BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 02.04.2014

Date of Order : 19.02.2016

Present :-

Shri. Cherian. K. Kuriakose, President.

Shri. Sheen Jose, Member.

Smt. V.K. Beena Kumari, Member.

C.C. No. 267/2014

Between

And

O R D E R

V.K. Beenakumari, Member

A brief statement of facts of this complaint is as follows:-

This consumer complaint is filed by Shri Paulson P. Varkey who is running a crusher unit. He had taken Standard Fire and Special Perils Policy of the opposite party – Oriental Insurance Company with Policy No. 441502/11/2014/1 with sum assured of Rs. 8,00,000/- on 05.08.2013 due to heavy and incessant rain in the locality, the entire crusher unit was submerged in water due to inundation and the entire machineries, electrical installation and others goods in the unit valued Rs. 4,33,000/- were damaged completely and the complainant-Insured lodged a claim before the opposite party – Insurance Company but the said claim was repudiated by the opposite party vide their letter dated 18.03.2014 stating the reason that the complainant-insured had specifically requested for the exclusion of flood and allied Perils from the policy coverage. It is contended by the complainant-insured that the repudiation of the claim is not correct and is not sustainable. That the main reason for the loss is heavy rain and the consequent inundation and perils are covered by the Policy. It is further contended that there is no endorsement in the policy schedule to the effect that flood and allied perils were excluded from the policy coverage and there is no deduction the premium amount on the basis of any policy coverage exclusion. The policy is having coverage for losses suffered due to heavy rain and inundation. Therefore the repudiation of the claim lodged by the complainant-insured amounted to deficiency in service on the part of the opposite party – insurer. It is submitted that the complainant is entitled to get Rs. 4,33,000/- with interest at the rate of 12 % per annum from the date of the claim till realization towards loss suffered by the complainant due to heavy rain and consequent flood and inundation. Hence this complaint is filed seeking orders from this Forum to the opposite party – Insurance Company to pay the complainant Rs. 4,33,000/- along with 12 % interest per annum from the date of the claim till realization.

2. Notice was issued to the opposite party – Insurance Company and the opposite party appeared and filed their version contending inter-alia as follows:

The opposite party had issued the policy based on the proposal given by the complainant. The complainant had specifically requested for the exclusion of the flood and allied perils. As per the terms and conditions of the policy the claim lodged by the complainant is an excluded peril as opted by him. The contention of the complainant that the loss due to heavy rain and consequent inundation and perils are covered by the policy is not correct. The contention that the complainant had not made any request for exclusion of Flood and allied perils is not correct. The repudiation of the claim was well within the rights of the Insurance Company and there was no deficiency in service on the part of the opposite party – Insurance Company. Hence the complainant-insured is not entitled for Rs. 4,33,000/- along with the interest at the rate of 12% per annum from the date of claim as demanded by the complainant. It is prayed that the complaint may be dismissed with costs to the opposite party.

3. The evidence in this case consisted of the documentary evidences marked as Exhibits A1 to A4 on the side of the complainant and Exhibits. B1 to B5 marked on the side of the opposite party. No oral evidence adduced by either party. Heard the Counsel for both parties.

4. On the above pleadings, the following issues were

settled for the consideration of this Forum :

i) Whether the complainant has proved deficiency in

service on the part of the opposite party – Insurance

company as alleged ?

ii) Whether the opposite party is liable to pay Rs.4,33,000/-

with interest to the complainant under the policy taken

by the complainant ?

iii) Whether the complainant is entitled to get costs

of proceedings from the opposite party ?

5. Issue No. (i) : The complainant Shri Paulson P. Varkey had taken a policy of the opposite party – Oriental Insurance Company with the Policy No. 441502/11/2014/1 for the sum insured of Rs. 98,00,000/- (not Rs. 8,00,000/- as stated in the complaint) as evidenced by Ext. A1 and Ext. B3. Standard Fire and Special Perils police schedule dated 10.04.2013 and the policy coverage is for the period from 11.04.2013 to 10.04.2014. The complainant is running a crusher unit and policy is taken to cover the plant and machinery TERSX 1000 Autosand cone crusher & Terex vibrating pan feeder with motor as stated in the above policy schedule in Exts. A1 and B3. It is also stated that the premium amount for Fire Basic Cover is Rs. 12,250/- and that for STFI cover is Rs. 1,225/-. In the flood that occurred on 05.08.2013 the plant and machinery of the complainant's crusher unit were damaged and the complainant lodged a claim with the opposite party – Insurance Company for the damages occurred to the machinery. The said claim was repudiated by the opposite party vide the repudiation letter as evidenced by Ext. A2 and Ext. B5. In the said repudiation letter it is stated as below :

It is seen from the proposal form that you has specifically

requested for exclusion of the Flood & Allied Perils. Based on

the proposal, the office had issued the policy to that effect.

Hence, the loss or damage occurred due to flood is an excluded

peril as per the policy issued.

On close scrutiny of the documents submitted in support

of your claim viz-a-viz the terms and conditions of the policy

issued we regret to inform you that your claim is not tenable

on the following grounds.

The claim is due to an excluded peril as opted by you

and does not fall under the scope of coverages of the policy

issued and we regret to inform you that the claim is not

tenable as per the terms and conditions of the policy.

Inconvenience caused is regretted. The case of the complainant is that flood and subsequent inundation is covered by the policy and the complainant is entitled to the claim. We have verified the proposal form submitted by the opposite party – Insurance company vide Ext. B1. In the above against column No.16 is stated as below :

“16. Any other information relevant Exclude flood and

to the proposal connected coverage “

Thus we find that the complainant had specifically requested for exclusion of the Flood and Allied perils as contended by the opposite party – Insurance Company. It is further contended by the Counsel for the opposite party that the complainant had opted for the Base cover for fire and allied perils and the premium amount paid was for Base cover only and no premium paid for STFI. Therefore the claim put forward by the complainant is not allowed. We find that the repudiation of the claim is in accordance with the proposal given by the complainant. We find that the opposite party - Insurance Company had repudiated the claim in consonance with the decision of the Hon'ble National Commission in Indraprastha Gas Limited & New India Assurance Company reported in 1 (2015) CPJ 279 (NC), therefore repudiation of the claim by the opposite party – Insurance Company is justified and is found in accordance with the policy conditions. Hence the 1^st issue is decided in favour of the opposite party – Insurance Company and against the complainant.

6. Issue Nos. (ii) and (iii) : Having found the issue No. (i) against the complainant, We are not inclined to consider the other two issues and in the facts and circumstances of the case no order is issued towards costs of the proceedings. The parties shall bear the costs by themselves.

In the result, the complaint is dismissed.

Pronounced in the open Forum on this the 19^th day of February, 2016.

Sd/- V.K. Beena Kumari, Member. Sd/- Cherian. K. Kuriakose, President.

Sd/- Sheen Jose, Member.

Forwarded/By Order

Senior Superintendent

Date of Despatch of the Order :

By Hand / By Post :

A P P E N D I X

Complainant's Exhibits :-