Tamil Nadu

North Chennai

51/2013

M/s.New Kashmir Arts & Crafts, rep. by Partner Majidkhan - Complainant(s)

Versus

The Manasger, Bajaj Allianz Insurance Co. Ltd, - Opp.Party(s)

K.Gnanan Sundaram

20 Feb 2017

ORDER

                                                             Complaint presented on:  06.03.2013

                                                                Order pronounced on:  20.02.2017

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,           MEMBER II

 

MONDAY THE 20^th   DAY OF FEBRUARY  2017

 

C.C.NO.51/2013

 

 

M/s. New Kashmir Arts & Crafts,

Rep. by its Partner, Mr.Abdul Majid Khan,

New No.171, Old No.111,

Near LIC Building, Mount Road,

Chennai – 600 002.

                                                                                        ..... Complainant

 

..Vs..

 

The Manager,

Bajaj Allianz Insurance Co.,

No.43/20, Ritherdon Road,

Vepery, Chennai – 600 007.

	...Opposite Party

Date of complaint                                   : 11.03.2013

Counsel for Complainant                       : M/s.K.Gnana Sundaram, T.Dhakana

 

Counsel for   Opposite party                     :M.B.Gopalan, N.Vijayaraghavan,

                                                                    M.B.Raghavan

 

 

 

O R D E R

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant to direct the Opposite Party to pay claim amount of Rs.5,28,980/-  under the policy dated 09.09.2011 and also to pay compensation of Rs.3,00,000/- for mental agony with cost of the Complaint  u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The Complainant is selling the gift articles, in the name and style  of Kashmir arts and crafts goods. The Complainant took the Insurance from the Opposite Party bearing Policy No.OG-12-1509-4001-00000077 dated 09.09.2011 for the period of Insurance is from 19.09.2011 to 18.09.2012 under the product (policy) Name “Standard Fire and Special perils Policy” (SFSP Policy). The Complainant insured building (Construction), Stocks in the Showroom shop for the sum of Rs.2,12,00,000/- and for the same, he paid the Premium amount  of Rs.32,252/-   to the Opposite Party on 09.09.2011. The said Premium amount also covered the warranty of Basement, Construction, Shop goods (non hazardous goods).  The Thane Storm in Chennai damaged some little parts of the Roof and windows portions and valuable showroom stock in the Complainant’s insured building on 30.12.2011.  The Complainant shop’s one of the partner informed to the office of the Opposite Party through Telephone on the same day. Each and every time of the Complainant’s call, the Opposite Party often replied that, the surveyor will come and check the loss of the stock and damage details. But, the Opposite Party not responded as stated by them above. Then the Complainant sent a claim letter dated 07.01.2012 to the Opposite Party on 09.01.2012 through speed post stating the damage caused on the date of the day of Thane Storm occurred in Chennai on 30.12.2011 and enclosed the List of the Damaged Goods in detail for the said claim. The Complainant again sent a Letter dated 30.01.2012 as a remainder to the Opposite Party for the above said claim of Damaged Goods under the said Standard Fire and Special Perils Policy (SFSP Policy) 09.09.2011. After the claim letters dated 07.01.2012 and 30.01.2012 by the Complainant, the Opposite Party appointed Mr.Edward P Samuel, Surveyor to carryout survey and assessment of the loss in the Complainant shop on 01.02.2012 and the Complainant submitted all the details and documents required by the surveyor, then the said surveyor submitted the same to the Opposite Party.  The Opposite Party ought not to have repudiated the Complainant’s claim on the grounds stated in the said letter dated 14.03.2012 because firstly, the Complainant informed to the Opposite Party well in advance through Telephone immediately on the same day of said Thane Storm calamity occurred (30.12.2011) and furthermore the Complainant sent a letter 09.01.2012 to the Opposite Party. Secondly, after inspecting the building by the Opposite Party and insured under the said policy to the Complainant. But, at the time of claim the Opposite Party repudiating the said claim on the ground that, “the damage to stocks was caused by seepage of water through existing holes on the walls and through joints at the corner of the roof” which is crystal clear the unclean hands of the Opposite Party because, the said existing holes and the damage to the joints at the corner of the roof were caused only at the time of the said calamity on 30.12.2011 not before that. The Opposite Party never stated any of the existing holes or joint at the corner of the roof at the time of issuing policy to the Complainant. The Opposite Party has done the act of deficiency in service by repudiating the claim on 14.03.2012. Hence the Complainant filed this Complaint to direct the Opposite Party to pay the claim amount of Rs.5,28,980/- and also compensation for mental agony and with cost of the Complaint.

