JUDGMENT - Justice G.G. LONEY, President :---This is a complaint by a consumer alleging deficiencies in the service of M/s. Oriental Insurance Co. Ltd., for not settling his legitimate and justifiable insurance claim in terms of an insurance policy. Shortly stated the relevant undisputed facts are that complainant is a proprietor of M/s. Mayur Restaurant Bar at Chandrapur. Complainant had obtained an Insurance Policy A, bearing No. 16221/10/91/00421 for the sum of Rs. 18,65,000/- valid for a period between 3-8-1990 to 2-8-1991. The policy provided coverage to the complex of the building including basement, where the bar is situated. The policy is dated 3-8-1990. On the same day, i.e. on 3-8-1990, the complainant had paid Rs. 3,693/- towards premium amount to the opposite party, M/s. Oriental Insurance Co. Ltd. 2. The complainant alleged that there were heavy rains in the last week of August, 1990 in Chandrapur District, as a result of which there was inundation, floods around the area of the premises, where the Mayur Bar is situated. The rain water also inundated the basement of the Mayur Bar, causing extensive damage to the insured property. The complainant noticed the damage caused by the floods and inundation on 7th August, 1990 and informed the branch office of the opposite party at Chandrapur on 10th August, 1990. The complainant alleged that he could not immediately inform the opposite party since he was busy in salvage operations of the bar. On 11-8-1990, the opposite party appointed Shri V.S. Daoo, a surveyor, from Nagpur to survey the damage caused to the bar and to asses the loss suffered by complainant. The survey was conducted by Shri Daoo on 12th, 21st 29th of August, 1990. The surveyor, Shri Daoo, prepared his survey report on 17th April, 1991. In his report, the surveyor has meticulously and carefully catalogued all the details of loss suffered by the complainants to his Restaurant and Bar due to flood and inundation. The surveyor has stated in his report that even after his visit on 21st August, 1990, it rained very heavily on 21st night and the fury continued upto 24 August, 1990 and the water entered the premises of basement and remained inundated between 21st August to 28th August, 1990. The surveyor has stated in his report that even after his visit on 21st August, 1990, it rained very heavily on 21st night and the fury continued upto 24 August, 1990 and the water entered the premises of basement and remained inundated between 21st August to 28th August, 1990. The surveyor further observed that due to continuous presence of acidic and corrosive water from the Macchi Nala carrying refuse/affluent of the City and residential outlets caused damage to the basement, where the bar in question is situated. The surveyor assessed the loss caused to the complainant on page 8 of the survey report upto Rs. 7,41,990/- and after deducting 20% depreciation arrived at a figure of Rs. 9,93,392 and observed that insured are adequately covered by the sum insured under item-39. The surveyor also assessed item wise list of Restaurant and Bar for a total amount of Rs. 3,61,840/- and after giving allowance to depreciation at the rate of 15% assessed the insurance loss at Rs. 37,564/-. The loss of claim is worked out at Rs. 1,08,668/- less depreciation at the rate of 15% valued at Rs. 92,367.80. Separate valuation is made for the bar furniture and other items for Rs. 48,300/- less depreciation at Rs. 15% for a total value of Rs. 41,055/-. Similarly, the surveyor has separately valued the loss of bar counter for Rs. 16,510/- Sonodyne system Rs. 5,355/- and bar carpet valuation for Rs. 3,780/-. At page 14, the surveyor has given the summary of itemwise loss of basement, wall cladding, bar furniture, bar counter, sonodyne system and bar carpet, after calculating the depreciation for total amount of Rs. 2,26,819.49/-. The surveyor alongwith his report submitted 24 photographs of damaged restaurant, affidavit of proprietor, statement of loss etc. Despite the careful survey report recommending the assessment of loss for Rs. 2,26,819.49 in his letter dated 12-12-1991, the opposite party has repudiated the complainants claim. In their letter dated the opposite party has stated that the premises in question were insured with New India Insurance Co. previously and that the complainant, in his proposal form, has not mentioned about the adjoining Nala, near the hotel premises. According to opposite party, they had already repudiated the claim by a communication dated 2-8-1991. In their letter dated the opposite party has stated that the premises in question were insured with New India Insurance Co. previously and that the complainant, in his proposal form, has not mentioned about the adjoining Nala, near the hotel premises. According to opposite party, they had already repudiated the claim by a communication dated 2-8-1991. Feeling aggrieved therefore, due to the unjust denial of his claim, complainant approached this commission, in this complaint, alleging deficiencies in the service of the opposite party and claimed that Rs. 2,29,819.49 together with 18% interest per annum be paid to the complainant alongwith Rs. 35,000/- towards loss due to delay and Rs. 7,500/- as cost. 3. The complainant had prayed for production of survey report by the opposite party and accordingly the survey report of Mr. Daoo has been tendered before this commission by the opposite party. In its written version, the opposite party opposed the claim of complainant. Inter alia, opposite party objected the jurisdiction of this commission. It is also alleged that the complaint is false, frivolous and vexatious. It is also contended that the complainants claim is barred by limitation as filed on 14-10-1992, after a period lapse of one years period from 2-8-1991 and also alleged that the complainant had abandoned his claim. The opposite party also contended that the complainant failed to disclose to M/s. New India Insurance Co. in respect of hotel bar at the time of taking insurance policy. The opposite party also denied the fact of occurrence of flood at that time. The opposite party also denied that it was a Class 1 construction. In short, the complainants claim has been opposed on every count by the opposite parties. 