AI Structured Summary
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Judgment
V.K. Jain, J
The complainant / appellant obtained a Standard Fire & Special Perils Policy from the respondent National Insurance Company Limited for the period from 26.3.2013 to 25.3.2014, in respect of its building as well as stock stored in the said building. The case of the complainant / appellant is that the said building got damaged due to heavy rains during subsistence of the insurance policy and an engineer-cum-valuer assessed the cost of the civil work and furnishing work at Rs.29,25,000/-Though, a surveyor namely Mr. G.K. Jadav was appointed by the insurer to examine the claim lodged by the appellant / complainant, the said claim was repudiated vide letter dated 21.5.2014, which, to the extent it is relevant, reads as under:
"We have examined the whole issue in light of survey report dated 08.1.2014 and addendum report dated 28.3.2014 and in this regard we regret to inform you that your above mentioned claim stands repudiated by us for the following reasons.
Based on the survey report and certificate from the structure engineer, it is clear that the
Property is abandon since long time and maintenance was very poor
RCC column / beam and slab panel are badly damaged
The damages occurred are only due to failure of water proofing on terrace and lack of maintenance
There are leakages of water due to failure of terrace water proofing
Primarily, it seems these damages are due to aging effect and lack of maintenance
These damages must have started long back but remain unseen due to the premises not in use
No such damage can happen due to rain which was experienced on 25.9.2013
The policy issued to you is a Standard Fire & Special Perils Policy which covered specific / named perils as mentioned below subject to terms, conditions, warranties and exclusion under the policy.
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Explosion / implosion
Aircraft damage
Riot, strike and malicious damage
Storm, cyclone, typhoon, tempest, hurricane, tornado, flood and inundation
Impact damage
Subsidence and landslide including rockslide
Bursting and / or overflowing of water tanks, apparatus and pipes
Missile testing operations
Leakage from automatic sprinkler installation
Bush fire
Here, the cause of loss is not an insured peril, as per the Standard Fire & Special Perils Policy, hence the claim is not admissible under the policy.
Moreover, the property insured hereby was kept unoccupied for more than two months which was not informed to our company.
As per terms and conditions of the policy under head "General Conditions" Point No.3 along with sub point (b) which states that.........point No.3): "Under any of the following circumstances the insurance ceases to attach as regards the property affected unless the insured, before the occurrence of any loss or damage, obtains the sanction of the company signified by endorsement upon the policy by or on behalf of the company."
Sub-point no. (b) "if the building insured or containing the insured property becomes unoccupied and so remains for a period of more than thirty days."
Therefore, in view of what is stated hereinabove, we express our inability to accept you claim and same is repudiated due to breach of Terms and conditions of the policy as mentioned above." (emphasis supplied)
Being aggrieved from the repudiation of the claim, appellant / complainant approached the concerned State Commission by way of a consumer complaint.
The complaint was resisted by the insurer primarily on the grounds on which the claim had been repudiated.
The State Commission vide impugned order dated 27.8.2018 dismissed the complaint, taking a view that it was difficult to decide whether the damage to the insured property was caused due to heavy rains or any other reason. It was also noted by the State Commission that the claim was not admissible if the building was unoccupied for a period more than thirty days whereas the complainant himself had stated that the insured property was unoccupied for a long time.
Being aggrieved from the dismissal of the complaint, the complainant is before this Commission by way of this appeal.
The first issue involved in this appeal is as to whether the damage to building occurred due to Storm, Cyclone, Typhoon, Tempest, Hurricane, Tornado Flood and Inundation or it happened on account of failure of water proofing on terrace leakage of water due to failure of water proofing on the terrace and due to aging effect and lack of maintenance.
The final survey report dated 18.1.2014 submitted by Mr. G.K. Jadav surveyor appointed by the insurer, to the extent it is relevant reads as under:
"01.05 Mr. Dinesh Mehta stated that he has closed his office, situated on 4th floor due to his personal problem before five months - it means somewhere in April, 2013. Due pigeon problem other tenants complain about one back Mr. Mehta sends his office boy / person, who opened the office, then closed the windows of the office premises and locked the premises again. At that time there were no damages seen by his boy / person as reported by insured. But on 24th Sept., 2013, when the tenants again complained that the water is leaking from his office premises, hence he opened the office on 24.9.2013, and saw that the ceiling in front room, in last room, and one of the beam in last room were damaged / cracked. The furniture were damaged due to leaking of water, hence he lodge the intimation to the insurer.
