Presented by Miss R. Pattnayak, President .
This is a complaint filed by the Complainant namely M/s Maa Samaleswari Food Products Pvt. Ltd, a rice Mill Farm through its Director, Gopal Kumar Agrawal, against the Opposite Party namely Bajaj Alliance General Insurance Company Ltd. alleging deficiency in service/unfair trade practice and also for unjustifiably repudiating the claim arising due to the damage by the flood like situation created by incessant rainfall.
The brief facts of the case are that, the Complainant had insured his entire firm (Mill premises) and its assets including the boundary wall situated at Kalangapali (Chakarkend), Ps. Bargarh, Dist. Bargarh with the Bajal Allianz General Insurance Company Ltd. The Complainant obtained the policy bearing No. OG-09-2412-4001-00000353 for the period from Dt.17/03/2009 to Dt.16/03/2010, covering the risk of standard fire and special perils. The sum insured being Rs.1,05,00,000/-(Rupees one crore five lakh)only.
It is the case of the Complainant that on Dt.14/07/2009 in the rainy season, due to flood like situation, created by the incessant rain fall, the boundary wall of the Complainant i.e. The insured firm collapsed and fell down causing a heavy loss to the tune of Rs.3,00,000/-(Rupees three lakh)only. The Complainant reported the matter and laid claim with the Opposite Party Insurance Company/insurer regarding this loss and for this purpose, the Complainant has also submitted a duly completed claim form and the Opposite Party registered this claim vide claim No. OC-10-2403-4001-00000015.
To asses the loss, the Opposite Party/insurer appointed a surveyor, Er. Mukunda Sahu, who submitted his report on Dt.22/07/2009. The said surveyor opined that, the claim is not payable under the circumstances of the loss, as it is not covered under the terms of the policy. Accordingly, the Opposite Party/Insurer, intimated the Complainant by their letter dated 25/07/2009, thalt the loss reported does not come within the purview of the policy, hence its claim is treated as “No Claim.”
Feeling aggrieved by repudiation of his claim, the Complainant approached this Forum and filed the complaint before this Forum, claiming the insurance coverage of Rs. 3,00,000/-(Rupees three lakh)only towards the loss he has sustained, a compensation of Rs. 50,000/-(Rupees fifty thousand)only towards harassment and mental agony and Rs. 25,000/-(Rupees twenty five thousand)only towards litigation expenses from Opposite Party.
It is submitted by the Complainant that, in terms of the policy taken, the company had assured the Complainant to cover the risks such as Earthquake, Flood, Storm, Cyclone or other convulsions of nature or atmospheric disturbances which obviously included loss caused by Flood like situation created by incessant rain fall and the ground of denial of Complainant's claim against the loss sustained by him, though covered under the policy, amounts to unfair trade practice adopted by the Opposite Party.
The Complainant has further submitted that, in spite of several requests being made to the Opposite Party, there was no response from the Opposite Party side for which the Complainant had sustained loss both mentally and financially and since the Complainant had paid the premium, this silence and unmoved attitude of the Opposite Party towards the genuine claim amounts to negligence and deficiency in service and hence the Complainant is entitled to get the loss and compensation as per terms of policy.
In support of his case, the Complainant has filed the following documents:-
Copy of repudiation letter Dt.25/07/2009 issued by Bajaj Allianz General Insurance to the Complainant.
Copy of Bajal Allianz General Insurance Policy bearing No. OG-09-2412-4001-00000353.
The Complainant also filed decision of Hon'ble National Commission which are attached to the case record. (i) 2007 STPL (CL) 13 NC, United India Insurance Co. Ltd. -Vrs- Imperial Gift House and Another (ii) 2009 STPL (CL) 3540 NC, Bajal Allianz General Insurance Co. Ltd. -Vrs- Gandamal Hardyalmal.
Notice was duty served on the Opposite Party. SR back from him on dated 16/09/2010 and the case was posted for appearance and version by Opposite Party. Opposite Party appeared on Dt.23/05/2011 and submitted his version on Dt.15/09/2011.
In the written version, it was contended that, by the Opposite Party in his primary objections that, the case of the Complainant is not maintainable as it is not coming under the purview of the Consumer Protection Act-1986 and the complaint petition is barred by the principles of estoppel, waiver, acquiescence, limitation and non-joinder and mis-joinder of necessary parties.
It is further submitted by the Opposite Party that, the Complainant has failed to produce any prove to substantiate the fact that the loss has occurred due to any of the insured perils under the policy and as soon as the claim was intimated to the Opposite Party, they appointed an IRDA approved independent surveyor for the assessment of the exact cause and extent of loss and the said surveyor assessed the loss to the tune of Rs. 93,280/-(Rupees ninety three thousand two hundred eighty)only but as the claim was not covered under the policy, they have rightly repudiated it.
