Order-14.

Date-10/08/2015.

This is an application u/s.12 of the C.P. Act, 1986.

          Complainant by filing this complaint has submitted that complainant took a Standard Fire and Special Perils Policy bearing No.100900/11/12/31/00000207 from OP1 by payment of premium of Rs.19,453/- including service tax 12.36 percent, which was valid from 04-07-2012 to 03-07-2013 covering the risk of stock of Auto Mobile Parts, Spares, Furniture and Fixture including Racks, electrical equipments, Air Conditioners, electrical Installation, Office Equipment including Computer and peripherals, Printers, U.P.S., Lan, EP & ABX system etc., which are lying in the shop situated at Diamond Plaza, Ground floor, 2.1/2, Mile, Sevoke Road, Opp. Bajla Motor City Showroom, within P.S. Bhakti Nagar, Siliguri – 734 401 with total sum insured value of Rs.1,25,00,000/- issued by OP1 and it is a renewal of earlier policy with the OP1.

          During subsistence of the subject policy, on 15^th July, 2012 heavy rainfall started at Siliguri and adjacent areas and it continued till 16^th July, 2012 resulting in huge accumulation of water including on Sevoke Road in front of the abovementioned shop room of the complainant (in support of this Weather report of 15^th-16^th July, 2012 is annexed).  The said water logging was so huge that the water entered inside the shop-room of the complainant by over flowing of guard wall through shutter gate and thus the stock of goods inside the said shop room was completely inundated resulting in heavy loss of stock of materials, furniture, equipments, computer, peripheral etc. and following such loss complainant intimated the OP1 by letter dated 16-07-2012 and also intimated that the amount of loss suffered Rs.15,00,000/- as average and also filed a claim form raising a total claim of Rs.14,82,333.40.  Subsequently, after such intimation OP1 engaged Sri S.N. Mittra as Surveyor to assess the loss and the said surveyor by his report dated 22-09-2012 assessed the value of damaged stock at Rs.9,60,917/- after deducting salvage and excess, quantified the net liability of the insurer at Rs.8,21,584/-.  Although the surveyor is not a Civil Engineer but strangely enough based on conjecture and surmise observed that it was due to seepage of sub soil water through the latent cracks in the ground/plinth and leakage of rain water through the cracks in the walls, the said inundation of stock took place but not due to outside inundation and for such reason as per the said surveyor, the insurer has no liability for the nature of loss is not within the scope of cover of subject policy. 

It is pertinent to mention that the surveyor went to place of occurrence on 20^th July, 2012 after about 5 days from the date of occurrence of loss, moreover evidently it transpires from the said surveyor report that the surveyor could not inspect the floor of the premises for the floor was full of materials but yet on presumption the conclusion regarding crack of floor and plinth was made out in the said survey report which could reflect that over flowing of water through guard wall did not specifically inundate the stock of goods, furniture etc., inside the insured premises.  The appended paper clip with survey report on the contrary shows that by territorial rain Siliguri and parts of Jalpaiguri were flooded and just not water logged.  People were rescued on emergency basis and the adjacent rivers rose to the maximum causing a total flooding of streets, low areas, including the insured premises.  That mere presumption of fact without valid documentary evidence is not a valid document regard being had to the survey report in the present context.  The locus of the surveyor in as much as his presumption based on conjecture is not only irrational but hypothetical as well leading to a suggestion to discard the claim is fanciful and arbitrary in manner and following the same line of rational of that of surveyor report without application of mind, taking that report as sacroscent, the OP1 discarded the claim of the complainant by their letter dated 10-10-2012 on the ground that outside logged water did not enter the insured premises and the actual water logging inside the insured shop cum godown was due to seepage of subsoil water through the latent cracks in the ground and leakage of rain water through the crack in the wall and for such reason the said loss cannot be treated as that caused by inundation and hence the loss is not covered under the subject policy and finally on 11-12-2012 by a letter OP1 finally repudiated the claim of the complainant.

