DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi- 110016

Case No.177/22

Mr. Rakesh Kumar Gupta

S/o Late Shri Khemchand Gupta

R/o 54/1, Behind Mandir Wali Gali

Yusuf Sarai, New Delhi-110016.                                .…Complainant

                                                 VERSUS

The New India Assurance Co. Ltd.

Regd. Office At:

New India Assurance Building

87, Mahatma Gandhi Road

Fort, Mumbai-400001.

Policy issuing Office At:

22, Mother House, II Floor

Yusuf Sarai Commercial Complex

Delhi-110049.

Delhi Regional Office At:

Claims Hub, 3^rd Floor, RG City Center

LSC Block-B, Lawrence Road

Near Keshav Puram Metro Station

Delhi-110035.                                                              ….Opposite Party

Coram:

Ms. Monika A Srivastava, President

Ms. Kiran Kaushal, Member

Present:    Adv. Lokesh Baimad along with complainant.

Present:    Adv. Anuj Bhavem proxy counsel on bhelaf of Adv. Abiha Zaidi for OP.

ORDER

Date of Institution:06.07.2022

Date of Order       : 02.07.2024

President: Ms. Monika A Srivastava

Complainant has filed the present complaint seeking a sum of Rs.1,98,500/- as the cost incurred for repair of the damaged false ceiling at the insured property along with the 18% interest; Sum of Rs.2,50,000/- along with 18% per annum towards insult, humiliation, mental tension and Rs.50,000/- as cost of litigation.

1. It is stated by the complainant that he purchased ‘Bharat Grah Raksha’ Policy, the policy was valid from 02.06.2021 to 01.06.2022 covering his residential house building including fixtures and fittings, electrical and sanitary fittings and interiors (hereinafter referred as insured property).  Complainant paid a premium of Rs.1,488/- for the coverage of Rs.40,00,000/- . The policy is annexed as annexure-A.
2. It is stated that on 13/14.07.2021 lot of damage was caused to the area of Yusuf Sarai because of heavy rainfall in the entire city of Delhi and storm like condition which caused damage to the infrastructure to the whole of the city.  The Newspaper cutting reporting the heavy rainfall and storm is annexed as annexure-B.
3. It is stated that on 19.07.2021, the complainant unlocked the basement of the insured property which is a study room of his children and was shocked to see the damage caused to the false ceiling and other fixtures by the water engrossed due to the heavy rainfall.  The complainant photographed the condition of the whole room and the said photographs are annexed as annexure-C(colly).
4. Since the children of the complainant were not at the residence during this time the damage could not be detected earlier.
5. Complainant immediately informed the OP and requested them to appoint a surveyor to process the insurance claim to the tune of Rs.2,50,000/-.  Thereafter, the surveyor surveyed the insured property on 26.07.2021 after the lapse of 7 days from the date of intimation.  Certain documents were submitted on 31.07.2021 and thereafter on 07.08.2021 some original documents were submitted to the surveyor on the same day.
6. On 24.08.2021 complainant sent an email to the OP and the surveyor which is annexed as annexure-D.
7. It is further submitted that complainant submitted statement of the plumber dated 29.07.2021 stating that he had inspected the insured property and found no blockage in the bathrooms and meaning thereby the damage was caused by the natural calamity of storm and heavy rainfall which caused the shaft sewer to overflow and the water engrossed inside the false ceiling which fell down at the insured property.  The copy of the statement of the plumber is annexed as annexure-E.
8. The surveyor submitted his report dated 25.08.2021 and opined and that he could not find any way from which the water from heavy rainfall could enter basement as the shaft was situated at 4 feet above the road level. Copy of the surveyor report is annexed as annexure-F.
9. It is stated by the complainant that during heavy rainfall water comes inside shaft sewer from the barsati pipe at the roof and the shaft is also open at the top. Although the shaft has sufficient manhole/sewer space but the storm and the heavy rainfall on 13/14.07.2021 was too much for any manhole to handle and even the road sewer was overflowing. It caused the shaft sewer to overflow and all the excess water increased inside the false ceiling of the basement of the insured property damaging and causing it to fall. 
10. On 08.09.2021 complainant received letter from OP rejecting his insurance claim based on the surveyor report “Since there is no specific evidence to confirm the entry of inundated rainy water towards the shaft which is nearly 4 feet higher against road level; hence not possible to justify the occurrence of loss by inundated water inside by heavy rain on the night of 13/14.07.2021”.  The rejection letter is annexed as Annexure-H.
11. Complainant then approached the insurance Ombudsman on 22.09.2021 and on 19.05.2022 the Ombudsman rejected the claim of the complainant stating that there was a delay of 5 days between the occurrence of heavy rainfall and intimation as per the surveyor report.
12. It is stated that the OP itself delayed the appointment of appointment of surveyor and the first visit of the surveyor was on 26.07.2021.  It is stated that the complainant himself hired a contractor to get the repair of the damaged false ceiling of the basement and spent Rs.1,98,500/-.  The bill is attached as annexure-J.
13. It is stated that complainant has tried everything for the OP to disburse the claim however, the OP has not done so.
14. In their reply, OP has stated that intimation of the alleged fall of the false ceiling was received by them on 19.07.2021 whereas alleged incident of the natural calamity occurred on 13/14.07.2021, there is a delay in intimation by the complainant by 5 to 6 days.  It is stated as there is delay in reporting, it is contrary to the clause G(IV), Claims Procedure-1 according to which minimum notice have been given to the insurer.  In this regard, OP has placed reliance on the following judgments:-

