Per Mr.S.R.Khanzode, Hon’ble Presiding Judicial Member 1. This consumer complaint is made since the insurance claim for the damage caused to the tissue cultural Banana plants kept in the Green House due to inundation caused by heavy rains on 26/7/2005 stood repudiated by the Insurance Company as per its letter dated 25/8/2005. The repudiation of the insurance claim was made on the ground that the claim was not covered under the perils covered under Standard Fire and Special Perils (material damage) policy and there were no signs of flood or inundation. 2. Undisputed facts are that consequent to the oral deliberations and interaction between complainant and the officials of the O.P./Insurance Company (Hereinafter referred as “Insurance company”), complainant deposited the premium amount of `90,728/- calculated and described for various insurance protections in its letter dated 12/7/2005. Said premium included calculated premium of `87,378/- towards the other perils inter-alia including premium for coverage of `15 lakhs for Green House shade and insurance cover of `20 lakhs for Tissue Lab. Premium of Rs.3,350/- was calculated for insurance cover for transit of cash (cash insurance). Said premium except premium for ‘cash insurance’ was accepted and categorically acknowledged by the Insurance company as per its letter dated 14/7/2005. However, as per said acknowledgement letter cum premium receipt, the Insurance company agreed for Standard Fire insurance and its perils against the premium of `87,378/- in toto. However, money insurance premium was accepted for lesser amount for a premium of `1,807/-. Accordingly, cover note and the policy document covering the insurance period 18/7/2005 00:00 hours to midnight of 17/7/2006 was issued (Annexure C-1). Part of said action has further described to location of risk “Gat NO.167-170 at post Kuruli, Taluka Khed, Pune 410 501, Maharashtra” and the note therein specifically explained amongst others covering ‘Green House shade’. Said policy known as ‘Standard Fire and Special Perils Insurance policy’ as per its clause VI covers the risk and agreed to indemnify the loss to the insured caused by flood or inundation excluding those resulting from Earthquake, volcanic eruption or other convulsions of nature. Admittedly, in the instant case, the inundation alleged for the loss is not resulting from either Earthquake, volcanic eruption or other convulsions of nature. Said clause reads as under:- “VI : Storm, Cyclone, Typhoon, Tempest, Hurricane, Tornado, Flood and Inundation : Loss, destruction or damage directly caused by Storm, Cyclone, Typhoon, Tempest, Hurricane, Tornado, Flood and Inundation excluding those resulting from earthquake, volcanic eruption or other convulsions of nature (wherever earthquake cover is given as an “add on cover” the words “excluding those resulting from earthquake, volcanic eruption or other convulsions of nature” shall stand deleted”. 3. Said policy was further endorsed as per letter dated 07/3/2006 regarding the change of correspondence address of the insured and, further, endorsement as to the location of the risk covered and which reads as under:- “Old Address: Gat No.167-170, At Post Kuruli, Taluka Khed, Pune 410 501 New Address: C-49, Abhimanshree Housing Society, Baner Road, Pashan, Pune 411 008.” 4. Effective date mentioned in the said letter of confirmation endorsement as 01/8/2005. Consequent to the loss suffered as a result of heavy rains on 26/7/2005 inundation due to heavy rains, intimation of the loss was immediately given on the following day i.e.27/7/2005. The surveyor appointed by the Insurance company visited the site by the evening on the same day and the claim was made on 30/7/2005. Said claim was made for a loss of `12.88 lakhs. 5. After repudiation of the claim complainant tried to pursue the Insurance company as to how the repudiation was not proper but in vain and, hence, this consumer complaint was filed on 24/9/2007 along with the application for condonation of delay. Delay was condoned as per separate order passed earlier on 25/9/2008. 6. Insurance company resisted this consumer complaint by filing its written version dated 5/3/2009. They stood by their repudiation, supra of the insurance claim. According to them, loss has been caused due to water logging in the polythene bag and/or trays in which the plants were kept due to heavy rains and not due to any flood or inundation and, therefore, this loss is not covered under the insurance policy. 7. Both the parties led their evidence on affidavits and also filed the documents which are not in dispute. The surveyor’s report or assessment, particularly, about statement as to the reason for damage and issue over the location of the damage to tissue culture plants (Green House) are disputed. HHH However, it may be mentioned that there is no signed report (i.e. authenticated copy) of a surveyor is placed on record. 