PER SHRI. S.S. PATIL - HON’BLE MEMBER :
1) This is the complaint regarding the deficiency in service on the part of Opposite Party as it partly sanctioned the insurance of the Complainant and partly rejected the remaining claim on the frivolous grounds as alleged by the Complainant.
2) The facts of the complaint as stated by the Complainant are that the Complainant has obtained a Home Secure Insurance Policy bearing No.19000251200000 for the period 16/12/04 to 15/12/05. The total sum insured was Rs.30 Lacs. The perils covered were as below –
1) Fire & Special Perils contents - 10 Lacs
2) Fire & Special Perils(building) - 10 Lacs
3) Burglar & Theft - 10 Lacs
3) During the validity of the said policy, on 26/07/05 there was a deluge in Mumbai causing flood and damage to the house of the Complainant, situated on the ground floor. The inundation continued for 48 hours – damaging the household goods, furniture, fixtures, electronic instruments, clothes, shoes, walls, tiles, plinth. The Opposite Party was informed about the damage caused to the residence of the Complainant. The Opposite Party deputed its officer for inspection. It is the contention of the Complainant that they were convinced about the damage. Complainant submitted the claim form duly filled in, to the Opposite Party.
4) The Opposite Party appointed the surveyor M/s. Prabha Associates. The surveyor visited the place on 12/08/05. List of damaged items were given to the surveyor by the Complainant. Then the surveyor by its letter dtd.27/12/05 called for documents like quotations for repair to flooring, repair bills for furniture, fridge, TVS, etc. The Complainant submitted the documents as required by the surveyor (copies of the quotations and repairs estimates).
5) It is further stated by the Complainant that his claim was assessed at Rs.44,000/- against his claim of Rs.9,88,450/-. (However, the Complainant has not produced anything on record that he had a claim of Rs.9,88,450/-).
6) The Opposite Party by his letter dtd.01/09/06, informed the Complainant that his claim has been assessed at Rs.1,59,750/-. The Opposite Party has sent a discharge voucher of this amount and has asked the Complainant to sign the said voucher.
7) The Opposite Party refused to give the contents of the survey report as per the guide lines of the IRDA. Instead the Complainant received a copy of loss assessment sheet prepared by the surveyor. It is alleged by the Complainant that the surveyor has not properly assessed the loss and the Opposite Party has relied on his faulty assessment. Thus, by settling the claim for Rs.1,59,750/-, the Complainant alleged that he sustained a loss of Rs.9 Lacs (The Complainant has not explained, how he has come to this figure of 9 Lacs).
8) The Complainant has finally prayed that the Opposite Party be directed to pay the sum of Rs.9,88,450/- to the Complainant against the loss sustained by the Complainant during the heavy rain & flood on 26/07/05 and onward, alongwith 18% interest. It is also prayed for Rs.4,59,629/- with future interest @ 18% till realization of the claim. The Complainant has also prayed for the compensation of Rs.1 Lac for mental agony and Rs.50,000/- cost for legal expenses.
9) The Complainant has attached the xerox copies of the following documents in support of his complaint –
Policy document bearing No.19000251200000 alongwith terms and conditions, Claim form filled up stating the total amount Rs.4,95,300/-, Letter dtd.05/09/05, 27/12/05, Quotations of repair estimates, Letters dtd.13/10/05 and 10/11/05, Letter dtd.01/09/06, Letter dtd.02/08/07 enclosing assessment dtd.19/07/07 and photographs of damaged items.
10) The complaint was admitted and notice was served on the Opposite Party. Opposite Party appeared through its Ld.Advocate and filed its written statement wherein the Opposite Party denied the allegations of deficiency in service on its part and further submitted that the Complainant has made an exorbitant claim without any basis. The claim has been assessed on market value basis by the independent surveyor to the extent of Rs.1,60,000/- and the final settlement was offered to the Complainant. However, the Complainant declined to accept the same.
11) The Opposite Party has vehemently denied that there was a total loss. The Opposite Party has pointed out that the Complainant’s claim in the claim form submitted by him only (Exh. ‘D’ to the complaint) was of Rs.4,95,300/- which has been malafidely increased to Rs.9,88,450/- without any explanation.
