Present    : Smt.Seena H, President

               : Smt. Preetha.G. Nair, Member       

               : Smt. Bhanumathi.A.K, Member         Date of filing: 16/03/2011

                                                          (C.C.No.47/2011)  

S.H.Shabeer,

S/o.Sahid Abdul Khadher,

8/944, Opp.Sitharam Motors,

Karingarapully,

NH47, Kadamkode,

Palakkad Taluk – 678 559  

(Adv.John John)                                            -        Complainant

                                                                 V/s

Oriental Insurance Company Ltd.,

Shobha TSM Complex,

R.S.Road, Opp.Town Railway Station,

Palakkad.

(Rep.by its Manager)                                      -        Opposite party

(By Adv.S.T.Suresh)

  O R D E R

          By  Smt.PREETHA G NAIR, MEMBER

Complainant is the  owner of the building bearing No.8/944 and let out the building to Mr.Sunil Jain for the purpose of conducting business in the name as “Tushar Flooring Selections”. He had availed a Standard Fire And Special Peril insurance policy No.442000/11/2010/284 from the opposite party to cover the risk of the building.  The period of policy was  from 2/7/2009 to 1/7/2010.  On 14/6/2010 due to heavy wind and rainfall the insured building got damaged due to the insured peril.   Hence the fact of the damages was immediately intimated to the opposite party without any delay.  Even though the damage of building was intimated to the opposite party on 15/6/2010, they had not bothered to come and inspect the property for assessing the damage.  Since the authorized officer of opposite party did not turn up for assessment of the damage, the complainant again requested them to do the needful at the earliest.  Inspite of the urgency and repeated requests made by the complainant, the insurance surveyor had visited the premises only on 23/6/10.  Due to the insured peril a portion of store room fell down due to heavy rain and wind, the store room, steel shed and compound wall was damaged.  Hence the complainant submitted all the details along with the claim for the damage of Rs.1.63 lakhs.

The opposite party without conducting proper enquiry  and appreciating the available evidence, informed the complainant that they are unable to entertain the claim and hence the claim stands closed.  The opposite party had not conducted proper timely enquiry to verify whether the damages caused  is due to heavy wind and rain fall.  The act of opposite party has caused much hardship and mental agony to the complainant.  Hence the complainant prays an order directing the opposite party to pay an amount of Rs.2,13,000/- towards the damage of insured building and compensation for the mental agony with 12% interest till realization and cost of the proceedings.

Opposite party filed version stating the following contentions.  The opposite party admits that the complainant had availed the policy and the period of policy was from 2/7/09 to 1/7/10.  The opposite party denied that even though the damage of building was intimated to them on  15/6/2010 they had not bothered to come and inspect the property for assessing the damage.  It is not correct to state that the Surveyor / Loss Assessor had visited the premises only on 23/6/2010.  The insurance surveyor deputed by the opposite party inspected  the premises on 15/6/2010 and 22/6/10.  The opposite party specifically deny that due to the insured peril a portion of store room  fall down due to heavy rain and the wind.  It is not correct to state that the complainant has sustained a total loss of 1.63 lakhs due to the damage caused to the insured building.  The complainant has not stated that how he assessed the loss and how he arrived at that amount.  The insured building is a shed made of corrugated GI Sheet roofing over steel trusses.  The compound wall is constructed with cement hollow blocks in cement mortar in the rear side and welded steel mesh over RCC plinth in the front side.  As per the report of the surveyor it was found that stack of vitrified tiles and ceramic tiles has fallen over the pillar steel channel and the channel bent and the roof had sagged.  The surveyor did not notice any damage to other buildings and trees nearby.  As per the finding of the surveyor due to heavy rain, the filled mud had become wet and floor sunk unevenly.  The floor tiles stack unbalanced and fallen over the pillars of the  shed and the pillars bent.  The mud below the plinth beam in the north western side of the shed has fallen down due to erosion of soil due to rain water.  It is pertinent to note that the damages are not due to heavy wind or storm.  If there is heavy wind the roof sheets could have blown off.  The insurance surveyor rightly found that the damages to the shed or to the stock are not due to any of the insured perils of the policy taken and as such the claim is inadmissible.  The proximate  cause is due to settling of the filled floor mud and no insured peril has operated.  As per the policy condition VIII, loss, destruction or damage directly caused by subsidence of part of the site of which the property stands or land slide / Rock Slide excluding the settlement or movement of made up ground.  Therefore the opposite party prayed that dismiss the complaint with cost.

