State Consumer Disputes Redressal Commission
The Branch Manager New India Assuarance ... vs Murali Tiles on 10 May, 2016
Daily Order KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, VAZHUTHACAUD, THIRUVANANTHAPURAM APPEAL NO.274/2015 JUDGMENT DATED 10/5/2016 (Appeal filed against the order in O.PNo.422/2002 dt.29/11/2014 on the file of CDRF, Thrissur) PRESENT: SMT. A. RADHA : MEMBER SHRI. K. CHANDRADAS NADAR : JUDICIAL MEMBER SMT. SANTHAMMA THOMAS : MEMBER APPELLANTS: Branch Manager, New India Assurance Co. Ltd., SSN Shopping Complex, Thriprayar. The Divisional Manager, New India Assurance Co. Ltd., Thrissur. (By Adv: Sreevaraham G Satheesh) Vs RESPONDENT: Murali Tiles, PB No.2, Murali Nagar, Urakam P.O., Thrissur - Rep: by Managing Partner T.K. Shanmughan, Thandassery House, Laxmi Nagar, Chiyyaram P.O., Thrissur. (By Adv: R.S. Kalkura) JUDGMENT
SMT. A. RADHA : MEMBER Aggrieved by the order passed in O.P.No.422/2014 on the file of Thrissur the opposite parties came up in appeal.
2. The case pleaded in the complaint is that on 26/2/2002 a portion of the building which was insured with opposite parties collapsed due to wind. The complainant is a partner, engaged in manufacturing tiles. The complainant concern insured the building and other items for Rs.52,55,000/- for a period from 14/7/2001 to 13/7/2002 with the opposite party in respect of special perils caused to the properties due to natural calamities like fire, lightning , storm, cyclone, tempest, flood etc. On 26/2/2002 a strong heavy wind caused damage to the property and in that locality. The building collapsed were the plant and machinery required manufacturing tiles situated. The damage was immediately informed to the opposite party and the insurer deputed a surveyor to ascertain the loss caused to the insured. The complainant preferred a claim for Rs.7,85,158/- towards the damages due to the heavy cyclonic wind. The opposite parties refused to entertain the claim stating that the damage was not an insured peril under the policy. The building was collapsed due to wind not reaching to the level of storm coupled with the aging of the building. This act of the opposite party amounts to deficiency in service and the complainant approached the Forum Below to get indemnified the loss suffered due to the peril. The complainant claimed Rs.2,50,000/- as compensation and also Rs.10,000/- for mental agony.
3. Disputing the claim the opposite parties in the version contended that the complainant is not a consumer as defined under the Consumer Protection Act on the ground that the policy was issued for commercial purpose. The policy is admitted during the period from 14/7/2001 to 13/7/2002. The liability of the opposite party is based on the terms and conditions of the policy. The complainant has to prove that the portion of the factory building was collapsed due to heavy and furious stormy wind and sustained damage. The weather report issued by the Meteorological Department and other circumstantial evidence shows that the cause of damage was due to the wind not reaching the level of storm coupled with the aging of the building. It is admitted that a surveyor was deputed to assessed the loss sustained to the factory of the complainant and the assess loss as per the survey report was Rs.2,47,257/-. It is contended that the damages caused was not due to any peril as per the terms and conditions of the policy. There is no deficiency in service on the part of opposite parties.
4. The complainant was examined as PW1 and documents were marked as Exbts.P1 to P5. On the part of opposite parties Exbts: R1 to R11 were marked. On considering the evidence and documents the Forum Below allowed the complaint with interest @ 12% and cost of proceedings.
5. It is argued by the counsel for the appellant that there is no evidence for any storm on the alleged date causing the alleged loss. The policy covers only the loss sustained due to storm cyclone, cyclone etc. As per the evidence there had only strong wind not reaching to the level of storm. The counsel also pointed out that the Forum Below arrived at a wrong conclusion without taking into consideration of the terms and conditions of the policy. The policy was issued knowing the age of the building. As per the policy it covers only the natural calamities and in the absence of such calamities the claim is not payable. It is also in evidence that the policy does not cover damage due to aging of the building. No evidence is brought out to show that on that day there had any storm in the area of the complainant. The appellant/opposite party is not liable to entertain any claim which was not included under the terms and conditions of the policy. Hence the order passed by the Forum Below is only to set-aside.
6. The counsel for the respondent submitted that the respondent is having a valid policy during the period from 14/7/2001 to 13/7/2002 for an amount of Rs.52,85,000/- and the claim lodged by the respondent is for Rs.2,50,000/- due to the heavy wind on 26/2/2002 which resulted in the destruction of a portion of the building and respondent sustained damages. The insurance was with respect to special perils caused to the properties insured due to natural calamities liken fire, lightning, storm, cyclone etc. for any damage or destruction caused to the properties insured on account of the any of these contingencies insurance company is liable to make good. The loss caused to the insured due to the heavy stormy wind as a portion of the building was collapsed where the plant and machinery for manufacturing tiles were also damaged and this incident was informed to the appellant immediately. A surveyor was deputed to assess the damage and filed the report. Thereafter the appellant repudiated the claim on flimsy ground stating that only heavy wind and not storm. According to the opposities party the building was collapsed due to wind not reaching the level of storm coupled with the aging of the building. This finding of the appellant is arbitrary and unsustainable. Hence the claim was closed by the opposite party and had to approach the Forum. The rejection of the claim is against the principles of justice and the respondent is entitled for the claim.
7. Heard both sides in detail and had gone through the documents. The undisputed facts are that the complainant is having a Standard and Special Perils Policy during 14/7/2001 to 13/7/2002. The factory building was collapsed due to heavy and furious wind and sustained damages to plant and machinery. Immediately after the incident the appellant was informed and a surveyor was deputed to assess the loss. We would like to point out that the claim was repudiated on the ground that the terms and conditions of the policy does not include heavy wind on 26/2/2002. There had only strong wind and a portion of the building was collapsed. It is also reported by the Insurance Company that as per the weather report issued by the Meteorological Department and other circumstantial evidence the cause of accident for a collapse of the building and subsequent damages are due to the wind not reaching the level of storm coupled with the aging of the building. This causation is not an insured peril under the policy issued to the respondent. It is also pertinent to point out that the complainant failed to produce any evidence to show that there had any storm on that day in that area of the complainant. The contract is based on the terms and conditions and the perils mentioned in the policy does not cover heavy wind. Hence the liability cannot the fastened upon the Insurance Company as it is based on the terms and conditions of the policy.
In the result, appeal is allowed setting-aside the order passed by the Forum below.
The office is directed to send a copy of this order to the Forum Below along with LCR.
A. RADHA : MEMBER
K. CHANDRADAS NADAR : JUDICIAL MEMBER
SANTHAMMA THOMAS : MEMBER
Sa.
KERALA STATE CONSUMER
DISPUTES REDRESSAL
COMMISSION,
VAZHUTHACAUD,
THIRUVANANTHAPURAM.
APPEAL NO.274/2015
JUDGMENT DATED 10/5/2016
Sa.