12) It is further pointed out by the Opposite Party that the Complainant has not furnished any estimates or quotations, repair bills till December, 2005. Therefore, the Surveyor vide its letter dtd.27/12/06, requested for necessary estimates/documents. Final assessment was made by the surveyor on the basis of the estimate submitted by the Complainant later on. The Opposite Party has attached the preliminary & final survey report (dtd.19/07/06 & 06/08/07).
13) It is further stated by the Opposite Party that the net liability of the insurer was assessed at Rs.1,43,390/- but the Opposite Party offered an amount of Rs.1,59,750/- towards full & final settlement. And the Opposite Party is ready to pay the same. It is also submitted by the Opposite Party that the surveyor who has assessed the loss of the Complainant is a registered and licensed surveyor and also is expert & experienced insurance assessor. As per the observations of the surveyor the furniture was very old and of cheap quality, flooring was also of cheap quality. All walls were white washed & not painted. Considering the material on record and estimates produced by the Complainant Opposite Party has no reason to differ from the report of the surveyor.
14) Finally the Opposite Party has stated that there is no deficiency in service as the claim has been settled as per the assessment of the licensed surveyor and after applying the mind to the entire case. The Opposite Party has denied that the Complainant is entitled to any relief as prayed in the complaint as such the Opposite Party has stated that the complaint is liable to be dismissed with exemplary cost.
15) The Opposite Party has attached the xerox copies of the following documents in support of its written statement –
Surveyor’s final report dtd.06/08/07 with photographs of the damages to the house of the Complainant, Letter dtd.19/07/07 in reply to the notice dtd.05/07/07, Letter of the Surveyor to the Complainant, dtd.14/07/06.
16) The Complainant thereafter filed his affidavit-in-evidence reiterating the facts of the complaint and further added that, the Opposite Party had not disclosed the survey report. The Opposite Party at 1st time disclosed the survey report alongwith its written statement. The Complainant has stated that the assessment report is totally against the scope of policy. (The Complainant has not explained as to how it is against the scope of the policy). The Complainant thereafter, filed his written argument alongwith bills of aakar interior, Rajesh Londhe and Hyper City. Before that the Opposite Party has also filed its synopsis of argument alongwith citations of Hon’ble Supreme Court and Hon’ble National Commission.
17) We heard the Ld.Advocates for both the parties and perused the documents submitted by them. Our findings are as follows -
The Complainant is residing in a Juhu areas of Mumbai Metro City. He has obtained a Home Secure Insurance Policy bearing No.19000251200000 for the period 16/12/04 to 15/12/05. During the validity of this insurance policy, there was deluge in Mumbai City on 26/07/05 and thereafter the whole city was paralyzed due to heavy rains for at least a week. The residential flat of the Complainant is situated at the ground floor of the building Juhu Vishal. The flat being at ground floor was submerged under 5’deep water at least for 48 hours, causing damage to the household goods, furniture, fixtures, electronic instruments, clothes, shoes, walls tiles & plinth. (para 4 of the complaint). In this connection the Complainant has not submitted a detailed list of the items damaged before this Forum, but it is quite possible that during the above said situation, the household articles like furniture and fixtures, electronic instruments leather shoes, might have been damaged. But in our candid view, the tiles cannot be damaged due to stagnation of water for 48 hours or more than that. The painting of the walls could be damaged but not the entire walls.
18) The deluge occurred on 26/07/05. The surveyor had visited the place on 12/08/05. The officers of the surveyor might have inspected each and every item damaged in the flat. In this respect we carefully scrutinized the survey report. This report is dtd.06/08/07. The incident is dtd.26/07/05. The surveyor prepares this report on 06/08/07 i.e. after more than two years. This is certainly a deficiency on the part of Opposite Party that it is not diligent in getting the loss assessed.
19) Further the surveyor in this report has opined that the loss is admissible. The submerging of flat to a height of the 5’ from the floor level has caused damage to all the household articles. Furniture and electronic goods (items) were affected due to water. The damage items were quoted as follows –
1) One 160 Ltr. Fridge.
2) Kitchen wooden cabinets.
3) One 21” T.V.
4) One DVD Player.
5) One Audio system.
6) One small centre table.
7) One big centre table.
8) Two 4 seater sofa sets.
9) One T.V. 21”
10) One air cooler.
11) One computer system.
12) One box type double bed with cotton mattress.
13) One single bed with cotton mattress.
14) One washing machine.
It is specifically mentioned by the surveyor that the Complainant reported damage to the clothes, woolen suits & personal belongings but these items were not presented for inspection or reported to have been thrown away.
