State Consumer Disputes Redressal Commission
Sital Chandra Das vs Tata Aig General Insurance Co. Ltd. on 20 March, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/258/2014 (Arisen out of Order Dated 28/01/2014 in Case No. 491/2012 of District Kolkata-I) 1. Sital Chandra Das Vill. South, Bawali, P.O. Bawali, P.S. Nodakhali, BugBug II, Dist. South 24 Pgs. ...........Appellant(s) Versus 1. Tata AIG General Insurance Co. Ltd. Constantia office Complex, 2nd Floor, 11, Dr. U.N. Brahmachari Street, Kolkata-700 017, P.S. Shakespeare Sarani. ...........Respondent(s) BEFORE: HON'BLE MR. JAGANNATH BAG PRESIDING MEMBER For the Appellant: Shri Surajit Auddy, Smt. Swapnalekha Auddy, Advocate For the Respondent: Mr. Debasish Nath., Advocate ORDER Dt. 20.03.15 JAGANNATH BAG, PRESIDING MEMBER
The present appeal is directed against the Order, dated 28.01.2014, in CDF/Unit -I , Case No. 491/2012 , passed by the Ld. District Consumer Disputes Redressal Forum, Unit-I , Kolkata, dismissing the complaint on contest without costs against the OPs.
The complaint case, in brief, was as follows:
The Complainant had obtained an insurance policy (My Business My Choice - Package Policy, No. 2200045822) from the OP Insurance Company for a sum insured of Rs. 30,000,00/- covering the risk of his building shed, compound wall , stock , (Engineering Items and General Order Suppliers), furniture , fixtures fittings and office equipments in the name and style of Sital Chandra Das , Prop. Orient Engineering Works. The policy was valid from 28.08.2012 to 27.08.2013 . On 14.09.2012 the business house was heavily damaged and the boundary wall got affected by lightning, rain and storm . A claim of Rs.17 lakh was placed before the O.P., i.e., TATA AIG General Insurance Company Ltd. A Surveyor was deputed by the Insurance Company . After receipt of the Survey Report, the Insurance Company repudiated the claim saying that the peril as shown in the claim was not covered by the policy. In that situation, the complaint was filed before the Ld Forum below with prayer for direction upon the OP to pay a total sum of Rs. 19,20,000/- including costs of repairing and construction of the building and boundary wall, compensation for harassment, litigation cost etc. The OP filed W.V. and denied all material allegations contending , inter alia, that the reported loss was beyond the purview of the policy of insurance as there was no storm on 14th September 2012 in the area of the Complainant causing damage of the boundary wall. It was also stated that none of the perils covered under the Standard Fire and Special Perils Policy had operated and the loss would fall outside the ambit of the same. Dismissal of the complaint was prayed for.
Ld. Forum below after having gone through the pleadings of the parties , evidence and documents, in particular, observed that the insurance coverage was for damage of the business building etc. of the Complainant if caused by storm vide Clause 6 of the policy. The weather report issued by the Regional Met. Centre, Alipore, dated 14.09.2012 shows that there was rainfall of 08.1mm and there is no whisper of storm on that date. Further, the estimate produced before the Ld. Forum in respect of construction and / or maintenance of the Civil Work was not proper, but based on suo motu calculation. The complaint was dismissed on contest without cost against the OP.
Being aggrieved by and dissatisfied with the impugned order, the Appellant has come up before this Commission with a prayer for direction to set aside the impugned order and to pass such order as this Commission may deem fit.
Ld. Advocate appearing for the Appellant submitted that the damage suffered by the Complainant in respect of his property insured was caused by lightning , storm and rain that took place on 14.09.2012 /15.09.2012. The business house was heavily damaged and boundary wall was affected by lightning and storm. The Surveyor's report was not supplied to the Complainant and accordingly there was no scope to counter the report. As per requirement of the Surveyor , the Complainant / Appellant obtained weather report from the Regional Met. Centre, Alipore and it was clearly written in their letter dated 21.01.2013 that the area of the Complainant was not covered by any Meteorological observatory. On the contrary the certificate issued by the Pradhan, South Bawali Gram Panchayat showed that the damage of the building and boundary wall of the Complainant was caused by storm, lightning and rain. The OP failed to prove his point against the claim of the Complainant with any independent evidence. Ld. Advocate cited the order of the Hon'ble National Commission as reported in 2014 (3) CPR 732 (NC) holding that insurance company cannot escape liability after accepting premium from the insured. Ld. Advocate also referred to the order of the Hon'ble National Consumer Disputes Redressal Commission as reported in 2014 (3) CPR 394 (NC) holding that terms of a contract of insurance have to be strictly construed and no exception can be made on ground of equity.