4. We have heard Mrs. Padole, Advocate for the complainant and Mr. Singh advocate for opposite parties, Oriental Insurance Company Ltd. In addition to the oral arguments, both the learned advocates also submitted the written note of their arguments. The following points arise for our consideration. 1. Whether the complainants claim is barred by limitation? 2. Whether the complainant suffered loss and to what extent? 3. Whether the opposite parties have been deficient in any manner while rendering the service to the complainant? 4. Whether the complainants claim is false, frivolous and vaxatious? 5. The following points arise for our consideration. 1. Whether the complainants claim is barred by limitation? 2. Whether the complainant suffered loss and to what extent? 3. Whether the opposite parties have been deficient in any manner while rendering the service to the complainant? 4. Whether the complainants claim is false, frivolous and vaxatious? 5. On consideration of the rival claim and in view of the admitted facts that complainant was granted a policy dated 3-8-1990 for a sum of Rs. 18 lakhs, it is obvious that complainant has been the consumer of the services of opposite party and has a legal right under the Consumer Protection Act to file this present complaint and on allegations of negligence, while rendering the promised services. Adverting to the main objection of opposite party that complainants claim is barred by limitation in as much as the complainant failed to file the suit/complaint within 12 calender months from the date of repudiation of the policy claim, and therefore, the alleged claim of the complainant is abandoned. In order to appreciate this contention of the opposite party, it is necessary for us to consider the peculiar facts of this complaint. The policy undisputedly is issued on 3rd August, 1990 and the premium was also accepted on the same day. Thus the policy was valid on 7th August, 1990 when the complainant noticed the flooding, and inundation of his bar premises. The intimation to the Insurance Co. is dated 10th August, 1990. It is therefore, crystal clear, that when the complainant noticed the fact of flood and inundation to the bar premises, the policy in question was in operation. Admittedly the intimation was given on 10th August, 1990 about the flood and inundation of the bar premises and therefore on 11th August, 1990 the opposite party appointed Shri V.S. Daoo, the surveyor, to survey the loss of complainant. The opposite party alleged that by communication dated 2-8-1991, the opposite party repudiated the claim. In that letter, it is never disputed that the incident happened on 7th August, 1990. The only contention raised by the opposite party is that the complainants claim is not payable as per terms and conditions of the policy. However, nowhere, it is mentioned which condition was violated by the complainant. There are certain other objections stated in the said letter. The only contention raised by the opposite party is that the complainants claim is not payable as per terms and conditions of the policy. However, nowhere, it is mentioned which condition was violated by the complainant. There are certain other objections stated in the said letter. One of the objection is that the policy was obtained by the complainant after the damage was caused to his property. In our view, this reasoning is totally imaginary, misconceived and mis-chievous. In view of the admitted fact that the insurance policy in question was issued on 3rd August, 1990, such an objection is not only ridiculous but also casts asperations on the work of the Insurance Company, whereby it is suggested that there was gross negligence on the part of the Insurance Co. to have issued the policy on 3rd August, 1990 without proper verification of the facts. The 2nd objection in the said letter is that although the property was being insured with New India Insurance Company, "we have not thought to include the basement of your restaurant in the policy." This objection apparently is meaningless and leads us nowhere. The 3rd objection is that since the damage was noticed on 7th August, 1990 and the intimation was given on 10th August, 1990, the Insurance Company can not entertain the claim in question. A reading of aforesaid 3 objections clearly show not only non-application of mind but the irresponsible manner in which the complainants claim was summarily dismissed. Feeling aggrieved therefore, the complainant continued to agitate his claim with the higher authorities of the Insurance Co. It appears that complainant had approached the Minister for State for Finance, New Delhi and also with the Regional Office of M/s. Oriental Insurance Company at Pune. The complainants