State Consumer Disputes Redressal Commission
Tecil Chemicals & Hydro Power Ltd., vs The New India Assurance Company- on 30 October, 2008
Daily Order
Complaint Case No. CC/01/39
1. TECIL CHEMICALS AND HYDRO POWER Ltd,Rep.by Director (Operations) G.Joy
Chingavanam,Kottayam
....Complainant(s)
Versus
1. THE NEW INDIA ASSURANCE CO LTD,
Divisional Office 760100,Padinjarekara Chambers,Kottayam
....Opp.Party(s)
1. THE NEW INDIA ASSURANCE CO LTD,
Divisional Office 760100,Padinjarekara Chambers,Kottayam
....Opp.Party(s)
BEFORE :
PRESENT:
Michael Kutty Mathew , Advocate
for the Complainant 1
None for the Opp.Party
*JUDGEMENT/ORDER
JUDGMENT
SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER
Complaint filed under Sec.11 and 12 of the Consumer Protection Act, 1986 claiming the insurance claim of Rs.20,00,000/- with costs.
2. The case of the complainant is as follows:-
The complainant is a company engaged in manufacture of chemicals and production of hydro power having its registered office at Chingavanam, Kottayam District. It is having factory buildings, power house, plant building, stores, godown, sheds, administrative buildings, club etc, with stock kept in open, stock in godown, plant and machinery. The estimated vale for all the above items would come to Rs.19,66,15,922/-. The above said value arrived at and proved by the opposite party/New India Assurance Company Limited. The complainant/company insured the buildings, plant and machinery, stock in open, stock in go down, furniture for the year 2000-2001 with the opposite party/insurance company for an estimated value of Rs.19,66,15,922/- with a premium of Rs.1,96,123/-. The opposite party/insurance company issued the policy undertaking to indemnify the complainant in case of any loss or damage to the insured items. The validity of the policy was for the period from 1..5..2000 to 30..4..2001. On 9..7..2000 at midnight there occurred heavy rain and (wind of high velocity amounting to) storm in the area wherein the factory buildings are situated at Chingavanam. In the said storm, heavy destructions of trees and buildings and godown No:2 among the buildings belonged to the complainant had collapsed. Due to the impact of the storm around midnight on the said date the branch of the tree standing nearby was sheared and fell down and one coconut tree was uprooted. On the very next day the matter was informed and requested the opposite party to arrange for inspection and evaluation of the damages and losses. Mr.K.J.Philip was appointed as Surveyor who assessed the damage caused. He visited the damaged building along with the Divisional Manager of the opposite party and had submitted report to the opposite party. Thereafter on 17.7..2000, the complainant submitted necessary claim form to the opposite party as required by the opposite party and thereby claimed an amount of Rs.20,00,000/- as the estimated loss sustained to the company due to the collapse of the building in the said calamity. The said amount was arrived at after assessing the exact loss. On receipt of the claim form, the complainant was required to produce certain other documents such as weather report from Meteorological Department and the plan of the damaged building with detailed estimate of repairs, details regarding year of construction etc. The complainant submitted all the documents which were required by the opposite party. The complainant made several enquiries with the opposite party regarding the settlement of the claim lodged. But the opposite party prolonged the matter for reasons best known to them. On 17..12..2000 the opposite party repudiated the bonafide claim lodged by the complainant alleging false, frivolous and flimsy reasons. The repudiation of the claim is illegal and unsustainable under law. The complainant is a consumer as defined under the provisions of Sec,2(1)(d) of the Consumer Protection Act and the said illegal repudiation of the claim by the opposite party will amount to deficiency of service. On 24..1..2001 the complainant issued a lawyer notice to the opposite party stating all the matters and calling upon them to settle the insurance claim. The opposite party failed to settle the insurance claim. Nor even cared to give a reply. Hence the present complaint is filed. The cause of action for the complaint arose on 7..12..2000, the date of illegal repudiation of the claim by the opposite party at Chingavanam where the subject matter situates and the contract was entered into between the parties. Hence the complainant prayed for directing the opposite party to pay Rs.20,00,000/- to the complainant towards the settlement of the claim lodged by the complainant as per the claim form submitted on 17..7..2000 with cost of the proceedings.
