National Consumer Disputes Redressal
Gopal Dikshit vs United India Insurance Company Ltd. on 7 December, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 2287 OF 2017 1. GOPAL DIKSHIT 50, ISHWAR NAGAR,
MATHURA ROAD, SOUTH DELHI - 110 065 ...........Complainant(s) Versus 1. UNITED INDIA INSURANCE COMPANY LTD. THROUGH THE CHAIRMAN,
C-20, JANAK CINEMA COMPLEX,
JANAKPURI, WEST DELHI - 110 058 ...........Opp.Party(s)
BEFORE: HON'BLE MR. C. VISWANATH,PRESIDING MEMBER HON'BLE MR. SUBHASH CHANDRA,MEMBER
For the Complainant : Mr. K C Mittal, Advocate with
Mr. Y Mittal, and Keshav Pratap Singh, Advocate For the Opp.Party : Mr. Amit Singh, Advocate with
Mr. Tovikato Achumi, Advocate
Dated : 07 Dec 2022 ORDER
1.The present Complaint is filed under Section 21(a)(1) of the Consumer Protection Act, 1986.
2. The Complainant is the owner of the premises situated at 50, Ishwar Nagar, Mathura road, New Delhi- 110065. The said premises had Basement, Ground Floor, First Floor and Second Floor. The entire building was insured with the Opposite Party, vide House Holder Insurance Policy No.2219042615P115431073 for Rs.1.50 crores.
3. The case of the Complainant is that due to the heavy downpour in New Delhi from 25.08.2016 to 31.08.2016, the house of the Complainant was flooded. The Complainant was outside Delhi from 24.08.2016 to 29.08.2016 and upon his return he found that the basement was flooded with water and the furniture, fittings, almirahs, books and other goods lying in the basement were completely damaged. The Complainant deployed booster pump on 30.08.2016 to remove water from the basement to avoid further damage. The entire flood water, however, could not be removed. The Surveyor, Shri Akash Chopra, visited the site on 03.09.2016 and inspected the basement.
4. The Complainant contacted Ms. Indu Singh, official of the Opposite Party telephonically to enquire about the survey conducted by Mr. Akash Chopra. She informed that the Survey Report was not proper and therefore, she deputed another Surveyor Mr. R.K. Singhla was deputed to visit the premises and reassess the damage. The Complainant was, however, not provided with any preliminary Survey Report. The second Surveyor, Mr. R.K. Singhla visited the premises of the Complainant and conducted the Survey. The Complainant sought opinion of two structural Engineers i.e. International Consultants & Technocrats Pvt. Ltd. dated 06.09.2016 and Unique Consultant Engineers dated 07.09.2016 regarding the safety of the premises. The opinion given by both the Structural Engineers indicated that the building was no more liveable and had become dangerous. Further, it was stated that the premises had to be vacated immediately and should be demolished and rebuilt.
5. On 10.09.2016, the Complainant again contacted Ms. Indu Singh to know the outcome of the Survey. She again informed the Complainant that the report was not proper and further asked the Complainant to visit her office on 12.09.2016 to clarify certain points. During the visit, Ms. Indu Singh informed the Complainant that due to the word "seepage" in the Survey Reports, the Complainant cannot claim benefit of the Insurance. On 23.11.2016, the Complainant received a letter from the Opposite Party repudiating the claim of the Complainant on the ground that the damage caused to the building was due to continuous seepage of water from the basement and since the seepage of water was not one of the named perils, the loss/damage was not indemnifiable under the Policy. Aggrieved by repudiation of claim of the Complainant, the Complainant approached this Commission with following prayer:-
"a) Declare that the opposite party has committed an unfair trade practice and to direct them to discontinue the unfair trade practice;
b) Declare that the services of the opposite parties are deficient and direct them to remove the deficiency of service;
c) direct the opposite party to pay a sum of Rs1.5 crore as insured amount
d) to pay interest @ 18% p.a on the amount w.e.f. 03.09.2016 till the date of realization;
e) to pay the compensation tune to the Rs.10 Lakh for harassment, mental agony, torture as the cost of reconstruction is much more as set out in the complaint;
f) to pay interest @ 12% p.a. on the sum of Rs.10 Lakh from 03.09.2016 till the date of realization and;
g) may pass such other orders in the interest of justice."
