.BEFORE THE KARNATAKA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, BENGALURU. (ADDL. BENCH)
DATED THIS THE 13th DAY OF JUNE, 2024
PRESENT
SRI RAVI SHANKAR, JUDICIAL MEMBER
SMT. SUNITA C.BAGEWADI, LADY MEMBER
COMPLAINT NO.173/2010
B.L.Kashyap & Sons Ltd,
#245, F-002, Eden Hall
Defence Colony, 80 feet Road,
Indiranagar, Bengaluru -50 038 ….Complainant/s
Represented by
1. R.S.Vidyashankar – Head Admin.
2. Supriya.R.Rao-Sr.Officer-Admin.
(By Miss.Rajeshwari, Advocate)
-Versus-
HDFC Ergo GI Company Ltd,
#108 to 111, #14,
HM Geneva House,
1st Floor, Cunningham Road, … Opposite party/s
Bengaluru – 560 052
Represented by its Manager,
(By Sri.O.Mahesh, Advocate)
O R D E R
BY SMT.SUNITA C.BAGEWADI, MEMBER
The complainant filed this complaint against the Opposite Parties alleging deficiency in service and unfair Trade Practice and prays to direct the Opposite Party to pay a sum of Rs.65,05,059/- towards compensation and grant such other relief as deemed fit, in the interest of justice and equity.
2. The brief facts of the complaint is that, the complainant for the construction of its project Neptune Dosti, IT park road, No.22, Wagle Industrial Estate, Thane (W),Mumbai took Contractor’s All Risk Insurance policy from the respondent vide policy No.CAR0000131000100 dated 14.5.2008 and valid up to midnight 13.6.2009 for which the complainant paid the premium of Rs.6,39,328 under 3 installments as specified in the policy and subsequently the complainant further extended the policy from 14.6.2009 to midnight 13.11.2010 by paying additional premium of Rs.3,76,123/- and in pursuance of the same the respondent has issued an endorsement.
The complainant further submits that during last week of June it was raining and monsoon has commenced in Mumbai and between 11th and 14th of July, 2009 there was a heavy rain fall/torrential rain. Due to which the water gushed in to the project site, since the site being a low lying area the entire project site got inundated with water for more than a month. As a result of inundation there was heavy damage and loss caused to the complainant company and after de-watering the complainant company made a actual loss estimation and sent the same to the respondent and as per the actual loss estimation made by the company, the amount of loss was valued at Rs.46,85,059/-.
The complainant further submits that the intimation of inundation/loss claim was intimated to the respondent by email on 20th of July, 2009 in pursuance of the same the respondent registered their loss claim and appointed Cunningham Lindsey International Pvt. Ltd. who deputed their surveyor Uma Dharkas who in turn submitted a report on 20-8-2009. The impugned report do not disclose the attempt made for assessment of loss and enquiries in this regard by the concerned officers of the complainant’s company and also surrounding people. It is also relevant to note that in spite of repeated intimation no surveyor visited the project site/complainant herein. The report made by the surveyor lacks professionalism and is a unworthy report. She had not made any enquiries and she has not visited after completion of de-watering and the surveyor’s have gone with a fixed mind of just making a clean platform for the respondent to reject the claim.
The complainant further submits that on 25.8.2009 the complainant has written a letter to the respondent herein enlightening him on the short comings, found in the letter dated 20.8.2009 of the surveyor and also requesting him to appoint another surveyor. Inspite of the request by the complainant herein for resurvey not even an attempt was made by the respondent’s here in they slept over the matter. In spite of receiving all the documents relating to detail of loss claim statement etc. After exchange of many mails and also sending another set of documents relating to the loss estimate to the respondent herein, the respondent has unilaterally without application of mind has rejected the claim by disallowing the same vide his mail dated 19.2.2010. Hence, this complaint.
3. After service of notice, the Opposite Party has appeared through his counsel and filed version and contended that it is denied that the complainant is a “Consumer” under the CP Act and their transaction with the Opposite Party which is the subject matter of the present dispute falls under the purview of CP Act.
The Opposite Party further contended that the Opposite Party does not admit that there was heavy rainfall at Mumbai between 11th and 14th of July 2009 resulting in gushing of the rain water into the project site and that the project site was inundated with water for more than a month resulting in heavy damages to the complainant. The independent surveyor after detailed survey has submitted the report in that regard. As per the observation made by the surveyor, the consideration site was open to sky at a lower level compared to the surrounding area. As per the special condition safety measures with respect to prescription, flood and inundation, the policy itself clearly exclude the alleged loss of the complainant. The special condition in the policy reads thus “It is agreed and understood that otherwise subject to the terms, exclusions, provisions and conditions in the policy or endorsed therein, the insurer shall indemnify the insured for loss, damage or liability or liability caused directly or indirectly by prescription only if adequate precautions are taken in designing and safeguarding the project involved”.
The Opposite Party further contended that since the claim clearly falls under the exclusion clause of the policy, the Opposite Party has rightly rejected the assessment of the alleged loss by the complainant. The repudiation of the claim in the facts and circumstances of the case is fully justified keeping in mind the terms, conditions and exclusions enumerated in the policy. Hence prays to dismiss the complaint, in the interest of justice and equity.
4. Both parties filed their evidence affidavit and marked documents as Exs.C1 to C12 and Ex.R1 to R7.
5. Inspite of sufficient opportunities provided to both parties, they have not submitted arguments. Hence, posted for orders.
