State Consumer Disputes Redressal Commission
City Mall Developers Pvt.Ltd. vs Bharti Axa General Insurance Co.Ltd. on 25 April, 2018
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.CC/2017/95
Instituted on : 15.01.2018
City Mall Developers Private Limited,
Through : Manager - Shri Sanjay More,
S/o Shri Ram Chandra More,
Address : City Mall 36, N.H. 06 G.E. Road,
Raipur 492006 (Chhattisgarh) ... Complainant.
Vs.
Bharti Axa General Insurance Co. Ltd.,
Will Tower, G.E. Road, Opposite Rajkumar College,
Tehsil and District Raipur (C.G.) .... Opposite Party
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES:
Shri D.K. Thawait, Advocate for the complainant.
Shri Deepak Diwan, Advocate for the O.P.
ORDER
Dated : 25 /April/2018 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainant has filed this consumer complaint under Section 17 of the Consumer Protection Act, 1986 against the O.P. seeking following reliefs :-
(a) The O.P. be directed to pay the a sum of Rs.76,65,776/-
(Rupees Seventy Six Lakhs Sixty Five Thousand Seven Hundred and Seventy Six) towards compensation along with interest @ 12% p.a. till actual date of payment, to the complainant.
(b) The O.P. be directed to pay a sum of Rs.5,00,000/- (Rupees Five Lakhs) to the complainant.
// 2 //
(c) The O.P. be directed to pay a sum of Rs.50,000/- (Rupees Fifty Thousand_ towards advocate fees and cost of litigation to the complainant.
(d) Any other reliefs, which this Commission deems fit, be granted to the complainant.
2. Briefly stated the facts of the complaint of the complainant are that the complainant purchased two insurance policies bearing No.PFC/11600808/C1/05/K1C113, which were Standard Fire and Special Perils Policy and effective for the period from 03.05.2014 to 02.05.2015. Under the above insurance policy, the entire shopping mall along with theatre were got insured for which the complainant paid Rs.2,95,967.48 towards premium. The insured amount was Rs.89,21,42,454 and Rs.60,000,000/-. On 25.04.2015, in the Chhattisgarh area, jerk of earthquake was felt and in the Raipur area also there was affect of the above earthquake. According to Reactre Scale, the speed of the earthquake in Raipur was recorded 4.6. On 26.04.2015 in the Chhattisgarh Area, there was heavy thunder, storm and rain due to which Raipur was also affected. Due to heavy thunder, storm many sheets of dome of the mall auditorium blown away and the dome was damaged badly and at large quantity, the rainy water stored in the floor. There was sparking in accelator panel and smoke was oozing out. Due to heavy thunder, heavy rain and strom the power supply was shut down and power supply was completely shut down till next morning. The power of the mall was running with the help of D.G.. There are crakes in outer wall and tennis // 3 // dish, wash shade of D.G. Area was removed from its place. The incident was occurred on Sunday, therefore, there is rush in the shopping mall, cinema theatre, therefore, for security purpose, immediately polythene was fixed and complainant saved its insured property from further damaged. Due to extreme storm and heavy rain, the complainant suffered loss of Rs.76,65,776/-. The intimation regarding the incident was given to the O.P. on 27.04.2015 through Manager of the Complainant Sunil Pillai vide Annexure 3. On 27.04.2015, the O.P. appointed M/s Cunningham Lindsey International Insurance Surveyor and Loss Assessor and on 27.04.2015 itself on behalf of the Surveyor, Shri J.K. Patra came to the place of occurrence and inspected the place. The complainant provided all the documents to the Surveyor and Surveyor assessed the loss to the tune of Rs.38,57,000/-, but the O.P. did not give the above amount to the complainant and repudiated the claim of the complainant whereas the complainant had already provided all the relevant documents to the O.P. and had also completed all formalities, even then the O.P. did not give compensation to the complainant and repudiated the claim of the complainant. Hence, the instant complaint. The complainant is entitled to get the reliefs, as prayed by the complainant in the relief clause of the complaint.