2. WRITTERN VERSION OF THE OPPOSITE PARTY  IN BRIEF:

          The Complainant availed a Standard Fire & special perils policy from the Opposite Party covering building and stocks at the location 117/111, Mount Road, Anna Road H.O., Chennai – 600 002. It is pertinent to mention that the building in question is a class I construction of RCC Terrace and walls of bricks/cement within which the stocks were kept. The Opposite Party has received an intimation from the Complainant dated 30.01.2012, on 01.02.2012 of alleged damage to carpets and Handicrafts due to storm Rain Water on 30.12.2011. A perusal of the letters would reveal that the address of the Opposite Party is not correctly mentioned. While the second letter had fortunately reached the Opposite Party, the first letter dated 07.01.2012 had not been received. Hence intimation to the Opposite Party was given belatedly after 33 days of the alleged occurrence. This is in breach of the policy (B) general condition No.6 that intimation of any loss shall be given forthwith and within 15 days. On receipt of intimation on 01.02.2012, the Opposite Party appointed Mr.Edward P.Samuel, an independent Surveyor duly licensed by IRDA as required under Sec.64UM of the Insurance Act. The surveyor had inspected the damage shown and after detailed verification found that.

1. There was no damage claimed for building and indeed there was no damage suffered by the Building in the alleged rain.
2. Damage was alleged to certain portion of stocks due located at two places of the showroom where the wall had holes or had poor ceiling through which rain water had seeped in and come in contact with few items of stocks.
3. Such entry of water in the wall was due to hole made for entry of BSNL cable which had not been filled and the seepage from the ceiling had been due to bad maintenance externally allowing stagnation and seepage.

The Opposite Party submits that such seepage of water through hole in the wall or poor ceiling is not covered under the policy. Such cause cannot be construed as loss or damage due to storm, Cyclone etc. even if it is assumed that there was any outside the building. The proximate cause of the loss or damage was the hole and not the rain outside. The Opposite Party repudiated liability for the reasons that a) the intimation of claim was belatedly received in breach of policy terms and conditions, b) there was no loss or damage due to insured peril and that the policy did not cover seepage loss. The other averments made in the Complaint are denied and prays to dismiss the Complaint with costs.         

3.POINTS FOR CONSIDERATION:

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

          2. Whether the complaint is entitled to any relief? If so to what extent?

4.POINT : 1

          The Complainant is carrying on business of selling the gift articles, Kashmir Arts and Crafts goods in the name and style of M/s New Kashmir Arts & crafts. The Complainant took Ex.A1 standard fire and special perils policy with the Opposite Party insuring stocks in the show room shop and building of the shop for a sum of Rs.2,12,00,000/-   along with company.  As per the policy, the Complainant paid final premium of Rs.32,252/-.  The sum insured was a sum of Rs. 2,12,00,000/-.

          5. The case of the Complainant is that on 30.12.2011 the Thane Storm damaged some parts of the roof and windows and thereby the valuable in the show room stock was damaged and one of the partner of the Complainant called the Opposite Party informed about the damage on the same day and nobody turned from the Opposite Party and hence the Complainant sent  Ex.A2 letter dated 07.01.2012 to the Opposite Party even after that letter there  was no response from them and again wrote Ex.A3 letter dated 30.01.2012 and thereafter the Opposite Party appointed Mr.Edward P Samuel, surveyor to carry out and assess the loss on 01.02.2012 and the Complainant submitted all the details required to the surveyor by his letter Ex.A4  and however the Opposite Party rejected the claim made by the Complainant under Ex.A5 dated 14.03.2012 and therefore the Opposite Party has committed deficiency in service by rejecting the claim of the Complainant.

          6. The Opposite Party contended that there was no stagnation of water in the ground and first floor only rain water seeped into the shop through the hole made for entry of BSNL cable which had not been filled in the wall and seepage from the ceiling had been due to bad maintenance externally allowing stagnation and seepage and therefore such a damage   was not covered under the policy and hence the Opposite Party rightly rejected the claim made by the Complainant.

          7. According to the Complainant the Thane Storm has damaged the stocks inside his shop on 30.12.2011.  On the said day there was Thane Storm in Chennai and also other parts of the Tamil Nadu was not in dispute. The Complainant also obtained Ex.A7 letter and its enclosures to prove the said storm on the above said date. Therefore the Complainant proved that there was Thane Strom on 30.12.2011 at Chennai.

          8. Ex.A1 is the Standard Fire & Special Perils  policy  with Annexure   issued to the Complainant on 09.09.2011 and the period of Insurance 19.09.2011 to 18.09.2012. The occurrence was on 30.12.2011. Therefore the incident was covered by the policy. As per the policy terms clause VI at page 11 of the Ex.A1 document storm, Cyclone, Typhonn, Tempest, Hurricane, Tornado, Flood and Inundation and if anyone directly caused damage  the policy would be applicable to the claimant. The case of the Complainant is that the Thane Storm damaged the stocks and building of the Complainant. Therefore, the claim made by the Complainant for damaging his goods in the shop due to Thane Storm is maintainable as per Ex.A1 policy issued by the Opposite Party.

