State Consumer Disputes Redressal Commission
The New India Assurance Co. Ltd vs M/S J.J Sea Foods Co. on 17 February, 2021
Date of filing: 29.07.2013
Date of disposal: 17.02.2021
Duration: 7 years, 6 months, 19 days
BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE, AHMEDABAD.
COURT NO: 05
Appeal No. 1807 of 2013
The New India Assurance Co. Ltd.
Suvidha, 3rd Floor,
Mercantile Co. Op. Bank Building,
Subhash Road,
Veraval. ... Appellant
V/s.
M/s. J.J. Sea Foods Co.
Power of Attorney of Registered
Partnership Firm,
Naranbhai Narshibhai Khetarpal,
Bara Road, Mangrol,
Dist: Junagadh. ... Respondent
CORAM: Dr. J.G. Mecwan, Presiding Member
APPEARANCE: Shri P.H. Thakkar, L.A. for the appellant.
Shri Jaivik Bhatt, L.A. for the respondent.
Order by Dr. J.G. Mecwan, Presiding Member.
Judgment
1. Being aggrieved by and dissatisfied with the judgment and order rendered by the Consumer Disputes Redressal Forum, Junagadh on 19.03.2013 in Complaint No. 116 of 2010, the original opponent has filed the present appeal under Section 15 of the Consumer Page 1 of 13 R.I. DESAI A/13/1807 Protection Act, 1986 before this Commission. For the sake of the convenience, parties are hereinafter referred to by their original nomenclature.
2. To dispose of this appeal, few relevant facts are required to be mentioned: The original complainant M/s. J.J. Foods Co. is a partnership firm and has a building of the said partnership firm situated at Mangrol for which the insurance policy was taken from the opponent Insurance Company. The insured amount of said policy was Rs. 7,50,00,000/- and effective period of policy was 28.02.2009 to 27.02.2010. As per the submission of the complainant during policy period dated 14.07.2009 to 24.07.2009 there was a heavy rain in Mangrol and due to heavy rainfall the building of the insured was damaged tune to Rs. 15,30,000/-. Therefore the complainant has informed about the said incident to the opponent Insurance Company and thereafter the surveyor Mr. A.M. Patel was appointed by the Insurance Company. As per the submission of the complainant the surveyor has assessed the loss of Rs. 12,75,157/- but the claim of the complainant was repudiated by the Insurance Company on dated 13.11.2009 on the ground that the risk of rain water damage (either normal or heavy rains) is not specifically covered under our policy issued to the client. Page 2 of 13
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3. Being dissatisfied with the repudiation letter of the Insurance Company, the complainant filed aforesaid consumer compliant before the learned District Commission at Junagadh for deficiency in service and unfair trade practices of the opponent Insurance Company.
4. After hearing learned advocates for both the parties and after considering the documents and evidences, the learned District Commission allowed the complaint of the complainant.
5. Being aggrieved by the impugned order of the learned District Commission, Junagadh the original opponent has filed the present appeal against the original complainant before this Commission on the ground stated in the appeal memo.
6. Heard learned Advocate Mr. P.H. Thakkar for the appellant and learned Advocate Mr. Jaivik Bhatt for the respondent at length. Perused the record, judgments produced by both the parties and order of the learned District Commission.
7. First of all learned Advocate Mr. P.H. Thakkar argued out that the claim of the complainant came to be repudiated since it is not payable under the coverage of Fire policy. It is further submitted by learned Advocate for the appellant that as per the claim intimation given by the complainant the building was damaged due to heavy Page 3 of 13 R.I. DESAI A/13/1807 rain water and the lightening but there was no evidence of lightening and there was no any proof of lightening.
8. Learned Advocate Mr. P.H. Thakkar further submitted that the learned District Commission ought to have appreciated that the risk of rain water damage (either normal or heavy rain) is not specifically covered under the policy and the learned District Commission has grossly erred in coming to the conclusion that the heavy rain would have come within the meaning of "Storm". Further the ld. Ad. has also submitted the judgment I (2015) CPJ 588 (NC) passed by the Hon'ble National Commission and argued out that the report of the surveyor is to get due weightage and there should be some solid reasons for rejecting the same.
9. Learned Advocate Mr. P.H. Thakkar concluded that the learned District Commission has grossly erred in taking into considering the report of the surveyor and therefore the judgment passed by the learned District Commission is required to be quashed and set aside by allowing this appeal.
10. Upon service of the notice ld. Ad. Mr. Jaivik Bhatt appeared on behalf of the respondent and vehemently argue out that during 14.07.2009 to 24.07.2009 there was a heavy rain in Mangrol and the building of the insured was damaged and therefore the claim Page 4 of 13 R.I. DESAI A/13/1807 intimation given to the appellant Insurance Company and at that time being a layman it has been intimated that damage was occurred due to the lightening. The learned Advocate Mr. Bhatt further argued out that the surveyor Mr. A.M. Patel assessed the claim of Rs. 12,75,157/-. However, the claim of the complainant was repudiated by the Insurance Company on the ground that the rain water damages are not covered under the said policy.
