IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 16th day of December, 2021
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member,
Sri. K.M. Anto, Member
C C No. 76/2019 (filed on 28-05-2019)
Petitioner : Dr. George Joseph,
Padanilath House,
Cheeranchira P.O.,
Changanacherry.
(Adv. Regi Zachariah and Nithin M.K.)
Vs.
Opposite party : The Manager,
The Oriental Insurance Co.Ltd,
P.B.No.26, Rajeswary Complex,
Perunna, Changanacherry.
(Adv. Agi Joseph)
O R D E R
Sri. Manulal V.S. President
Brief facts of the case are that the complainant is the owner of three storied residential building bearing no. XII/36 of Vazhappaaly grama panchayath. The said building was insured with the opposite party under Standard Fire and Special Peril policy for the period of 15 years from 14-5-2017 to 13-5-2022 vide policy number 2008/27.
On 23-12-2018, severe lightening struck on the said building causing damages to the lift, computer and printer, in the house. The complainant was abroad at that time and failed to lodge his claim within 15 days. On 28-1-2019 the complainant submitted claim application along with the estimate prepared by Kone Elevator Indian Private Limited. It is alleged that even on repeated request by the complainant the opposite party has not considered the claim application.
The delay in service by the opposite party caused much mental agony
and hardship to the complainant since he has leased out the said building to The Charity World Trust. Finally the complainant sent a lawyers notice on 2-4-2019 demanding the amount and compensation. Though the opposite parties received the notice they did not care either to send reply or to settle the matter.
The above said act of the opposite party amounts to deficiency in service. Hence this petition.
Upon notice opposite party appeared and filed version as follows:
The insured building is not in possession and enjoyment of the complainant and he has no insurable interest. As per the policy the coverage is limited to the building and compound wall only. There is no coverage for machines, accessories and furniture. The petitioner has not paid any premium. The lift will not include in the coverage of the policy and is a separate machine for easy entrance to the building. The lift was ordered by the Charity World Trust and not by the complainant. The computer in the building is not of the complainant and there is no coverage for the loss or damage to the computer.
The complainant has not preferred the claim within the time stipulated in
the policy condition. The estimate given by the Kone Elevator India Pvt. is highly exorbitant and against the actual value. The lift need not be changed and the same is reparable. There is no delay on the part of the opposite party and the opposite party has timely intimated to the complainant that the claim is not allowable. There is no deficiency in service on the part of the opposite party and the opposite party is not liable to pay any amount to the complainant.
Evidence part of this case consist of proof affidavit of complainant and
the opposite party and exhibits A1 to A6 from the side of the complainant and B1 to B4 from the part of the opposite party.
Points to be considered.
- Whether the complainant has succeeded to prove any deficiency in service on the part of the opposite party and entitled to any reliefs?
Specific case of the complainant is that on 23-12-2018, severe lightening struck on the three storied residential building bearing no. XII/36 of Vazhappaaly grama panchayath which is owned by him and insured with the opposite party under Standard Fire and Special Peril policy for the period of 15 years from 14-5-2017 to 13-5-2022 vide policy number 2008/27. Exhibit A1 proves that the residential building owned by the complainant is insured with the opposite party for total sum of two crore and complainant paid Rs.69,449/- towards the premium amount .
On perusal of exhibit A1 we can see that the policy covered the building, electrical installations in the building and compound wall of the building. The “lightning” as a peril is covered under the policy. The common understanding of lightning as a peril is the electric discharge between cloud and the ground. As there is no qualification mentioned with the peril of “lightning” in the policy, we are of the opinion that the extended view in respect of peril of lightning may be taken even to cover electrical discharge within the clouds. From this point of view, damage caused by “lightning” as a discharge between cloud to cloud may also be treated as covered under the policy.
It is contended by the counsel for the opposite party that the lift and
computer is not covered under the policy.
General exclusion clause 7 of policy is as “ Loss, destruction or damage to any electrical machine, apparatus, fixture or fitting arising from or occasioned by overrunning, excessive pressure, short circuiting, arcing, self-heating, leakage of electricity, from whatever cause (lightning included) provided that this exclusion shall apply only to the particular electrical machine, apparatus, fixture or fittings so affected and not to other machines, apparatus, fixtures or fittings which may be destroyed or damaged by fire so set up”.
