DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the 10^th  day of  January 2022.

Present    :  Sri.Vinay Menon V.,  President

                :  Smt.Vidya A., Member                                                   Date of Filing: 17/12/2018 

     CC/177/2018

Jayaraman Nayar V.

S/o.Kesavan Nair,

No.28/89, Yes Yes Villa,

West Fort Road,

Rappadi, Palakkad – 678 001.

(By Adv.S.Manojkumar)

                                                                                      Vs

  Manager

United India Insurance Co.Ltd.,

Divisional Office Palakkad,

11/82, 3^rd Floor, Malabar Fort,

G.B. Road, Palakkad – 678 001.

(By Adv.T.Giri)

O R D E R 

By Sri.Vinay Menon V.,  President

1. Shorn off details, the complaint is that the complainant took a Standard Fire and Special Perils Policy bearing No.102001115P101945076 for a period from 22/5/2015 to 21/05/2025 covering his residential building, compound wall and well for one time premium of Rs.5898.90/-. As per the terms and conditions of the said policy the entire property insured was covered under any risks from storm, cyclone, typhoon, tempest, hurricane,  tornado, flood and inundation. During the night of 28^th July 2018, due to unusual heavy rain the southern side compound wall of his residence collapsed at about 17 meters in length.     Immediately thereon the opposite parties were informed.  But the opposite party repudiated the complainant’s claim vide a letter dated 27/11/2018 stating the reason “as reported by the insured, the cause of accident is due to heavy rain and rain or heavy rain is not covered under this policy.  Repudiation is not based on any valid grounds and on purely technical ground in a mechanical manner and sought for realization of Rs.48,000/- with interest @18% p.a. for rebuilding the collapsed compound wall  alongwith Rs.20,000/- with 18% interest p.a. as compensation for deficiency in service.
2.  The opposite party filed version admitting the cause of fall of the wall and reiterated that as the wall fell owing to heavy rains they were not bound indemnify the complainant and sought for dismissal of the complaint. 
3. Pleadings and counter pleadings considered, the following points arise for consideration

1. Whether the fall of the compound wall owing to heavy rain  is covered under policy conditions ? 

            2.         Whether there is deficiency in service on the part of the O.P.s?

3.         Reliefs and cost, if any.

4. Evidence on the part of the complainant comprise of Ext.A1 to A3.  Opposite party’s evidence comprised of the deposition of the Senior Divisional Manager of opposite party as DW1  and Ext.B1 to B4. 

Point  No. 1.

5. The indubitable case of the complainant as pleaded in para (3)of the complaint is “on the intervening night of 28^th July 2018, due to unusual heavy rain caused the southern side compound wall of his residence to collapse………”  Admittedly the wall fell due to heavy rain.

Still in the interest of justice and to rule out any other possibilities in this issue,  it  is imperative that we come to a conclusion that the compound wall of the complainant fell on account of the calamities contained in the policy conditions.  Ext.A1 is the policy conditions. In Page 4  it is stated “IN CONSIDERATION OF the insured named in the Schedule   hereto having paid to………………………., the company shall pay to the insured the value of the Property at the time of happening of its destruction or the amount of such damage or at its option reinstate or replace such property or any part thereof.

Clauses I to V are not relevant herein but clause VI is relevant.

6. Storm, Cyclone, Typhoon, Tempest, Hurricane, Tornado, Flood and Inundation : Loss, destruction or damage directly caused by Storm,   Cyclone, Typhoon, Tempest, Hurricane, Tornado, Flood and Inundation excluding those resulting from earthquake, volcanic eruption or other convulsions of nature.  

A reading of the above provisions in Ext.A1 would show that loss or damages occurred on account of rain or heavy rain is not included in the terms and conditions of the insurance policy.

6.  The further question is whether what had transpired on the decisive date is heavy rain or any other calamity that is mentioned in Ext.A1 policy. The best evidence that would prove what had transpired on 28^th  July 2018 was the report from meteorological department evidencing the nature of the down pour. Burden of proof lies on the person whose case would fail if he does not adduce the evidence. It was the bounden duty of the complainant to prove his case by producing cogent evidence showing that his case confirmed to the eventualities laid bare in Ext.A1 clause  VI.
7. The complainant took a view that the compound wall fell due to floods and the flood was caused by the heavy rain. To that extent DW1 was cross examined by the complainant. The effort of the complainant was to steer the evidence to prove   that the premium was accepted by the opposite party insurance company without an inspection of the property, that the wall fell down on account of the floods that permeated the State of Kerala  in 2018 owing to heavy rain  and that the repudiation was illegal. At this juncture what is to be kept in mind is not whether the policy was issued after taking appropriate inspection or whether the repudiation was after proper survey. The policy was issued on the bonafide belief by the opposite party that the proposer  had made the proposal ubberimae fidei and that the wall stood in good condition. Any attempt on the part of the complainant to prove that the wall was of poor condition would only backfire on the complainant himself.
8. Had the fallen wall been of poor condition and the fall was due to any of the calamities mentioned in policy, the company would have in the normal course approved payment. Any disputes thereof would have been regarding the quantum of payment that need indemnification.

We are of the opinion in the  facts and circumstances of this case  the complainant ought to have adduced evidence to prove  what transpired on  28/7/2018 was a calamity covered under the policy, irrespective of whatever cause he might have stated in Ext. A3 Claim Form.

 Hence issue No.1 is found against the complainant. The complainant has failed to prove that the nature of the down pour that lead to fall of the compound wall, was one covered under the eventualities under clause VI of Ext.A1 policy condition and thereby indemnifiable by the opposite party.

Point Nos.  2 & 3

8.  Having found issue No.1 against the complainant and in favour of the opposite parties,  we hold that there is no deficiency in service on the part of opposite parties. The complaint is dismissed. In facts and circumstances of the case there is no order as to  costs.

            Pronounced in the open court on this the 10^th  day of January 2022.

Sd/-

                                                                                        Vinay Menon V

                                                 President

 Sd/-

Vidya.A

                    Member     

APPENDIX

Exhibits marked on the side of the complainant

Ext.A1 –  Photocopy of  Standard Fire and Special Perils Policy No.1012001115P101945076

Ext.A2 – Photocopy of   the repudiation letter  dated 27/11/2018

Ext.A3 –   Photocopy of claim form for Fire & Applied Perils.

Exhibits marked on the side of the opposite party

Ext.B1 – Photocopy of  Standard Fire and Special Perils Policy No.1012001115P101945076

Ext.B2 – Photocopy of claim form for Fire & Applied Perils.

Ext.B3 – Surveyor’s report dated 22/10/2018

Ext.B4 -  Communication dated 11/12/2018 issued from OP to the complainant

Witness examined on the side of the complainant

NIL

Witness examined on the side of the opposite party

DW1 – Jayasree.R

Cost : No order as to cost.

NB : Parties are directed to take back all extra set of  documents submitted in the

         proceedings in accordance with Consumer Protection (Consumer Commission

         Procedure) Regulations, 2020.