we see only burnt bricks & cement were used for construction, why the proper plastering was not done??

4.       Some cracks at various places seemed to be repaired earlier, prove itself that building is getting deteriorated due to improper and weak construction, and hence cracks in building which been shown/presented to us are not due to inundation and are due to poor quality construction & ordinary wear & tear developed over the period of time. Kindly comment.

5.       On what basis, you have constructed Ground + 2 storied building, without columns and beams at foundation, as the weight of building, exerting excessive pressure on foundation, could result obvious settlement, of foundation downwards?

6.       If it was heavy rain since 25.07.2019 To 06.08.2019, then why there was neither water logged in open plot nor had mud soil above the surface of plot on dated 08.08.2019, as your claim is "due to heavy rain during 25.07.2019 To 06.08.2019 in the area, water logged in plot, and water absorbed inside soil, led to loss of foundation resulted tilt/inclination of building towards east side. However, at the time of survey, we neither noticed water logged/accumulated in adjoined open plot nor tender/wet soil above the open plot. Kindly comment

          Kindly give comment/reply within three working days with supportive documents.

9.                The complainant has not produced any document of title and only produced photocopy of agreement dated 11.03.2015 whereby he had purchased 30/8883 share out of area 49 canal 3 marla being 100 sq. Yards. This agreement does not create title in favour of the complainant. The complainant has not produced any document regarding life of the building, sanctioned site plan or any other site plan in order to appreciate age of building or completion certificate. It is admitted during course of arguments that the house in question falls within the Municipal Corporation of Panipat. The complainant in this case has avoided all the Government payments either it is being of conveyance deed, sanctioned site plan, house tax and other charges. Even in policy Ex.C3 word building has been used only. No specific dimension, plot area, building area has been mentioned therein. Therefore, the complainant has failed to supply or submitted the documents as required by the respondents vide letter Ex.C24 and Ex.R8.

10.              The complainant got estimate from J.P. Sharma and Associates as per estimate Ex.C7 who has assessed the estimate for repairing the building of 100 Sq. Yard at Rs.18,61,000/-. It has also come in evidence that no damage of any kind was found in the adjoining houses of the area. The district wise rainfall distribution document produced by complainant Ex.C11 does not reflect heavy rainy fall in District Panipat but the same has shown deficient rainfall. Photocopies of paper cuttings Ex.C12 to Ex.C22 do not inspire confidence unless or until corroborated by authentic record of the Government pertaining to heavy rain fall. In these newspaper cuttings, there is nowhere mentioned that the house of the complainant or other houses of area were damaged due to heavy rain in the area. The newspaper cuttings reflect that what problems have been caused due to rain in the city like cut of electricity, poor services of the corporation, lack of drain system etc.

 11.             The respondents have filed sworn affidavit of Shyam Vats, Manager of the Insurance Company as Ex.RW1/A who has supported all the pleas as taken in the written statement. He further deposed that there were pre-existing damages and cracks in the building in question and the complainant is trying to cover the pre-existing losses, poor construction quality of building and improper maintenance of the building through the insurance company and the money with the insurance company is a public money used for genuine losses covered under the policy.

12.              If the estimate of complainant Ex.C7 is appreciated in totality which has shown cost of repair as Rs.18,61,000/-, then it can be easily be said that the building in question was already in damaged condition before inception of the present insurance policy as rain fall alleged to have been in the month of July-August of 2019 and this policy been obtained on 30.04.2019 and how it was possible to suffer such a huge damage in the building within three months of taking the policy whereas no such damage due to rain was reported in the same area to any of the houses existing in locality. In this case, the respondents have also deputed surveyor and loss assessor/Investigator Sanjeev Soni who filed his affidavit Ex.RW2/A and deposing therein that he assessed the loss to the tune of Rs.4,56,055/- and submitted his report without any prejudice. He further deposed that during investigation of the said property, it was found that the damages of the property were pre-existing in nature and loss or damage of collapsed of building due to structural defects, latent defects, poor maintenance and workmanship. He gave following observations in his report as per his affidavit Ex.RW2/A

“During survey, following observations were made:

1. Building is having pre-existing cracks/damages and therefore the claim is falling under (policy Exclusion NO.2):

Policy Exclusion No.2 read as follows:

"Damages which are Pre-existing in nature (Applicable to Contents and Building)"

2. Building is ground + 2 floors and having burnt bricks walls without beams and I columns, and without proper plastering as well as there was lot of pre-existing wear and tear in building was there (as detailed in Para 6, point No. 3rd & 5th) hence the claim is falling under

Policy Exclusion clause no. 3

Loss or damage or collapse of building due to structural defects latent defects, poor maintenance, workmanship

3. During Course of our Survey, we observed various old wear and tear and improper plastering and poor maintenance of building without any pre construction approval of Competent Government Authority, and thereby is violating (policy General Condition No. 2):
4. Insured confirmed the loss is due to accumulation/inundation of torrential rain flood water from dated 25.07.2019 To 06.08.2019, But in case of rain water flood there should be two or more acres of normally dry land or two or more properties are inundated/damaged by water or mudflow, but apparently, there was no other building damage is being recorded in nearby location where damaged building located. Therefore, the peril operated in happening of loss is not sufficiently justified under the claim.
5. As per our observation damage to building not seems to be occasioned due to fortuitous cause of rain water, instead of, were developed over the period of time.
6. At the time of survey, we had asked the Insured that whether Building is having valid Occupancy Certificate and/or Building Completion Certificate and the right to Reconstruction Certificate issued by the competent Government authority; then Mr. Sat Narain Aggarwal replied there is no such certificate or approval available with them.

Therefore, with reference to above mentioned facts and figures, it is evident that the claim is falling under the policy Exclusion as well other logical points as detailed above which are not justified under the claim, and therefore loss is not covered under the policy.

It was also observed that as claimed by the complainant there was heavy rain from 25-Jul-2019 to 06-Aug-2019 but there was damage observed or no such damage reported by any of the houses for such damages. It was further observed that the policy period started from 30-Apr-2019 and the damages to the building were within a short period of three months of inception of the policy coupled with the observation that there were pre-existing damages and cracks to the building gives a conclusive finding that the complainant is trying to cover the pre-existing losses, poor construction quality of building and improper maintenance of the building through the insurance policy, which is a public money used for genuine and losses covered under the policy."         

                   If the above observations of Sanjeev Soni, Surveyor and Loss Assessor are appreciated in the given facts and circumstances of this case, it is established that no damage was caused to the building of the complainant due to rain. The building was already in damaged condition and with the motive of obtaining claim of this building, the complainant had obtained insurance policy Ex.R1 from the respondents whereas there was no damage caused to any of the houses in his locality by the rain during this period. Hence, the case of the complainant falls under exclusion clause No.2 and 3 of terms and conditions of the insurance policy (Ex.R2) and the respondents have rightly repudiated the claim of the complainant and the same is hereby upheld.

13.              For the reasons recorded above, the present complaint filed by the complainant has no merit and same is hereby dismissed with no order as to costs. 

14.              Miscellaneous application(s), if pending, stand disposed off in terms of this order.

15.              This order be communicated to the parties free of costs and file be consigned to the record-room.