DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (CENTRAL)ISBT KASHMERE GATE DELHI

COMPLAINT CASE NO. 168/2017

No. DC/ Central/

vs.

Coram:       Ms. Rekha Rani, President

                    Shri Vyas Muni Rai, Member

                    Ms. Shahina, Member (Female)

ORDER

Shri Vyas Muni Rai, Member

1. Sh. Amit Tripathi (in short the complainant) filed the instant complaint under section 12 of the Consumer Protection Act, 1986 against National Insurance Company Ltd. (in short OP) having its branch office at Jhandewalan, New Delhi-110055 and also its registered office at Middleton street, Kolkata-700071. In his complaint, complainant has stated that he got his house bearing no. C-1/8, 2^nd Floor, Safdarjang Development area, New Delhi under “House Holders Insurance Policy” from the respondent in the year 2005-2006 and since then he was regularly paying the premium which was further renewed on 06.08.2014 vide policy no. 354900/48/14/3600000541 for the policy period 16.08.2014 to 15.08.2015 with the terms and conditions as stipulated in the proposal and declaration dated 07.08.2009 by respondent.
2. The complainant has further stated that in the year 2015, the monsoon season in the month of August for Delhi was very good and it rained heavily. During the month of August, the complainant observed some seepage at various places including water dripping in some places in the ceiling of the House. To overcome his worries about the seepage, the complainant inspected the entire roof of the house but could not find out the reason for entering the water into the roof as the roof of the house was looking normal. However, for the sake of observation the complainant removed 2-3 stones of the floor of the roof and found water in between the mother slab and the stone. He has further stated that on 13.08.2015 the officials of the respondent was immediately informed by way of email and on the very next day one of the officer/ surveyor of the respondent, Mr. D.K. Sharma visited the house of the complainant for survey and physically inspected the entire house and he himself was shocked that house so much water has damaged the house. It is also the stand of the complainant in his complaint that he sent various mails which are annexed with the complaint. He informed to the respondent about the damage caused due to the seepage and requested to take necessary steps. He also requested that his claim may be processed as he is going to start to repair work in next 2-3 days and also asked the respondent to send the surveyor for inspection and other formalities in respect of claim of the complainant.
3. Thereafter, after much pursuation, respondent instructed the surveyor to visit the complainant and submit the survey report. Copy of the mail to this effect is also on record. The complainant further exchanged mails narrating the condition of house and took photographs of the damaged areas from inside the house and from the roof as well.
4. Further, on 05.05.2016, surveyor of the respondent asked the complainant to complete the formalities for processing the claim of the complainant and asked to submit the following documents:-

1. Claim form duly completed;
2. Repair estimate;
3. Statement describing circumstances and/ or most probable cause of seepage in your house;
4. The source of seepage may also be explained and thereby the cause of loss;
5. Rough sketch of the house and location of loss.
   5. Thereafter, on 11.05.2016 as per complaint, the complainant provided each and every details as asked by the respondent for settlement of claim and thereafter went ahead with the repair work in his house and this fact was also communicated to the respondent with request to send the concerned person to further check out the work and damages if it requires more to settle the claim of the complainant as alleged.
   6. To move further, as stated in the complaint, on 27.05.2016 the surveyor of the respondent company asked the complainant to furnish more details in respect of the insured property/ house to settle the claim. Details asked by the respondent are as under:-

1. As per your statement (complainant), the damage occurred due to water seeping-in as rain water through the cracks and crevices of the stone laid on the roof. Please inform as to how these cracks and crevices may have occurred;
2. The year of construction of the house and the period of occupancy of the house may please be informed;
3. Please provide your ownership/ residential proof.
   7. As per the contents of the complaint filed before us, the complainant provided all the aforesaid details to the respondent and emailed on 15.06.2016 about providing all details as required. Complainant has further stated that he had incurred a sum of Rs. 4,22,797/- (four lakh twenty two thousand seven hundred ninety seven rupees only) on the entire repair work vide bill dated 12.10.2016,  for a sum of Rs. 3,24,285/- ( Three lakh twenty four thousand two hundred eighty five rupees only) and bill dated 20.10.2016 for a sum of Rs. 98,512/- ( Ninety Eight thousand five hundred twelve rupees only) (total sum of Rs. 4,22,797/-) copy of the bills have been filed on record.
   8. Complainant has further alleged that on 11.07.2016 the respondent rejected claim of the complainant on the basis of the false and flimsy grounds mentioned as under:-