Ld. Advocate appearing for the Respondent Insurance Company submitted that the cause of loss stated by the Appellant was 'rain' but rain is not a covered peril under the policy held by the Appellant. There was no storm on the material date that caused damage of the property insured under the Standard Fire and Special Perils. Ld. Forum has rightly adjudicated the matter and the order should be upheld.
Decision with Reasons The memorandum of appeal has been gone through together with copies of the impugned order , the petition of complaint , the policy papers , the letter of repudiation dated 01.11.2012 , the written version filed by the OP Insurance Company before the Ld. Forum below and other documents including the questionnaire put by the Insurance Company and replies furnished thereto etc including the Survey Report submitted by the Surveyor.
There is no dispute that the Complainant/Appellant took an insurance policy, namely , My Business My Choice - Package Policy, for a total sum of Rs. 30 lakh . The policy covered the risks of Fire, Lightning, Explosion /Implosion , Aircraft damage, Riot , Strike , Malicious damage , Storm, Cyclone , Typhoon , Tempest , Hurricane , Tornado , Flood and Inundation, Impact Damage , Subsidence and Landslide including Rock Slide , Bursting and / or Overflowing of water tanks, Apparatus and Pipes , Missile Testing Operations , Leakage from Automatic Sprinkler Installations and Bush Fire . The Complainant's building and boundary wall, being claimed to have been damaged by rain , storm and lighting on 14.09.2012 at about 7 p.m, the Complainant claimed for compensation of Rs. 17,00,000/- for reconstruction of the boundary wall , but the Surveyor in his report submitted that the damage was not actually caused by storm or lightning . The Surveyor in his report submitted , inter alia, as follows:
House with pond and boundary wall belongs to the insured .
House is very old -100 years (Thick Brick Walls ) ceiling was made about 30 years ago .
Boundary wall was very old - 100 years, was reportedly high and repaired from time to time.
Plastering of walls done by the insured one month before the reported incident of storm took place.
Moss and Plants found on bricks of the broken part of the boundary walls.
The insured was requested to obtain a weather report from the Regional Met. Centre.RE Alipore , Kolkata for the day 14.09.2012 .
According to the weather for the day: 14.09.2012 , the following facts were found:
Total rainfall from 8.30 hours 14.09.2012 to 8.30 hours 15.09.2012: 08.1 mm.
Wind speed through out the day was 00 i.e., it was calm.
It is a fact that the Complainant / Appellant in his complaint claimed that the damage of his business house and boundary was due to lightning, rain and storm. The Complainant in support of his statement about the loss furnished a copy of the certificate issued by the Pradhan of South Bawali Gram Panchayat showing that the building and boundary wall of the insured were damaged because of rain, storm and lightning .It is also true, as argued by the Ld. Advocate appearing for the Respondent Insurance Company , that the Gram Panchayat has no expertise or machinery to say for certain if there was a storm or not on a particular date. Such contention of the Respondent may bear some truth but in the absence of any confirmed opinion by the Meteorological Office , Alipore, that there was no storm in the area of the Complainant , the statement conveyed through the certificate issued by the Gram Panchayat office can not be ignored all together. Ld. Forum below ought to have given some weight to the report of the Gram Panchyat. At the same time the observation of the Ld. Forum below that the estimated loss of Rs. 17,00,000/- is not properly drawn up is also true.
In the questionnaire put on behalf of the Complainant , the Complainant vide question No. 13 raised the following question:
Do you agree that especially in rainy season rain and storm may occur locally?
The reply to the question was avoided by the Respondent insurance company giving scope for adverse inference that the damage of the property of the Complainant was at least in part due to the storm and rain together which is a natural phenomenon.
It is also important to note that the Surveyor avoided assessing the loss suffered by the damage of the insured property. Whether the loss will be compensated or not by the Insurance Company is the jurisdiction of the Insurance Company but the Surveyor failed to do his job leading to adverse inference that there was damage to the property insured because of reasons as stated by the Complainant .
Going by the above discussion I am inclined to hold that the Complainant has proved his case at least in part . In that view of the fact, the impugned order needs to be set aside and a compensation wroth Rs. 3,00,000/- may be awarded.
Hence, Ordered That the appeal be and the same is allowed in part . The Respondent /OP Insurance Company is directed to pay a sum of Rs. 3,00,000/- to the Appellant / Complainant within a period of 40 days from the date of this order , failing which ,interest @ 9% p.a. shall be payable on the said amount by the Insurance Company from the date of this order. The impugned order is set aside. There shall be no order as to costs.
[HON'BLE MR. JAGANNATH BAG] PRESIDING MEMBER