Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 508.
Instituted on : 01.09.2017.
Decided on : 09.07.2019.
Tek Ram s/o Sh. Fateh Singh R/o village-Sunaria Khurd, Teh. & Distt. Rohtak.
………..Complainant.
Vs.
Future Generali India Insurance Company Limited 1st Floor, Plot No.401-402, Model Town, Rohtak through its Manager.
……….Opposite party.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
SH. VED PAL, MEMBER.
DR. RENU CHAUDHARY, MEMBER.
Present: Sh.Parteek Phougat, Advocate for complainant.
Sh. Sameer Gambhir, Advocate for opposite party.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the case are that the complainant got installed a polyhouse in his field and got insured the same vide policy No.2916-F0285384-FRE for the period from 28.07.2016 to 27.07.2017. The said polyhouse of the complainant was got damaged and the vegetable and plants were also destroyed. Due to this impact, complainant suffered a huge financial loss. The complainant intimated the opposite party in this regard who appointed the surveyor Sh. Rajesh Maheshwari and he inspected the site and prepared his report. But the surveyor vide his letter dated 22.07.2017 has informed the complainant that the polyhouse was damaged due to rain and wind on 13.07.2017 and 14.07.2017 and also assessed the loss Rs.98000/- whereas the complainant has suffered a loss of Rs.298000/- and the surveyor did not properly surveyed the actual loss. That there was no rain or wind on the above said dates. That complainant approached the respondent and requested them to disburse the claim amount in his favour but despite his repeated requests, the amount of claim has not been paid to the complainant. That the act of opposite party is illegal and there is deficiency in service on the part of opposite party. As such, it is prayed that opposite party may kindly be directed to pay the amount of Rs.298000/- alongwith interest @ 18% per annum from the date of incident till realization of the amount and further to pay Rs.1,00,000/- as compensation for harassment and Rs.11000/- as litigation expenses as explained in relief clause.
2. After registration of complaint, notice was issued to the opposite party. Opposite party in its reply has submitted that claim of the complainant/insured was declined/denied as the loss to the Polyhouse of the complainant/insured was due to rain/thunderstorm/storm. The complainant/insured in written version dated 15.07.2017 to the surveyor of the answering opposite party had himself stated that when he went to his poloyhouse he found that the polythene of the polyhouse was torn and that the plants inside had dried up. The complainant had further stated that the loss was due to rainy and windy conditions on 13/07/2017 and 14/07/2017. That the surveyor of the answering opposite party after completing the survey was of the opinion that since the loss of the complainant was due to thunderstorm/storm and this kind of peril i.e. due to thunderstorm/storm is not covered in STFI peril. Hence, the loss of the complainant was not falling under scope of the policy and the claim may be closed as No Claim. That this fact was also communicated to the complainant vide letter dated 19.09.2017 that the policy was issued to the complainant with a specific exclusion that : “Loss due to storm Tempest Flood Inundation is not covered”. All the other contents of the complaint were stated to be wrong and denied and opposite parties prayed for dismissal of complaint with cost qua the opposite parties.
3. Ld. counsel for the complainant in his evidence has tendered affidavit Ex.CW1, documents Ex.C1 to Ex.C14 and has closed his evidence on dated 08.05.2018. Ld. counsel for the opposite parties has tendered affidavit Ex.RW1/A and document Ex.R1 to Ex.R3 and has closed his evidence on dated 11.01.2019.
4. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
5. As per letter dated 22.07.2017, the premises of the complainant was checked by the surveyor Sh. Rajesh Maheshwari on dated 15.05.2017 whereas incident took place on 13.07.2017 and 14.07.2017. It is crystal clear from the perusal of letter Ex.R3 of the surveyor that the damage was caused due to rain and wind. Meaning thereby, the surveyor has admitted this fact that the loss caused to the poly house due to rain and wind and there was no loss due to storm. Moreover, the letter dated 22.07.2017 was issued to the complainant by the surveyor for supplying some documents and information. As per the complainant, he had submitted all the relevant information to the surveyor. As per complaint, he had spent an amount of Rs.298000/- on the repair of poly house. But vide letter Ex.R2, which is also the reply of notice issued to the insurance company by the counsel of the complainant, the claim of the complainant has been repudiated by the opposite party on the ground that damaged cause to the poly house of the complainant due to storm and the policy do not cover loss due to Storm, Tempest and Flood & Inundation. But the opposite party has not placed on record any report of Meteorology Department to prove that on that day there was any warning about the storm or any newspaper cutting to prove that the storm had taken place in that area on that day. Hence the repudiation of claim by the opposite party on flimsy ground is illegal and amounts to deficiency in service.
6. After going through the file and hearing the parties we have observed that the respondent insurance company has only placed on record copy of policy Ex.R1, No Claim letter Ex.R2 and letter issued by the surveyor to the complainant Ex.R3. No detailed report of surveyor has been placed on record to prove the assessment of loss. Hence same is not binding upon the complainant. As such, the law cited by ld. counsel for the opposite party III(2009) CPJ 262(NC) titled as New India Assurance Co. Ltd. Vs. New Good Luck Retrading Works and order dated 01.03.2016 of Hon’ble NCDRC, in consumer case no.35 of 2006 titled as Modi Motors Agencies Vs. UIIC is not fully applicable on the facts and circumstances of the case. After perusal of the photographs and documents placed on record, it reveals that due to heavy rain and wind the polythene/net of the polyhosue has been damaged badly and as per complainant, he has suffered a loss of Rs.298000/- but in our view, he has suffered a loss of Rs.200000/- and after deduction of excess clause(minimum of Rs.1 lac) complainant is entitled to Rs.100000/- alongwith interest etc.
7. In view of the facts and circumstances of the case we hereby allow the complaint and direct the opposite party to pay Rs.100000/-(Rupees one lac only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 01.09.2017 till its realization and also to pay Rs.5000/-(Rupees five thousand only) as litigation expenses to the complainant within one month from the date of decision.
8. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
09.07.2019.
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Nagender Singh Kadian, President
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Ved Pal, Member.
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Renu Chaudhary, Member.