3. The O.P. has filed its written statement and averred that the complainant had obtained a policy namely "Standard Fire and Special Perils Policy from the O.P. bearing policy No.PFC/I1600808/C1/05/K1C113, which was valid for the perid from // 4 // 03.05.2014 to 02.05.2015. The liability of the O.P. is strictly as per the terms, conditions, warranties and clauses of the said insurance policy. The present complaint is misconceived and not maintainable, inasmuch as the complainant this Commission to hold that the O.P. is deficient in providing services. The claim of the complainant had been rightly repudiated due to gross violatin of the Policy Terms and Conditions on the part of the complainant. The present complainant is not a consumer as per the provisions of the Consumer Protection Act, 1986. The fact that the insurance cover was taken for a purely commercial purpose is apparent from a reading of the complaint itself. The policy in question covered the commercial and business interests of the complainant. Therefore, the object of obtaining the insurance cover was purly commercial, i.e. to protect the complainant's commercial interest, it was an integral part of the complainant's usual commercial operation. It is humbly prayed that this Commission should dismiss the complaint on this sole ground itself. The present complaint is liable to be dismissed for want of cause of action. The preent complaint is devoid of merits as there was no deficiency in service on the part of the OPs and the claim of the complainant had been processed as per the terms, conitions, warranties of the insurance policy. The complainant had violated the Policy Condition No.1 and 6, hence the claim of the complainant had been rightly repudiated. The present complaint is liable to be dismissed as the complainant has suppressed relevant facts as well as documents from this Commission. The complainant had inter alia not produced on record // 5 // Survey Report and many other relevant emails and letters. Without prejudice to other contentions and without admitting the contents of the email dated 31.01.2017 which are wrong and incorrect, it is respectfully submitted that the complainant had admitted in its email dated 31.01.2017 that it had copy of the Surveyor Report, despite that the complainant had not produced the same on record as the said document / evidence (Survey Report) will relevel the real facts of the case before this Commission and would also establish the violation of terms and conditions of the policy and misuse of process of law on the part of the complainant. The complainant had also admitted in the said email dated 31.01.2017 that the requisite copy of the Lease Agreement between the complainant and Inox was intentionally not provided by the O.P. to the Surveyor. Therefore, considering the abovementioned admissions on the part of the complainant, the present complaint is liable to be dismissed on this sold ground itself. The policy clearly contenmplates that any claim of the complainant has to be processed as per the terms and conditions of the policy and violation of the terms and conditions of the policy would absolve the liability of the O.P. As per the complainant, on 26.04.2015, a thunder storm was experienced in and around Raipur causing damage to the building. The complainant intimated the O.P. about the said incident and the O.P. immediately appointed Cunningham Lindsey International Insurance Surveyors and Loss Assessors Pvt. Ltd. ., an IRDA licensed independent Surveyor to investigate and assess the loss. The O.P. sent email dated 29.04.2015 o the complainant confirming the appointment of // 6 // the said Surveyor and also requested the complainant to extend its cooperation to the Surveyor. The O.P. sought certain documents from the complainant and intimation the complainant that the separate requirement of the documents would be shared by the Surveyor. The said Surveyor initially visited the insured premises on 27.04.2015, 07.06.2015 and 17.06.2015 and inspected the reported damage. After some oral and written communication, the Surveyor sent letter dated 26.06.2015 to the complainant and informed that earlier requisite documents were still awaited and also sought more documents, inputs and cooperation from the complainant. A detailed guidelines for further course of action were also provided by the Surveyor to the complainant through the said email dated 26.06.2015. That subsequently, due to non co-operation on the part of the complainant the Surveyor was compelled to write email dated 18.08.2015, wherein the Surveyor had precisely mentioned about the non-co-operative attitude of the complainant and inter alia sought requisite documents. It was reiterated by the Surveyor that the guidelines provided to the complainant vide the Surveyor's email dated 26.06.2015 and earlier emails had not been followed by the complainant. It was also mentioned that the complainant was sending emails with misaligned contents and the complainant itself was prolonging its claim as documents, inputs and cooperation was pending at the end of the complainants. The complainant was requested not to prolong the claim. It was noted by the Surveyor that the estimateprovided by the complainant were found to have been unilaterally taken without getting // 7 // the damage verified by the Surveyor and no opportunity was provided to the Surveyor for joint verification of the damage, discussion on the matter with the vendors / repairers for rechecking and explaining the damage to the items claimed along with methodology of repairs. Despite assurance by the complainant's representatives, the requisite cooperation was not being provided to the Surveyr by the complainant. It was also observed by the Surveyor in the said email that the estimate of loss provided by the complainant was not in corroboration to the extent of damage noted by the Surveyor, hence the affected items/areas were advised for verification and revised estimate was called for. Most of the damage related to the building were observed to be anticipated rather than actual damage assessed at the site and hence, the estimate of loss was not accepted by the Surveyor. The Surveyor further advised the complainant to cooperate and comply with the process of verification instead of sending unnecessary emails and prolonging its own claim. The Surveyor once again advised the complainant to desist from circulating any emails which had no meaning without the work being completed at the end of the complainant. That subsequently, despite several meetings oral and written request by the Surveyor, the complainant continued with its non- cooperative attitude and did not provide all the requisite documents to the Surveyor. Left with no other option, the Surveyor inter alia sent email dated 03.06.2016 to the complainant and granted 3 more days to provide the requisite documents (last by 06.06.2016) since already inordinate delay had happened on the part of the complainant. The Surveyor had also // 8 // clarified to the complainant through the said email that in the event of no response by the complainant within the stipulated time, the Surveyor would be constrained to construe that the complainant was not interested to provide the pending documents / information and Surveyor would submit its Final Survey Report to the O.P., based on the documents supplied (till that date) and as per the terms and conditions of the policy. The Surveyor also kept on informing the O.P. about the non-cooperation on the part of the complainant. The O.P. also sent letter dated 05.06.2016 to the