PER SHRI.ATUL D.ALSI, HON’BLE PRESIDENT
The complainant Mr. Diwakar Sambhajichandekar has filed this complaint case against repudiation of Insurance claim for the loss caused due to flood and Cyclone amounting to Rs.6,85210/- along with interest and compensation of rupees 100,000/-.
2. Facts of the case, in nutshell, are as under..
The complainant is running a grocery shop as per Shops Act license in the name & style as“Chandekar Kirana Stores” with sanctioned cash credit limit from Bank of India with a condition to submit periodical stock statements of shop with the bank. The complainant has insured his shop under the insurance policy bearing number 2301042614P111365912 for the period between 17/3/2015 to 16/3/2016 covering the risk under various heads including loss due to flood and Cyclone as mentioned in clause 12(1) of the terms and conditions of the policy.
3. On 29/2/2016, in the evening, there was heavy rain and Cyclone and in the fierce winds, the roof of the shop was blown away, resultantly a huge amount of rainwater got accumulated into the shop, due to which, the grocery material stored in the shop got dampened and damaged. The complainant immediately intimated the opposite party insurance company about the loss and the insurance company appointed a surveyor who inspected the spot and assessed the loss. The complainant submitted relevant books and bills which were available, to the surveyor with photographs. The complainant then submitted Insurance claim along with relevant documents, for the estimated loss of Rs. 6,85,210/-, but the opposite party failed to adjudicate the claim within a reasonable time. A legal notice dated 5/10/2016 came to be issued to the opposite party Insurance company through advocate Kullarwar. But the opposite party failed to comply the notice which resulted into filing of this petition.
4. Opposite party filed its reply and denied allegations leveled in the complaint. It submitted in its reply that the policy in question does not cover the loss due to flood and Cyclone nor the complainant has paid any premium for that purpose. Complainant's shop policy covers only loss due to theft of goods, housebreaking and other losses. The complainant has no right to claim damages due to flood and heavy rain. On the other hand, the complainant failed to submit the requisite documents as demanded by the OP for the purpose of adjudicating the claim within a reasonable timeframe. Therefore the claim has been rightly repudiated and as such, the complaint is liable to be dismissed with cost.
5. The counsel for the complainant argued that after the occurrence of incidence, intimation was given to the opposite party immediately and therefore the surveyor had been appointed to assess the loss. The surveyor inspected the spot and assessed the loss but the copy of surveyor’s report was never furnished to the complainant despite specific demand to that effect. The opposite party has even not filed the copy of the surveyor’s report on the record of the complaint even after specific direction was given by this Commission. The complainant submitted relevant documents, bills of sale and purchase as and when demanded by the opposite party but the opposite party failed to adjudicate the claim within a reasonable time. On the contrary, it repudiated the same on fictitious grounds which amounts to deficiency in service on the part of opposite party.
6. The counsel for the opposite party argued that any loss caused due to flood and Cyclone is not covered under the policy obtained by the complainant. The complainant even failed to submit relevant documents required for adjudication of the claim and hence repudiation of his claim is proper and the petition is liable to be dismissed with cost.
REASONING
7. The basic dispute between the parties revolves around the question as to whether the losses sustained due to flood and cyclone are covered under the policy or not? As per clause 12 section 1(i)(f) of the insurance policy which is filed on record at exhibit A-2, it covers the loss caused by flood, storm, typhoon, hurricane, and Cyclone etc. The policy is a contract between the insurer i.e. Insurance Company and the insured and is binding upon the parties. Therefore, the contention of the opposite party that the complainant's insurance policy does not cover the losses sustained due to flood and Cyclone is not sustainable.
8. Complaint has submitted estimate of loss on a plane paper in his handwriting. The said assessment has no any authorization from any authority or agency. The complainant also failed to submit the periodical bank statement in respect of stock available at the relevant time of alleged flood and Cyclone. The complaint also failed to submit his income tax return in respect of income from his shop with relevant entries of GST. Therefore, it is difficult to assess the actual loss caused due to flood and Cyclone. The opposite party also failed to furnish copy of the survey report to the complainant. As per the norms and code of conduct laid down by the authority the surveyor has to communicate his finding to the insurer within 30 days of his appointment with a copy of the report being furnished to the insured. In the exceptional circumstances and considering the complicated nature of transactions involved, the surveyor, with intimation to the parties, can seek extension of time to submit his report. The surveyor is an independent person and an expert Chartered for assessment of losses. But even after specific direction given by this Commission vide order dated 25/7/2018, the opposite party failed to submit survey report on record. Surveyor report is the best possible evidence for assessment of loss but non submission of the report by the custodian Insurance Company amounts to suppression of evidence and is fatal to the case of the opposite party.
9. Looking to the transactions and considering the category of the shop which is a grocery shop, this Commission has arrived at a conclusion that the complainant must have sustained losses due to rains and as such we are inclined to grant a token amount of Rs.50,000/- towards compensation for the losses sustained by the complainant due to flood and Cyclone besides Rs.10,000/- towards compensation for mental agony and expenses incurred. Hence we proceed to pass the following order..
ORDER
- 1. The complaint No.CC/63/2017 is partly allowed.
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- 2. The OP shall pay to the complainant an amount of Rs.50,000/- towards
- compensation for the losses sustained by the complainant, along with
- Rs.10,000/- towards compensation for mental agony and expenses
- incurred.
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3. Copy of the order be furnished to the parties free of cost.
