Date : 30.04.2013.
Per Mr.K.B.Gawali, Hon`ble Member.
1. This appeal is filed by original complainant directing against the judgment and order dated 5.10.2007 passed by District Forum Aurangabad in C.C.No.313/2007, whereby complaint of the appellant came to be dismissed. Respondent herein is the original opponent.
2. It is the case of the appellant/complainant that on 21.6.2006 he had obtained from respondent two insurance policy i) Standard fire and special perils policy bearing No.161504/11/2006/1352 for the period from 21.3.2006 to 20.3.2007 with the sum insured of Rs.2 lakhs and ii) Shop keepers insurance policy bearing No. 161504/48/2007/402 for the period 21.05.2006 to 20.06.2007 with the sum insured of Rs.3 lakhs for his shop by name and style "Naz Fancy Store and Electronic". It was contended by the appellant/ complainant that on 17.9.2006 there was heavy rain in Jalna city due to which his shop was collapsed and stock in the shop was damaged. He therefore sustained loss of Rs.6 lakhs. That, he had informed about the incident to the police station as well as Tahasildar, Jalna. Accordingly, police registered FIR and Revenue Inspector, from Tahasil office conducted panchanama of the damages. That, the said incident was informed to the insurance company. Accordingly, respondent insurance company had appointed surveyor namely Shri.Sampat Jayant. That, surveyor had demanded certain documents vide his letter dated 5.11.2006. It was further contended by appellant/complainant that thereafter time and again he had requested to the respondent insurance company to appoint surveyor. However, no surveyor was appointed and his insurance claim was repudiated by letter dated 2.1.2007 on the false ground. He therefore approached to the District Forum seeking direction to respondent insurance company to pay him compensation of Rs.5 lakhs and also Rs.5000/- towards deficiency in service along with interest @ 15% p.a. till realisation of entire amount.
3. Respondent insurance company appeared before the Forum and resisted the claim. It was contended that the shop being situated at Jalna. Present complaint was beyond the jurisdiction of District Forum Aurangabad. It was also contended that the policy was issued to the complainant to provide protection to the insurance property against the fire and allied perils and not liability perils. It was contended that said shop is damaged due to collapse of adjacent building and hence peril is liable. It is beyond scope of policy. It was thus contended that the claim of the respondent was rightly repudiated and there was no deficiency in service on the part of insurance company.
4. District Forum on the basis of the available record and after hearing parties has dismissed the complaint. It was observed by District Forum that policy was for fire and earthquake and not for the damages on account of heavy rain and therefore the said damages and loss was beyond the scope of the policy. It is therefore held by District Forum that respondent insurance company has rightly repudiated the claim by its letter dated 2.1.2007. It is further observed by District Forum that the appellant/complainant failed to supply the documents which were required by surveyor as appointed by respondent insurance company. That, after one year from the date of repudiation of the claim, the appellant/complainant, had requested respondent to appoint fresh surveyor which was not proper. Hence on these ground the Forum below dismissed the complaint.
5. Feeling aggrieved by the said judgment and order present appeal came to be filed in this Commission by the original complainant. The appellant also filed separate application for the condonaton of delay which is shown three months and 13 days i.e. 108 days. Appeal came to be heard finally on 8.4.2013. Adv.P.M.Parihar present for appellant whereas Adv.Shri.R.H.Jobanputra present for respondent. Advocate of appellant produced copy of policy. We heard both the counsels on the point of delay as well as merit of the case. Learned counsel for the appellant on the point of delay condonation application submitted that District Forum passed the impugned judgment and order on 5.10.2007 which was received by advocate of appellant on 7.11.2007. However actual information about said judgment was given to him on 1st March 2008 by his advocate. It was further contended that appellant/complainant was ill and was advised rest by doctor for the period from 15.11.2007 and 15.3.2008. The medical certificate has also been submitted doctor Misal from "Misal Hospital". He therefore requested that due to his illness there was delay in filing appeal which may be condoned.
6. On the other hand, learned counsel Shri.R.H.Jobanputra opposed to the condonation of delay on the ground that the said delay has not been properly explained and certificate which enclosed does not show that he was bed ridden for the said period.
7. On perusal of delay condonation application and hearing of learned counsels of both parties we find that on account of illness the appellant/complainant could not file the appeal within the statutory period. Medical certificate which is produced on record in support of his illness discloses that the appellant was under treatment of Dr.Misal from 15.11.2007 to 15.03.2008 and during the said period he was advised for rest. We are therefore satisfied with the explanation given for delay condonation and hence to meet the ends of justice we condone the delay.
8. As regards merit of the case Adv.Shri.P.M.Parihar submitted that there are two insurance policies one is shop keeper policy and other is fire and special peril policy. He submitted that the damage to the insurance shop was caused as neighbouring building was collapsed due to heavy rain and same is covered under the said policy. However respondent insurance company has repudiated the claim and thus committed deficiency in service .
9. On the other hand, learned counsel for the respondent insurance company submitted that out of two policies, one is "Standard fire and peril policy" which covers only damages caused due to fire and earthquake whereas second policy by name "Shop keepers insurance policy" covers fire and special perils which does not include damages due to heavy rain as per terms and conditions of the policy. He also submitted that actual damage to the shop was caused due to collapse of the neighbouring building on the said shop which is not covered under the said both policies. Therefore respondent insurance company has rightly repudiated the insurance claim and there was no deficiency in service on the part of respondent.
10. We have perused the papers and also considered the oral submission as put forth by learned counsels. Only question before us to decide is whether the appellant has proved the deficiency in service on the part of respondent insurance company. On the perusal of complaint it reveals that appellant/complainant has contended that the damage to his shop was caused due to heavy rain. Even in the complaint submitted to the police the appellant has mentioned that due to heavy rain his shop was collapsed and damage was caused to the shop and stock. However in the panchanama dated 18.9.2006 conducted by Revenue Inspector of the Tahasil office Jalna it is mentioned that the neighbouring two storey building which was in a dilapidated condition collapsed at 11.00 to 11.20 p.m. in the night of 17.2.2006 due to which Naz Photo Studio and Naz Fancy Store were damaged. The approximate loss caused due to said damage was mentioned as Rs.8,97,750/-. In this panchanama nowhere it is mentioned that the said building was collapsed due to heavy rains, but was due to it`s dilapidated condition.
11. It is thus revealed that because of collapsing of the adjacent building there was damage to the shop and said damage has not been covered under both the policies. We therefore find that the District Forum has rightly dismissed the complaint. There is no substance in the appeal as filed by appellant/complainant. In the result, we proceed to pass the following order.
O R D E R
1. Appeal is dismissed.
2. No order as to cost.
3. Copies of the judgment be issued to both the parties.
Pronounced on 30.04.2013.