complainant requesting to provide the requisite documents to the Surveyor and in the event of failure of the same the complainant was advised that it would be presumed that the complainant was no longer interested to submit the documents and the Surveyor would submit the independent report accordingly. Email dated 03.06.2016 was sent by the Surveyor to the complainant and the letter dated 03.06.2016 was sent by the O.P. to the complainant. That thereafter, the complainant vide its email dated 06.06.2016 requested the Surveyor to grant 7 to 10 days more to send all the requeisite documents and reply. Though no valid ground for seeking the said extention was provided by the complainant, still the Surveyor vide its email dated 06.06.2016 granted the complainant 7 more days time to provide the requisite pending documents, information / inputs i.e. latest by13.06.2016. However, it was also observed by the Surveyor in the said email dated 06.06.2016 that the said request for extension of time had come from the complainant after continuous follow ups and that too after gap of one month. Despite the last opportunity // 9 // being given to the complainant to submit documents, the complainant kept on seeking more time to submit the requisite documents and continue with its non-cooperative attitude and kept on delaying the claim processing. Hence, left with no other option, the Surveyor submitted its Final Survey Report dated 19.09.2016 with the O.P., wherein the Surveyor inter alia recorded all the above mentioned factual positions for the consideration of the O.P. The Surveyor also observed that the complainant had carried out repairs to the dome sheet, auditorim roof, tar layering and other repairs to parapet withut getting the same verified and / or informing the Surveyor prior to proceeding with the repairs, leaving the verification incomplete in regard to the extent of damage that required such repairs. The Surveyor had further observed in its report that despite specific advise by the Surveyor, the complainant had not facilitated them to verify the estimates prior to proceeding for repairs and thus rendered the repairs basis of extent of loss claimed, unverified for the items already repaired. The complainant also failed to provide the copy of the lease agreement between them and INOX to whom auditoriums were leased out. The said document was necessary to verify the terms of agreement in regard to aspect of Insurable Interest under the policy for loss claimed for auditorim area. The Surveyor recommended for repudiation of the claim of the complainant due to non-disclosure of the material facts, withholding and not providing the supporting documents and information required for verification of the claim lodged with the O.P. and proceeding unilaterially and unauthorised with the repairs / // 10 // reinstatement of the affected / damaged areas and items without facilitating the required prior verification which is clear violation of the policy terms and conditions. Without prejudice to the admissibility of the claim of the complainant, the Surveyor assessed the Net Adjusted Loss to the tune of Rs.38,57,000/-. Without prejudice to the other contentions and without admitting any liability, it is respectfully submitted that the claim of the complainant would had payable, then the liability of the O.P. would not have more than the Net Adjusted Loss (i.e. Rs.38,57,000/-) assessed by the Surveyor based on the documents available and as per the terms and conditions of the policy. After appreciating the facts of the claim, survey report, emails, letters, documents and the terms and conditions of the policy, the O.P. rightly repudiated the claim of the complainant vide its self-explanatory Repudiation letter dated 07.11.2016. The O.P. inter alia reiterated the observation of the Surveyor and mentioned that the complainant had breached /violated the Condition No.1 and 6 of the policy, and hence, the claim of the complainant had been repudiated. The relevant portion of the Condition No.1 and 6 has bee reproduced in para 10, 11 and 12of the complaint. Bare perusal of the above mentioned conditions reveal that the complainant had done blatant violation of the General Policy Conditions No.1 and 6 and hence, the claim of the complainant had been rightly repudiated by the O.P. and there is no deficiency in services on the part of the O.P. The complainant had exaggerated its claim lodged with the O.P. and even in the present complaint projecting the loss in the similar manner. The complainant had // 11 // not suffered the loss to the extent as claimed in the present complaint. The O.P. relies upon the above mentioned Preliminary Submission and objections. The complainant had not discharged all the formalities for processing of the claim. Right from the beginning (after lodging the claim), the complainant was not cooperating with the Surveyor and also not supplied documents and information despite several reminders and opportunities given by the Surveyor. The complainant had prolonged its own claim and also intentionally violated the Policy Condition No.1 and t. The Surveyor has recorded the conduct of the complainant in its Final Survey Report and perusal of lettrs / emails sent by the Survyor and the O.P. also establishes the same. All these facts are also established and admitted by the complainant through its email date 31.01.2017 The O.P. had not asked for any unnecessary documents or information to repudiate the claim of the complainant on technical grounds. The complainant had not satisfied the Surveyor and the O.P. qua all theirs queries. The complainant is misleading this Commission. The complainant never cooperated with the Surveyor or the O.P. and violated the condition no.1 and 6 of the Policy. The Surveyor appointed by the O.P. had assessed the loss to the tune of Rs.38,57,000/- as per the terms and conditions of the policy. However, the said amount had been assessed without prejudice to the admissibility of the claim. The said Surveyor in its final survey report itself had observed the conduct of thecomplainant and recommended the O.P. to repudiate the claim due to blatant violation of policy condition No.1 and 6.The O.P. had repudiated the claim of the complainant // 12 // mentioning the detailed grounds of repudiation. The claim of the complainant had not been denied / repudiated on baseless ground. The repair work had not been done as per the information given by the Surveyor. The complainant had not provided the lease agreement on demand of the O.P. The complainant had deposed wrong fact on oath and hence liable to get prosecuted under criminal law for the same. The complainant had not provided all the requisite documents and information and not completed all formalitieis for processing of the claim. The complainant had not complied with the policy terms and condition, therefore the Repudiation Letter contained the line that "If you have any additional facts in support of admissibility of claim...." The non payment of the assessed amount by the Surveyor is not deficiency in services on the part of the O.P. The Surveyor assessed the loss without prejudice to the admissibility of the claim. In fact the Sureyor itself had recommended in its final survey report to repudiate the claim of the complainant due to violation of the policy condition no.1 and 6 on the part of the complainant. The conduct of the complainant is also recorded by the Surveyor in its report. The present complaint could not disclose any cause of action against the O.P. The complaint is liable to be dismissed with exemplary cost..