1. You have not provided the ownership proof in support of the claim & hence the insurable interest is not confirmed;
2. No proof has been given to the Surveyor towards the age of the building;
3. The roof was dismantled even before the surveyor first visited on 14.08.2015 and the inside PCC layer was also dug up this dug up and was covered by the loose plastic sheet;
4.  As per claim form the loss was discovered by yourself between April to June 2015, over a period of three months which clearly indicate that the damages was occurred slowly over a long period of time. Where as vide your mail dt. 15.06.2016 the loss was due to heavy rain from July to August 2015 is also contradictory.
5. Vide your mail dt. 05.05.2016 you have confirmed that “the most probable reason for the damage was water seepage as rain water entered through the cracks & cervices of the stone laid on the roof. The water then trickled down as it found its way to the interior of the house which was visible.
6. In another mail dt. 15.06.2016 you have stated that it was an “flash flood situation” whereas the loss was occurred in between April to June 2016 over a period of three months, the reason given on 15^th june 2016 is contrary to what is mentioned in the claim form. Therefore the loss due to Flash flood does not hold good. Moreover, no certificate has been provided by the Metrological Deptt. Or local authorities regarding flash flood.
7. As per our House Holder Ins. Policy special exception clause no. which are as under:-

2.1 Normal cracking, settlement or bedding down of new structure, the settlement or movement of made up ground, coastal or river erosion, defecting design or workmanship or use of defective materials, demolition, construction, structural alteration or repair of any property or ground work or excavations.

ii. Loss or damage caused by depreciation or wear and tear and consequential losses.(Gen. Exclusion)

9. Further, on the protest of the complainant regarding rejection of claim, the respondent assured the complainant vide mail dated 12.07.2016 for reconsideration of the claim of the complainant asking the complainant to furnish some more details and documents i.e. registry of House and documents pertaining to the age of the house/building within 15 days from the said mail/ communication. According to complainant, he furnished the details and communicated to the respondent vide email dated 14.07.2016. But to utter shock and surprise of the complainant, he again received mail from the respondent on 15.07.2016 (within 15 days limitation period) again rejecting the claim on the ground of not providing the desired documents and details and closed the file of the complainant. Complainant further received mail/ letter dated 22.07.2016 from the respondent rejecting his claim and complainant alleged the change of stands time and again by the respondent.
10. Based on the above facts and circumstances, the complainant has filed this complaint with request to grant relief with prayers as under:-

1. A sum of Rs. 4,22,797/- being the amount incurred by the complainant on the repair work of the house duly covered under insurance policy;
2. Payment of Rs. 4,22,797/- as stated above alongwith interest @ 18% p.a. till the date of actual payment;
3. Rs. 1,00,000/- as damages for the mental pain and agony, harassment, inconvenience, frustration suffered by the complainant;
4. Rs. 75,000/- towards costs of litigation charges and other expenses;

11.  Respondent has filed the reply to the aforesaid complaint stating therein, inter alia, as under:-

1. Contradictions in the statement of the complainant regarding detection of seepage from roof causing damage to the house;
2.  Concealment of the facts;
3. No record from Metrological Department to the effect of flash flood during the month of August 2015;
4. Removal of 2-3 stones of the roof floor without permission;
5. No serious efforts were made by the complainant to find out exact cause for seepage;
6. Delay in supply of documents;
   12.  To deal with further, survey report dated 12.01.2021 conducted by surveyor Mr. D.K. Sharma is also on record wherein, inter alia, surveyor has observed that some roof dismentalling work is already carried out on the roof at minimum three places having the dimension of approximately 2 feets to 3 feets or so. Report further states about some portion of the roof was also developed as terrace garden with grass on it. In para 13 of the observation of the surveyor it has been stated that the domestic help informed that seepage inside the house for the last many days which slowly developed. In the beginning from one room and kept on developing to other rooms and staircase areas. At the time of his visit, the living room, lobby area, adjoining kitchen and staircase were seen affected. He further states after his survey on 14.08.2015, the matter was left as it is by the insured and no action was taken by him. He also mentions that the complainant told him about his inability to find out the reason for the seepages and complainant informed him of his intention to start the repairing work at the earliest. Surveyor’s report also mentions of the contradictions about the periodicity of seepage. After examining the issue the surveyor calculated a sum of Rs. 22,500/- for the loss.
   13. However, para 13 of the survey report as referred above stating the damage and its extent supports the complainant and finally the surveyor observed that loss is due to the rain water and hence, not payable in his opinion.
   14. It cannot be denied that report of the surveyor is one of the important documents for assessment of any claim but at the same time it may not be treated as gospel truth.

15. We have also gone carefully to the contents of the Rejoinder and affidavits and Written Arguments filed by both the parties only to find therein the repeation  of the allegations and counter allegations in the documents filed by the both the parties.
16. After going through the records available with us in the complaint file and as has also been briefly narrated above, we find that there are series of mails exchanged between the parties so far as the submissions of necessary documents by the complainant to process the claim but the respondent instead of communicating to the complainant for submission of necessary documents for processing his claim in one go, respondent to its wisdom has been asking and writing to submit the different documents at different times to linger the processing of claim which is not honestly expected from such a reputed public sector company(OP). The repudiation letter dated 11.07.2016 submitted on record has mentioned, inter alia, that competent authority has repudiated your said claim since it does not fall within the coverage of house holder policy and closed your file as “No Claim”.
17. Respondent while rejecting the claim has also taken the stand that there was roof garden on the roof which caused seepage but the respondent has failed to state either in the affidavit for evidence or in the Written Statement whether roof/ terrace garden was in existence at the time of insurance policy taken by the complainant or it was developed thereafter. However, the complainant has stated that terrace/ roof garden/ plants were in very much existence when he took the policy initially from the respondent.

