Complainant Shri Shri Mahalaxmi Handlooms, through its partner Vijay Mahajan has filed the present complaint U/S 12 of the Consumer Protection Act, 1986 (hereinafter for short The Act) for issuance of the necessary directions to the opposite party to pay the claim of Rs.9,61,107/- alongwith interest @ 9% per annum. Opposite parties be further directed to pay Rs.50,000/- as compensation for harassment, Rs.50,000/- for deficiency in service alongwith Rs.20,000/- as litigation expenses, in the interest of justice.

2.       The case of the complainant in brief is that complainant firm is doing business of Handloom etc. at Mugrali Bazar, Dinanagar, Tehsil and District Gurdaspur and the present complaint has been filed by firm through its partner Vijay Mahajan. He got insurance policy bearing no.233891/11/2016/169 valid from 12.11.2015 to 11.11.2016 from opposite party after paying the premium amount of Rs.20,999/-. The stock lying in the shop was also insured under the policy. During the period of policy i.e. on 25.07.2016 due to heavy rain fall the water entered into the shop due to which the stock of various types of sofa clothes, shawls, soft toys, blankets, mattresses and other related items stacked and stored in the shop damaged. The rain water accumulated on the roof and due to heavy rain the drain pipe had got chocked/blocked due to which there was overflowing of water from the terrace to stairs entered into the shop from the upper story building to lower floors. The matter was reported to the insurance company and it appointed surveyor Sanjeev, who visited the shop. All the documents and formalities have been duly completed and he assessed the loss at Rs.9,61,107/-. Afterwards he went to the office of opposite party many times and they told him that as per survey report, the loss is only of Rs.3,51,053/-. She is entitled for the amount of total loss of Rs.9,61,107/-. The opposite party started pressurizing him to accept the amount of Rs.3,51,053/-. The opposite party with malafide intention  repudiated his genuine and valid claim and even not paid a single penny to him. The letter of repudiation dated 11.09.2017 is illegal, null and void. The opposite party is wrongly alleging that drain pipes were not kept clean and clear. The loss is duly covered under the policy and the complainant is entitled for whole amount of Rs.9,61,107/- i.e. the loss occurred.. Hence this complaint.

3.       Upon notice, the opposite party insurer appeared through their counsel and filed their written version taking the preliminary objections that the complaint is not maintainable; the complainant  has failed to set out any deficiency in service or unfair trade practice on the part of the opposite party; the complainant is stopped by his act and conduct from filing the present complaint and the present complaint is in respect of loss of commercial organization and as such the complainant is not a consumer and the matter in dispute is beyond the scope of jurisdiction of the Hon’ble Forum. On merits, it was submitted that actually, the alleged loss as stated by the complainant did not occurred not on account of flood-inanudation but was on account of poor maintenance and negligence on part of the complainant as the drain and pipes were not kept clean and clear, due to which the water lodged on the roof of the premises of the roof and that water caused the alleged loss in the shop of the complainant as the water entered from the roof of the shop to the lower floors. It was next submitted that on intimation from the complainant the opposite party had deputed Sanjeev Gupta and Associates, (Surveyors and Loss Assessors) who conducted the survey of the loss of the complainant and as per the surveyor loss of Rs.3,51,053.66/- was assessed by the surveyor. The complainant had agreed/consented with the loss assessed by the Surveyor but as per the terms and conditions of the insurance policy the claim of the complainant was not payable as alleged loss as stated by the complainant did not occurred not on account of flood-inanudation but was on account of poor maintenance and negligence on part of the complainant as the drain and pipes were not kept clean and clear, due to which the water lodged on the roof of the premises of the roof and that water caused the alleged loss in the shop of the complainant as the water entered from the roof of the shop to the lower floors. All other allegations/averments as made out in the complaint and specifically the prayer clause have been vehemently denied and lastly the complaint has been prayed to be dismissed with costs.