4. The complainant has filed documents. Annexure 1 is insurance policy, Annexure 2 is insurance endorsement, Annexure 3 is email dated 27.04.2015, Annexure 4 is Joint Inspection Report, Annexure 5 is email dated 28.04.2015, Annexure 6 is letter dated 07.11.2016 sent by the O.P. to // 13 // the complainant, Annexure 7 is email dated 13.02.2017, Annexure 8 is Indenture of Lease Agreement, Annexure 9 is paper cutting, Annexure 10 is letter dated 25.05.2015 sent by the complainant to the Surveyor dated 25.05.2015, Annexure 11 is list of value of assets sent along with letter sent to the Surveyor dated 25.05.2017, Annexure 12 is email sent by the Assistant Accountant of the complainant to the Surveyor J.K. Patra on 26.05.2015, Annexure 13 is email sent by Surveyor Ashwani Seth to the complainant, Annexure 14 is email sent by the complainant to Surveyor Ashwani Seth and team on 16.09.2015, Annexure 15 is Joint Inspection Reprt dated 04.05.2015, Annexure 16 are email and 9 reminders sent by the complainant to the Insurance Surveyor from 28.10.2015 to 05.04.2015, Annexure 17 is email sent by Surveyor Ashwani Seth to the complainant from 03.06.2016 6o 06.06.2016, Annexure 18 is reply sent by the complainant to Surveyor Ashwani Seth on 13.06.2016, Annexure 19 is email sent by the complainant to the Surveyor Ashwani Seth, Annexure 20 is correspondence, mail and documents.
5. The O.P. filed documents. Annexure R-1 is copy of the Power of Attorney of Ms. Shivali Sharma, Annexure R-2 is copy of the policy and the terms and conditions, Annexure R-3 is copy of email dated 20.04.2015 sent by the O.P. to the complainant, Annexure R- 4 is a copy of letter dated 26.06.2015 sent by the Surveyor to the complainant, Annexure R--5 is copy of the email dated 18.08.2015 sent by the Surveyor to the complainant, Annexure R-6 is copy of email dated 03.06.2016 sent by the Surveyor to the complainant, AnnexureR-7 is copy of letter dated // 14 // 03.06.2016 sent by the O.P. to the complainant, Annexure R-8 is copy of email dated 06.06.2016 sent by the Surveyor to the complainant and copy of the email dated 06.06.2016 sent by the complainant to the Surveyor, Annexure R-9 is copy of the Final Survey Report dated 19.09.2016, Annexure R-10 is copy of repudiation letter ated 07.11.2016.
6. Shri D.K. Thawait, learned counsel appearing for the complainant has argued that the complainant has obtained two Standard Fire and Special Perils Policies from the O.P. No.1, which was effective for the period from 03.05.2014 to 02.05.2015. Under the above insurance policies, the Shopping Mall along with Theatre were got insured, for which the complainant paid Rs.2,95,967.48 towards premium. The insured amount was Rs.89,21,42,454/- and Rs.6,00,000,00/-. On 25.04.2015, the earthquake was felt in Raipur and there was also heavy tunder storm and rain due to heavy thunder rain, the sheets of dome of the mall auditorium and the sinage board were damaged and rain water was stored in the floor. Due to heavy thunder storm and heavy rain, the accelator panel and smoke was oozingout and power supply was completely stopped till next morning. Due to thunder, heavy storm and heavy rain, the complainant suffered loss of Rs.76,65,776/-. The incident was intimatied to the O.P. The O.P. appointed M/s Cunningham Lindsey International Insurance Surveyor and Loss Assessor for inspection and assessment of loss and on behalf of the Surveyor, Mr. J.K. Patra came to the place of occurrence on 27.04.2015. All required and relevant and documents were provided to the Surveyor, who assessed the loss to the tune of Rs.38,57,000/-. The // 15 // complainant submitted the claim form before the O.P., but the O.P. repudiated the claim on the ground that the complainant had not provided the relevant documents and violated the terms and conditions of the insurance policy. The O.P. committed deficiency in service. Hence the instant complaint. The complaint be allowed. The complainant is entitled to get the reliefs as prayed by it in the relief clause of the complaint.
7. Shri Deepak Diwan, learned counsel appearing for the O.P. has argued that the insurance policies have been obtained by the complainanmt for commercial purpose, therefore, the complainant is not consumer and the complaint is not maintainable before this Commission. The policies have been issued according to the terms and condition of policy and the liability of the O.P. is strictly as per the terms, conditions, warranties and clauses of the insurance policies. The present complaint is misconceived and is not maintainable. The complainant has not come with clean hands before this Commission. The complainant had not provided relevant documents to the Surveyor as well as the O.P. The Surveyor had written several letters to the complainant, but the complainant had completely failed to provide the relevant documents. The claim of the complainant has rightly been repudiated by the O.P. The O.P. did not commit any deficiency in service. The complainant without intimating / obtaining permission of the Surveyor got repaired the damaged premises, therefore, the Surveyor was not in a position to assess the loss properly. The complainant has violated the terms and // 16 // conditions of the insurance policy. Therefore, the complaint is liable to be dismissed.
8. We have heard arguments of learned counsels appearing for both the parties and have also perused the documents filed by both the parties in the complaint case.
9. Firstly, we shall examine whether the complainant is consumer under Section 2(1)(d) of the Consumer Protection Act, 1986 ?
