DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

Civil Station, Palakkad – 678 001, Kerala

Dated this the 18^th day of July, 2009

Present: Smt.Seena.H, President

Smt.Preetha.G.Nair, Member

Smt.Bhanumathi.A.K, Member

CC No.60/2008

K.P.Bushara,

W/o.Muhammed Ali,

Thadathil House,

Kanayam Post,

Kulappully,

Shornur, Palakkad. - Complainant

(By Adv.Sandhya.J.P & Adv.M.D.Roshni)

Vs

1. The Regional Manager,

Bajaj Allianz General Insurance Co. Ltd.,

Door No.11, People's Park,

3^rd Floor,

Government Arts College Road,

Coimbatore.

(By Adv.Ullas Sudhakaran)

2. The Manager,

Bajaj Allianz General Insurance Co. Ltd.,

3^rd Floor, Finance tower,

Kaloor,

Ernakulam.

(By Adv.Ullas Sudhakaran)

3. Customer Care Cell,

Bajaj Allianz General Insurance Co. Ltd.,

G.E.Plaza, Airport Road,

XX, Pune 411006.

(By Adv.Ullas Sudhakaran)

4. Bajaj Allianz General Insurance Co. Ltd.,

S.M.Complex,

College Road,

Palakkad 678001. - Opposite parties

(By Adv.Ullas Sudhakaran)

O R D E R

By Smt.Seena.H, President

Briefly stated the case of the complainant is as follows:

1. Complainant is the owner of a petrol bunk. The said petrol bunk with its stocks of petroleum products, fixtures, fittings, petrol bunk building with plinth, retaining wall and foundation was insured with the opposite party for an amount of Rs.32,00,000 (32 lakhs). The insurance claim of retaining wall covers a sum of Rs.7 lakhs. The policy is valid from 2/5/07 to 1/05/08.

2. In the early morning of 19/6/07, the retaining wall of the petrol bunk collapsed. Immediately it was informed to all opposite parties, but nobody turned up. A letter was sent on 20^th June, 2007 to 1^st opposite party intimating the incident. Claim form was submitted for the insurance amount. Thereafter a lawyer notice dated 2/11/07 was issued against 1^st and 3^rd opposite party. 1^st opposite party sent reply stating false facts that an independent surveyor Mr.Babu ascertained the loss occurred by inspecting the place etc. According to the complainant, nobody inspected the site and no notice for inspection was received by the complainant and no opportunity was granted to the complainant to clarify the matter before the surveyor. Complainant assessed the loss with the help of a surveyor as 9 lakhs. Opposite parties are liable to pay the claim amount. The act of opposite parties in not disbursing the claim amount amounts to deficiency in service. Hence the complainant prays for an order directing the opposite parties to pay Rs.7 lakhs being the claim amount and compensation of Rs.50,000/-.

3. Opposite parties filed version with the following contentions. Opposite parties admit the policy. The incident happened within the period of policy is also admitted. According to the opposite parties the very next day of the incident itself, an independent surveyor inspected the site and filed report on 26/07/07. It is true that the complainant submitted the claim form on 23/06/07. Since the claim submitted by the complainant was incomplete and since the loss to the retaining wall is not covered under the policy, claim was repudiated. The same was intimated through letter dated 30/07/2007. The policy availed by the complainant is called standard fire and special perils policy and it offers coverage only to items insured under it which are destroyed or damaged as a result of any of the perils mentioned in the policy. In the proposal form which is the basic document relating to the properties sought to be covered by the insured, retaining wall is not mentioned. Subsequently when the complainant wanted an enhancement coverage, she only sought coverage for building, stocks and furniture and fittings. The repudiation of the claim of the complainant was after a thorough investigation by an IRDA approved independent surveyor. The surveyor has reported that the damage to the

retaining wall is not due to any of the perils covered by the standard fire and special peril policy and the same could only be due to some structural defects for which the Insurance Company is not liable. Since the claim is repudiated for genuine reasons, company is not liable for any deficiency in service. Hence the complaint is liable to be dismissed with compensatory costs.

4. Complainant and opposite parties filed their respective affidavits. Exts.A1 to A7 marked on the side of the complainant. Ext.B1 and B2 series marked on the side of opposite parties.