3. The Divisional Manager of the opposite party/New India Assurance Company Ltd. filed written version contending as follows:-
The complaint is not maintainable either in law or on facts. The averment that the value of the assets was arrived at and approved by the opposite party is false. The opposite party had not conducted strict physical verification of the assets before issuing the policy. The policy was issued in good faith on the basis of the representations made by the insured. The opposite party issued the Fire policy to cover buildings and stock of the complainant as detailed in the policy. Under the policy risks are covered as per the conditions given in the policy. The averments that on 9..7..2000 at midnight there occurred heavy rain and storm in the area wherein the factory buildings are situated at Chingavanam causing heavy destructions to trees, buildings and the godown No:2 had collapsed in the storm and heavy rain causing extensive damage are absolutely false and hence denied. The alleged loss caused to the complainant was intimated to this opposite party on 17..7..2000 and immediately an independent licensed surveyor Sri.K.J.Philip was deputed to conduct preliminary survey. After conducting the preliminary survey, the surveyor submitted his report on 30..8..2000. He reported that the collapse of the insured building is due to deterioration of the structures. The preliminary surveyor had taken several photographs of the surrounding area. The said photographs do not show the uprooting of the coconut tree or fall of a branch of tree standing nearby. The complainant had not pointed out anything about it to the officials of the opposite party who had visited the premises at the time of survey. The preliminary surveyor reported that lack of maintenance led to bad state of building trusses and no other building was damaged and surrounding trees are intact. The opposite party had also deputed M/S Zanders, Lissie, Pulleppady, Cochin-18, independent licensed surveyors to conduct final survey. They conducted the final survey and submitted their report dated:25..10..2000. The final surveyor reported that a portion of the wall of about 6 meters length was found collapsed long back and was left unattended without being constructed, that no damages was seen to any other structures in the same compound, and that the speed of wind in that area was between 10-15 Km per hour, on the date of collapse. It is further reported that they could not find any damage anywhere which could have taken place due to storm and that not a single tree in the factory side was found disturbed and that the claim preferred by the insured need not be entertained. The final surveyor has attributed the collapse of the building to rusting and reported that the trusses of the godown was not even painted. The preliminary surveyor and the final surveyor had assessed the loss approximately at Rs.8,29,887.50 and Rs.8,23,893/- respectively without prejudice to the terms, conditions and warranties of the policy. The opposite party had collected weather report from M/s India Meteorological Centre, Meteorological Department, Government of India. As per their letter dated:19..10..2000 the said department had given the classification of wind speed in which the cyclonic storm is in the range 62-85 Km per hour. According to the said report the lowest velocity of storm is 62 Km per hour and this is termed as cyclonic storm. The said report categorizes the surface wind having speed of 10-15 Km per hour as that of low wind and that of 50-60 Km per hour is to be in the category of weather system "deep depression". As per the weather report produced by the complainant, the maximum wind speed at Chingavanam on the date of accident was only 10-15 Km per hour and occasional wind may reach 55 Km per hour. The said winds will not come under the category of storm. By the aforesaid reasons the opposite party was unable to indemnify the alleged loss caused to the complainant. The averments that the complainant suffered loss of Rs.20,00,000/- and that the said amount was arrived at after assessing the exact loss are false and denied. The opposite party has not committed any defect or deficiency of service. The opposite party had deputed more than one surveyor and obtained report from them and also the weather report and it was found that the claim cannot be honoured. The opposite party had not caused financial constraints or loss to the complainant. The opposite party had sent reply to the lawyer notice sent by the complainant Vide reply dated:1..2..2001. The complainant has no cause of action to file the complaint. The Hon'ble commission has no pecuniary jurisdiction to entertain the complaint and the complaint is liable to be dismissed. The complainant is not entitled to get any amount or cost or any other relief.
4. The points that arise for consideration are:-
1. Whether the complaint herein is maintainable in law?
2. Whether the alleged peril occurred on 9..7..2000 at midnight was covered under the policy of insurance issued by the opposite party/New India Assurance Company Ltd infavour of the complainant Tecil Chemicals and Hydro Power Limited, Chingavanam?
3. Is there occurred any deficiency of service on the part of the opposite party/New India Assurance Company Ltd. in repudiating the insurance claim putforward by the complainant company?
4. The order as to reliefs and costs?
5. The evidence in this case consists of the oral testimonies of PWs 1 and 2, RWs 1 to 3 and CW1 and that of the documentary evidence Exts.A1 to A14, B1 to B11 and C1.