6. The Opposite Party resisted the Complaint by filing the Written Statement stating that there was no cause of action against the Opposite Party as per the Preliminary Report submitted on 06.09.2016 and the Final Survey Report dated 18.10.2016. Both the reports attributed the cause of loss to seepage of water into the foundation and the basement of the affected building resulting in the loss. Further, Times of India newspaper dated 26.08.2016 and 27.08.2016 did not indicate any news of heavy rainfall causing severe damage. As per the terms and conditions of the Policy, following specific perils were indemnifiable:
"i. Fire, lightening, explosion of gas and domestic appliances.
ii. Bursting and overflowing of water tanks, apparatus or pipes.
iii. Aircraft or articles dropped therefrom.
iv. Riot, strike or malicious act.
v. Earthquake, fire and/ or shock, subsidence, and landslide(including rockslide) damage vi. Flood, inundation, storm, Tempest, typhoon, Hurricane, Tornado or Cyclone.
vii. Impact damage by rail/road vehicle, or animal."
The above list of perils does not include coverage of loss due to seepage. The loss sustained by the Complainant was, therefore, not indemnifiable under the Policy.
7. Heard the Counsel for the Parties and carefully perused the record. Learned Counsel for the Complainant submitted that the Survey Report dated 06.09.2016 clearly stated that the flooding had taken place due to heavy rain. The Report of Delhi Jal Board, dated 23.12.2016, also stated that "the water entering into the basement was neither the sewage nor the potable water from DJB Pipelines". Also, the Opposite Party failed to trace the source of the seepage water, if not rain water and not sewage. It was stated that the word "SEEPAGE" is a slow flow of any liquid from a source, but the overnight flooding in the basement inundated with 3 feet of water is caused by flood. Opposite Party also failed to reply as to why three Surveys were conducted. The Complainant also drew our attention to the three judgements of this Commission in United India Insurance Co. Ltd. Vs. Dipendu Ghosh & Anr. [II(2009) CPJ 311 (NC)], National Insurance Co. Ltd. Vs. Marthi Crystal Salt Co. Ltd. [/(2000) CPJ 55 (NC)], and Bajaj Allianz General Insurance Co. Ltd. Vs. Gondamal hardyal Mal [IV(2009) CPJ 165 (NC)], wherein it was held that the seepage caused directly by flood was covered by the Insurance Policy.
8. Learned Counsel for the Opposite Party submitted that the loss was not covered under the terms and conditions of the Policy. It was submitted that the rights and obligations are governed by the terms of the Insurance. Damage to the building was due to continuous seepage of water from the basement. Learned Counsel relied on the judgment of Hon'ble Supreme Court in Suraj Mal Ram Niwas Oil Mills (P) Ltd. v. United India Insurance Co. Ltd. (2010) 10 SCC 567. The terms of the Contract, therefore, should be strictly construed and no exception could be made on the ground of equity. As per Survey Report the plaster had already been removed from the walls of the basement and had been dug from all sides upto 3 feet, prior to the Survey. It was also submitted that the Survey Report has significant value and cannot be brushed aside, unless complete perversity is established by leading cogent evidence.
9. Brief facts of the case are that the Complainant had purchased House Holder Insurance Policy No.2219042615P115431073 for period 13.03.2016 to 12.03.2017. During the subsistence of the Policy, the water seeped inside the basement of the premises of the Complainant from all sides causing total damage to the items in the basement, apart from structural damage. It was stated by the Complainant that water entered the basement due to heavy downpour in New Delhi from 25.08.2016 to 31.08.2016, while the Complainant was away. The Surveyor admitted that the cause of loss was due to seepage of water into the foundation and the basement of the affected building, resulting in loss to the building and its contents. On the basis of this observation of the Surveyor, the Opposite Party repudiated the claim of the Complainant, vide its letter dated 23.11.2016.
