of the building. Due to choking of pipes, water had overflowed and travelled from the glass door of the roof to the interiors of the building causing damage to furniture, fixtures and fittings as well as stock due to inundation. On 18.10.2008, the Complainant requested the Opposite Party to immediately appoint a Surveyor to inspect the showroom/premises. The Complainant was asked by the Opposite Party to assess the loss suffered. The Complainant assessed the loss at Rs.98,32,000/- and submitted the same to the Opposite Party, vide letter dated 29.10.2008. The Opposite Party appointed Mr. Rajinder Kumar Mittal as Preliminary Surveyor. The Complainant provided the requisite documents to the Surveyor. The Preliminary Surveyor Mr. Rajinder Kumar Mittal submitted Preliminary Survey Report dated 13.11.2008. He observed that due to sealing of the premises for ten months, rain water had accumulated and came from the roof to staircase causing damage to furniture/fixtures, false ceiling of various floors, i.e. basement, ground floor, first and second floor. Besides this, about 150 carpets of different sizes and quality were also damaged due to water logging for a long time. The Opposite Party changed the Surveyor without intimation to the Complainant and deputed Mr. Vinod Sharma, who inspected the insured premises on 27.11.2008. The Complainant submitted the documents to Mr. Vinod Sharma, vide letter dated 02.12.2008. The Surveyor, Mr. Vinod Sharma submitted the final Survey Report dated 31.03.2009. The Opposite Party repudiated the claim, vide letter dated 09.07.2009, on the ground that there was violation of the terms & conditions of the Insurance Policy and the principle of indemnity. The Complainant sent Legal Notice dated 31.08.2009 requesting for withdrawal of the Repudiation letter dated 09.07.2009 and payment for the loss suffered as well as compensation for harassment. The Opposite Party did not accede to the request or reply to the notice. Alleging deficiency in service on the part of the Opposite Party, the Complainant filed the instant Complaint with following prayer: -

"(a) declare the letter dated 09.07.2009 issued by the Opposite Party as illegal and unlawful;

(b) direct the Opposite Party to pay the Complainant a sum of Rs.1,02,22,893/- which is the loss suffered for the goods, furniture, fixtures and fittings insured under the policies alongwith interest @ 18% p.a. till date;

(c) direct the Opposite Party to pay compensation of Rs.5,70,000/- to the Complainant for the damaged suffered @ 18% p.a. till date;

(d) direct the Opposite Party to pay the cost of litigation to the Complainant;

(e) pass an ad-interim ex-parte order in terms of prayers made above;

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(f) pass such other and further orders as may be deemed fit and proper in the facts and circumstances of the case."

3. The Complaint was resisted by the Opposite Party by filing written statement. It was stated that immediate remedial measures were not taken by the Complainant to control the damage. It was also stated that the Complainant did not submit any documentary evidence like certificate from the Meteorological Department, newspaper cutting for inundation or certificate from local authority regarding loss. The premises were allegedly sealed on 14.12.2007 and 03.01.2008 and remained unoccupied for about 10 months. As per General Condition No.3(b), if the insured premises remains unoccupied for more than 30 days, the Insurance ceases. It was further stated that the Complainant violated General Condition No.14 whereby the Insured was required to communicate the Insurer if the premises is left unoccupied for more than 30 days. The claim was to be filed within 15 days from the date of incident. The loss had occurred in July- August, 2008 and the claim was submitted October, 2008 i.e. after expiry of more than two months. The Complainant had concealed the material fact regarding change in circumstances relating to sealing.

4. Heard the Learned Counsel for the Parties and carefully perused the record. Learned Counsel for the Complainant submitted that the entire building at 22A, Janpath, New Delhi was sealed by the Monitoring Committee of Hon'ble Supreme Court of India on 03.01.2008. Information regarding the same was submitted to the Opposite Party Insurance Company, vide letter dated 07.01.2008 specifically stating that "All the Stocks and Furniture & Fixture are lying inside the sealed premises." The Complainant also sent a letter dated 07.01.2008 to the Opposite Party by fax. The Opposite Party did not reply to the letter dated 07.01.2008. The Policies were got renewed from 14.09.2008 to 13.09.2009, after sealing of the insured premises and Opposite Party was well aware of the same. The building was de-sealed on 18.10.2008 for about 4 hours and during that time it was noticed that due to choking of 4 down pipes, water had overflown to the interiors of the building, causing damage to furniture, fittings and fixtures and stocks due to inundation. Learned Counsel also submitted that the intimation of damage to insured goods was immediately provided to the Opposite Party, vide letter dated 18.10.2008. There was no delay in intimation of loss to the Opposite Party. Learned Counsel for the Complainant relied on Perils VI & IX of the Insurance Policy and submitted that the loss suffered by the Complainant is covered under the said perils. Learned Counsel further submitted hat the insured goods were lying in the building under surveillance of guards. It cannot, therefore, be said that the insured premises were unoccupied. The Policy was got renewed by the Complainant after intimation to the Opposite Party about sealing of the building.