From the above, it is clear that Exclusion Clause 7 is applicable when
any electrical machine is damaged by the Fire that sets in that component. In the present case, it is an admitted case of the insurance company that the surveyor has found that there was no fire and therefore prima facie this clause is not attracted in the present case. Clearly, peril of lightning is covered under the policy without any qualifications attached to this peril. In the General Exclusion Clause No. 7, though electrical machine damaged with fire on account of lightening is also excluded, however, in the present case, there was no fire on account of lightning and therefore the electrical machine or lift damaged from lightning is not excluded due to this clause. The peril of lightning is included in the policy without any strings attached to it and therefore the damage to the lift due to high voltage created by the lightning is fully covered under the policy. From the above analysis, it is clear that the damage to the lift is covered under the policy.
In Om Prakash Vs. Reliance General Insurance & Anr. Hon’ble Supreme Court has observed thus :-
“11. The decision of the insurer to reject the claim has to be based on valid grounds. Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy-holders in the insurance industry. If the reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay. It is also necessary to state here that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the Investigator. The condition regarding the delay shall not be a shelter to repudiate the insurance claims which have been otherwise proved to be genuine. It needs no emphasis that the Consumer Protection Act, aims at providing better protection of the interest of consumers. It is a beneficial legislation that deserves liberal construction. This laudable object should not be forgotten while considering the claims made under the act.”
The Supreme Court of India in its decision in Saurashtra Chemicals Ltd. v. National Insurance Co. Ltd., [Civil Appeal No. 2059 of 2015] held that if the insurer has not taken delay in intimation on the part of the insured as a specific ground for refusal of claim in its letter of repudiation, Then it cannot take the said ground in the proceedings before Consumer Forum.
Therefore we are of the opinion that the contention of the opposite party
that complainant has not preferred the claim within the time stipulated in the policy condition will not help them.
Now the question to be decided remains as to what should be the compensation for this loss. As per exhibit B3 report of the surveyor, claim was for rupees 1,80,885/- and the surveyor has assessed the net loss of rupees 86,443/-. In this assessment the surveyor has deducted depreciation and salvage from the amount claimed by the complainant. More over the surveyor did not assess the loss caused to the computer nor stated any reason for the same. According to the complainant he had suffered a loss of Rs.3,000/- due to the damage caused to the complainant. Though the opposite party contended that they duly informed the complainant about the non honoring of his claim the opposite party did not adduce any evidence to prove that they had intimated the repudiation of the claim as per provisions of existing law. As a service provider the opposite party is bound to act as per the law and in accordance with the contractual terms and conditions. We are of the opinion that the above discussed acts of the opposite party amounts to imperfection and inadequacies in service in the contract of insurance and amounts to deficiency in service. No doubt due to the deficient act of the opposite party the complainant has suffered much sufferings and loss for which the opposite party is liable to compensate.
On the basis of the above discussion, we allow this complaint and pass the following order:
We hereby direct the opposite party to pay Rs.89,443/- to complainant along with 9% from 28-5-2019 ie, the date on which the complaint is filed till realization.
We hereby direct the opposite party to pay Rs. 10,000/- as compensation to the complainant for the deficiency in service on the part of the opposite party.
The order shall be complied within 30 days from the date of receipt of order. If not complied as directed, the amounts will carry 9% interest from the date of order till realization.
Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Commission on this the 16th day of December, 2021.
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R. Member Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Exhibits marked from the side of complainant
A1 – Photocopy of the insurance certificate having No.2008/27 issued by
the respondent
A2 – Office copy of the claim allocation dated 28/01/2019
A3 – Copy of the estimate dated 24/01/2019
A4- Office copy of the Lawyer’s Notice
A5 – Postal Receipt of the same
A6 – Postal Acknowledgment Card
Exhibits marked from the side of opposite party
B1 – Copy of the policy with condition
B2 – Copy of the letter dated 28.01.2019 given by the petitioner is produced
B3 – Survey report of the surveyor T.S. Biju dated 12.06.2019
(Subject to Objection).
B4 – Copy of the bill dated 24.01.2019 issued by Kone Elevator India Pvt. Ltd.
By Order
Senior Superintendent