          Finding no other way complainant engaged one Chartered Engineer having L.B.S. Civil diploma to inspect the condition of ground and wall inside the said insured premises and who by his report dated 10-01-2013 candidly opined that after thorough inception no instability of structure was found neither inside nor in the outside of the said insured premises.  No vertical crack was found on wall or no horizontal cracks are visible on the south side wall and which are plaster crack.  It has been inferred in the said report that the shop cum godown therefore may be inundated by water over flow through guard wall and shop shutter gate due to flood.  There are no other possibilities. 

          After obtaining such report from Chartered Engineer Sankhadeb Ghosh complainant went to the office of the OP1 for review of the settlement of claim but it was communicated to him that since the financial amount of the claim is beyond Rs.10,00,000/- the claim settlement and repudiation thereof are being principally inspected by the OP2 aforesaid and the said settlement of claim cannot be reopened.  Thereafter, complainant again and again visited the office of the OP1 for review of the settlement of claim but got no result.

          Finally complainant sent a legal notice dated 27-09-2013 but they did not reply and following that notice complainant asked OP1 to supply necessary information and documents in respect of the claim as the original documents are in the custody of the OP1 but again they did not send those documents and finding no other alternative complainant prayed for redressal by filing this complaint before this Forum.

          On the other hand, OPs1 to 3 by filing written version denied and disputed all the allegations of the complainant and pertinent to mention that the water logged outside did not enter the insured shop-room – cum – godown on 15-06-2012 as alleged by the complainant and it is also denied that the water logging was so huge that water entered inside the shop-room of the complainant by overflowing of guard wall through shutter gate and thus the stock of goods inside  the said shop-room was completely inundated resulting in heavy loss of stock of materials, furniture, equipments, computer, peripheral etc.   It is stated by the OPs that the actual water logging inside the shop-cum-godown was due to seepage of sub-soil water through the latent cracks in the ground/plinth and leakage of rain water through the cracks in the walls.  There was no such huge water logging in front of the insured’s shop-cum-godown to inundate the insured’s shop-cum-godown as alleged or at all.  Hence, the water logging inside the shop-cum-godown cannot be treated inundation under AOC of the perils of the policy.  On receiving intimation from the complainant OPs appointed Surveyor Mrs. S.N. Mitra, who is an IRDA approved Licensed Surveyor, inspected the place of occurrence and conducted survey in presence of the representatives of the complainant and it is categorically denied that the said surveyor based on conjecture and surmise observed that it was due to seepage of sub-soil water through the latent cracks in the walls, which developed during earth quake in September, 2011, the said inundation of stock took place and not due to outside inundation.  Though the loss was assessed at Rs.8,21,584/- but the insurer has no liability against the alleged claim of the insured because the water inside the insured’s shop-cum-godown could not be treated as inundation under AOG perils of the policy. 

          It is categorically denied that the insurer by its letter dated 10-10-2012 discarded the claim of the complainant, the insurer did not receive any comments from the complainant as called for and had no other option repudiate the claim vide letter dated11-12-2012.  It is further stated that the alleged inspection and inspection if at all held was in the absence of the insurer and as the Chartered Engineer, Mr. Sankhadeb Ghosh, appointed by the complainant was not an IRDA approved independent Surveyor, the purported report of the Surveyor dated 10-11-2013 was not accepted by the OPs and the alleged inspection was held after repudiation of the claim.  Hence, there is no deficiency in service and unfair trade practice on the part of the OPs, the claim of the complainant is not maintainable and the complaint is liable to be dismissed.