20) It is also specifically mentioned by the surveyor that, the Complainant was requested to send repair bills/purchase invoices of various water affected items but, they were not made available to the surveyor till 06/08/07 (date of survey).
The Opposite Party has advised the surveyor to release the final report. Hence, the surveyor has assessed the loss based on market rates. The surveyor has observed that the furniture was very old and of cheap quality, flooring was also of cheap quality mosaic tiles. The surveyor has given the table of assessment of loss caused to the Complainant. at one side, the surveyor has mentioned the quote of woodhouse furniture and on the other side, it has quoted its own recommendations. The table is as below –
Sr. No. |
Items |
Amounts quoted by Wood House furniture in Rs. By the Complainant |
Amount recommended in Rs. |
1 |
On Double bed with mattress |
Rs. 13,500/- |
Rs.13,500/- |
2 |
One single bed with mattress |
Rs. 8,800/- |
Rs. 7,800/- |
3 |
4 seater sofa |
Rs. 15,000/- |
Rs.14,000/- |
4 |
Centre Table Wood on Top |
Rs. 7,000/- |
Rs. 3,500/- |
5 |
Side table |
Rs. 2,800/- |
Rs. 2,800/- |
6 |
Computer table |
Rs. 3,000/- |
Rs. 2,200/- |
7 |
Side Board |
Rs. 7,500/- |
Rs. 7 500/- |
8 |
Kitchen cabinets |
Rs. 49,450/- |
Rs.20,000/- |
9 |
Bar Unit |
Rs. 12,000/- |
Rs. 6,000/- |
10 |
Total |
Rs.1,19,050/- |
Rs.77,300/- |
11 |
Vat 12.5% |
Rs. 14,881/- |
Rs. -Nil- |
12 |
Doors (6 doors Aakar Quotation) |
Rs.1,44,000/- |
Rs.15,000/-(only repairs) |
13 |
Replacement |
14 |
Total … |
Rs.92,300/- |
II Electronic Items
Sr. No. |
Items |
Estimate |
Amount recommended by the Surveyor |
1 |
2 CPUS |
--- | Rs.4,500/- |
2 |
2 TVS 21” | --- | Rs.3,600/- |
3 |
1 Fridge | --- | Rs.3,500/- |
4 | 1 Air Cooler | --- |
Rs.1,500/- |
5 | 1 Washing Machine | --- | Rs.1,500/- |
Total … |
Rs.14,600/- |
III Repairs of Flooring
Sr. No. |
Items |
Estimate |
Amount recommended by the Surveyor |
1 |
700 Sq.ft. Mosaic Tiles |
Rs.2,57,150/- |
Rs. 60,000/- |
Grand Total Recommendation of the Opposite Party |
Rs. 1,66,900/- |
Less : Salvage Value | Rs. 15,000/- |
Insurers Liability |
Rs. 1,51,900/- |
The Surveyor has recommended the claim of Rs.1,43,319/-. It was also observed by the surveyor that the insured has been uncooperative at each stage of survey.
21) We also perused the documents submitted by the Complainant in support of his claim of Rs.9,88,450/-. In the first instance the Complainant has filed his claim form claiming Rs.4,95,300/-. The items of loss were mentioned in this claim form are as follows -
1) Textiles including clothes - Rs. 3,00,000/-
2) Foot wear - Rs. 40,000/-
3) Furniture, bed sofa chair - Blank
4) Computer, Printer - Rs. 35,000/-
5) TVS DVD player Audio Video System - Rs . 45,000/-
6) Air Cooler, Washing Machine - Rs. 20,000/-
7) Refrigerator - Rs. 14,000/- / 12,000/-
8) Vacuum Cleaner - Rs. 6,000/-
9) Flooring & Electricals - ---
10) Painting walls - ---
11) CDS & Cassettes - Rs. 3,000/-
12) Bags & Suitcases - Rs. 4,000/-
13) Books & Folders - Rs. 10,000/-
14) Camera - Rs. 2,000/-
15) Cell phones - Rs. 11,000/-
16) Phones - Rs. 8,000/-
17) Mixer - Rs. 4,500/-
Total …. Rs.4,95,300/-
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The Complainant has kept blank places against the property damaged –
a)Furniture, beds, sofas, chairs, centre tables.