01.07. ......... We explained to Mr. Dinesh that due to failure of water proofing and / or due to poor / no maintenance, the water has gone in to terrace / ceiling (of insured), the damages have occurred. These damages must have started some time long back, and with time it might have increased, however it remain un noticed due the false ceiling provided and remain premises remain closed since last five months as stated by you. Further no such damages (as it happened in your premises) can happen due to heavy rain as experienced between 23.9.2013 to 26.9.2013. We explained in detail how these damages have taken place. However, Mr. Mehta was insisting that the damages have taken place due to heavy rain only as during heavy rain the incident took place.
01.09 Since the claim pertains to building and typical damages which has taken place, and looking to the attitude of insured and insisting upon the claim, we have consulted Mr. Dharmesh Patel - Consulting Structural Engineer to give his independent report on the damages to insured's building.
01.18 We have carefully checked and scrutinized the submitted papers. Since the cause for the damages was not given in detail, we requested Mr. Dinesh to arrange for meeting with his appointed Structural Engineer.
01.19 The meeting with Er. Jagdish and Mr. Dinesh was held at our office on10.12.2013. We discussed various aspects of claim. We requested to clarify how the water has gone inside the ceiling, but Er. Jagdish somehow avoided to reply, and stated that there are chances that due to such heavy rain, the ceiling has collapsed.
01.20. We requested Er. Jagdish to give in writing, but he refused to do so."
03.02 Insured has closed these premises in April, 2013, which was opened in Aug., 2013 by his personal and after closing the windows, was again locked. As per the water leaking complain of tenants the office was opened by Mr. Dinesh on 24.9.2013, he saw the damages to his premises hence he lodged the complaint with insurer.
The structural design of the said building incorporates provisions of relevant I.S. codes of practice (IS 456, IS 8711),. The building columns and beams are found unsafe for relevant use for live load and dead load in normal conditions and slab panel of the fourth floor of the building was effected and cracked due to rain waters. Change / Alteration of any kind in structure shall not be done without our permission. Repairing work of terrace floor has completed as soon as possible earlier as per my instruction.
04.06 Mr. Dharmesh Patel's observations and comments:
Mr. Dharmesh has visited the insured's premises on 4.10.2013, and submitted their observation and comments as under:
This property is abandoned since long time and maintenance is very poor.
RCC column / beam and slab panel are badly damaged
The damages occurred are only due to failure of water proofing on terrace and lack of maintenance.
There are leakages of water due to failure of terrace water proofing.
Primarily, it seems these damages are due to aging effect and lack of maintenance.
These damages must have started long back, but remain unseen due to the false ceiling provided, and / premises not opened in last two months.
No such damages can happen due to heavy rain, which was experienced on 25.9.2013.
05.01 From the certification of Er. Jagdish that 'Slab panel of fourth floor of the building was affected and cracked due to rain waters" - is very clear that the rain water must have started penetrating much earlier, due to failure of water proofing and / or due to poor / no maintenance.
05.02 Hence based upon the nature of damages, and detailed discussion with insured and their appointed Structural Engineer Er. Jagdish and based upon observations and comments of Mr. Dharmesh Patel - Consulting Structural Engineer, we are of opinion that due to aging and / or poor / no maintenance and failure of terrace water proofing, more rain water must have penetrated in the terrace / ceiling, due to continuous heavy rain for five days, as a result the ceiling slab from bottom side detached and collapsed.
05.03 Thus the damages / loss have occurred due to aging effect, failure of water proofing and / or poor / lack of maintenance." (emphasis supplied)
It is thus evident from the report of the surveyor Mr. G.K. Jadav who himself is a qualified engineer he being a Bachelor of Engineering and more importantly form the report of Mr. Dharmesh Patel a Structural Engineer engaged by him that the damage to the building of the complainant had occurred due to failure of water proofing on terrace which resulted in leakage of water due to failure of water proofing and the said damages were due to aging effect and lack of maintenance. The Structural Engineer Mr. Dharmesh Patel was emphatic in his opinion that such damage cannot happen due to rain which was experienced on 25.9.2013.
I see no reason to disbelieve the report of the surveyor and the Structural Engineer engaged by him for the purpose of identifying the case of damage to the building of the complainant.
Moreover, as noted by the surveyor, the complainant himself had confirmed him that the office was closed by him sometime in April, 2013. Thereafter, it was opened by his office boy but was again closed and locked. The damage came to notice of the complainant only on 24.9.2013 when the tenant complained about the water leaking from his office premises. It is thus, evident that the insured property was left unoccupied for more than thirty days between April, 2013 to September, 2013. Therefore, the claim was not payable even if it is presumed for the sake of arguments that the building had got damaged due to Storm, Cyclone, Typhoon, Tempest, Hurricane, Tornado Flood and Inundation.
For the reasons stated hereinabove, I find no merit in the appeal and the complaint filed by the appellant before the State Commission. The appeal is accordingly dismissed, with no order as to costs.