6. POINT NO:1:-
The complainant/Tecil Chemicals and Hydro Power Ltd. had insured its factory building, power house, plant and machinery and the stocks as per A1 policy of insurance issued by the opposite party/The New India Assurance Company Ltd. The period of the policy was effective from 1..5..2000 to 30..4..2001. The A1 policy was issued subject to the terms and conditions incorporated in the policy. The opposite party/insurance company has got a case that the complainant/company has not been properly represented and so the complaint as filed is not maintainable and the same cannot be entertained. Admittedly the complainant/company herein is represented by the Director (Operations) G.Joy. He has been examined as PW1. He deposed that he is having the authority to represent the complainant/company by virtue of the power of attorney executed by the complainant/company. He also expressed his readiness to produce the said power of attorney. Thereby the power of attorney was produced and subsequently PW1 was recalled and examined on 8..10..2004, as per the order on I.A.1095/04. The aforesaid power of attorney has been marked as A14. A14 is the notarized copy of the said power of attorney executed by the Chairman and Managing Director and Joint Managing Director of the complainant/company infavour of PW1 Mr.G.Joy. As per A14 power of attorney PW1 Sri.G.Joy of Chingavanam is appointed as the attorney of the company for the management of the Company and to appear for and represent the company in all Courts, Civil, Revenue, Criminal and to appoint counsel, advocates, solicitors, pleaders, Mukhtiars and other law agents therein and to sign and verify all plaints, written statements, petitions, affidavits, declarations, vakalatnamas, warrants as may be required and to commence, prosecute, defend or compromise such proceedings, actions or suit as may be necessary in the interests of the company. The said deed was executed on 30..1..1999. It is true that A14 power of attorney was executed two year prior to the institution of the present complaint. But as per A14 power of attorney PW1 is competent and authorized to file the complaint on behalf of the complainant/company. The mere fact that A14 power of attorney was attested by the Advocate and Notary on 24..9..2004 would not make the same unenforceable or unacceptable. Hence we hold that the complainant/company is properly represented in the present complaint.
7. There cannot be any dispute that the complainant is a consumer coming within the ambit of the Consumer Protection Act as defined under Sec.2(1)(d) of the Consumer Protection Act, 1986. The complainant sought for the relief of getting the insurance claim of Rs.20,00,000/-. This commission had the pecuniary jurisdiction at the relevant time to grant a relief to the extent of Rs.20,00,000/-. If that be so, the case of the opposite party that this commission has no pecuniary jurisdiction to entertain the complaint cannot be upheld. Thus, in all respects the present complaint as filed is maintainable in law. Hence this point is found infavour of the complainant.
8. POINT NO:2 AND 3:-
The case of the complainant is that on 9..7..2000 at midnight there occurred heavy rain and (wind of high velocity amounting to) storm in the area and thereby the godown No:2 among the buildings belonged to the complainant had collapsed in that storm and heavy rain causing extensive damages to the building. It is also averred that the said storm had also caused destruction to the trees and buildings situated in the area. According to the complainant, the loss sustained by the complainant/company due to the collapse of the godown would come to Rs.20,00,000/-. Thereby the complainant submitted B2 Fire Insurance claim dated:17..7..2000. Ext.A3 is copy of the claim form. Ext.A2 letter dated:10..7..2000 would give an indication that the matter regarding the alleged peril and loss was informed by the complainant on 10..7..2000 itself. It is to be noted that the genuineness and correctness of A2 letter dated:10..7..2000 has not been disputed by the opposite party/insurance company. It is the definite case of the complainant that B2 Fire Insurance claim was submitted on 17..7..2000 as required by the opposite party/insurance company. Thereafter the Insurance Company deputed two surveyors for assessing the loss if any. Thereby the preliminary surveyor Mr.K.J.Philip (licensed surveyor) submitted D3 priliminary survey report dated 30..8..2000 with D3(a) photographs and D3 (b) negatives. The preliminary surveyor inspected the collapsed godown building and found that the main cause of collapse of the insured charcoal godown building is due to deterioration of the structure. The preliminary surveyor had also reported that except for the said charcoal godown building, no other damages were found in the factory campus even though the main factory and office buildings are situated in a higher level. It is further reported that upon enquiry in the local area, he could not find any other major damages which had occurred on the said date of loss. It is also to be noted that at the time of the said preliminary survey, the Branch Manager and Divisional Manager of the opposite party/Insurance Company along with the Senior Managers of the Complainant company were present.