b)Flooring ---------
c)Electriclas ---------
d)Painting on wall ---------
22) We took into consideration both side’s quantification of the loss. In the claim form the Complainant has given his value of loss to the textiles & clothes and shoes to the tune of Rs.3,40,000/-. But the Complainant has not even shown these damaged textile, clothes & shoes to the surveyor at the time of survey when he visited the place of incident on 12/08/05.
a) The Complainant has kept the space blank in front of the items like furnitures, sofa, beds & chairs but, the surveyor in his survey report has recommended the value of these items as Rs.92,300/- against the quotation of wood house, furniture. The Complainant has mentioned the price of the door replacement as Rs.1,44,000/- but he has not mentioned anywhere that he had replaced complete the doors. Though there was so much flooding one cannot replace the doors and windows of the house. One can do only a repair to the same if it is damaged due to the stagnation of water. Therefore, the recommendation of the surveyor for the repairs of doors Rs.15,000/- seems to be fair enough. At the same time, the surveyor should not have rejected the 12.5% vat on the articles because these articles were to be purchased by the Complainant and he is bound to pay the vat to the vendor. Therefore, 12.5% vat on Rs.77,300/- would be proper amount which should have been recommended by the surveyor. Therefore, the valuation for these items comes to the tune of Rs.1,01,963/- instead of Rs.92,300/-.
b) In respect of the loss to the flooring, the Complainant has kept the space blank in the claim form. Then in one letter dated Nil having no signature, or any proof (Exh. ‘E’ colly. Page-55 of the complaint) the Complainant has mentioned electrical works – Rs.48,000/-. From this letter one cannot say that the Complainant might have incurred the expenses of Rs.48,000/- for electrical items in absence of any other document in it’s support. Even the Complainant has not produced anything on record as to what electrical items were damaged and what electrical work he has done after the damage and what amount he paid in this respect.
c) Regarding the flooring item also the Complainant has kept the space blank but in the said letter with no signature and date he has mentioned the amount of Rs.2,57,150/- against the expenditure for flooring which is not supported by any document of expenses incurred by him in respect of flooring. Interestingly the Complainant has produced one bill dtd.10/05/06 issued by one Rajesh Londhe, Architect & interior designer. In this letter the cost of flooring consisting of removing existing flooring and wall tiles, decorative tiles, plumbing is shown as Rs.5,21,500/-. Therefore, there is tremendous contradiction in the quantification of loss given by the Complainant. From this letter which is attached with the written argument of the Complainant filed on 19/09/2011, it appears that the Complainant wants to renovate the walls with decorative tiles Jaguar fittings. He wants to change all the entire electric fittings, wiring, etc. The Complainant forgets the basic concept of the insurance. Insurance is an assurance to the insured to put him in the situation exactly when he is before the peril insured. The sum insured in this case is 30 Lacs. However, the insurer will put the flat No.2/12, Juhu Vishal in a condition in which it is on 26/07/05 at 2.59 p.m. and nothing more than that. And for that purpose, the insured will give the compensation required to bring the flat in its original condition prevailing before the deluge on 26/07/05.
The Complainant has also produced one document prescribing it as proforma invoice/quotation dtd.29/09/08. In this case the price of the items are in quiet contrast with the prices quoted by the wood house and same was produced by the Complainant only. Therefore, the Complainant has failed to establish as what was the actual loss and what he paid for that loss. Therefore, we again referred the surveyor’s report in which the surveyor has recommended Rs.72,000/- under the main head flooring – (letter of surveyor dtd.14/07/06). The same recommendation appears to be reasonable.
23) In the claim form, the Complainant has mentioned the cost of 2 computers and printers DVDS, TVS, Audio video system, Cooler, Washing Machine, Vacume Cleaner as Rs.1,20,000/-. Against these items, the surveyor has only recommended the loss of these items to the tune of Rs.14,600/-. This is absolutely unreasonable. There is common understanding that these electronic items are very sensitive to the water and water logging condition. Under the situation on 26/07/05, these items must have been damaged when submerged in the water at the height of 5’. Their salvage value is also nil. However, it appears from the figures of the prices of these items, the Complainant has quoted the new brand prices of these items. It is not known when these items were brought, what was the exact price of these items at the time of their purchases. Therefore, in our candid view the just & proper quantification of loss of these items sustained by the Complainant would be Rs.80,000/- only taking into consideration the probable use of the item by the Complainant.