Decision with Reasons

On proper consideration of the complaint and the written version and further considering the argument of Ld. Lawyers of both the parties including the conditions of the policies Standard Fire and Special Peril Policy (material damage) we have gathered that as per Clause VI an insured can get such claim against loss, destruction, damage directly caused due to flood or inundation no doubt.  But in the present case complainant submitted a claim being No.100900/11/12/31/9000001 against his policy No.100900/11/12/31/ 00000207 on the ground that the said policy was valid from 04-07-2012 to 03-07-2013 but during subsistence of the said policy on 15-07-2012 heavy rainfall started at Siliguri and adjacent areas which continued till 16^th July, 2012 resulting in huge accumulation of water including on Sevoke Road in front of the shop room of the complainant at Diamond Plaza and due to said inundation various parts of the said shop room was damaged due to water-logging and huge water entered inside the shop-room of the complainant by over flowing of guard wall through shutter gate and thus the stock of goods inside the said shop room was completely damaged due to inundation of water which caused heavy loss of stock of materials, furniture, equipments, computer, peripheral etc.

Admitted fact is that on 16-07-2012 complainant intimated about the fact to the OP1 and also reported that they suffered loss Rs.15,00,000/- approximately.  At the same time it is undisputed fact that on receipt of said intimation Sri S.N. Mittra was appointed by the OP1 as Surveyor to survey and to assess the loss and complainant also filed a claim form raising a total claim of Rs.14,82,333.40.  No doubt surveyor submitted his report on 22-09-2012 after local inspection and assessing the value of damaged stock and other matter.

At the time of inspection Surveyor that considering the total area and height of the Diamond Plaza building etc. is 2’6’’ and on the date actually from the evening of 15-07-2012 and up to 9.00 a.m. of 16-07-2012 incessant rainfall all over Siliguri caused water-logging in few areas but the Surveyor went to the Diamond Plaza building where the shop of the complainant is situated and found there are marks of water-logging in the passage of the guard wall of Daga Auto Distributors and on the boundary wall of the Diamond Plaza Building at a height varying between 1’4’’ and 2’2’’.  Surveyor also found that the maximum height of logged water was 2’2’’ in the rear side of the passage where the passage slopped further downwards.  Surveyor also marked the slight water-logging inside the shop-cum-godown of the insured at Diamond Plaza and after checking it was found that logged water rose up to height of only 2” and on enquiry it was revealed that there was no water-logging on the main Sevoke Road in front of Diamond Plaza as the level of such passage was lower than the main road level and definitely the rain water sloped downwards and logged on the passage of the building which was down than the front road level but it was found by the surveyor that guard walls are of height of 2’6’’, then under any circumstances, the outside logged water cannot enter into the insured shop-cum-godown of the complainant when water level on the down passage rose up to height of 2’2’’ and there was no question of reaching the said water at a height of 2’6’’.  Further it was learnt from the complainant and their employees that severe earthquake held in Siliguri during September, 2011, which completely affected the Diamond Plaza building when cracks developed in the walls and floors, plinth and it was found that insured repaired such cracks as far as visible but many cracks were found there still exists in the shop-cum-godown but even then the articles were kept in the godown that means even after damage of the said godown due to earthquake in the month of September, 2011 complainant did not take any step to repair the said floor to remove the cracks so that any water may  anyway caused seepage and entered into the godown.

At the same time during inspection it was found that the godown was not properly maintained and after considering entire matter surveyors came to a conclusion that the cause of water-logging inside the shop-cum-godown of the complainant was not caused due to outside inundation on 15/16^th July, 2012 but it was caused due to seepage of subsoil water through the latent cracks in the ground/plinth and leakage of rainwater through cracks in the wall and all developed after earthquake in September, 2011 and had the outside logged water would have actually entered the insured’s shop-cum-godown overflowing above the entrance guard walls then the water logging inside the insured’s shop-cum-godown would have been 2’6’’ at the minimum because the floor levels of the insured’s shop-cum-godown was almost at par the outside passage levels but it was below the guard wall so the surveyor came to a conclusion due to seepage of subsoil through the latent cracks in the ground/plinth and leakage of rainwater through the cracks in the walls and all developed during earthquake in September, 2011 and so, caused such damage of articles.  But complainant was not satisfied about that report so, he himself subsequently engaged his surveyor and submitted a claim.