5. Learned Counsel for the Opposite Party submitted that the Complainant failed to establish the exact date and the cause of loss. The loss was caused due to leakage of water, which was excluded from the Policy. It was also submitted that the Complainant failed to take immediate remedial measures to avoid subsequent damage. Further, the Complainant had not filed any documentary evidence such as certificate from the Meteorological Department or local authorities regarding rainfall. Learned Counsel also submitted that the Complainant had

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violated General Condition No.3 (b) of the Policy which provides that if the insured property remains unoccupied for a period of more than 30 days, the Insurance Policy ceases to continue. It was also submitted that as per terms & conditions of the Policy, the claim was to be filed within 15 days of the incident/damage, whereas the Complainant had filed the claim after expiry of more than two months from the date of incident. He also submitted that the claim of the Complainant was repudiated on the basis of the observation made by the Surveyor after verification of documents and physical verification of the insured premises.

6. The fact relating to validity of both Insurance Policies is admitted by the Parties. The insured premises were sealed as per instruction of the Monitoring Committee appointed by the Hon'ble Supreme Court is also admitted. It is not denied by the Opposite Party that the intimation relating to sealing of the premises was communicated to the Opposite Party, vide letter dated 07.01.2008. Regarding date of loss, letter dated 09.07.2009 issued by the Opposite Party to the Complainant is relevant, which reads as follows: -

"We have also observed from the report that the loss is definitely occurred during rainy season July-August but noticed in October, 2008. Hence you have failed to give notice to us about loss within 15 days."

7. From the above, it is clear that the Opposite Party was very well aware that the loss occurred in July-August, 2008 and the Insurance Policies were renewed on 13.09.2008. Before renewal of the Policies, Opposite Party was aware of the loss caused. Since the premises were got sealed, it was not possible to either of the Parties to know the exact date of loss. The Opposite Party, therefore, cannot be permitted to take the technical ground of exact date of loss.

8. Opposite Party repudiated the claim also on the ground that the loss had occurred due to leakage of water, which was not covered under the Insurance Policy. It is case of the Complainant that water got accumulated on the roof of the building due to choking of four drain pipes and flooded from the glass door of the roof to the interiors of the building causing loss to the furniture, fixtures, fittings and stock. The Surveyor observed that "cause of loss appears to be due to leakage of rainy water from the steel gate." It is quite natural that accumulation of water on the roof due to blockage of drain pipe can cause inundation and water can enter into the interior of the building. It is admitted by the Opposite Party "that the loss occurred during rainy season July-August, 2008." It is not the case of the Opposite Party that there was regular leakage in the building. The plea of the Opposite Party that the loss was caused due to leakage of water does not sustain. Overflowing of water and inundation is covered under Peril VI and IX the Insurance Policy, which read as follows:-

"VI. Strom, Cyclone, Typhoon, Tempest, Hurricane, Tornado, Flood and Inundation:

Loss, destruction damage directly caused by Strom, Cyclone, Typhoon, Tempest, Hurricane, Tornado, Flood or Inundation excluding those resulting from

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earthquake, Volcanic eruption or other convulsions of nature. (Wherever earthquake cover is given as an "add on cover" the words "excluding those resulting from earthquake volcanic eruption or other convulsions of nature" shall stand deleted. …

IX. Bursting and/or overflowing of Water Tanks, Apparatus and Pipes"

9. Opposite Party also took the ground that the Complainant failed to take immediate remedial measures to avoid the subsequent damage. It is the case of the Complainant that as soon as the Security Guard informed the Complaint about water coming from the stair case, the Complainant immediately approached the Monitoring Committee to open the premises and the premises was opened on 18.10.2008 for approximately 4 hrs. On 18.10.2018 itself, the Complainant had sent letter to the Opposite Party regarding the loss as soon as it came into the knowledge of the Complainants. The argument of the Opposite Party that no remedial measures were taken or the Complainant is rejected. Moreover, the Opposite Party Insurance Company had renewed the policy only after the insured premise of the Complainant was sealed. Therefore, the Opposite Party cannot escape from its responsibility by stating that it was not aware of the state of the premises.

10. Further, the Opposite Party alleged that the insured premises was left unoccupied. The Opposite Party cannot use the term "unoccupied", since it was so under the orders of the Monitoring Committee appointed by Hon'ble Supreme Court, which was beyond the control of the Complainant and the Opposite Party was informed of the sealing of the building on 07.01.2008 by the Complainant.

11. In view of the above, we find that the Complainant is entitled for reimbursement of loss. The Insurance Policies taken by the Complainant were on reinstatement basis. The question arises as to the quantum of loss suffered by the Complainant. The Complainant has claimed an amount of more than Rs.1.8 crores. The Surveyor, vide final report dated 31.03.2009 had assessed the total loss on the following terms:-

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12. It is Opposite Party, who appointed the Surveyor to assess the loss. The Surveyor had observed that the loss was assessed on the basis of books of accounts and other records. The Opposite Party had not challenged the assessment made by the Surveyor. The Opposite Party is liable to pay the amount as assessed by the Surveyor.

13. In the view of aforesaid discussions, we partly allow the Complaint with the direction to the Opposite Party to pay an amount of Rs.51,56,627/- along with interest at the rate of 9% from the date of repudiation of the claim to the date of realization. The order be complied within eight weeks.

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C. VISWANATH

PRESIDING MEMBER

......................J

RAM SURAT RAM MAURYA

MEMBER

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