9 After getting Ext.D3 preliminary survey report, the opposite party/Insurance Company deputed General Insurance Surveyors M/s Zanders. Thereby M/s Zanders, the General Insurance Surveyors conducted inspection of the damaged building and submitted D4 survey report dated:25..10..2000. The 2nd surveyor (M/s Zanders) reported that the insured godown building collapsed due to the light pressure of the wind, which was blowing from west, presumably at about 10 to 15 Kms per hour; that the trusses were so weak that they could not withstand the additional load caused by the wind. It was also reported that the damage taken place on the truss due to rust. It was also reported that the M.S.Pipe used for the fabrication of the trusses have not been painted for years and they have gone badly rusted. According to the final surveyor, Insurance policy does not cover damages due to wind blown at the speed less than 62 Kms per hour and that the claim preferred by the insured need not be entertained.
10. Based on D3 and D4 survey reports and the report of Meteorological Department, Government of India, the opposite party/insurance company repudiated the insurance claim preferred by the complainant/company. Ext.A10 (B9) dated:7..12..2000 is the letter issued by the opposite party/insurance company to the complainant/company repudiating the B2 insurance claim. In the said repudiation letter it is stated that "gusty winds on account of a local wind is only a localized weather phenomenon, which did not fall under any of the categories to fall under the peril "storm" which is covered under the policy. This fact is evident from the dictionary meaning of the word 'storm' as given in the Oxford Dictionary. The damage was not due to any of the insured perils under the Fire policy issued and hence the claim is not admissible". In the said repudiation letter there is reference regarding the weather report given by the Meteorological Department, Government of India and also regarding the report of the surveyors. Thus, the definite stand taken by the opposite party/Insurance company is that the alleged peril which occurred on 9..7..2000 is not covered by the Fire policy issued by the opposite party/insurance company.
11. Ext.A1 is copy of the Fire policy issued by the opposite party/insurance company infavour of the complainant/company with a bank clause infavour of Canara Bank, IDBI, IREDA, UTI. Ext.B1 and B1(a) are copy of the said Fire policy with the terms and conditions. Clause 7 of the Fire policy A would make it clear that Storm, Cyclone, Typhoon, Tempest, Hurricane, Tornado, Flood and Inundation are also the perils covered by A1 Fire policy. No doubt other risks/perils are also covered by the said policy. But we are concerned with the aforesaid clause 7 of the terms and conditions of the policy especially, storm. The definite case of the complainant is that on 9..7..2000 at midnight there occurred heavy rain and storm in the area (Chingavanam) where the insured factory buildings are situated. It is also the case of the complainant that in the said heavy rain and storm the godown No:2 belonged to the complainant/company collapsed and thereby the company sustained extensive damages to the tune of Rs.20,00,000/-. But the case of the opposite party/insurance company is that on 9..7..2000 midnight there was no storm occurred in the said area as alleged by the complainant/company. It is to be noted that in A1 policy with the terms and conditions of the policy the terms 'storm', 'cyclone' etc are not defined or specified. The opposite party/insurance company relied on the Dictionary meaning of the word 'storm' as given in the Oxford Desk Dictionary. According to the insurance company gusty winds on account of local wind is only a localized weather phenomenon which do not fall under the category of the peril 'storm'. Therefore, the material aspect to be considered in this case is as to whether there was any storm in the said area (Chingavanam) on 9..7..2000 midnight.
12. According to Concise Oxford English Dictionary {11th Edn. Revised (Indian Edition) } 'storm' is a violent disturbance of the atmosphere with strong winds and usually rain, thunder, lightening or snow. At the same time Oxford Advanced Learner's Dictionary (7th Edn.) describes the term 'storm' as the very bad weather with strong winds and rain and often thunder and lightening. The dictionary meaning of 'storm' as per the Chamber's dictionary,( Delux Edn.) is as follows:-
"A violent disturbance of the weather with high winds and usually rain, snow, hail and/or thunder or lightening; a tempest; a wind of force 10 on the beaufort scale reaching speeds of 64 to 72 knots, just short of a hurricane (meteoron); any intense Meteorological phenomenon".
It is to be noted that a Knot represents a nautical mile per hour used in navigation and Meteorology; loosely; nautical mile. The nautical mile is one minute of latitude measured along the equator - 6082.66.ft.; in British practice, admiralty measured mile, 6080 ft. (1.8532 Km). International nautical mile:- official unit in the USA since 1954-76.1033 ft. or 1.852 Km. Thus, it can be seen that according to the Chamber's Dictionary the storm will be having the speed of 64 to 72 nautical mile. Then the next question that would emerge for consideration is, what was the speed of the wind which was blown in Chingavanam area on the midnight of 9..7..2000.