To travel further, the attitude and conduct on the part of the respondent also makes us to feel that when the claim was once rejected on 11.07.2016 for non-compliance on the part of the complainant for processing the claim then what prompted the respondent to reconsider/ review of the claim of the complainant on his protest and to reject twice/thrice. Complainant vide his claim dated 09.07.2017 had also couriered to the respondent the title deeds with respect to the house under reference and documents from MCD to help the respondent in ascertaining the age of building. Respondent has also taken the stand that exact cause of seepage was not communicated/ supplied by the complainant. In response to that the complainant vide his email dated 19.08.2015 responded is under:-

2. “I cannot give you the exact date because I do not know when the water started getting trapped in the roof. But I saw it causing a damage in the first week of August 2015.” Post this, while filling up the claim form, the complainant tried to bring out the fact that such serious damage can only happen if there is water trapped on between the roof and the stone of the roof.
   18. The complainant has further stated that on opening a few stones, water was seen trapped between the roof and the stone layer and it is on record that the complainant informed the respondent on 13.08.15. The complainant has also written to the respondent on 15.06.16 on how water may have found its way during very heavy rains which led to collection of water on roof top when the exodus is not at the same rate as the rainfall implying a flash flood situation. In the same mail the complainant has said that “As a layman I have explained as best I could. If you want, you can understand this technically better from the Architect who is advising me on this work. Let me know when to set up your meeting with him.” But there was no response on his request from the respondent.
   19. To add further, with regard to the contradictions in periodicity and detection of the seepage as alleged by the respondent, the complainant has submitted during submission of the claim that he inadvertently filled it as April-June 2015, in actual it should be read in context of monsoon season and he also mailed to respondent in this context. Complainant has also admitted that the said contradictions is the error occurred by the complainant inadvertently and the respondent can not take the advantage of the same.
   20. We also find on record a letter dated 11.07.2016 on behalf of the OP to submit documents in 15 days but before expiry of the said period of 15 days vide letter dated 15.07.2016 respondent hurried to close down the claim. Moreso, respondent in its rejection letter at different occasion has mentioned varied reasons for rejection. If the OP/Respondent alleges about delay in furnishing the information by complainant beyond 14 days as per policy then what stopped respondent to reject the claim on this basis instead of exchanging series of correspondence time and again asking different documents only to reject the claim of the complainant on different occasions if the respondent alleges the violation of terms and conditions of the policy.
   21. The stand of the respondent that the policy under reference was “fire and perils policy and not the house hold policy but in his Written Argument the complainant has stated, inter alia, that the reason for rejection among others was reliance on clause which did not find  part of the insurance policy. He further states that clause relied upon by the respondent found part of the fire and perils policy, which did not form part of the insurance policy given to the complainant and the said fire and perils policy for the first time was placed on record by the respondent along with its reply as has been stated by the complainant. We also find an Indemnity clause no. 8 in the policy which runs as under:-

“The company may at its option reinstate, replace or repair the property or premises lost or damaged or any part thereof instead of paying the amount of loss or damage or may join with any other insurer in so doing but the company shall not be bound to reinstate exactly or completely but only as circumstances permit and in reasonably sufficient manner and in no case shall the company be bound to spend more in reinstatement that it would have cost to reinstate such property as it was at the time of occurrence of such loss or damage not more than the sum insured by the company thereon.”

As per the aforesaid clause also respondent did not proceed further. We also find on record that the complainant also sent a legal notice dated 12.06.2017 by registered post to the respondent to reconsider the claim as requested but respondent did not reply the said notice. The complainant has submitted the photographs on record showing the severe seepage and damage to his House. At the same time, respondent has also submitted two photographs which indicate the terrace garden/ plantation but periodicity of the same has not been proved by the respondent to indicate whether the terrace gardening/ plants was in existence prior to the date when the policy was taken by the complainant or thereafter. On the whole, we find allegation and counter allegations between both the parties at different occasions in submission of different documents.

22. We have gone through the entire records carefully and after taking into totality of the circumstances, the sufferings meted out to the complainant it would not be jusitifiable to lose site of the plight the complainant suffered. Therefore, plight and the suffering of the complainant cannot be sidelined completely if he fails to pass the litmus test on the ground of technicalities alleged by the respondent. Therefore, needless to say there is deficiency in service on the part of the respondent as provided in the Act.
23. In view of the above, after going through the record and after giving the thoughtful consideration, we allow the complaint of the complainant in part and direct the respondent to pay Rs. 2,00,000/-(two lakh only) to compensate the complainant for the expenses incurred for the repair work of the house with 6 % interest from the date of filing of the complaint till the realization. We also award Rs. 10,000/- (ten thousand only) damages for mental pain and agony caused to the complainant.
24. Copy of this order be sent to the parties as per rules. File be consigned to record room.

Announced on this   30^th june of 2022.