4.       Counsel for the complainant tendered into evidence affidavit of Vijay Mahajan  Ex.CI, along with the other documents exhibited as Ex. C2 to Ex C4 and closed the evidence.

5.        On the other hand, the opposite party tendered into evidence affidavit of Karam Singh D.M. Oriental Insurance Company Ex.OP1 alongwith other documents Ex.OP2 and Ex.OP3 and closed the evidence.

6.     We have carefully examined the documents/evidence produced on record (along with the scope of ‘adverse inference’ for that ignored to be produced) to determine the respective ‘claims’ as pleaded forth by the present litigants in the light of the arguments as put forth by their learned counsels, while adjudicating the present complaint. We observe that the complainant firm had got its Building and Trade-Stocks insured for Rs.50 Lac and Rs.90 Lac, respectively against all usual risks with the opposite party insurers under its SFSP (Standard Fire & Special Perils) Policy; who however refused to admit the filed-claim for a loss of Rs.9.61,107/- incurred on account of inundation of rain waters in the complainant’s shop damaging the therein stacked stocks-in-trade.

7.       We find that the present dispute had prompted at the OP insurer’s duly admitted repudiation (Ex.OP1) of the complainant’s insurance claim filed on account of damage-loss incurred to its stocks-in-trade on account of inundation of rain-water. The OP insurers, in turn, have addressed the damage caused to stocks as a result of the complainant’s own negligence on account of non-cleaning of rain-water drain pipes causing inundation of water inside the shop/store causing loss/damage to the stored stocks. We are certainly not convinced with the logic as put forth by the OP insurers and behold the considered opinion that water inundation is covered under the related insurance policy irrespective of its origin/source unless the same is not self-caused/intentionally inflicted. Thus, impugned repudiation here has been totally uncalled for and attracts an adverse statutory award to the titled OP insurers. Moreover, the OP insurers here have failed to prove their above allegations by way of some cogent evidence dul SS                                                                                                  y produced on records. However, the OP insurers have of course produced the Final Survey/Investigator’s Report that admits the loss/damage caused to stocks worth Rs.9,33,157/- but have unjustifiably netted the final loss to Rs. 3,51,053/66 p but for non-convincing/un-acceptable logic/reasons of value dilution of the damaged stocks.

8.       On the other hand, the complainant has successfully filed his deposition (affidavit Ex.C1) and other evidentiary documents that satisfactorily prove the context allegations to entitle him to a favorable statutory award under the statute to cover the incurred loss of Rs.9,61,107/- with the salvaged stocks left out at the full disposal of the OP insurers.

9.        Thus, we find that the impugned repudiation of the instant insurance claim at the hands of the OP insurers certainly infringes the consumer rights of the complainant all the more so at the face of their own inadvertent mistaken verification of the interpretation of the risks covered under the policy. Presently, we find that the OP insurers have not been able to justify the impugned ‘claim-repudiation’ and did not even attempt to settle the ‘claim’ as of ‘now’ during the ‘pendency’ of the present complaint to show/ exhibit its bona fide intentions but it chose otherwise and thus we hold it guilty of ‘deficiency in service’ and ‘unfair trade practices’ etc.

10.     In the light of the all above, we partly allow the present complaint and thus ORDER the OP Insurers to settle and pay the impugned claim up to its full amount of Rs.9,61,107/- (under the related terms of the Policy) to the complainant firm besides to pay Rs.5,000/- as compensation and Rs.3,000/- as cost of litigation within 30 days of receipt of the copy of these orders otherwise the aggregate award amount shall attract interest @ 9% PA from the date of filing of this complaint till actually paid. The OP insurers shall however be entitled to receive back the damaged stocks salvage for its disposal sale etc. 

11.     Copy of the orders be communicated to the parties free of charges. After compliance, file be consigned to record.

                                                                       (Naveen Puri)

                                                                            President.                                                                                             

ANNOUNCED:                                             (Jagdeep Kaur)

June 15, 2018                                                                 Member.

*MK*