Delhi

StateCommission

A/08/1148

SUPER FASHION - Complainant(s)

Versus

NEW INDIA ASSSURANCE CO. LTD. - Opp.Party(s)

06 Dec 2017

ORDER

IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL, COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments :06.12.2017

Date of Decision :11.12.2017

Complaint No.1148/2008

IN THE MATTER OF:

 

M/s. Super Fashion,

12/4 Mathura Road,

Faridabad (Haryana).                                                                                ……Complainant

                                                                        Versus

 

M/s. The New India Assurance Company Ltd.,

C-19, Shopping Complex,

Pashimi Marg, Vasant Vihar,

New Delhi-1100576.                                                                                   …..Respondent

 

HON’BLE SH. O.P.GUPTA, MEMBER(JUDICIAL)

HON’BLE SH. ANIL SRIVASTAVA, MEMBER

 

1.     Whether reporters of local newspaper be allowed to see the judgment?                    Yes

2.      To be referred to the reporter or not?                                                                     Yes

 

Present:           Shri  F.B. Singh, Counsel for the complainant.

                        Ms. Jyoti Nagpal, counsel for Opposite party.

PER  : SHRI ANIL SRIVASTAVA, MEMBER

 

JUDGEMENT

 

          Assailing the orders dated 08.10.2008 passed by the District Consumer Disputes Redressal Forum VII, New Delhi in CC No.657/07 in the matter of M/s. Super Fashion vs. The New India Assurance, dismissing the complaint, ruling that the complainant is not entitled to claim any compensation from the Insurance Company since not covered within the four corners of the policy, M/s. Super Fashion, for short appellant, has filed an appeal under Section 15 of the Consumer Protection Act 1986, against the New India Assurance Company, hereinafter  referred to as respondent, praying for the relief as under:-

In the above circumstances  it is respectfully prayed that the order dated 08.10.2008 passed by the Learned District Forum, Shiekh Sarai, New Delhi in complaint no.657 of 2007 be set aside and this Hon’ble Commission be pleased to allow the appeal of the appellant in full for a sum of Rs.8,45,800/- as per prayer before the Learned District Forum.

 

          Facts of the case necessary for the disposal of the appeal are these.

          The complainant/ appellant engaged in the business of fabrication export of fabrics and garments had obtained from the opposite party a policy of fire and special perils insurance to cover inter alia its stock finished / packing materials and other garments/ accessories for the premises situated at 12/4, Mathura Road, Faridabad, Haryana, for a period of one year from 23.06.2005 to 22.06.2006 for a total sum insured of Rs.6.67crore of which the stocks alone were covered for Rs.3.50 crores. The premium paid was for Rs.1,33,400/-.

          On 25.06.2005, when the premises were opened in the morning, it was found that the water had accumulated on the premises due to one of the water drain pipe having been closed, leading to the trickling down of the water and inundated of the entire premises, resulting in damage to the stocks and contents lying in the premises. Accordingly the matter was reported to the OPs, intimating that they have suffered the loss of Rs.8,45,779/- caused due to the damage  to the stock of fabric, thread, garments, packing material etc .

          The opposite party / respondent however rejected the claim as per their letter received by the complainant on 13.06.2007  the contents of which are as under:-

                   “M/s. Super Fashion

                   12/4 Mathura Road,

                   Faridabad (Haryana)

         

                   Reg. Claim No.312001/11/05/00005

                   Policy No.312001/11/05/00/00

 

                   Sir,

 

With reference to the above claim we hereby inform you that as per discussion with the surveyor your loss was occurred due to the following two reasons:

 

                   1.      Due to leakage of tap in toilet.

                   2.      Normal and causal rain entered through the window.

 

You have also confirmed that the requirements for weather report is not applicable since the loss took place due to the above reasons, which indicates that the loss is not due to flood storm and an act of God peril. It is observed  and confirmed that in the instant case, the loss took place due to leakage of tap of toilet and normal/ causal rain and none of these is an insured peril under the policy.

In view of the above your claim is not entertainable. This is for your information please.

 

          The rejection of the claim was assailed by the complainant before the Distt. Fora, The Distt Fora dismissed the complaint observing that the claim preferred is not within the parameters of the policy, which order of the Distt. Fora has been impugned herein.

          In the first instance it was noticed by this Commission that the appeal preferred is time barred and the same was dismissed on that ground but the Hon’ble NCDRC on the revision having been filed, condoned the delay and directed this Commission to decide the appeal on merit.

