District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No. 310/2021.
Date of Institution: 06.07.2021.
Date of Order:.17.08.2023.
Lal Chand S/o Shri Ram Ratan R/o House No. 1636, Horn Colony, Faridabad Haryana – 121003.
…….Complainant……..
Versus
1. Bharti AXA General Insurance Company, Hosto No. 43, Millers Road, Vasant Nagar, Bangalore – 560 046.
2. Tim Insurance Surveyors & Loss Assessors Pvt. Ltd., 3425, Ist floor, Mahindra Park, Rani Bagh, Delhi – 110 088
…Opposite parties
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
Indira Bhadana………….Member.
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
PRESENT: Sh. Ashutosh Shandilya, counsel for the complainant.
Sh. Rakesh Dabaas, counsel for opposite party No.1.
Opposite party No.2 ex-parte vide order dated 16.3.2022.
ORDER:
The facts in brief of the complaint are that the complainant had taken a Smartplan Shop Package policy vide policy No. S9702593from opposite party No.1 w.e.f. 26.07.2020 to 25.07.2021. While taking the said policy the surveyor had inspected the said grocery shop and had visited the same before issuing the insurance policy and complainant was informed that the cart grocery shop of complainant would be insured in case of any incident as above mentioned. On 27.03.2021 & 28.3.2021 around 12.20 a.m., unfortunately a fire occurred at the grocery shop of the complainant. The same was informed by the neighbor telephonically. The said fire was extinguished with the help of neighbors by water and it took approximately 30 minute to control the fire lit on the grocery shop. The complainant intimated the local police regarding the said incident on 31.03.2021 and the same was been acknowledge by the police office of PS, Sarai Khawaja, Faridabad. The complainant informed the opposite party No.2 regarding the said incident. Opposite party No.2 appointed the surveyor who visited the said premises and observed the loss occurred to the complainant’s grocery shop and evaluated the loss to stock of rs.1,19,215/- and loss to cash of Rs.20,000/-. On 16.04.2021 the complainant was shocked and surprised to receive the letter from opposite party No.2 rejecting the claim of the complainant on the ground that ”shop with kutcha construction were not covered”. The complainant telephonically raised objection/dispute with respect to the said report but all the efforts of the complainant went in vain and he did not receive any response from the opposite parties. The aforesaid act of opposite party amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite party to:
a) pay the amount of Rs.1,39,215/- which was insured in case of loss occurred due to fire at the grocery shop of the complainant.
b) pay Rs. 50,000/- as compensation for causing mental agony and harassment .
c) pay Rs. 11,000 /-as litigation expenses.
2. Opposite party No.1 put in appearance through counsel and filed written statement wherein Opposite party No. 1 refuted claim of the complainant and submitted that at the very threshold of the allegations contained in the complaint, from the relied upon documents including survey report dated 24.04.2021, so prepared & supplied by an Independent IRDA licensed surveyor Viz. TIM Insurance Surveyors & Loss Assessors Pvt. Ltd. To the insurance company & its enclosures thereto, it was established that the loss due to fire in cArt Grocery shop claimed by the complainant falls out of the scope of the insurance policy in question because as per survey report there was structure of the shop (moveable-2 wheels at rear side) made up of wooden planks (plywood) covering with tin on outer side with tarpaulin roof based on bamboo sticks which was termed as kutcha construction, whereas, as per the policy wording, the definition of building under the shop as “Building” means structure (above plinth and foundation excluding land) of standard construction un less specifically mentioned. It should also include connected utilities, sanitary fittings, fixtures and fittings therein belonging to the insured and for which he was accountable. Since in this case, the intent of the policy was to cover contents inside a shop having a building defined above, thus a movable shop (movable-2 wheels at rear side) would fall out of the scope of policy coverage. Further it was noted that the policy important condition/warranty not complied with as “Shops with kutcha construction were not covered” because “Kutcha construction” should mean and include any building having walls and/or roofs of wooden planks/thatched leaves and/or grass/hay of any kind/bamboo/plastic cloth/asphalt cloth/canvas/tarpaulin and the like. Hence, in view of the said factum, the claim of the complainant stands non payable for want of requisite coverage on the relevant date. The complainant neither had any cause of action nor locus standi in lodging of the present complaint before this Hon’ble Commission, reason being, as a matter of record, the complainant had booked lodged his claim with the insurance company with regards to fire loss occurred in a shop (Khokha/cart grovery shop). After that the insurance company in order to assess the loss, had deputed an independent IRDA licenced Surveyor viz. TIM Insurance Surveyors & Loss Assessors Pvt. Ltd. In turn, after survey, he had submitted his survey report dated 24.04.2021 alongwith enclosures thereto, whereby, it was established that the loss claimed by the complainant falls ou8t of the scope of the insurance policy in question because as per survey report there was structure of the shop (moveable -2 wheels at rear side) made up of wooden planks (plywood) covering with tin an outer side with tarpaulin roof based on bamboo sticks which was termed as kutchas construction, whereas, as per the policy wording, the definition of building under the shop as “Building” means structure (above plinth and foundation excluding land) of standard construction unless specifically mentioned . It should also include connected utilities, sanitary fittings, fixtures and fittings therein belonging to the insured and for which he was accountable. Since in this case, the intent of the policy was to cover contents inside a shop having a building defined above, thus a moveable shop (moveable -2 wheels at rear side) will fall out of the scope of policy coverage. Further it was noted that the policy important condition/warranty not complied with as “shops with kutcha construction ere not covered” because kutchas construction shall mean and include any building having walls and/or roofs of wooden planks/thatched laves and/or grass/hay of any kind/bamboo/plastic cloth/canvas/tarpaulin and the like. Hence, in view of the said factum, the claim of the complainant stands non payable for want of requisite coverage on the relevant date and the insurance company had arrived at the decision in treating as “No claim” vide letter of intimation which decision could not be termed unconscionable at all. Opposite party No.1 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. Notice issued to opposite party No.2 on dated 28.02.2022 not received back either served or unserved. Tracking details filed in which it has been mentioned that “Item Delivery Confirmed”. Case called several times since morning but none appeared on behalf of opposite party No.2 Hence, opposite party No.2 was hereby proceeded against ex-parte vide order dated 16.3.2022.