11. Learned Ad. Mr. Bhatt concluded that after verifying documents and policy conditions, the learned District Commission allowed the complaint of the complainant and opponent Insurance Company was ordered to pay Rs. 12,75,157/- with 9% interest from the date of filing the complaint which is just and proper and it should be confirmed by dismissing this appeal. In support of arguments learned Advocate Mr. Bhatt has cited following judgments:
I. Sri Senthil Andavar Industries Vs. Tamil Nadu Industrial Investment, decided on 7th August, 2006 by Hon'ble National Commission.
II. F.A. No.271/2008 by Consumer State Commission Tamilnadu III. Hon'ble National Commission in F.A. No. 782/2007, IV. Hon'ble National Commission in F.A. 279/2008, V. Hon'ble National Commission in F.A. 129/2011, VI. Hon'ble National Commission in F.A. 201/2013, VII. Hon'ble National Commission in R.P. 4113/2007.
12. In the above judgments following observation has been made:
In Sri Senthil Andavar Industries [Supra] and in F.A. 271/2008 - Storm and heavy rain is covered under the policy.Page 5 of 13
R.I. DESAI A/13/1807 F.A. No.782/2007:- Heavy rain would be logically covered under the policy even though "seepage" or "heavy rains" may not per se have been listed as one of the perils in the insurance policy.
F.A. 279/2008:- Strong winds and storm accompanied with heavy rains which created a flood like situation covered under the policy.
F.A. 129/2011:- Damage was caused by moisture on account of rainfall would be logically covered under the policy.
F.A. 201/2013:- Entry of heavy rain water into the godown, due to heavy rain, can be treated as 'inundation'.
R.P. 4113/2007:- Seepage which was caused directly by the flood was covered in the policy.
13. In the present case it is the main contention of the appellant that there was no proof of dropping lightening at the claim location but loss have found and it is occurred due to the continuous heavy rainfall on the insured building in which defective material used to construct the insured building.
14. I have gone through the record, report of the surveyor Mr. A.M. Patel is on record at page no. 74 wherein surveyor has mentioned in para 3.6, 4.2, and 4.4 as under:
3.6 - The valuer had righty stated in his certificate that the claimed loss/damages is also due to heavy rainfall Page 6 of 13 R.I. DESAI A/13/1807 continued for couple of days. We justified this cause of loss/damages as rainfall (rainfall is excluded peril under the Std. Fire & Special Perils Policy) &/or due to direct consequence of the continual influence of heavy rainfall because of defective workmanship &/or materials used. 4.2 - As stated by the insured, the Lightening was falled on the factory building but we did not find any evidence of the same looking to the extent & nature of damages and also insured could not submit any proof of dropping of the lightening at the claimed location. Please refer Sr. No. 3.0 of this report for more details.
4.4 - Hence cause of loss/damages does not fall within the scope of Std. Fire & Special Perils Policy but the same were found due to any perils excluded under the Std. Fire & Special Perils Policy.
15. Looking to the above report of the surveyor it is crystal clear that the loss to the building of the insured was occurred due to heavy rainfall and not due to lightening. It is the averment of the opponent Insurance Company that claim intimation was given that the loss/destruction has occurred due to the lightening but ld. Advocate Mr. Bhatt drawn attention of Commission to the claim form which is at page no. 59-60 on record wherein at column 05 'Natural and Cause of Loss' it is clearly mentioned that "Damage to the building due to heavy rainfall and lightening." and there was affirmed by the surveyor Mr. A.M. Patel in his survey report and it Page 7 of 13 R.I. DESAI A/13/1807 has been accepted that loss was occurred due to heavy rainfall and the result thereof the Insurance Company has repudiated the claim of the complainant.
16. Repudiation letter of the Insurance Company is on record at page No. 69 wherein reason for the repudiation of claim was given as under:
"NO ANY INSURED PERIL COVERED UNDER THE POLICY WERE ACTIVE CAUSING DAMAGES TO THE BUILDING AS CLAIMED BY YOU."
17. Further the terms and conditions of the Insurance Company is also on record at page no. 17 to 20 wherein Section VI is related to the STFI i.e. Storm, Cyclone, Typhoon, Tempest, Hurricane, Tornado, Flood and Inundation which is reproduced below:
"Loss, destruction or damage directly caused by Storm, Cyclone, Typhoon, Tempest, Hurricane, Tornado, Flood or Inundation excluding those resulting from 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."
Looking to the above it is very clear that if loss/destruction occurred due to the STFI i.e. Storm, Cyclone, Typhoon, Tempest, Hurricane, Tornado, Flood and Inundation then Insurance Company is liable to give claim amount.
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18. In Indian contexts 'Storm' and 'Hurricane' both are synonyms. In the Caribbean area 'Storm' is called 'Hurricane'. As far as storm is concerned storm means "A violent disturbance of the atmosphere with strong winds and heavy rain, thunder, lightening or snow." In the various judgments of Apex Courts and also in the various judgments of Consumer Disputes Redressal Commission Gujarat it has been decided that damages caused by rain water followed by cyclone/storm covered under the policy and therefore in the opinion of this Commission continuous heavy rain at Mangrol for the period of 14.07.2009 to 24.07.2009 comes under the definition of 'Storm' and hence any damages occurred by storm complainant is entitled to get claim amount.