claim was further investigated on instruction from Regional Office, Pune by the Divisional Office, Nagpur and finally, it was informed to Regional Office, Pune and Private Secretary to Minister of State for Finance, by the Divisional Office, Nagpur dated 12-12-1991. A copy of which is place on record. It is clearly stated in the said letter that the policy in question was issued to the complainant on 3rd August, 1990 for a sum of Rs. 18,65,000/-. It is also stated therein that the complainant had reported the loss to the opposite party on 10-8-1990 and Mr. Dawoo, surveyor was appointed. A copy of which is place on record. It is clearly stated in the said letter that the policy in question was issued to the complainant on 3rd August, 1990 for a sum of Rs. 18,65,000/-. It is also stated therein that the complainant had reported the loss to the opposite party on 10-8-1990 and Mr. Dawoo, surveyor was appointed. The opposite party, after consideration of the representation made by complainant to the higher authorities by letter dated 12-12-1991 confirmed this earlier occasion of repudiation dated 2-8-1991. One of the reasons for repudiation stated in the said letter is omission to mention the presence of adjoining Nala in the proposal form. However, it is surprising that in the aforesaid letter, the reasons mentioned in that letter dated 2-8-1991 are not repeated. After perusal of the letter dated 12-12-1991, it can not be said that the complainant abandoned his claim. 6. According to Mr. Singh, the earlier communication dated 2-8-1991 was the cutout date for the complainant to file the suit or a complaint in a concerned Court for claiming the settlement of his insurance claim and since this complaint has been filed on 14th October, 1992, after 12 months form 2-8-1991, the complainants claim is barred by limitation. According to Shri Singh, under Clause 14 of the policy, since the complainant has filed this complaint after 12 months from the date of repudiation of the claim he is deemed to have abandoned his right and hence the opposite party is not liable for any loss or damage after the expiry of 12 months, from the happening of the loss or damage in this case. Reliance is placed by Shri Singh on a decision of the National Commission in the case of (M/s. Paras Textile v. The New India Insurance Co. Ltd.)1, I(1993) C.P.J. 126 (NC). We have perused the policy in question and the corresponding clause appearing in policy in question and is reproduced below : It is at condition `B, Sub-clause (iii). "In no case whatsoever shall the company be liable for any loss or damage after the expiration of 12 months from the happening of the loss or damage unless the claim is the subject of pending action or arbitration. (Italicised is ours). "In no case whatsoever shall the company be liable for any loss or damage after the expiration of 12 months from the happening of the loss or damage unless the claim is the subject of pending action or arbitration. (Italicised is ours). It being especially agreed and declared that if the company shall disclaim liability for any claim thereunder, and such claim shall not within 12 calender months from the date of its claim have been made, the subject matter of a suit in a Court of law, then the claim shall for all purpose be deemed to have been abandoned and shall not thereafter be recoverable hereunder". In order to counter this argument, it is submitted by Mrs. Padole that the bar of 12 calender months limitation can be invoked by an insurer, provided the claim is not pending action or arbitration. We have therefore, italicized the important conditions contained in Clause III. It means that if the claim is the subject matter of any action or arbitration, then the bar of 12 months cannot be invoked for purposes of rejecting the consumers claim. In the instant case, we find that the letter dated 2nd August,1991 rejecting the complainants claim is so perfunctory that the complainant was compelled to approach the high authorities and the higher authorities viz. the Finance Ministry the Regional Office, Pune of M/s. Oriental Insurance Co. Ltd. were considering action on the representation made by the complainant. It appears from the letter dated 12-12-1991 and by telex dated 4-12-1991 and telegram dated 11-12-1991 that the Regional Office, Pune were expressing its inability to decide the future course of action on the representation of the complainant. On the basis of this fact, it is apparent that complainants claim was the subject matter of pending action before Regional Office, Pune of the Oriental Insurance Co. and also the Finance Ministry, Govt. of India. In view of this pendency of action, the Clause No. III of condition `B can not be invoked. It is therefore, apparent from the facts and circumstances of this case that complainant did not abandon his claim till 12-12-1991, when on action from the Regional Office, Pune, the Divisional Office, Nagpur/submitted its view to confirm their earlier action. In any case, the facts remains that complainants claim was pending action before the Regional Office, Pune which terminated finally on 11-12-1991. In any case, the facts remains that complainants claim was pending action before the Regional Office, Pune which terminated finally on 11-12-1991. In our view, the facts and circumstances of this complaint, the complainants claim is not hit on account of bar of 12 months as alleged by Shri Singh in his arguments. Consequently, the complainants claim is also not covered by the decision of the National Commission (supra). The facts in the case (supra), before the National Commission were different than the facts of this complaint before us. In the instant complaint, the complainants claim was pending action before the higher authorities and therefore, it can not be said that complainant had abandoned his claim. The theory of abandonment of claim is not attracted in the instant case. We are of the view, that the complainants claim is not hit under the condition of "abandonment" as envisaged in condition`B of the policy in question. We therefore, held that the complainants claim is not barred by limitation on the basis of theory of abandonment. 