          The respondents were noticed and in response thereto they have filed the reply stating, inter alia, the appeal is not maintainable. There is no deficiency of service on the part of the OP and having regard to this there is no infirmity in the orders passed by the Distt. Fora. Further the damage to the contents and the stock of fabric yarn, garments were due to leakage of water from one of the drains of the toilet located inside the store. The surveyor appointed to make an assessment had also observed that the claim is not payable since the cause of loss was due to running of water from the tap of toilet and continuous seepage which took place over a period of time.

          The matter was listed before us for  final hearing on 06.12.2017 when the counsel for both sides appeared and advanced their arguments. We have also perused the records of the case.

          The point for consideration is whether the claim preferred by the complainant is within the frame work of the policy obtained. The ld. Distt. Fora has observed that the claim is not payable since not covered by the policy. For this purpose we have perused the broad feature of the policy. The relevant portion of the policy are as under:-

 

Storm, Cyclone, Typhoon, Tempest, Hurricane, Tornado, Flood and Inundation.

 

Loss, destruction or damage directly caused by storm, cyclone, Typhoon, Tempest, Hurricane, Tornado, Flood or 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” shall stand deleted.)

 

Bursting and / or over flowing of water tanks, apparatus and pipes.

 

          On perusal of the policy it is apparent that the claim is not payable since the trickling of water resulting it lnundation of the premises causing damage, was not covered as per the terms contained in the policy.

          It is a trite law as settled by the Hon’ble Supreme Court of India in the matter of National Insurance Company Ltd. vs. Swaran Singh as reported in (2004) 3 SCC 297 has held.

“A contract of insurance also falls within the realm of contract. Thus like any other contract the intention of the parties must be gathered from the expression used therein.”

          In yet another matter the Hon’ble NCDRC in the matter of Vijay Concerns vs. SBI & Anr. – IV (2013) CPJ 453 (NC) – it was held

                   “Bridge destroyed due to heavy rain, claim repudiated since not covered under the policy. Rights and obligations of the parties are strictly governed by policy of issuance and no exception or relaxation can be made on grounds of equity. Obligation is on complainant to have goods insured against loss or damage. In the absence thereof, deficiency of service on the part of the OP cannot alleged or established.”

 

In view of the law settled by the Hon’ble Apex Court and Hon’ble NCDRC we are of the considered view that there exists no infirmity in the orders passed by held. Distt. Fora and we uphold it.

          Ordered accordingly.

          There is another aspect to examine in the subject matter. In the given case  total sum insured value is more than one crore in which case, relying on the Provisions of Section 11(1) or Section 17(1) of the Consumer Protection Act 1986, the Distt. Fora, where the complaint was originally filed or the State Commission, where the appeal has been filed, do not enjoy the pecuniary jurisdiction which in the facts and circumstances lies with the Hon’ble NCDRC.

Section 11(1) and Section 17(1) of the Act posits as under:-

Section 11(1)

Jurisdiction of the District Forum – (1) subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed (does not exceed rupees twenty lakhs).

                            

Section 17(1)(a)(i)

Subject to the other provisions of the Act, the State Commission shall have jurisdiction –

(a)     to entertain –

(i)      Complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees Rs.20 lakhs but does not exceed Rs. One Crore; and 

 

          The Hon’ble NCDRC in their judgment dated 07.10.2016 passed in the matter of Ambrish Kumar Shukla vs. Ferrous Infrastructure in CC 97/2016 has held as under in para 14 :-

It is evident from a bare perusal of Section 21, 17 and 11 of the  Consumer Protection Act and it’s the value of the goods or services and the compensation, if any, claimed which determines the  pecuniary jurisdiction of the Consumer Forum. The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing the deficiencies in the goods purchased or the services to be rendered to the consumer. Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction. If the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation, if any, claimed in the complaint by him, exceeds Rs.1 crore, it is this Commission alone which would have the pecuniary jurisdiction  to entertain  the complaint . For instance if a person purchases a machine for more than Rs.1 crore, a manufacturing defect is found in the machine and the consumer for the machine and the cost of removing the said defect is Rs.10 lacs, it is the aggregate of the sale consideration paid by the consumer for the machine and compensation, if any, claimed in the complaint which would determine the pecuniary jurisdiction of the Consumer Forum. Similarly, if for instance, a house is sold for more than Rs. 1 crore, certain defects are found in the house, and the cost of removing those defects is Rs.5 lacs, the complaint would have to be filed before this Commission, the value of the services itself being more than Rs.1 crore.

 

          Relying on the provision of law and the decision of the Distt. Fora or the Hon’ble State Commission are even otherwise not competent to hear and dispose of the subject.

          Let a copy of the order may be forwarded to the parties to the case free of cost as statutorily required.

File be consigned to record.

 

(ANIL SRIVASTAVA)                                                            (O.P.GUPTA)

MEMBER                                                                     MEMBER JUDICIAL)