Both parties filed affidavit and documents.  Ext.A1 marked on the side of the complainant.  Ext.B1 to B3 marked on the side of the opposite party.  Insurance Surveyor was examined as DW1.  Matter was heard.

Issues to be considered are

1.    Whether there is any deficiency in service on the part of opposite party ?

2.    If so, what is the relief and cost ?

Issue No.1

Admittedly the complainant has availed the policy from the opposite party for the period from 2/7/09 to 1/7/2010.  The damage of building was happened during the policy period i.e. on 14/6/2010 due to heavy wind and rainfall, the building got damaged.  In Ext.B3 VI mentioned that  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. In Ext.B3 nowhere stated loss, destruction or damage caused by storm excluding rain.  Both parties not produced the meteorological report on  14/6/2010.  At the time of cross examination the insurance surveyor deposed that storm F¶m 9B fort unit epÅ wind BWv. speed emsW¦n  Cyclone BWv. ag D­mhWsa¶nÃ. storm s\m¸w agbpw D­mImw. The opposite party has not produced evidence to show that storm alongwith rain fall happened on 14/6/2010.  The complainant has not produced evidence to show that total loss of 1.63 lakhs damage caused to the insured building.  The opposite party argued that as per the finding of the surveyor due to heavy rain, the filled mud had become wet and floor sunk unevenly.  Further the opposite party stated that the proximate cause is due to settling of the filled floor mud and no insured peril has operated.  The opposite party  had  issued   policy to the complainant’s building.  At that time the opposite party has not raised objection to the building situated over the filled mud. The opposite party has not produced documentary evidence to show that the proximate cause of damage is due to settling of the filled floor mud.  In Ext.A1 there is a valid policy over the building at the time of damage.  The complainant has not produced evidence to show the loss of damage. No evidence was produced by both parties to show that the damage is caused due to rain or storm.   In Ext.B2 the insurance surveyor  verified and assessed the loss of damaged steel shed and compound wall.  The  insurance surveyor assessed the loss is Rs.50,285/-. In Ext.B2 the surveyor deducted an amount of Rs.9,315/- on account of less depreciation @15%.  Further the surveyor deducted an amount of Rs.10,000/- on the account of less policy and stated the adjusted loss is Rs.40,285/-. In the interest of justice we find the claim amount is Rs.50,285/- as per the surveyor assessment of loss.

In view of  the above discussions we are of the view that there is deficiency in service on the part of opposite party.  Hence the complaint allowed.  We direct the opposite party to pay Rs.50,285/-  (Rupees Fifty thousand two hundred and eighty five only) as the value of assessed loss and pay Rs.10,000/- (Rupees Ten thousand only) as compensation for mental agony  and pay Rs.1,000/- (Rupees One thousand only) as cost of the proceedings to the complainant. Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest per annum for the whole amount from the date of order till realization.

        Pronounced in the open court on this the 24^th day of December 2011

                                                                                    Sd/-

Seena.H

President

                                                                                    Sd/-

Preetha G Nair

Member

                                                                                    Sd/-

Bhanumathi.A.K.

Member

APPENDIX

Exhibits marked on the side of the complainant

Ext.A1 – Insurance Policy bearing No.442000/11/2010/284  dtd.2/7/09  

Exhibits marked on the side of the Opposite parties

Ext.B1 – Copy of repudiation letter issued by opposite party to the complainant

             dated 26/3/11  

Ext.B2 –  Copy of Surveyor Report dated 22/3/2011

Ext.B3 – Policy conditions of Standard Fire and Special Perils Policy (Material

             Damage)  

Witness examined on the side of the opposite party

DW1 – P.Sugumaran

Cost Allowed

Rs.1,000/- allowed as cost of the proceedings.