National Consumer Disputes Redressal
Murali Tiles vs Branch Manager, New India Assurance Co. ... on 13 April, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2582 OF 2016 (Against the Order dated 10/05/2016 in Appeal No. 274/2015 of the State Commission Kerala) 1. MURALI TILES P.B. NO. 2, MURALI NAGAR URAKAM P.O. THRISSUR DISTRICT REPRESENTED BY ITS MANAGING PARTNER T.K SHANMGHAN, THANDASSERY HOUSE LAXMI NAGAR CHIYYARAM P.O THRISSUR ...........Petitioner(s) Versus 1. BRANCH MANAGER, NEW INDIA ASSURANCE CO. LTD. & ANR. NEW INDIA ASSURANCE CO. LTD., THRIPRAYA BRAHCH, S.S.N. SHOPPING COMPLEX TEMPLE ROAD, THRIPARYAR - 650566 2. DIVISIONAL MANAGAR NEW INDIA ASSURANCE COMPANY THRISSUR ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE,PRESIDING MEMBER HON'BLE MR. ANUP K THAKUR,MEMBER For the Petitioner : MR. C.N. SREEKUMAR & MR. AMIT SHARMA For the Respondent : Mr. Rajesh K Gupta, Advocate Dated : 13 Apr 2017 ORDER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER This revision takes exception to the order of the State Commission Kerala dated 10.05.2016 in appeal No. 274 of 2015 resulting in dismissal of consumer complaint filed by the petitioner complainant.
2. Briefly stated, the facts relevant for the disposal of the revision petition are that petitioner filed consumer complaint alleging that petitioner complainant is partnership firm engaged in manufacture of tiles. The complainant firm had purchased Standard Fire and Special Perils Policy from the opposite party. The policy was effective from 14.07.2001 to 13.07.2002. The insurance policy extended insurance cover to the tune of Rs.7,00,000/- for the buildings, Rs.1,50,000/- for the chimney, Rs.11,80,000/- for plant and machinery and Rs.25,00,000/- for finished and semi-finished goods. According to the complainant on 26.02.2002, due to sudden heavy wind in the locality, the roof of the insured property collapsed resulting in huge damage. As a consequence, functioning of factory was rendered impossible. The respondent opposite party was immediately informed about the incident resulting in damage. Opposite party appointed a qualified surveyor who assessed the extent of damage to the tune of Rs.2,47,257/-. The opposite party insurance company, however, repudiated the claim. Being aggrieved of the repudiation of the insurance claim, the petitioner raised consumer dispute by approaching the District Forum Thrissur.
3. The opposite party on being served justified the repudiation of claim by pleading that damage caused due to heavy wind was not covered under the insurance policy. The opposite party also took a preliminary objection that as the services of the insurance company were obtained to ensure commercial business of the complainant, complainant is not a consumer and as such no locus standi to maintain consumer complaint.
4. The District Forum vide order dated 27.03.2006 dismissed the complaint holding that petitioner is not a consumer within the meaning of Section 2 (1) (d) of the Consumer Protection Act, 1986. Being aggrieved of the order of the District Forum, the petitioner preferred an appeal being appeal No 357 of 2006 before the State Commission. The State Commission vide its order dated 13.01.2010 allowed the appeal, set aside the order of the District Forum dated 22.03.2006 and remanded the matter back to the District Forum to decide the complaint on merits.
5. After the remand, the District Forum reconsidered the matter and on the basis of the pleadings and evidence, allowed the complaint. Consequently, the respondent opposite parties were directed to pay to the petitioner sum of Rs.2.5 lakhs with interest @ 12% p.a. from the date of filing of complaint till the realization of amount besides cost of Rs.1000/-.
6. The respondent opposite party being aggrieved of the order of the District Forum approached State Commission Kerala in appeal. The State Commission vide impugned order allowed the appeal, set aside the order of the District Forum and dismissed the complaint. The rationale behind the order of the State Commission is that insured building was an old building, which collapsed due to heavy wind not reaching the level of storm and that the aforesaid peril was not covered under the insurance contract.