7. As regards the next point, whether complainant has suffered loss due to the flood, inundation and to what extent, we find answer to this point in the survey report of Mr. Daoo. We have already stated elaborately the observations of Mr. Daoo, as regards the loss suffered by the complainant. Shri Vijay Daoo, the authorised surveyor giving permissible depreciation and after deducting the salvage value of scraps. In his summary of loss quantified the assessment of amount payable to complainant to Rs. 2,26,819.49. We have therefore, no hesitation to accept the said figure of loss, arrived at by the surveyor of the opposite party. It is pertinent to note at this stage that in his survey Mr. Daoo did not even whisper about the material facts being suppressed by the complainant nor expressed any doubt of obtaining of the policy by complainant by fraud or misrepresentation. We therefore, find that although complainant suffered much more loss than claimed to the extent of Rs. 7,41,990/- as worked out by the surveyor, yet after calculating the depreciation for the amount upto 30% the surveyor has been very fair to finally assessed the loss to the tune of Rs. 2,26,819.49/-. Thus we hold that complainant is entitled to settle his claim to the extent of Rs. 2,26,819.49/- duly arrived at by the surveyor. 7,41,990/- as worked out by the surveyor, yet after calculating the depreciation for the amount upto 30% the surveyor has been very fair to finally assessed the loss to the tune of Rs. 2,26,819.49/-. Thus we hold that complainant is entitled to settle his claim to the extent of Rs. 2,26,819.49/- duly arrived at by the surveyor. We have now come to the crux of the matter as to whether the opposite party has been deficient in his service. We have also discussed about the frivolous nature of reasons in the letter of opposite party dated 2-8-1991 to reject the complainants legitimate claim. In none of the reasons, we find that the opposite party applied its mind for the just decision of complainants legitimate claim. On the contrary we find that the opposite party went to the extent of suggesting that the complainant obtained the insurance policy after the occurrence of flood. In none of the reasons, we find any convincing circumstances to support the objection of the opposite party. Moreover, we find that when the complainant lodged his claim on 10th August, 1990, the first alleged repudiation dated 2-8-1991 is after the period of one year, and the next repudiation is after the period of about 2 years and 2 months after the date of occurrence of the flood. It is not even indirectly suggested by the opposite party that the loss suffered by the complainant is imaginary. The complainants loss has been established apart from the survey report by the affidavit of complainant and other circumstances on record. The complainant placed on record various photographs showing the damage caused to her due to inundation were also supplied to the Insurance Company by the surveyor in which it is clearly seen that the basement of the premises, where the bar was situated was inundated. The buckets and the furniture is seen floating on the inundated water. Considering the affluence and waste contained in the water of adjoining Nala, the intensity of the loss can be very easily imagined. We therefore, hold that opposite party were totally negligent in rejecting the complainants claim by giving unconvincing, untenable and imaginery reasons. The deficiency in the service of the opposite party is firstly due to delay in settlement of claim and secondly due to unreasonable and un-maintainable reasons to reject the claim of the complainant. We therefore, hold that opposite party were totally negligent in rejecting the complainants claim by giving unconvincing, untenable and imaginery reasons. The deficiency in the service of the opposite party is firstly due to delay in settlement of claim and secondly due to unreasonable and un-maintainable reasons to reject the claim of the complainant. We therefore, hold that the complainant has proved negligence in the service of the opposite party as a result of which complainant has suffered loss. Lastly, in view of the discussion in the preceding paras, we do not find that the complainants claim is false, frivolous and vexatious. Hence, we pass the following order. Order The complaint is allowed. The opposite party is directed to settle the complainants claim for the amount of Rs. 2,26,819/- and by way of compensation, the opposite party shall pay to the complainant interest on the aforesaid amount at the rate of 18% per annum from 1st June, 1991, i.e. 2 months after the surveyors report. (i.e. 17-6-1991) till full payment to complainant. The complainant also be paid Rs. 500/- as cost of the complaint by opposite party. Complaint allowed.