4. The parties led evidence in support of their respective versions.
5. We have heard learned counsel for the parties and have gone through the record on the file.
6. In this case the complaint was filed by the complainant against opposite parties–M/s. Bharti AXA General Insurance Co. Ltd. with the prayer to: a) pay the amount of Rs.1,39,215/- which was insured in case of loss occurred due to fire at the grocery shop of the complainant. b) pay Rs. 50,000/- as compensation for causing mental agony and harassment . c) pay Rs. 11,000 /-as litigation expenses.
To establish his case the complainant has led in his evidence, Ex.CW1/A – affidavit of Lal Chand, Ex.CW1/1 – Smartplan Shop Package Policy, Ex.CW1/2 – complaint dated 31.03.2021, Ex.CW1/3 – copy of letter dated 16.04.2021, Ex,CW1/4 – legal notice,
On the other hand counsel for the opposite party No.1 strongly agitated and opposed. As per the evidence of the opposite party No.1 Ex.RW1/A – affidavit of Rohan Mishra, Manager (Legal), M/s. ICICI Lombard General Insurance Co. Ltd., 4th floor, Red Fort Capital Parsvnath Tower, Bhai Veer Singh Marg, Gole Market, New Delhi, Ex.R-1 (colly) SmartPlan Shop Package Policy, Ex.R-2 – complaint dated 31.03.2021, Ex.R-3 – Claim form,, Ex.R-4 – Reported items under the loss, E.R-5 – Final Survey report, Ex.R-6 - letter dated 16.04.2021.
7. In this case, the complainant had taken a Smartplan Shop Package policy vide policy No. S9702593from opposite party No.1 w.e.f. 26.07.2020 to 25.07.2021 vide Ex.CW1/1 . On 27.03.2021 & 28.3.2021 around 12.20 a.m., unfortunately a fire occurred at the grocery shop of the complainant. The same was informed by the neighbor telephonically. The said fire was extinguished with the help of neighbors by water and it took approximately 30 minute to control the fire lit on the grocery shop. As per Ex.CW1/2 the complainant intimated the local police regarding the said incident on 31.03.2021 and the same had been acknowledged by the police office of PS Sarai Khwaja, Faridabad. Opposite party No.2 has repudiated the claim of the complainant on the ground that “Shop with Kutchaa Construction are not covered” vide Ex.CW1/3.
On the other hand, counsel for the complainant argued at length and stated at Bar that opposite party cannot do the pick and choose and opposite party is taking policy premium. Once opposite party issued the policy they are liable for the claim policy. As per the allegations the shop was temporary construction . While issuing the insurance policy opposite party have taken the pictures and pictures of stock material and also took the invoices of the material. Opposite party is taking the premium also. As per surveyor report vide Ex.R-5, the stocks of general/Kiryana items is Rs.1,19,215/- and he cash amount is Rs.20,000/-. We cannot say about the cash money and no claim for the cash money because cash which were not insued. No doubt, there was a kriyana stock with the stock of approximate as assessed by the surveyor report. Rs.1,19,215/- minus Rs.20,000/- cash which is not given by this Commission and balance amount is Rs.1,19,216/- approx. 1,20,000/-
8. After going through the evidence led by the parties, the Commission is of the opinion, as per settled law, opposite party cannot deny the claim of the complainant because of Katcha construction of the shop. Once the opposite party have issued the policy, they cannot stop to pay the same and renewal of the same as per the settled by” Medical Insurance – Once Insurer Accepts that concealment of disease was not material, reimbursement & renewal can’t be refused passed by the Hon’ble Supreme Court of India on 6th July 2023.” Hence, the repudiation done by the opposite parties are not justified.
9. Keeping in view of the above submissions as well as the settled law, the Commission is of the opinion that the complaint is allowed. Opposite parties, jointly & severally, are directed to pay 50% of the claimed amount alongwith interest @ 9% p.a. from the date of filing of complaint till its realization. Opposite parties Nos.1 & 2 are also directed to pay Rs.2200/- as compensation for causing mental agony & harassment alognwith Rs.2200/- as litigation expenses to the complainant. Compliance of this order be made within 30 days from the date of receipt of copy of this order. Copy of this order be sent to the parties concerned free of costs. File be consigned to the record room.
Announced on: 17.08.2023 (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
(Indira Bhadana)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