13. Ext.B7 is the weather report of Chingavanam on 9..7..2000 around midnight submitted by Director in charge, Meteorological Centre, Observatory, Thiruvananthapuram. The aforesaid Centre is under Government of India, India Meteorological Department. B7 report is dated:18..8..2000. Ext.A3(a) is copy of B7 report. B7 report was given to the complainant/company as per the request letter dated:2..8..2000. The B7 report is as follows:-
"The nearest meteorological observatory at Kottayam reported 14.8 millimeters of rainfall for the 24 hour period ending at 0830 hours IST on 10..7..2000.
From the weather charts and other records available in this office, it is inferred that the following weather conditions would have prevailed over Chingavanam and neighbourhood in Kottayam district around midnight on 9..7..2000.
Surface wind direction : From west. Surface wind speed : 10 - 15 kmph. Sky condition : Cloudy. Weather : One or two showers accompanied by Strong winds of speed occasionally reaching 55 kmph.
This weather report is issued in connection with settlement of insurance claim for the reported damage to the Charcoal godown at the factory premises of M/s. Tecil Chemicals and Hydro Power Ltd. at Chingavanam on 9..7..2000 midnight."
14. On getting B7 weather report the complainant/company forwarded the same to the opposite party/insurance company. Thereafter the opposite party/insurance company issued B6 letter dated:31..8..2000 to the Meteorological Centre, Observatory, Thiruvananthapuram asking for getting of the existing wind force scale and also for the corresponding surface wind speed. The B5 reply was issued by the Meteorological Department and it is dated:19..10..2000. B5 reply is as follows:-
"Maximum sustained wind speed of different categories of weather systems are given below:-
Weather system Maximum sustained wind speed in kmph. 1. Low Less than 31 Kmph 2. Depression 31 to 49 Kmph. 3. Deep depression 50 to 61 Kmph. 4. Cyclonic storm 62 to 88 Kmph. 5. Severe Cyclonic storm 89 to 117 Kmph. 6. Very severe cyclonic storm 118 to 221 Kmph. 7. Super cyclonic storm 222 Kmph and above.
It may be noted that the gusty winds on account of thunderstorm (local storm), which is a localized weather phenomena, do not fall under any of the above categories".
As per classification, the wind speed of different categories to weather systems are shown as
1. Low
2. Depression
3. Deep depression
4. Cyclonic storm
5. Severe cyclonic storm
6. Super cyclonic storm. The maximum sustained wind speeds of the categories 1 to 6 are less than 31.Kms per hour, 31 to 49 Kmph. 50 - 61 Kmph, 62 to 88 Kmph, 89 to 117 Kmph, 118 to 221 Kmph and 222 and above respectively.
15. As per B5 report the gusty winds on account of thunder storm "local storm", which is a localized weather phenomenon, did not fall under any of the above categories.
16. B5 and B7 reports were issued by K.Santhosh, Meteorologist Grade. I, Director in Charge of Meteorological Centre, Observatory, Thiruvananthapuram. The aforesaid K.Santhoush has been examined in this case as PW2. He has given the clarification and explanation with respect to B5 and B7 reports. It is deposed by PW2 that the observatory located at Kottayam is the nearest Meteorological Observatory as far as Chingavanam is concerned and that Chingavanam is about 10 Kms away from Kottayam. It is also deposed that surface wind speed is being measured with an instrument known as Anemo meter and that wind speed at the Meteorological observatory, Kottayam used to take at 8.30.AM and 5.30.PM. He admitted the fact that the wind speed in between the said timings could not be recorded at the said observatory. But at the same time PW2 admitted the fact that as per B7 (A3(a)), he has given the weather report at Chingavanam on 9..7..2000 midnight. The B7 (A3 (a)) report would also make it clear that the said report is related to the weather report of Chingavanam on 9..7..2000 around midnight. As per B7 weather report the direction of the wind on that particular day was from west and the surface wind speed was 10-15 Kms per hour and one or two showers accompanied by strong winds of speed occasionally reaching 55 Kmph. In B7 it is also stated that the said report was given at the request of the complainant/company for the purpose of settling the insurance claim for the reported damage to the Charcoal godown at the factory premises. A close scrutiny of B7 weather report would make it clear that the wind speed at Chingavanam on 9..7..2000 around midnight was ranging from 10 to 15 kmph. As far as the weather on that day is concerned, there was one or two showers accompanied by strong winds of speed occasionally reaching 55 Kmph. Nowhere it is stated in B7 that there was storm at Chingavanam on 9..7..2000 around midnight. According to the Oxford Dictionary violent disturbance of atmosphere with strong winds can be termed as storm. But the speed of the said strong winds is not mentioned in Oxford Dictionary. But it is specified in Chambers dictionary that high winds with the speed of 64 to 72 nautical mile can be termed as storm. But in B5 weather report nowhere it is stated that the wind speed reached at 64 nautical mile per hour. So, by going the dictionary meaning given in Chambers dictionary it can be taken that there was no storm on 9..7..2000 midnight at Chingavanam area.