Subsequently, surveyor’s report was sent to the complainant and asked the complainant to submit his comments if any.  Moreover on receipt of the letter dated 08-11-2012 of the complainant, insurance company was confirmed that the insured stated the cause of loss for the above mentioned claim was due to inundation from the cracked boundary walls of the Diamond Plaza Building and of seepage of subsoil water and insured themselves admitted that the cause of rain water inside their shop-room was due to poor structure of the premises but not for outside inundation so, the loss was not covered under AOG perils of the policy. 

So, considering the report of the surveyor admitted position is that cracks on the wall and plinth and the floor due to earthquake is undisputed.  Not only that complainant also admitted the fact that through that leakage water entered into the shop-room and that cracks were developed due to earthquake but it was not damaged due to inundation because guard wall is at the height of 2’6’’ whereas water level was at low level of 2’2’’ and in fact no inundated water entered into Diamond Plaza building but only this complainant filed this complaint claiming false claim that due to inundation water entered into the said shop-room and it is proved in view of the fact that complainant and their employees admitted that water entered into the shop-room through cracks of the floor and in fact, as per provision of policy condition it is the duty of the insured to keep the godown always safe and protected from any entry of water from outside that means complainant did not keep the said shop-room safely to guard and protect his goods which are kept and in respect of which the policy was purchased.  But it is mandatory provision of law as per policy condition insured is bound to keep such protection always but when it is admitted fact that the said shop-room was damaged due to earthquake then it is the duty of the complainant to make the shop room repaired to protect from any seepage or entry of outside water through cracks of the floor or guard wall or the walls of the room.  But all sorts of cracks was found by the surveyor and that was not denied and it is admitted by the complainant and their staff also that the said cracks was caused due to earthquake that means after earthquake that rooms were not repaired properly to protect the goods in the said godown.  On the other hand complainant admitted by their letter dated 08-11-2012 that insured admitted that the outside logged water did not enter in 15/16^th July, 2012 but the water logging was due to entry of water through cracks developed in the wall during earthquake.  So, it is proved that the cause of logged water inside the shop room was not for inundation of outside but for poor structure of the premises so during rainfall water entered through the cracks.  So, considering that fact we have gathered that as per terms and condition of the policy the complainant is not entitled to any benefit of the claim amount and no doubt under such circumstances, after considering the policy conditions and also fort not causing damage due to inundation the said claim was rightly repudiated by the OPs.

At the same time we have gathered that OPs always gave them reply against his grievances though complainant admitted the above fact and when the insured found that they committed error, they tried to appoint their own surveyor and fact remains before appointing their surveyor they repaired the entire shop-room which is proved and that is the common practice in almost all the cases, what we have gathered in so many cases also.

          In the light of the above observation we are convinced to hold that the repudiation as made by the OPs was legal, valid and justified and due to inundation no damage was caused and the damage was caused due to non-maintaining the said cracked shop-room and also cracked floor etc. and through that cracks during rainfall water seepage and goods were damaged and in such a situation if any damage is caused, as per policy condition no claim can be entertained, but claim can be entertained only due to inundation and for entering the inundated water into the shop-room otherwise as per policy condition complainant is not entitled to get any claim and in this case inundated water never reached the guard wall height of 2’6’’ height, but inundated water height was 2’2’’ and there was such mark on the guard wall and practically the report of the surveyor is found justified and legal.

          In the light of the above observation complaint fails when no negligence or deficiency on the part of the OP is proved and at the same time as per policy condition relying upon the surveyor’s report repudiation was rightly made.

In the result, the case fails.

Hence,

Ordered

That the case be and the same is dismissed on contest with a cost of Rs.5,000/- against the OPs.

          Complainant shall have to pay the cost to this Forum within one month from the date of this order failing which penal action shall be started against them and further bank interest shall be assessed over the said amount within one month from the date of this order and for realizing the same penal action may also be started for which complainant shall have to pay further penalty and fine.