6. On perusal, the following points will arise for our consideration;
(1) Whether the complainant has proved the deficiency of service on the part of the Opposite Party?
(2) Whether the complainant is entitled for the reliefs as sought?
(3) What order?
7. The findings to the above points are;
(1) In the affirmative
(2) In the partly affirmative
(3) As per the final order
R E A S O N S
8. Point Nos.1 and 2:- Perused the contents of the complaint, objection filed by the Opposite Party, evidence affidavit filed by both parties and materials on record, we noticed that the Opposite Party has admitted the insurance policy No.CAR0000131000100 dated 14.5.2008 for the period of 14.5.2008 to 13.6.2009 and renewed upto 13th November, 2010 in respect of work under taken by at Neptune properties, Mumbai subject to terms and conditions. The Opposite Party has also admitted that after the intimation from the complainant about the damages, appointed an independent surveyor and surveyor has submitted the report and denied all the other allegations made by the complainant.
9. The Opposite Party further contended that the complainant is not a “consumer” under the CP Act. Perused the contents of the complaint, we noticed that the complainant stated that the complainant is a Construction Company registered under the Companies Act and as per the CP Act, 2019 Section 2 (31) of the definition of “person” reads as;
“Section 2 (31) "person" includes—
(i) an individual;
(ii) a firm whether registered or not;
(iii) a Hindu undivided family;
(iv) a co-operative society;
(v) an association of persons whether registered under the Societies Registration Act, 1860 or not;
(vi) any corporation, company or a body of individuals whether incorporated or not;
(vii) any artificial juridical person, not falling within any of the preceding sub-clauses”.
Means Company included in the definition of the “Person”, hence as per the definition, the complainant is a “Consumer” as per the CP Act.
10. Further the Opposite Party contended that there was no heavy rain fall at Mumbai between 11th to 14th of July, 2009 resulting in gushing of the rain water into the project site and the said project site was inundated with water for more than one month resulting in heavy damages to the complainant.
11. Perused the Ex.C7 weather report on 14th July, 2009 there was 240.1 million rains fall in Mumbai which affects the life of citizens of Mumbai in all area. Hence the contention of the Opposite Party that on 11th to 14th of July, 2009 no rains fall in Mumbai is unbelievable.
12. Further the Opposite Party contended that as per the survey report, the alleged site was open to sky at a lower level compared to the surrounding area and as per condition of policy the safety measures, flood and inundation, the policy exclude the alleged loss. Hence the Opposite Party has rightly repudiated the claim of the complainant.
13. Perused the policy, we noticed that Clause 8.14 of the policy reads as;
“It is agreed and understood that otherwise subject to the terms, exclusions, provisions and conditions contained in the policy or endorsed thereon, the insurers shall indemnify the insured for loss, damage or liability caused directly or indirectly by precipitation only if adequate precautions have been taken in designing and executing the project involved.
14. Perused the Ex.C4 dated 13-7-2009 the surveyor already intimated to the complainant through email to take dewatering and informed the same so that detailed inspection of damages may be verified and also requested to produce given documents in support of the claim. As per the allegations of the complainant the dewatering was going on more than one month i.e. upto 26.8.2009 and when the complainant has intimated to surveyor after dewatering, the surveyor has not visited the spot and the Opposite Party has rejected the claim on report dated 13.7.2009. The Opposite Party has not produced any material documents to show that after dewatering, the surveyor has visited the spot and assess the loss. Moreover the report dated 13-7-2009 does not disclose the attempt made by the surveyor for assessment of loss. Moreover Ex.C5 email dated 25-8-2009 the complainant has objected the report of the surveyor and requested to appoint any other surveyor. However inspite of several emails the Opposite Party has not appointed another surveyor and repudiated the claim on the basis of the earlier survey report dated 13.7.2009 and clause 8.14 of the policy. However the Opposite Party has not produced any document/photographs to show that the complainant has not taken any adequate precautions in designing and safeguarding the project. If the survey report is not admitted by the complainant then it is the bounden duty of the Opposite Party to appoint second surveyor and assess the loss. When the Opposite Party Company failed to appoint another surveyor in spite of requests, the complainant has assessed the loss of Rs.46,85,059/-, of-course the assessment of loss by an approved surveyor is a require for the settlement of claims. It is a basic document, however it is not the final word and not conclusive. Hence repudiation of the claim of the complainant by the Opposite Party on flimsy ground is illegal. In our opinion the complainant has assessed the loss and produced estimation. However it is only a estimation and there is no survey report on the record. Hence it is right to direct the Opposite Parties to pay the 50% of amount out of the estimation amount made by the complainant. The complainant for loss occurred due to heavy rain in Mumbai. Hence, considering the facts and discussion made here, we are of the opinion that, the complainant has proved the deficiency of service on the part of the Opposite Party.
15. Point No.3: In view of above discussion, we proceed to pass the following:-
O R D E R
The complaint filed by the complainant is allowed in part with litigation cost of Rs.25,000/- to the complainant.
The Opposite Party is directed to pay Rs.23,42,529/-, the 50% of the estimation made by the complainant to the complainant. Further, the Opposite Party is directed to pay compensation of Rs.1,00,000/- to the complainant for deficiency in service and mental agony.
Further the Opposite Party is directed to comply the above order within 45 days from the date of receipt of this order. Failing which, the payable amount shall carry interest @6% p.a. from the date of default till realization.
Send a copy of this order to both parties.
MEMBER JUDICIAL MEMBER