• Sonell Clock and Gifts Ltd. Vs. New India Assurance Company Ltd. (2008) 9 SCC 784.
• Oriental Insurance Co. Ltd. Vs. Parvesh Chander Chaddha (2018) 9 SCC 798.
• New India Assurance Co. Ltd. Vs. Central Bank of India (2018) SCC Online Del 11728.

15. Complainant had reported the loss after a lapse of 5 to 6 days and the assertion that the basement was unlocked and opened only on 19.07.2021 is baseless and unreasonable.  It is stated that the delay in intimation had made it difficult for the OP to confirm if the claim damages were pre-existing or were fresh ones.  Further this delay in intimation deprived the OP to get an inquiry conducted effectively and make an endeavour to recover the same within stipulated time.
16. It is stated that onus to prove the loss occurred is on the policy holder therefore the proof of false ceiling collapse lies on the insured.
17. The prolonged inquiry from the surveyor and the mass expert evidence goes to prove that the clear cut casual effect between the rainfall and the fall of the false ceiling has not been established by the complainant in this regard OP has placed reliance on Bajaj Allianz General Insurance Company Ltd. Vs. State of MP (2020) 18 SCC 376; United Fire and General Insurance Co. Ltd. Vs. Kulsum Vs.   (1986) SCC Online Guwahati 177.
18. In this case the complainant has failed to discharge the onus of proving loss. It is further stated that the complainant failed to prove the loss as also quantum of loss, if any.   It is stated that there is no specific  evidence to confirm entry of inundated rain water towards the shaft hence making it impossible to justify the occurrence of the alleged loss by inundated water caused by heavy rain on 13/14.07.2021.  It is unreasonable to hold that the OP meant to insure a large liability then they were subject to and also as contracting for insurance of ordinary kind.
19. It is further stated by the OP that the newspaper cutting placed on record by the complainant describes heavy rainfall and storm occurring 13/14.07.2021 which only indicates onset of monsoon in Delhi.  Onus is on the complainant to establish the cause of the loss dependent on all the factors.  It is further stated that the condition of the steel bars and the RCC material chipped off indicated that the damage was not fresh as per the date of loss. If the fall of the false ceiling is ought to aggravating factors they do not form part and parcel of the insurance policy the OP cannot be held to insure a large liability than as mentioned in the policy.
20. It is further stated that the contention of the complainant that since his children were not at the resident during the time period between 13.14.07.2021 and 19.07.2021 therefore the damage could not be detected is unreasonable, fallacious and fabricated.  It is also stated that the complainant has suppressed facts that the shaft is just above the entrance area of the basement adjacent to the toilet of the upper ground floor.  Engagement of the plumber after the lapse of 10 days is itself irresponsible act on the part of the complainant. It was not possible for the rainwater from the road to flush back to the shaft.
21. In his rejoinder, it is stated that the delay in intimation of merely 5 to 6 days does not render the claim of the complainant to be rejected out rightly.  It is reiterated that the basement was being used by the children and since they had gone to their maternal grandparents, the loss could not be defected and reported earlier than 19.07.2021.  It is stated that OP had delayed the appointment of surveyor who visited for the first time only on 26.07.2021 after a delay of 7 days after intimation.  It is further stated that surveyor appointed by the OP harassed the complainant to fulfil his demand of bribe for passing the claim and when the complainant did not oblige then the surveyor has submitted his report with malafide intention to get the lawful claim of the complainant, rejected.
22. It is further stated that OP and its surveyor failed to accept a basic logical fact that the shafts are open from the top, the shaft at the insured property is also open from the top and the rainy water directly poured inside because of the heavy rainfall blocked the manhole sewer causing the inundated rainy water to seep inside the basement ceiling to collapse. It is further stated by the complainant that the steel bars were rusted and RCC material chipped off does not reflect an earlier damage.  It is stated that since surveyor visited on 26.07.2021 the steel bars got rust and RCC chipped of being in continuous contact with rainy water.
23. Both the parties have filed their respective evidence affidavits as well as written arguments.  This Commission has gone through the entire material on record and as heard the oral arguments. 
24. As far as the delay in reporting by the complainant is concerned i.e. squarely cover by the judgment passed by the Hon’ble Supreme Court in Gurshinder Singh Vs. Shriram General Insurance Co. CA No.653/2020 wherein it has been held “we, therefore, held that when an insured has lodged the FIR immediately after the theft of the vehicle court and when the Police after investigation have lodged the final report after the vehicle was not traced and when the surveyors/ investigators appointed by the Insurance Company have found the claim of the theft to be genuine, then mere delay in intimating the insurance company about the occurrence of the theft cannot be ground to deny the claim of the insured”.