24) Regarding the painting of walls, the Complainant has not mentioned any amount in the claim form. Even the surveyor has not recommended any amount for this loss. The water logging condition must have damaged the painting of the walls of the flat of the Complainant. Therefore, it is the obligation of the insurer to compensate this loss as per the insurance policy. But as said earlier, the Complainant kept the space blank, we again referred a letter of the Complainant at Exh. ‘E’ to the complaint wherein the Complainant has quoted a sum of Rs.54,000/- for painting. The cost of the painting (Good Quality Luster paint) is mentioned in the bill dtd.10/05/06 issued by Rajesh Londhe is Rs.60,000/-. Though there is a contradiction in those two documents (Rs.54,000/- and Rs.60,000/-) in our opinion the loss sustained in respect the wall painting may not be more than Rs.50,000/- taking into consideration the probable time when it was pained before the peril. Therefore, the quantum of loss against this item, (wall painting), though not recommended by the surveyor, would be Rs.50,000/- and which would be just and proper in our ordinary prudent opinion.
25) Regarding the items, mentioned in the claim form as C.D’s, Cassets, Bags and Suitcases, Books, Camera, Cell phone, Phones & Mixer, the Complainant has quantified these items to the tune of Rs.42,500/- but the Complainant has failed to show any cognate evidence that these items were damaged and they were not repairable. Even the survey report has not mentioned that these items were damaged. In the survey report the surveyor has specifically given a list of damaged articles. These items do not appear in this list. If we see the nature of these items, like, C.D’s, Cassets, Cell Phone, etc. these items could have been saved from damaged by keeping them above the height of 5’ in the said house. In the terms & conditions of the insurance policy it is mandatory for the insured to make efforts to save the articles from damage. Even the Complainant has not produced any evidence to show that these items were damaged and he sustained the loss of Rs.42,500/-.
26) There is no dispute between the Complainant and the Opposite Party regarding the admissibility of the loss (claim). Even the surveyor has recommended that the loss is admissible. The point of dispute is only regarding the quantum of the loss. The Complainant has not substantiated his claim of Rs.9,88,450/-. The Opposite Party has not settled the claim till 01/09/06. The Opposite Party has informed vide its letter dtd.01/09/06 to the Complainant that it has settled the claim for Rs.1,59,750/-. The surveyor has prepared his survey report on 06/08/07. This is absurd. When the Complainant called up on the Opposite Party to furnish the copy of this report, surveyor furnished the loss assessment sheet dtd.01/07/06. It indicates that the Opposite Party has avoided to furnish the surveyor’s report to the Complainant. This is a deficiency in service on the part of Opposite Party.
27) In view of the above observations as made in para 22 & 26 in our candid view the Complainant is entitled to the insurance claim for the loss he sustained during the deluge of 26/07/05 as below –
a) Loss caused to furniture, beds sofa, chairs tables – Rs.1,01,963/-
b) Flooring .. .. .. .. - Rs. 72,000/-
c) Computers, Printers, DVDs, TVs, Audio video system,
Cooler, Washing Machine, Vacume Cleaner .. – Rs. 80,000/-
d) Painting .. .. .. .. - Rs. 50,000/-
Total claim of Rs.3,03,963/-
------------------
of Rs.3,03,963/- as against Rs.1,59,750/-, settled by the Opposite Party. The Complainant is also entitled for the compensation for mental agony caused due to deficiency in service on the part of Opposite Party. It will also be just & proper to direct the Opposite Party to pay the cost of this complaint. Therefore, taking into consideration the above finding, we pass the order as follows -
O R D E R
i. Complaint No.39/2008 is partly allowed.
ii.Opposite Party is directed to reimburse Rs.3,03,963/- (Rs. Three Lacs ThreemThousand Nine Hundred Sixty
Three Only) to the Complainant for the loss sustained by the Complainant in the deluge on 26/07/2005,
alongwith interest @ 9% p.a. from 12/09/2005 till its realization.
iii.Opposite Party is directed to pay a compensation of Rs.10,000/- (Rs. Ten Thousand Only) to the Complainant
for mental agony and harassment caused due to the deficiency in service in service on the part of Opposite
Party.
iv.Opposite Party is also directed to pay Rs.5,000/-(Rs. Five Thousand Only) to the Complainant for the cost of
this compliant.
v.Opposite Party is directed to comply with the above said order within 30 days from the receipt of this order.
vi.Certified copies of this order be furnished to the parties free of cost.