10. The only issue is whether the loss was covered under the Policy or not. The repudiation letter stated as follows: -
"This refers to your claim reported to us. As the damage caused to the building and contents was due to continuous seepage of water from the basement and since seepage of water is not one of the named perils, the loss/damage is not indemnifiable.
Therefore, as per policy terms & conditions, the said claim is repudiated."
11. The Opposite Party repudiated the claim on the ground that the damage caused to the building was due to continuous seepage of water in the basement. As seepage of water was not named as insured perils, the loss was not indemnifiable. In this regard, certificate issued by International Consultants and Technocrats Pvt. Ltd. dated 06.09.2016 is relevant, which reads as follows: -
"There has been continuous ingress of seepage water into the foundation and basement, which has corroded the reinforcement steel, making it weaker to sustain loads especially the lateral loads. The above building is situated in seismic zone 4 and does not meet the codal provisions for Earthquake resistant building structures.
In view of the above, the building can be unsafe for the occupants in case of such enhanced lateral loading events that may occur during Earthquakes or for any other possible reasons."
12. Regarding strength of the building, the Complainant also filed certificate dated 07.09.2016 issued by Unique Consulting Engineers, which reads as follows:-
"...Since building was constructed in 1986, so it was designed as per Indian Standard codes of prevailing period. Now at present seismic parameters has been revised, therefore, existing building does not meet the requirement of 1983- 2002.
Further, existing building was constructed having R:C:C: frame. As time passes structure became old resulting corrosion in reinforcement due to water seepage in structural elements, i.e. reducing the strength of building."
Aforesaid two certificates had been filed by the Complainant. The certificates show that the structure was old, continuous seepage water into the foundation and basement corroded the reinforcement steel, reducing the strength of building. In the Final Survey Report, the Surveyor had also quoted the aforesaid two certificates filed by the Complainant.
13. In para 3 of the legal notice dated 06.04.2017 sent by the Complainant to the Opposite Party the Complainant admitted that loss was caused on 25.08.2016 due to heavy rains. Para 3 reads as follows: -
"That on 25.08.2016 Delhi witnessed a heavy downpour and area surrounding my house in Ishwar Nagar area got flooded and water entered into the basement of my client's residence at 50 Ishwar Nagar from all sides. Since my client was out of Delhi on account of bereavement in the family and on returning back the client found that basement flooded with water."
The Complainant mentioned the date of loss as 25.08.2016. In para 5.05 of the Survey Report, the Surveyor also observed that the Insured had reported the date of loss as 25.08.2016.
14. The Complainant alleged that the Surveyor as well as the Opposite Party ignored the report of the Meteorological Department, placed on record. We have gone through the Meteorological Report dated 25th August, 2016, which mentioned that at 12.00 hrs, there was 0.3 mm rain and at 15.00 hrs, there was 0.5 mm rain.
17. The Complainant, however, in the Consumer Complaint alleged that the loss was caused during 25th to 31st August, 2016, which appears to be an afterthought. We have carefully gone through the Meteorological Report dated 25th to 31st August, 2016 filed by the Complainant. Nowhere in the report is it mentioned that there was heavy rains on 25th August, 2016. The Policy covered the risk due to flood and inundation, amongst others. Meteorological Report does not show that there was such heavy rain in the area leading to flooding. Admittedly, the loss was caused due to seepage. The certificate of International Consultants and Technocrats Pvt. Ltd. dated 06.09.2016 as well as certificate issued by Unique Consulting Engineers dated 07.09.2016 make it abundantly clear that there was continuous ingress of seepage water into the foundation and basement, which corroded the reinforcement steel, making it weaker to sustain loads, especially the lateral loads. As seepage of water was not named in the insured perils, the Opposite Party rightly repudiated the claim.
18. For the foregoing discussion, we find that the Complainant failed to make out any case of deficiency in service on the part of the Opposite Party/Insurance Company. The Complaint is accordingly dismissed.
...................... C. VISWANATH PRESIDING MEMBER ...................... SUBHASH CHANDRA MEMBER