19. In the judgment rendered by Hon'ble National Commission in "Bajaj Allianz General Insurance Co. Ltd. Vs. Gondamal Hardyal Mal"
- IV(2009) CPJ 165 (NC) for the STFI, following observation is made:
"Ld. Counsel for the petitioner relies upon condition VI of the policy, which reads as under:-
VI. STORM, CYCLONE, TYPHOON, TEMPEST, HURRICNE, TORNADO, FLOOD & INUNDATION Loss destruction or damage directly caused by storm cyclone, typhoon, tempest, hurriene, tornado, flood and inundation excluding those resulting from earthquake volcanic eruption or other convulsions of nature".Page 9 of 13
R.I. DESAI A/13/1807 It is his case that since this was a question of leakage of water from roof, hence, it is not covered under any of the perils covered under the Policy.
In support of this contention, Counsel for the petitioner has produced before us the definition of inundation as obtained from the website.
After hearing the Counsel for the petitioner and material on record, we find that this Commission had occasion to deal with a similar type of case in the case of "M/s. National Insurance Co. Ltd. Vs. Marthi Crystal Salt Co. Ltd. [1986-2002 Consumer 6043 (NS)]" and "United India Insurance Co. Ltd. Vs. Dipendu Ghosh & Anr. [II (2009) CPJ 311(NC)]", wherein this Commission has interpreted the word Direct Cause as appears in the terms of the Policy and had recorded as under:-
"Learned Counsel for the respondent brought on record the copy of 'P. Ramanatha Aiyars The Law Lexicon, Law Dictionary'. As per this dictionary, the word 'direct cause' as well as 'Direct and proximate cause' has been defined as under:
Direct Cause - that which sets in motion train of events which brings about result without intervention of any force operating or working actively from new and independent source; or , one without which the injury would not have happened. Norbeck v. Mutual of Omaha Ins. Co., 3 Wash. App 582, 476 p 2d, 546, 547 (Blacks Law Dictionary)."
(Emphasis supplied) This Commission had also occasion to go into this question again in the case of "United India Insurance Co. Ltd. Vs. Imperial Gift House & Anr. [I (2007) CPJ 6 (NC)]," in which it was held that as per Oxford Concise Dictionary, relied upon by the State Commission, the word 'Flood' also mean, "...an outpouring of water..." and 'tornado', beside other means,"...a great down pour of rain..." Nothing to the contrary has been shown to challenge the finding recorded by this Commission in the two Judgements (supra), Page 10 of 13 R.I. DESAI A/13/1807 meaning thereby that 'tornado', will also mean, "...a great down pour of rain..."
It is not disputed, as per facts brought on record, by the Counsel for the petitioner, that on account of rain, the rainwater poured into the godown through the holes from the roof of the godown, thus, inundating or wetting the stock in the godown.
In view of the Judgements (supra) in which we have extensively dealt with the meaning of risk covered by the Policy, we are unable to sustain the arguments advanced by the Counsel for the petitioner that the word 'inundation' would invariably associate with the 'flood', as he understands. As already described above, as per Oxford Concise Dictionary, 'Flood' also means, "...An outpouring of water..." Thus, in view of the law settled by this Commission on these points, we see no merit in the arguments advanced by the Counsel for the petitioner." The above observation of the Apex Court is quite applicable to the present case. In the present case due to 'Direct Cause' of storm insured building was damaged and the surveyor Mr. Patel has also accepted in his report that loss/destruction to the insured building was due to heavy rain and therefore when continues heavy rain comes under the definition of storm then Insurance Company is liable to pay the claim amount.
20. It was an averment of Insurance Company that defective materials used to construct the building and therefore building was damaged but in the opinion of this Commission when insured amount of building was Rs. 7,50,00,000/- and therefore as per Page 11 of 13 R.I. DESAI A/13/1807 practice before issuing policy, insurer may have inspected the building and hence Insurance Company cannot raise the point of poor construction of building at later stage.
21. On the basis of the above discussion in depth, I am of the opinion that the destruction/damage to the insured building was caused directly by the 'storm' and therefore the claim was wrongly repudiated by the opponent Insurance Company and therefore complainant is entitled to get claim amount assessed by surveyor. Hence the order passed by the leaned District Commission is just and proper and hence it is not required any interference by this Commission. Therefore the following final order is passed.
ORDER
1. The present appeal is hereby ordered to be dismissed.
2. The judgment and order passed by the Learned District Commission, Junagadh dated 19.03.2013 in Consumer complaint No. 116 of 2010 is hereby confirmed.
3. No order as to cost.
4. Office is directed to verify the amount deposited by the appellant in the proceedings and if found deposited refund the same with interest, if any, accrued on the deposit by issuing A/C payee cheque in the name of the appellant. The Page 12 of 13 R.I. DESAI A/13/1807 cheque may be handed over to the attending advocate after following due procedure.
5. Office is directed to forward a free of cost certified copy of this judgment and order to the respective parties.
Pronounced on 17th February, 2021.
[Dr. J.G. Mecwan] Presiding Member.
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