7. Learned counsel for the petitioner has contended that impugned order of the State Commission is based upon erroneous appreciation of facts. In support of his contention, learned counsel has taken us through the copy of the survey report prepared by M/s Thomas Grom Surveyors dated 27.04.2002 and pointed out that even as per the survey report, cause of damage to the insured premises is high wind speed which in common parlance can be termed as 'storm'. It is argued that State Commission has failed to appreciate that peril covered in the policy is wide enough to include all natural perils which may cause damage to the property. The State Commission ignoring the fact has taken a highly technical definition of storm, tempest etc. to justify the repudiation of the insurance claim by the opposite party.
8. Learned Shri Rajesh Gupta, Advocate on the contrary has argued in support of the impugned order.
9. We have considered the rival contentions. The only question which needs to be considered in this revision petition is as to whether or not, the cause of damage to the insured property was covered under the insurance policy?
10. It is admitted case of the parties that petitioner had purchased a Standard Fire and Special Perils Policy ( material damage) from the opposite party. As per the terms and conditions of the insurance policy particularly clause VI, the damage caused to the insured property due to Storm, Cyclone, Typhoon, Tempest, Hurricane, Tornado, Flood and Inundation was covered under the insurance policy. Undisputedly, on receipt of information about damage, the opposite party insurance company appointed M/s M/s Thomas Grom Surveyors to conduct survey and assess the loss sustained by the insured due to damage to the factory sheds, stocks and other contents as a result of high speed wind. On perusal of copy of the surveyor report, we find that surveyor has assessed the total loss caused to the insured property including the admissible charges for debris removal works at Rs.2,47,257/- . Regarding the cause of damage, the surveyor has observed as under:
"The claim form submitted by the insured indicate the damage is caused by high speed wind. The weather report no.C201/WR/1236 dtd. 20.02.2002 issued from the Indian Meteorological Department, Meteorological Centre, Observatory Thiruvananthapuram indicate that the following weather conditions would have prevailed over Oorakam and neighbourhood on 26.02.2002.
Surface wind direction : Mainly from east Average surface wind speed : 10-15 kmph Sky condition : mainly clear skies Weather : nil
We have made our own enquiries with local residents near to the tile factory at Cherpu Panchayat, Oorakam to find out whether they experienced any strong and high wind at about 12.45 p.m. on 26.2.2002. Some of them informed us that the area was lashed by abnormal wind for a short time at about 12.45 p.m. on 26.2.2002. However no damages could be noticed to buildings or trees in and around the insured's factory. It is also to be noted that rest of the factory buildings in the premises have not suffered any damages.
The insured's building is around 40 years old. Based on the weather report issued by the Meteorological departments and other circumstantial evidence available, we are of the considered opinion that strong wing (but not reaching to the level of storm) coupled with the aging of the building may be the cause for the collapse of the building roof which ultimately damaged the contents therein."
11. On reading of the above, one thing is clear that surveyor on enquiry conducted with the local residents was informed by some of them that subject area experienced abnormal wind for a short duration on 26.02.2002 at 12.45 p.m. The surveyor, however, has observed that as per the weather report issued by Indian Meteorological Department, Meteorological Centre Observatory, Oorakam and neighbourhood area on 26.02.2002 experienced wind with the speed 10-15 km per hour. The surveyor has observed that insured building was around 40 years old. Therefore, in view of the weather report of the meteorological department and other circumstantial evidence, cause of collapse of the insured building may be the strong wind coupled with the ageing of the building. No details are given by the surveyor in the aforesaid conclusion about the age of the building. Even the meteorological department report has not been placed on record. Therefore, conclusion of the surveyor that one of the cause of the collapse of building was old age cannot be accepted. However, the fact remains that enquiry of the surveyor revealed that subject area experienced high speed wind and in our opinion that could be reason for collapse of the building more so because there is no foul play alleged by the opposite party nor there is any observation regarding foul play in the surveyor report. State Commission has fallen in error in accepting the observation of the surveyor that the cause of collapse of the building and the consequential damage was the wind not reaching the level of storm coupled with the ageing of the building without appreciating that there is no reasonable basis for the aforesaid observation of the surveyor regarding cause of collapse. Therefore, order of the State Commission cannot be sustained.
12. We accordingly, allow the revision petition, set aside the order of the State Commission and restore the order of the District Forum. Opposite Party to comply with the order of the District Forum within four weeks.
......................J AJIT BHARIHOKE PRESIDING MEMBER ...................... ANUP K THAKUR MEMBER