5. Issues for consideration are;

1. Whether the act of opposite parties in repudiating the claim of the complainant amounts to deficiency in service?

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

Point 1:

6. We have carefully gone through the evidence on record and heard the parties in detail. Opposite parties admit the policy and that the incident took place within the period of the policy.

7. The first contention raised by the opposite parties is that the coverage provided by the insurer did not take in the retaining wall as claimed by the complainant. In Ext.B2, Surveyor has also stated that there is no coverage for damaged retaining wall under the policy No.0G-08-1513-4001-00000006. The said contention of the opposite parties is devoid of any merit. As per Ext.A5, building includes retaining walls also. Hence the point answered in favour of the complainant.

8. Secondly opposite parties themselves has stated that surveyor has visited the site the next day of the incident itself. No notice of inspection is seen to be given to the complainant. Further in Ext.B2 the surveyor has stated that he has requested the insured to submit documents numbered from 1 to 8. He has also stated that the insured only submitted an incomplete claim form.

9. Opposite parties themselves has admitted that complainant submitted the claim form with the opposite parties on 23/06/07. So the say of the surveyor that the complainant has submitted the same before him is unbelievable. Further the non submission of the requested documents by the surveyor reveals the fact that neither the complainant was informed about the date of inspection nor he was present at the time of inspection. Complainant being an interested party will in no circumstances avoid to attend the inspection and submit the documents.

10. The main contentions of the opposite parties regarding the reason for the collapse of the retaining wall is that as per the survey report the damage to the retaining wall is not due to any perils covered by the policy and the same could only be due to some structural defects for which company is not liable. This contention of the opposite parties is devoid of any merits. Insurance company provides insurance only after thorough examination of the property to be insured. If no such structural defect as stated by the opposite parties is noted at that stage, the same cannot be raised when any mishap occurs. Further the surveyor himself has stated that the mishap occurred due to the flooding of water into the premises of the building.

11. In United India Insurance Company Ltd Vs. Kiran Combers and Spinners, Hon'ble Supreme Court has held that for any defect which has not been noticed by the company at the inspection for providing insurance, no benefit could be given to the company for such defect. In United India Insurance Co. Ltd. Vs Imperial Gift House and Another I(2007)CPJ6(NC), Hon'ble National Commission has held that the dictionary meaning of flood also includes “outpouring of water”. Hence the stand of opposite parties that the reason for the collapse of the wall is not due to the reasons mentioned in the policy will not sustain.

12. In view of the above discussions and in the light of the above cited judgements, we are of the view that the act of the opposite parties in repudiating the claim of the complainant amounts to deficiency in service and the opposite parties are liable to compensate the complainant.

Point No.2:

13. As per Ext.A7 loss assessed due to fall of retaining wall is Rs.9 lakhs. Since the policy coverage is only Rs.7 lakhs, complainant restrict the claim to Rs.7 lakhs. Opposite parties are liable to pay the said amount to the complainant together with compensation.

14. In the result, complaint allowed. Opposite parties are directed to pay an amount of Rs.7,00,000/- (Rupees Seven lakhs only) being the claim amount together with Rs.2,000/- (Rupees Two thousand only) as compensation. Order shall be complied within one month from the date of receipt of the order failing which the whole amount shall carry interest @ 9% p.a from the date of order till realisation. Parties to bear their respective costs.

15. Pronounced in the open court on this the 18^th day of July, 2009

Sd/-

Seena.H,

President

Sd/-

Preetha.G.Nair,

Member

Sd/-

Bhanumathi.A.K,

Member

Appendix

Exhibits marked on the side of complainant

Ext.A1 – Letter sent by the complainant to opposite party dt.20/06/2007

Ext.A2 – Endorsement schedule

Ext.A3 – Standard Fire and Special Perils Policy

Ext.A4 – Annexure I

Ext.A5 – Annexure III

Ext.A6 – Copy of Fire claim form

Ext.A7 – Abstract Estimate assessed by Sri.P.V.Sreedharan

Exhibits marked on the side of opposite parties

Ext.B1- Policy

Ext.B2 (Series) – Final Survey Report dtd.26/07/2007

Costs (Not allowed)

Nil