JUDGMENT DELIVERED BY

SMT.C.H.SAMIUNNISA ABRAR, PRESIDENT:

The complainant has filed this Complaint against the Opposite Party (herein after referred in short as OP) u/s 12 of Consumer Protection Act, 1986 alleging deficiency in service against OP.

2.    The brief fact of the case is that the Complainant had insured his residential property with the OP vide Policy No.241300/11/11/11/00001517. On 23.01.2012 for five years covering the risk of natural calamities and fire on residential building, electrical appliance, furniture and fixtures. On 14.05.2016, due to heavy rainfall about 6.30P.M followed by wind blow and sparkling causing. The electrical items (T.V., P.C. collector code, water lifting motor of 0.5) damage.

3.      Further, the Complainant submits that same has been inform to the OP on 16.05.2016 at 10.00 AM over phone since 15/5/2016 is being Sunday. On the same day, the surveyor conducted a survey as per the direction of OP-Company and he verified the damaged  items kept intact, took the photos of those items, instructed the Complainant to get the damaged item repaired and supply the claim form along with original receipts. As per the direction of surveyor of OP, Complainant said that he had furnished the same on 23.05.2016 along with the bills to Op. The same has been rejected by the OP-Company mentioning the grounds as per the letter dated: 29.06.2016. Hence the Complainant prays to order the Op to pay the claim amount of Rs.10,072/- along with other cost.  

4.  The predecessor on seat registered the Complaint and notice were ordered as such OP appeared through his advocate and filed his Vakalat and Written Version.

                                                       Brief facts of the Written Version of OP:

That the OP had denied the contents of the Complaint and admitted that the policy had been issued by the OP and further submitted that OP had not made any deficiency in service and Complainant has not approached the Forum with clean hands. Further OP submitted that on 14.05.2016 there was no heavy rainfall. After intimation of the Complainant, OP had not made any delay to appoint his surveyor to conduct the survey. As per the Survey Report, the claim has been rejected on 29.06.2016 .

5.      Further OP admitted that the policy is covered for five years to the loss or damages, caused to the property along with electrical items. Further, OP contents that the terms and conditions of the Policy clears that the risk under the policy and liability of OP in respect of any damages to electrical goods strictly subject to general exclusion of the said terms and condition. It is submitted that as per the survey report, the claim of the Complainant is hit by general exclusion clause No.7. Hence, the repudiation is just and fair to dismiss the case with cost.

6.     In the background of the above said pleadings, the Complainant filed his affidavit and produced following EX C1 to C10. The documents produced are:

1. EX C1 Letter given by the Complainant to the OP.

2. EX C2 to EX C6 - Cash Bills,

3. EX C7 Special Perils Policy,

4. EX C8 Repudiation letter,

5. EX C9 Legal Notice,

6. EX C10 Letter from OP.

On the other hand, Op filed the Written Version and filed affidavit of one Sri.Raviteja, Administrative Officer of OP Insurance Company, LIC Building, Lamington Road, Hubli and filed photocopy of documents 02 in number. Certified copy of LIC bond.

1. Survey Report,
2. Policy Condition.

On perusal of above documents and arguments heard on both the sides, we conceived that the dispute is regarding the insurance amount complainant claimed the sum assured amount shown in the policy bond. The OP had denied averments made in the Complaint. This being the pleadings, the points arises before us for adjudication are as follows:

Our Answer to the above Points are:-

Point No.1 – Affirmative,

Point No.2 – Partly Affirmative,

Point No.3 - As per the final order.

10.    On consideration of pleading, objection, evidence, documents and arguments of the parties, we answer the above points as under:

                                                                              R E A S O N S

 11.  POINT NO.1 and 2:  Since the point No.1 and 2 are identical and to avoid the repetition of the fact we consider both the points together for discussion.

12.    The Complainant has insured his residential house with the OP along with its affixtures. This is the undisputed fact. But, the Op’s contention is that the accident which has been narrated in the Complaint and intimated to the OP is not covered under this policy as per the survey report produced by the OP.  The Complainant submits that due to heavy rain on 14.05.2016, the electrical items installed in his house like T.V, P.C., connector cored, water lifting motor had been damage by wind blow and sparkling caused. Here, the main contention of the OP is that as per the general exclusion  No.7, Complainant is not entitled for claim. General Exclusion NO.7 says as follows:

“Loss destruction or damage to any electrical machine, apparatus, fixture, or fitting arising from or occasion by overrunning, excessive pressure, short circuiting, arcing, self-heating or leakage of electricity from whatever cause (lighting included) provided that this exclusion shall apply only to the particular electrical machines, apparatus, fixtures are fitting so affected and not to other machines, apparatus, fixtures or fitting which may be destroyed by damaged by fire so set up.”

But as per the Policy’s terms and conditions in general exclusion, No.1 condition is that this policy does not cover (non-applicable to policies covering dwellings).

No.1 (a) the first 5% of each and every claim subject to a minimum of 10,000/- in respect of each and every loss arising out of “act of a god” perils. Such as, lightening, STFI, subsidence, lands slides and rock slides covered under the policy.  

(b) the first Rs.10,000/- for each and every loss arising out of the other perils in respect of which the insured is indemnify the policy.

13.  The fitting fixtures electrical goods have been damaged by the wind blow & sparkling due to heavy rain the learned counsel for the Ops contention is that the claim of the complainant hit by the general exclusion Clause 7, but as per the terms and conditions that printed on the policy bonds General exclusion  the incident had been occurred due to the nature  which is nothing but “ act of a God’’.  As per the surveyors report ,“they could be internal shortening   in the components , there is no physical fire, the insured premises  is also  not affected by fire’’ according to the surveyor the complainant is only eligible for the claim if his residential premises have been burnt by physical fire. “Hon’ble Supreme court in case of New India Assurance Co.,V/S Pradeep Kumar IV(2009)CPJ 46 (SC)= IX(2009)SET 17/4 2009 ACC 356(SC)had observed that the surveyors report is not the last & final word.  It is not that Sacrosanct that it can be departed from.  It is not conclusive., The approved surveyor report may the basic or foundation of settlement  of claim by the insurer in respect of the loss suffered by insured, but surely such report is neither binding upon the insurer nor insured’’.

14.   According to the surveyor report it is conceived that  incident had occurred and the damaged was due to surge in current &  there could by internal  shorting ,moreover the  complainant had also insured with op for fixture electrical goods etc.in the light of  above  discussion we are  in the view that the complainant is entitled to get relief partially.  As such we answer point No.1 in affirmative Point No.2  Partly affirmative.

                                                                                               Order 

1. The Op is directed to Pay Rs.3,000/-(Rupees three thousand only) towards the loss occurred to the complainant.
2. The Op is directed to pay Rs.1,000/-(Rupees one thousand only) towards the cost of the litigation and further op is directed to pay Rs;1,000/-(Rupees one thousand only)towards mental agony and harassment.
3. The Op is directed to comply this order within 30 days from the date of receipt of this order failing which Op is liable to pay the interest @ 9% p.a. from the date of filing of this complaint till realization.
4. Send a copy of this order to both parties free of cost

(Dictated to the Stenographer, transcribed by her, corrected and then pronounced by me in the Open Court 1^st Feb.2017)