However, the Opposite Party admitted that the Complainant had insured his mill and its assets but denied to the fact that, the entire firm including the boundary wall was insured and the allegation made by the Complainant that, the boundary wall of the firm fell down on Dt.14/07/2009, due to flood like situation created by rainfall causing a heavy loss of the tune of Rs. 3,00,000/-(Rupees three lakh)only is false and concocted.
The matter was contested by the Opposite Party insurance company, whose case is that, according to the surveyor report, the age of the said Boundary wall is four years, the back side of boundary wall has been constructed on the edge of a crop land. The level of the land is on the lower segment than the level of the premises of the mill. Only due to heavy rain, the boundary wall may not be collapsed instantly, it may be due to any other reasons. Since the perils described by the insured for the loss is due to heavy rainfall, hence the risk is not covered under the terms and condition of the policy. Therefore they have submitted in their written version that, they have rightly repudiated the claim.
The Opposite Party relies upon Condition-VI of the policy which reads as under:-
VI- Storm, Cyclone, Typhoon, Tempest, Hurricane, Tornado, Flood and Inundation.
“Loss, destruction or damage directly caused by storm, cyclone, typhoon, tempest, hurricane, tornado, flood and inundation excluding those resulting from earthquake, volcanic eruption or other convulsions of nature.” It is their plea that since this was a question of rain water it can not be included within the Meaning of Flood.
In his version, the Opposite Party while denying all the allegations raised by the Complainant, submitted that the case is not maintainable in the eyes of law and the Complainant has filed this case falsely only to harass the Opposite Party and Complainat has also failed to prove his case, therefore the complaint petition is liable to be dismissed as there is negligence no deficiency in service and also no unfair trade practice has adopted by the Opposite Party.
The Opposite Party has also filed a number of documents in support of his case.
Copy of repudiation letter dated 25/07/2009 along with A.D.
Claim form of Complainant.
Copy of letter dated 14/07/2009 of Complainant to Opposite Party.
Copy of Insurance Policy.
Copy of standard fire and special perils policy.
Copy of report of surveyor.
Perused the complaint petition, written statement and the documents submitted by both the parties to prove their respective claims and denial plea as per annexed list of documents, the following issues are framed for adjudication of the case:-
Whether the case is maintainable ?
Whether the loss caused to the insured firm due to heavy rainfall covers under the insurance policy of flood and tornado ?
Whether the Complainant is eligible to get his claimed amount of Rs.3,00,000/-(Rupees three lakh)only ?
Whether the assessment of Rs.93,280/-(Rupees ninety three thousand two hundred eighty)only made by the surveyor in respect of the loss is final ?
Whether the repudiation in part of the Complainant as raised by the Opposite Party company is tenable ?
Whether the relief or reliefs, the Complainant is entitled to ?
Heard both the Parties
Issue No.1(one):- Whether the case is maintainable ?
It is the admitted fact that, the Complainant had insured his entire mill and its assets with the Opposite Party. It is also admitted by the Opposite Party that, the Complainant had a valid policy which cover the period of liability from Dt.17/03/2009 to Dt.16/03/2010. There is also no dispute regarding the premium, because the Complainant paid the premium before the Opposite Party and obtained a valid insurance policy. So, he is a consumer under Section-2(d) of the Consumer Protection Act-1986. The incident took place on Dt.14/07/2009. As because there is a valid insurance coverage to the Firm (Rice Mill) and out of the incident, the boundary wall of the firm collapsed and Complainant sustained a heavy damage, the Complainant's claim of damage has to be met by the Opposite Party. So the complaint petition has primafacie case and it is maintainable under the Consumer Protection Act.
Issue No.2(two):- Whether, the loss caused to the insured firm due to heavy rainfall covers under the insurance policy of flood and Tornado ?
It is admitted position that, as per terms of the policy, the following risks were covered:-
fire.
Lighting.
Explosion/Implosion.
Aircraft damage.
Riot, Strike, Malicious damage.
Storm, Cyclone, Typhoon, Tempest, Hurricane, Tornado, Flood and Inundation.
Impact damage.
Subsidence and Landslide including Rock Slide.
Bursting and/or over flowing of water tanks, apparatus and pipes.
Missile testing operations.
Leakage from Automatic Sprinkler installations.
Bush fire.
but it was the case of the Opposite Party that, since in this case the loss was caused by collapse of boundary wall of the firm on account of heavy rain, this risk does not fall within any of the risks covered as enumerated abvove.