Taking reliance from this judgment this Commission is of the view that mere delay in intimating the occurrence of 5 days by the complainant should not deprive him of the claim.  In this case it is seen that by the photographs placed on record that the rust is not on the bars supporting the false ceiling.

The Hon’ble Supreme Court in National Insurance Company Ltd. Vs. Hareshwar Enterprises (P) Ltd. and Others (2021) SCC Online SC 628 wherein, inter alia it is observed as hereunder:­ “12.

In the said decision, it is no doubt held that though the assessment of loss by an approved surveyor is a prerequisite for payment or settlement of the claim, the surveyor report is not the last and final word. It is not that sacrosanct that it cannot be departed from and it is not conclusive. The approved surveyor's report may be the basis or foundation for settlement of a claim by the insurer in respect of loss suffered by insured but such report is neither binding upon the insurer nor insured. On the said proposition, we are certain that there can be no quarrel. The surveyor's report certainly can be taken note as a piece of evidence until more reliable evidence is brought on record to rebut the contents of the surveyor's report.”

In M/s Super Label Mfg. Co. vs New India Assurance Company Limited  C.A No.3673/2015, the Hon’ble Supreme Court held that

We note that in the case on hand, the policy in question is a ‘Standard Fire and Special Perils’ Policy which is available at Annexures P­2 to P­5. The policy includes the coverage in respect of destruction or damage due to fire, save the exceptions provided therein. The fact that in the instant case the fire accident had occurred during the subsistence of the policy and that such accident was accidental and had caused damage to the property of the appellants including to the machinery in question is not in dispute. The photographs relating to the machines along with report of the surveyor would indicate that there is rusting on the machinery. The fact that the said machinery is highly sophisticated imported machinery for precision printing cannot be disputed. In such situation, when, due to such accidental fire and to extinguish such fire the assistance of the fire brigade was called for and even as per the report of the surveyor the fire brigade had sprayed water and such other fire extinguishing material over the machinery which was placed in the room which caught fire and the fire brigade has made effort between 8.15 am to 10.30 am, the damage to the machinery has occurred. From the report of the experts it is indicated that the machinery was beyond repair keeping in view the precision work to be performed with the said machinery and there was no guarantee that even if an attempt is made to repair the same after opening the machine, it would give good results.

18. Per contra the fact remains that the respondent has not tendered any evidence to indicate that the same machinery in fact is being used by the appellants subsequent to the fire accident either in the same manner in which it was being used prior to the fire accident or being used after repairs. Further except for the MTDC assuming that the corrosion has happened over a period of time, all other reports suggest that the corrosion has happened due to the spraying of water to extinguish the fire. The fact that the appellant was a going concern as on the date of the fire accident is not in dispute. Further, the surveyors report in any event does not suggest that the machineries were not in use as on the relevant date. On the other hand, the appellants had contended that the very same machines were being used for printing the labels immediately prior to the fire accident and there was no complaint with regard to the quality of printed labels from its customers. The respondents have not placed any contrary material to controvert the said position. In such situation, we are of the opinion that the emphasis in a fact of the present nature to arrive at the conclusion as to whether the corrosion could happen within a time period of 4 to 5 hours and in that regard, the NCDRC considering that aspect based only on the definition of corrosion in general terms is not justified.

In the present case it has been observed from the photographs on record by the complainant show that the false ceiling had fallen down and the rust etc. spoken about by the surveyor is on the roof and not the bars which support the false ceiling.  It is also seen by the newspaper clipping filed on record that there were certain areas which waterlogged including the one where the complainant was residing. In case of heavy rainfall even if the shaft was placed 4 feet above the road level, it is a possibility that water may seep in low areas such as basement.  Placing reliance on the above judgment, this Commission directs OP to pay the complainant a sum of Rs.50,000/- as compensation.

Copy of the order be provided to the parties as per rules. File be consigned to record room. Order be uploaded on the website.