10. According to the O.P., the complainant is a Private Limited Company and is running City Mall and the complainant has obtained the insurance policies for commercial purpose, therefore, the complainant is not consumer. The above contention of the O.P. is not acceptable.
11. In M/s. Polyplex Corporation Ltd. Vs. National Insurance Co. Ltd. and Ors. 2017 (2) CPR 58 (NC), Hon'ble National Commission has observed thus :-
"(A) Consumer Protection Act, 1986 - Section 2(1)(d) - Insurance -
Damage to UPS - Insurance policy is availed for indemnifying loss which insured many suffer and therefore, services of insurer are availed for protection and not for making profit. It is immaterial whether loss is in on account of destruction or damage of a product or it is on account of insured being deprived of profit, which it would in normal course have made, by use of insured product."
12. In Ashish Vishwakarma Vs. National Insurance Company Limited & Others, II (2012) CPJ 169 (NC), Hon'ble National Commission // 17 // has observed that "Contract of insurance is a contract of indemnity and therefore, there is no question of commercial purpose in obtaining insurance coverage. It has also been held that the insured could not trade or carry out any commercial activity with regard to the insurance policy, being barred to do so under Section 3 of the Insurance Act, 1938."
13. In M/s. Harsolia Motors vs. M/s. National Insurance Co. Ltd. & Ors. 2005 (1) CPR 1 (NC), Hon'ble National Commission, has observed thus :-
"13. In Halabury's Laws of England Vol. 25, 4th Edition, the origin and common principles of insurance is discussed and in paragraph 3 it has been discussed and in paragraph 3 it has been mentioned that it is based on principle of indemnity. Thereafter, relevant discussion is to the effect that most of contract of insurance belong to general category of contracts of indemnity. In the sense that insurers' liability is limited to the actual loss which is , in fact, proved. The contract is one of indemnity and, therefore, insured can recover the actual amount of loss and no more.
14. In this view of the matter, taking of the insurance policy is for protection of the interest of the assured in the articles or goods and not for making any profit or trading for carrying on commercial purpose.
16. We would refer to few relevant judgments :
In Regional Provident Fund Commissioner vs. Shiv Kumar Joshi, (2000) 1 SCC 98, the Court elaborately considered the provisions of Sections 2(1)(d) and 2(1)(o) as well as earlier decisions and held that :-
"The combined reading of the definitions of 'consumer' and 'service' under the Act and looking at the aims and object for which the Act was enacted, it is imperative that the words "consumer" and "service" as defined under the Act should be // 18 // construed to comprehend consumer and services of commercial and trade-oriented nature only. Thus any person who is found to have hired services for consideration shall 'be deemed to be a consumer notwithstanding that the services were in connection with any goods or their user. Such services may be for any connected commercial activity and may also relate to the services as indicated in Section 2(1)(o) of the Act."
The aforesaid ratio makes it abundantly clear that the services may be for any connected commercial activity, yet it would be within the purview of the Act."
14. In The Divisional Manager, L.I.C. vs. Shri Bhavanam Srinivas Reddy, 1991 (2) CPR 144 (NC), Hon'ble National Commission, observed thus :-
"3. The first point of objection raised by the Insurance Company before the State Commission and reiterated before us namely is that no dispute arising out of a contract of insurance can be made subject matter of adjudication under the Consumer Protection Act. This contention cannot be sustained in view of decision of this Commission dated July 28, 1989 in Shri Umedilal Aggarwal v. United India Assurance Company Ltd., F.A. Nos.3 and 4 of 1989 (Reported in I (1991) CPJ-3, 1991 (1) CPR 217 (NC), wherein we have held as follows :-
"We find no merit in the contention put forward by the insurance company that a complaint relating to the failure on the part of the insurer to settle the claim of the insured within a reasonable time and the prayer for the grant of compensation in respect of such delay will not fall within the jurisdiction of the Redressal Forums constituted under the Consumer Protection Act. The provision of facilities in connection with insurance has been specifically included within the scope of the express 'service' by the definition // 19 // of the said word contained in Section 2(i)(o) of the Act. Our attention was invited by Mr. Malhotra, learned counsel for the Insurance Company to the decision of the Queen's Bench in National Transit Insurance Company Ltd. vs. Customs and Central Excise Commissioner, (1975) (1) all England Reports Page 303) The observations contained in the said judgment relating to the scope of the expression 'insurance' occurring the schedule of the enactment referred to therein are of no assistance at all to us in this case because the context in which the expression is used in the English enactment considered in the case is entirely different. Having regard to the philosophy of the Consumer Protection Act and its avowed object of providing cheap and speedy redressal to consumers affected by the failure on the part of persons providing "service" for a consideration, we do not find it possible to hold that the settlement of insurance claims will not be covered by the expression "insurance" occurring in Section 2(1)(d). Whenever there is a default or negligence in regard to such settlement of an insurance claim that will constitute a 'deficiency' in the service on the part of the Insurance company and it will be perfectly open to the concerned aggrieved consumer to approach the Redressal Forums under the Act seeking appropriate relief. We, accordingly over the objection raised by the Insurance Company regarding the jurisdiction of the State Commission to adjudicate upon the complaint."