8. Following points arises for our consideration and we record our findings against each of them for the reasons to follow:- 1. Whether the loss to the tissue culture plants kept in the Green House is covered under the policy? Answer : YES 2. Whether there is any deficiency in service on the part of the Insurance company in repudiating the insurance claim? Answer : YES 3. If yes, what should the quantum of compensation ? Answer : `12.88 lakhs. 4. What order? Answer : As per final order below. On behalf of the complainant, claim affidavit filed along with the complaint of Dr.A.N.Choudhary which in effect confirms or verify the contents of the complaint and second affidavit of Dr.A.N.Choudhary dated 17/4/2009, explaining and confirming the circumstances in light of the pleadings of the parties and also further affirming the case of complainant and also another affidavit dated 07/9/2009 in answer to or to counter affidavit of surveyor Mr.Milind Modak, supra, are tendered in evidence. Besides this complainant also relies upon the documents referred earlier (Annexure C-1) inter-alia including letter dated 12/7/2005, confirmation letter of the Insurance company dated 14/7/2005, insurance documents, supra; the communication between the parties, repudiation letter, further explanatory information supplied to the Insurance company as per letter dated Nil with reference to letter dated 28/7/2005, along with the accompanying documents, explaining in detail the nature of activities carried by the complainant, past claim and history, statement of loss, the way it is caused, the claim made, agricultural experts report, information supplied to the Insurance company vide letter dated 14/3/2006 by the complainant which also explained the procedure carried out at the Green House and how the damage was caused, the lawyer’s notice sent by the complainant prior to filing of the consumer complaint. In reply the O.P. relied upon affidavit dated 05/3/2009 of Nilesh Bhagwan Ramchandani, which in effect supporting the statement made in the written version of the Insurance company and also an affidavit of principal surveyor Mr.Milind Modak, supra, along with the photographs. According to surveyor the loss and/or damage was caused due to infection on account of accumulated water in the vessel (polythene bags) in which the plants/saplings have been kept and such risk/peril is beyond the purview of the policy, hence not payable. It may be pointed out that the details in respect of inundation and the resulted loss caused to the plant is explained in his affidavit by Dr.A.N.Choudhari and which finds corroboration from the reports in writing submitted from time to time to the Insurance company, particularly, with letters dated 14/3/2006 and communication with reference to 28/7/2005 signed and sent on 30/7/2005, supra, which are not specifically answered by the Insurance company. Condition of the Green house and as to how inundation due to heavy abnormal floods dated 26/7/2005 resulted into flow of water inside the green house which is situated rather at high level, further resulting into percolation of water into the drainage holes to the polythene bags causing damage to the roots and tissue culture plants is not countered by any other material on record on behalf of the insurance company and, therefore, such case of the complainant can be safely accepted. Preponderance of probabilities also speak to accept said statement made on behalf of the complainant about the loss to the tissue culture plants kept in the Green House. Relevant statement about the status of the incident of 26th & 27th July 2005 when the damage in question was caused which is relevant and mentioned in communication dated 14/3/2006, reads as under:- “Status of Incident on 27/07/2005: In Shed no.1 144ft is width and 252 ft is length and slope of around 3ft exist in the direction of length. In sketch of shed 1 attached as Annexure 1, it is noted that in the center water was flowing 5 inch in height for at least eight hours. This water has gone to nala in center of plot which takes water to river. On 28th river was over flowing 35 ft to 40 ft over normal level of water flow. Nala in the plot was flowing 5 ft high than normal level of water. Nala meets river after 1 km. The bed near center was under water for 5 inch for 7-8 hrs. When water level came down it was noticed that soil from bag was lost and soil level dropped down by 15%. This has disturbed plant roots and decaying of plants started.” In the said communication visit of status of Mr.Modak surveyor and the observations also reads as under:- “ On next day surveyor Mr.Modak had visited the field that time 3-inch wide, 1.5 inch thick water was flowing near pathway which is noted in photograph. Photograph also shows soil stuck on outside of bag which shows when water flew over