On this point we have gone through the decision of Hon'ble National Consumer Disputes Redressal Commission reported in 2007 STPL (CL)13 and 1(2007) CPJ 6(NC)- United India Insurance Co. Ltd -Vrs- Imperial Gift House and another, in which it was held that, as per oxford concise Dictionary, relied upon by the State Commission, the word “Flood” also means “an outpouring of water......” and “Tornado”, beside other mean......” a great down pour of rain. So the risk anumerated under the insurance policy of flood and Tornado undoubtedly covers the cause of loss due to heavy rainfall.
It is also well decided by the various judgment of the National Commission that Flood means an out pouring of water and Tornado means a great down pour of rain.
In the light of the above decision we are of the view that the loss cause to the Complainant in this case by heavy rainfall is fully covered by the insurance policy and the insurers can not wriggle out of their liability arising there from.
Issue No.3(three) and No.4(four):- Whether the Complainant is eligible to get his claimed amount of Rs.3,00,000/-(Rupees three lakh)only or the assessed amount of Rs.93,280/-(Rupees ninety three thousand two hundred eighty)only that made by the surveyor ?
We observe Annexure-1(one) of the policy filed by both the parties which clearly shows about the item description and the sum insured in various heads. The total amount insured is Rs. 1,05,00,000/-(Rupees one core five lakh )only.
Towards super structure (Building), the amount insured was Rs. 28,00,000/-(Rupees twenty eight lakh)only.
Towards plant and machinery, the sum insured was Rs.17,00,000/-(Rupees seventeen lakh)only.
Towards furniture, fitting and fixtures, the sum insured was Rs.2,00,000/-(Rupees two lakh)only.
Towards stocks, the sum insured was Rs. 55,000/-(Rupees fifty five thousand)only.
Towards others, the sum insured was Rs. 3,00,000/-(Rupees three lakh)only.
The Complainant has not given any document to wards the claimed amount of Rs. 3,00,000/-(Rupees three lakh)only towards the loss. Moreover, he has not sustained the claim by adducing any evidence. So his claim can not believable in to to. But contrary to that, the Opposite Party produce the relevant documents i.e. Surveyor's Report. The surveyor is a technical man and competent to acess to loss. Accordingly the Opposite Party had deputed surveyor to access the loss and his report clearly shows that there was loss of Rs. 93,280/-(Rupees ninety three thousand two hundred eighty)only.
On this point we have gone through the decision of Hon'ble National Consumer Commission Disputes Redressal commission reported in (2004) 9 CLD-884 (NCDRC) Dt.24/03/2004 National Insurance Co. Ltd. -Vrs- Sardar Gurmit Singh. It reveals from the placitum, which reads as follow:-
“Reports of Surveyors appointed under insurance Act are to be given due importance and one should have sufficient ground not to disagree with assessment made by them.”
Issue No.5(five). Whether the Repudiation in part of the Complainant as raised by Opposite Party company is tenable ?
On this point, the Opposite Party submitted that, Since the loss caused by rainfall is not covered under the insurance policy, so he has rightly repudiated the claim of the Complainant as because the cause of loss does not come under the purview of standard fire and peril policy.
On this point we have gone through the decision of the Hon'ble National Commission report in 2009 STPL (CL) 3540 NC Bajaj Allianz General Insurance Co. Ltd. Vrs Gondamal Hardyatmal where it is held that, heavy rainfall covers under the insurance policy of flood and Tornado. We hold that, the point of repudiation as raised by the Opposite Party is illegal.
Under the above circumstances, we come to the conclusion, that, the loss in this case falls very much within the terms of the policy and not settling it, rather repudiate the claim is clearly amounts to negligence and deficiency in service under the provision of Sec-2(1)(g) of the Consumer Protection Act.
- O R D E R -
Hence, the Opposite Party is directed to pay Rs.93,280/-(Rupees ninety three thousand two hundred eighty)only to the Complainant, towards the loss assessed by the Surveyor along with interest @9%(nine percent) per annum from the date of repudiation i.e. Dt.25/07/2009 till the date of Order i.e. Dt.19/02/2013 and compensation of Rs. 10,000/-(Rupees ten thousand )only towards harassment, mental agony and litigation expenses within thirty days from the date of this Order, failing which the total awarded amount shall carry @ 18%(eighteen percent) interest till the realization of amount.
The case is allowed and disposed off accordingly.
Typed to my dictation
and corrected by me.
Sd/- Sd/-
(Miss Rajlaxmi Pattnayak) ( Smt. Anjali Behera)
P r e s i d e n t. M e m b e r.