15. In The Divisional Manager, L.I.C. vs. Uma Devi, 1991 (1) CPR 662 (NC), Hon'ble National Commission, observed thus :-
"8. The very fact that the Insurance Act provides for a machinery for remedy for grievances arising out of repudiation of a claim under section 45 leads to show that the Corporation has to satisfy a Court that the repudiation was justified. Accordingly, it is for the consumer to choose a forum convenient to him to seek remedy for the loss suffered because of deficiency in service. As the provisions of this Act are in addition to and // 20 // not in derogation of any other law for the time being in force, the State Commission has the jurisdiction to entertain the complaint and to investigate whether the repudiation was justified or not and to grant such relief as deems fit if it is satisfied that there was deficiency in service. We therefore, cannot uphold this contention in view of the decision of this Commission in Revision Petition No.12 of 1990 (New India Assurance Co. Ltd. v. Vipro Electronics Pvt. Ltd., 1991 (1) C.P.R. (NC) 531, where the identical point has been elaborately discussed".
16. In The New India Assurance Co. Ltd. vs. M/s Vipro Electronics Pvt. Ltd., 1991 (1) C.P.R. (N.C.) 531, the Hon'ble National Commission, observed thus :
"We are not impressed with the contention raised by Shri S.K. Paul, learned counsel appearing on behalf of the Petitioner that merely because of Insurer had totally repudiated his liability in respect of the claim, no proceedings could be validly initiated under the Consumer Protection Act by the insurer. This contention squarely falls within the ruling given by this Commission in Ummedilal Agrawal v. United India Assurance Co. Ltd. (O.P.No.3 & 4 of 1989, decided on 28.7.1989". In that decision this Commission has observed that it is not possible to hold that settlement of a disputed insurance claim will not be covered by the expression "service" occurring in Section 2(d) of the Act. It was laid down that whenever there is default or negligence in regard to service that will constitute "deficiency in service" on the part of the insurer and it is perfectly open to the aggrieved party for seeking appropriate relief under the Act.
In the result, the Revision Petition has no merits and it is accordingly dismissed".
17. The insurance policies have been been taken by the complainant for protection of his property and not for making any profit, therefore, // 21 // the complainant is a "consumer" and dispute between the parties comes within purview of "consumer dispute".
18. Now we shall examine whether the complainant is entitled to get reliefs, as prayed by him in the relief clause of the complaint.
19. The complainant has filed Annexure - 1, which is Standard Fire and Special Perils Policy Schedule under which the property Building was insured for Rs.72,91,42,454, Plant and Machinery including Electrical Fittings and Installlations was insured for Rs.16,30,00,000/- and total insured amount is Rs.89,21,42,454/-. The properties were insured against the earthquake for Rs.89,21,42,454/-. The sum insured for loss of rent is Rs.6,00,00,000/-. It appears that the complainant has obtained the Standard Fire and Special Perils Policyies in the name of City Mall Developers, City Mall 36 NH, 06, G.E. Road, Raipur.
20. The cmpalainant has specifically pleaded that on On 26.04.2015, the earthquake was felt in Raipur and there was also heavy thunder storm and rain. Due to heavy thunder storm and rain, the sheets of dome of the mall auditorium and the sinage board were damaged and rain water was stored in the floor. Due to heavy thunder storm and heavy rain, the accelator panel and smoke was oozingout and power supply was completely shut down ttill next morning. Due to heavy thunder storm and heavy rain, the complainant suffered loss of Rs.76,65,776/-. The incident was intimatied to the O.P. The O.P. appointed M/s Cunningham Lindsey International Insurance Surveyor and Loss // 22 // Assessor for inspection and assessment of loss and on behalf of the Surveyor, Mr. J.K. Patra came to the place of occurrence on 27.04.2015. All required and relevant and documents were provided to the Surveyor, who assessed the loss to the tune of Rs.38,57,000/-. The complainant submitted the claim form before the O.P., but the O.P. repudiated the claim on the ground that the complainant had not provided the relevant documents and violated the terms and conditions of the insurance policy. The O.P. committed deficiency in service.
21. The complainant has filed copy daily newspaper edition dated 27th April, 2015, which is marked as Annexure - 9 in which it is mentioned thus :-
" nsj jkr rd va/ksjs esa Mwck jgk 'kgj Rkst j¶rkj va/kM+ ds dkj.k isM+ vkSj gksfMZaXl VwVdj fctyh rkjksa ij fxj iM+s] blds dkj.k 'kgj ds T;knkrj fgLls nsj jkr rd va/ksjs esa Mwcs jgsA dpuk] lM~~Mw] eksok] xqf<+;kjh] ghjkiqj] VkVhca/k] dksVk [kerjkbZ] Hkuiqjh] paxksjkHkkaBk] jk;iqjk] fVdjkijk] lat; uxj lcls T;knk izHkkfor jgsA fo|qr foHkkx ls feyh tkudkjh ds vuqlkj isM+ vkSj gksfMZZaXl fxjus ds dkj.k 33@11 dsoh ykbZu lesr 132 dsOgh xqf<+;kjh midsanz dh ykbZusa izHkkfor jghaA fo|qr foHkkx ds Mhth,e fot; feJk ds vuqlkj lcls igys cM+s QkYV dks nwj djus ij dke fd;k tk jgk gSA fQj O;fDrxr f'kdk;r nwj dh tk,xhA mUgksaus nkok fd;k fd nsj jkr rd 'kgj dh fo|qr O;oLFkk dks iwjh rjg ls lqpk: dj fy;k tk,xkA foHkkx ds nkoksa ds foijhr 'kgj ds dbZ {ks=ksa esa jkr Hkj fctyh ugha vkbZ] yksxksa dks jrtxk djuk iM+kA** // 23 //
22. The complainant has filed Annexure 15 which is Joint Inspection Report dated 04.09.2015 issued by Shri R.P. Sharma of Anand Control & Switch Gear, in which it is mentioned thus :-
"Date - 04.09.2015 Site - City Mall 36, Raipur (C.G.) City Mall 36 - Mr. Sanjay More.