it soil particles stuck on bag. This clearly shows water had flown that time bags near central road were under water for eight hours.” The word ‘inundation’ which is a derivative of word ‘inundate’ is explained in “The Concise Oxford Dictionary” 10th Revised Edition page 743 as under:- “inundate : 1. flood 2. overwhelm with things to be dealt with.” As explained earlier, the heavy abnormal rain at the relevant time which was abnormally high than the normal rain resulted into the flood conditions of Indrayani river and nearby Nalas from which rain water used to get discharged and how the said water entered into the Green House flowing at a higher level inside the Green House causing the damage to the tissue culture plants stored therein. Further, ‘process of hardening’ is explained. It is a clear case of inundation and, therefore, the case tried to be made out by the Insurance company which probably (according to it) is responsible for the loss or damage in question due to rain water only and not by inundation, cannot be accepted. Policy in question covers the loss vide, supra, by inundation. The exclusions are not applicable, as stated earlier. Referring to the endorsement document dated 07/3/2006, case tried to be made out by the Insurance company that at the relevant time i.e. inundation dated 26th and 27th July, 2005 the Green House in question situated at Gat nos.12/13/14 at post Chimbali is not covered by the insurance policy. Said endorsement letter is only looking to the totality of the circumstances and particularly, the letter dated 12/7/2005 of the complainant, confirmation letter of 14/7/2005 of the Insurance company and the accompanying insurance cover and the papers, is only explanatory one clarifying the premises or location under cover. It is not a new insurance policy issued given effect w.e.f.01/8/2005. It may be pertinent to note that there is only one Green House of the complainant and which is sought to be covered under the insurance. By its letter dated 12/7/2005, supra, which is not in dispute, the complainant refers to the Green House shade seeking coverage of Rs.15 lakhs for the same and the premium was calculated accordingly and tendered. Insurance company accepted the same and confirmed the acceptance of the insurance cover for the same per its letter dated 14/7/2005, supra. Accompanying documents specifically refers to Green House shade in the note, supra. Therefore, one cannot be left with any doubt that the tissue culture plants kept for hardening in Green house and which are damaged and in respect of which insurance claim is made are covered under the insurance policy in question. Therefore, repudiating the claim both with reference to location or the condition of ‘inundation’ by the insurance company is certainly arbitrary and not proper. This exhibits and confirms deficiency in service on the part of insurance company to repudiate the claim. Point nos.1 & 2 for determination are answered accordingly. Coming to the compensation which could be awarded as per provisions of section 14(1)(d) of the Consumer Protection Act, 1986, as pointed out earlier, the initial claim made by the complainant along with expert report of damage then caused is of `12.88 lakhs after giving leverage to the salvage i.e. good plants. Insurance cover as sought for the Green House shade is of `15 lakhs and for which the insurance premium was calculated and tendered and accepted by the Insurance company (letters dated 12/7/2005 and 14/7/2005, supra). The claim made as per the consumer complaint on higher side which covers the damage for the further period exceeds the insurance cover and which may not be relevant also referring to the insurance claim raised assessing damage caused due to inundation in question due to heavy unprecedented rains of 26th and 27th July, 2005. Therefore, we accept the statements of the complainant made in the claim form tendered initially assessing the loss at `12.88 lakhs and award the same. Further, we find that complainant is entitled to interest over the said amount till its realization, since claim is unjustly repudiated and the fact that due to such unjust and unreasonable repudiation of the insurance claim which is contrary to the policy and object of taking cover of insurance, resulted into financial crunch. We find it just and proper to award such interest from the date of consumer complaint i.e.24/9/2007. We answer point no.3 for determination accordingly. For the reasons stated above and findings recorded, supra, we pass the following order:- ORDER 1. Complaint is partly allowed. 2. O.P./Insurance Company do pay `12.88 lakhs to the complainant along with simple interest @ 9% p.a. till its realization w.e.f.24/9/2007. 3. O.P./Insurance Company to bear its own cost and pay `25,000/- as cost to the complainant. 4. Copies of the order be furnished to the parties. | 