          9. The Opposite Party specifically contended that the water entered only through the hole made for entry of BSNL cable which had not been filled and the seepage from the ceiling had been due to bad maintenance of the building externally. The Opposite Party had not said anything about the hole is there and bad maintenance of the building by the Complainant at the time of issuing the policy. If the building is badly maintained by the Complainant, why the Opposite Party issued the policy to the Complainant. Only after full satisfaction of the conditions of the Opposite Party only, he should have issued the policy. When the Thane Storm was not disputed by the Opposite Party on the particular day the water seeped into the hole of the wall and bad maintenance of the building of the Complainant is not accepted.

          10. The Opposite Party for rejecting the claim had also stated the damage was intimated only on 01.02.2012 after 33 days delay.  One of the partner of the Complainant immediately contacted the Opposite Party and also subsequently and since no response from the Opposite Party he sent Ex.A2 letter dated 07.01.2012  through speed post and there was no response again he sent  Ex.A3 letter dated 30.01.2012.  The Opposite Party admits that he received Ex.A3 letter on 01.02.2012 and however he had not received Ex.A1 letter due to wrong address. The address found in Ex.A2 & Ex.A3 is one and the same and both the letters were sent by speed post. Though Ex.A2 letter dated 07.01.2012 the same was sent by speed post on 09.01.2012 as per the speed post slip copy available in Ex.A2 itself.  When the Opposite Party received Ex.A3 was sent on speed post he could have also received Ex.A2 letter which was also sent on speed post. Therefore the contention of the Opposite Party that he received Ex.A3 letter with delay of 33 days and he had not received Ex.A2 letter is not accepted and such a contention is also rejected. Further, Ex.A2 letter the Opposite Party has given within 15 days of the occurrence.

          11. From the forgoing discussions, it is held that the Complainant made the claim within time and the goods also damaged  due Thane Strom and therefore, the Opposite Party rejected the claim made by the Complainant is deficiency in service on his part.  

12. POINT NO :2

          The Complainant made a claim of Rs.5,28,980/- and the same was incorporated at page - 11 of Ex.B1 final survey report. The above claim amount was assessed by the Complainant himself. However, the Opposite Party surveyor gave the summary of final loss assessment at page - 13 of Ex.B1 report. The said assessment he had taken the total amount claimed by the Complainant a sum of Rs.5,28,980/-  for assessing net assessed loss.  In the said summary after deducting various losses finally he arrived net assessed loss as Rs.1,83,830/-. The surveyor further stated that the net assessed loss amount of Rs.1,83,830/- is only a admissible amount according to him. When the Complainant have not given any calculations for assessing loss which he is entitled, the Opposite Party’s surveyor assessed net assessed loss amount only the Complainant is entitled. In view of the same towards claim amount a sum of Rs.1,83,830/- can be ordered to be paid by the Opposite Party to the Complainant.  Due to the rejection of the claim the Complainant suffered with mental agony is accepted and for the same it would be appropriate to order a sum of Rs.25,000/- towards compensation, besides a sum of Rs.5,000/- towards litigation expenses.

          In the result the Complaint is partly allowed. The Opposite Party is ordered to pay a sum of Rs.1,83,830/- (Rupees one lakh eighty three thousand eight hundred and thirty only) towards  policy claim amount  to the Complainant and also to pay a sum of Rs.25,000/- (Rupees twenty five  thousand only) towards compensation, besides a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses.

The above amount shall be paid to the Complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest till the date of payment.

Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 20^th day of February 2017.

 

MEMBER – II                                                               PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 09.09.2011                   Standard Fire and special perils policy with 

                                                    Annexure

 

Ex.A2 dated 07.01.2012                   Letter of claim sent by the Complainant to the

                                                    Opposite Party with receipt

 

Ex.A3 dated 30.01.2012                   Letter to the Opposite Party with A.D. Card and

                                                    receipt 

 

Ex.A4 dated 02.02.2012                   Letter sent by the surveyor to the Complainant

 

Ex.A5 dated 14.03.2012                   Letter sent by the Opposite Party to the

                                                    Complainant with A.D.Card & receipt

 

 

Ex.A6 dated 22.03.2012                   Letter sent by the Complainant to the Opposite

                                                    Party

 

Ex.A7 dated 08.05.2012                   Letter from Indian Metrological Centre

 

Ex.A8 dated 15.06.2012                   Letter sent by the Complainant to the Opposite

                                                    Party with receipt

 

LIST OF DOCUMENTS FILED BY THE   OPPOSITE PARTY:

Ex.B1 dated 02.03.2012                   Final Survey Report

                                     

 

MEMBER – II                                                               PRESIDENT