Anand Control & Switch Gear - Mr. R.P. Sharma.
Observations 33 KV Breaker 400 A During Storm short CHT in transformer incoming and 33 HV HT line by which there will be a high voltage and 33 KV breaker burning fail and transpent voltage transfer to all panels connected to HT panel.
Observation LT PCC Panel Transfrmer Incomer :
Due to high voltage on 33 KV HT Line shortcut transient voltage transfer from transformer to LT Panel and transformer LT broeaer 2500 A fails, breaker spring changing motor, shunt and closing cold burn out, release of ACB also fails."
Observation DG Panel :
Due to transformer LT Panel ACT fails the high voltage transfer to DG breaker, as the control supply is is common in both panels by which DG breaker also fails.
Observation : Fire Fighting Panel :
Due to high voltage in transformer incomer ride, transient voltage transfer to fire panel also, by which fire panel status and related switch gear burntout.
Observation Capacitor Panel : APFC Relay and Capacitor fails due to high voltage.
// 24 // Anand Control & Switch Gear submit layout diagram of panels, reasons of failures and remedies."
Joint Inspection Report Date : 04/09/15 Site Name : City Mall 36, Raipur (C.G.) Diesel Generator : Cummins India Ltd. Jakson) DG Rating - 500 KVA Main Alternator : Stamford Make.
Main Alternator : (STAMFORD) With our earlier Inspection Report in main Alternator and same card was burnt due to short circuit.
After confirmation by customer, we have repaired alternator and required card installed all parts restore as per our quotation.
After parts commissioned Joint Inspeciton done with respective representative :-
1. Inspection report already submitted.
2. Before parts removing and after restore, all photograph to share with you.
3. Main alternator repair is locally and card installed from dealer after purchase by customer.
4. After restored the all parts DG in OK Condition.
5. Job Completed Satisfactory."
"Joint Inspection Report Date : 03.09.2015 Site Name : City Mall 36, Raipur (C.G.) Chiller : Bluestar Water Cooled Screw Chiller Model No. LCWX2-370 Observation for Chiller No.:2 // 25 //
1. Compressor 210 TR
a) Disconnection the compressor cables and checked the windinding.
b) Found that winding is short with all the three phases (Resistance = 02).
c) The detail for mechanical failure will be checked after dismantling of the compressor at workshop.
2. Compressor 160 TR
a) Discontinued the compressor cables and checked the winding.
b) Found that winding is short with body (Resistance -
02).
c) The detail for mechanical failure will be checked after dismantling of the compressor at work shop.
3) Common observations:
a) Mother board main transformer control voltage is found damaged and the power supply loop is not completed.
b) I/O board is also not working.
c) MCS display is found blank.
d) Mother board needs to be replaced.
e) I/O board need to be checked at service center test
board.
f) Pressure and temperature sensors need to be checked
after installation of new boards.
g) Evaprator and condensers needs to be checked with
high pressure N2 for any tube leakabes.
h) for safety of System we need to keep the condenser
and evaporator under pressure for moisture compression."
// 26 //
23. In the daily newspaper Nav Bharat, the above fact is published and in the Joint Inspection Reports also it is mentioned that due to storm, heavy load was occurred in transformer and power supply was completely shut down. Looking to the above facts, it is established that on 26.04.2015, there was heavy thunder storm and heavy rain occurred in Raipur (C.G.) and power supply was affected. Therefore, the contention of thee complainant that on 26.04.2015, heavy thunder storm and heavy rain occurred, in Raipur is reliable.
24. The complainant pleaded that he suffered loss of Rs.76,65,776/-. The complainant also pleaded that intimation regarding the incident was given to the O.P.
25. The O.P. has filed Annexure R-9 , which is Repudiation Letter dated 07.11.2016 sent by the O.P. to the complainamnt. In the above letter it is mentioned that "At the time of survey it was observed by Surveyors that Dome was covered with polythene sheet & it was conveyed to surveyors that this is done to provide temporary protecti9on to the customer. Sheets were removed and observed that few polycarbonate sheets were uptooyrf/blown away and some sheets have been bent. It is further mentined that the insured was observed to have carried out the repairs to the dome sheets, auditorium roof, tar layering and other repairs to parapet without getting the same verified and / or informing to the O.P. prior to proceeding with repairs.
// 27 //
26. The complainant is City Mall Developers PrivateLimited and several shops and theatre are running in the City Mall at that time, therefore, it is possible that there was rush of the people, therefore, it is essential for the complainants to save the life of the customers and visitors and to get repaired the damaged parts. It is also established that the complainant temporarily got repaired the same. The complainant sent email to the O.P. in which it is specifically mentioned that he got repaired temporarily the polycarbonate sheets etc. Therefore, merely the complainant fixed polythene for saving the insured property and to save the life of the customers, it cannot be held that the complainant has violated the terms and conditions of the insurance policies.
27. According to the O.P., the complainant had not provided relevant documents to it, as against which the complainant specifically pleaded that he had provided relevant documents to the O.P. The complainant has filed copies of letter sent by him to the O.P. The complainant also filed copy of Lease Agreement dated 05.05.2006 (Annexure 8), which was executed between City Mall Developers Pvt. Ltd. as lessor and INOX Leisure Ltd. as lessee. It shows that the Lease agreement was executed between the City Mall Develolpers Private Limited and INOX Leisure Ltd. on 05.05.2006. The complainant filed copies of email reminder dated 22.02.2016 in which he specifically mentioned that "We would like to submit that, our Fire Policy is market value policy, as such we would request you to assess the loss for taking into consideration documents submitted by us as per market value. We understand that to assess the // 28 // loss on market value basis, it is not necessary to reinstate the damages. As such you are asking for bills of repair can avoid." The O.P. has pleaded that the complainant has admitted in its email dated 31.01.2017 that requisite copy of the Lease Agreement between the complainant and Inox was intentionally not provided by the complainant to the O.P., but the O.P. did not filed the email letter dated 31.01.2017, therefore, it cannot be held that the complainant did not provide relevant documents to the O.P. and on the contrary it appears that the above documents were provided by the complainant to the O.P.
28. The O.P. has filed Final Survey Report dated 19th September, 2016 of Cunningham Lindsey International Insurance Surveyors and Loss Assessors Pvt. Ltd. which is marked as Annexure R-9. Under the head Executive Summary it is mentioned thus :
"On our visit to the site of the insured situated at City Mall 36, N.H. 6, G.E. Road, Raipur (C.G.) Pin 492006, we had met the insured's representative and understood their claim for damage due to reported cyclone storm and the circumstances of loss described by them.
The insured informed that a heavy thunder storm was experienced in and around Raipur on 26th April 2015 at around 18:30 hrs. Insured representive claimed that as result of the storm 4 No.'s Poly Carbonate sheets fixed on the Artium Dome were blown away and 5 No's of sheets sustained damage by way of racks and bends due to stormy wind. Due to vibration the sheets were uprooted from the aluminium channel strips meant to pin them down and sustained creases on the Poly carbonate sheets."
// 29 // Under the head Introduction, it is mentioned that "...Thereafter several mails were exchanged by us with the Insured the last of which being on 23rd June, 2016. Despite having told conclusively of our intentions to submit our Final Survey Report to the Insurers for their loss claimed under perils of Storm; the Insured continued to contact our Raipur office requesting us to provide them certain more time for submission of the requisite and relevant documents."
" Under the head nature and extent of damage it is mentioned that as reported by the insured, heavy thunder storm was experience in and around Raipur on 26th April 2015 at arund 18:30 Hrs.". The Surveyors assessed the loss to the tune of Rs.38,57,000/-. In the report under the head Insurers Liability it is mentioned that "Thus the insured did not provide any opportunity to us / Insurers to assess the justification of the extent of loss claimed by them. In the report under the head "Working of Loss" it is mentioned that "Despite the breach of above stated conditions observed in order to work out the maximum liability of the Insurers in the insured's claim; we proceeded with seeking further information from the Insured on without prejudice basis and subject to Insurers accepting their liability."
29. In para 27 of this order, it is specifically mentioned that the complainant had provided documents to the O.P. and for want of documents and the temporary repairs of the damaged property done by the complainant, the complainant cannot be deprived to claim under under the insurance policy and the repairing of the damaged propert got done by the complainant does not come within purview of violation of terms and conditions of the insurance policies.
30. In the instant case, the O.P. has filed Surveyor Report. The Surveyor in his report mentioned that the complainant has not cooperated and the material required documents were not provided to the Surveyor, // 30 // but looking to the documents i.e. emails filed by the complainants, it appears that all relevant documents were provided by the complainant to the Surveyor and ground of repudiation of the claim of the complainant is that the complainant got repaired the dome / atrium parapet wall and the polycarbonate sheet placed theeon. Regarding the above facts, they discussed for security purpose. The complainant temporarily got repaired the above articles. The Surveyor has not mentioned that the complainant has permanently got repaired the damaged articles. The Surveyor after discussions regarding all materials, assessed loss to the tune of Rs.38,57,000/-. The above assessment of loss by the Surveyor, is acceptable and the complainant is only entitled to get the Rs.38,57,000/- (Rupees Thirty Eight Lakhs Fifty Thousand) from the O.P.
31. Therefore, we hold that the complainant is entiled to get a sum of Rs.38,57,000/- (Rupees Thirty Eight Lakhs Fifty Seven Thousand) from the O.P.
32. Therefore, we partly allow the complaint of the complainant and it is directed that :-
(i) The O.P. will pay a sum of Rs. Rs.38,57,000/- (Rupees Thirty Eight Lakhs and Fifty Seven Thousand) to the complainant within 45 days from the date of this order.
(ii) If the O.P. fails to pay the above amount to the complainant within stipulated period, then the O.P. will be liable to pay interest // 31 // @ 9% pa. on the above amount from the date of filing of the complaint i.e. 15.01.2018 till realisation.
(iii) The O.P. will also pay a sum of Rs.10,000/- (Rupees Ten Thousand) towards cost of litigation, to the complainant.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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