17. PW2 has given a definite answer to the Court question stating that no thunder storm was noted on that day in that particular area. It is also deposed that as per records maintained by the department there was no cyclonic storm on that particular day in Kottayam or Chingavanam. It is further stated that but usually in monsoon season there is strong winds and that the wind blowing in monsoon could not be called cyclonic storm or thunder storm. It is categorically deposed by PW2 that if the speed of the wind is above 45 Kmph the same will be brought to the notice of the public by giving warning and that if the speed is below 45 Kmph no warning will be given; that the warning is giving from the Area Cyclonic Warning Centre, Chennai. PW2 has no case that on the particular day (9..7..2000) any such warning was given from the Cyclonic Warning Centre. Had there been any such warning given that would have been brought to the notice of the public including the complainant and PW2. It is further to be noted that PW2 has given the opinion that during monsoon season there may occur localized wind with speed of about 55 Kmph. PW2 has also stated that it is his opinion that during monsoon season wind speed would reach up to 55 Kmph. But at the same time PW2 is not sure and certain that on the particular day there was such a wind with speed of 55 Kmph. PW2 in his cross-examination has deposed that there is facility to get the weather report of any area in his department and that Ext.B7 is the Weather report of Kottayam, Chingavanam area on the midnight of 9..7..2000. He is categorical on his statement that as per the weather chart, surface wind speed at Chingavanam area on 9..7..2000 midnight was 10 to 15 Kmph. It is also to be noted that PW2 has categorized the wind speed and according to him wind with velocity of 62 Kmph and above can be termed as storm. "Ext.B5 `=*TC^ storm [NL lowest velocity of 62 Kmph #7a". According to PW2 there is possibility of getting the wind speed decreased as and when the same reaches the land. According to PW2 the strong winds can be categorized into four. It is deposed that tempest is severe cyclonic storm, the wind speed of 62 to 88 Kmph is cyclonic storm. Severe cyclonic storm will be having the wind speed of 87 to 117 Kmph. Very cyclonic storm will be having the wind speed of 118 to 221 Kmph and super cyclonic storm with speed of 222 Kmph and above. So on going by the testimony of PW2 and B5 and B7 reports it can be concluded that there was no storm on 9..7..2000 midnight at Chingavanam area. If that be so, the opposite party/insurance company is justified in repudiating the insurance claim on the ground that the peril which occurred on 9..7..2000 midnight at Chingavanam would not come under the cover of the policy of insurance issued infavour of the complainant/company.
18. The opposite party/Insurance Company deputed preliminary surveyor Mr.K.J.Philip who submitted Ext.B3 preliminary survey report dtd:30..8..2000 along with B3 survey report. The surveyor has also produced B3 (a) photographs and Ext.B3(b) negatives of those photographs of the factory premises with buildings thereon. The aforesaid preliminary surveyor conducted the inspection in the presence of the Senior Managers of the complainant/company and the Branch Manager and Divisional Manager of the opposite party/Insurance Company. The fact that the inspection was conducted in the presence of the representatives of the complainant/company has been admitted by PW1, the power of attorney holder and the Director (Operations) of the complainant/company. In Ext.B3 report it is reported that -
"The roof of the charcoal godown building was found collapsed completely along with the truss and the asbestos sheet; the side walls were also found partially collapsed. Except for the charcoal go down no other damages were found in the factory campus even though the main factory and office buildings are situated in a higher level".
19. According to the preliminary surveyor the damage was caused due to lack of maintenance and that the collapse of the insured charcoal godown building was due to deterioration of the structure. It is also reported that no other building was affected other than the charcoal godown building. The preliminary surveyor made local enquiry and could understand that no other major damages occurred on the said date and that the complainant's factory was under lockout for more than 15 months. The preliminary surveyor assessed the approximate loss due to the collapse of the charcoal building at Rs.16,59,775/-. He deducted 50% of the said amount by way of depreciation. Thereby the approximate loss assessed by the preliminary surveyor would come to Rs.8,29,857.50. The said loss was assessed subject to the terms and conditions of the policy of insurance.
20. The preliminary surveyor produced altogether 13 photographs with negatives. A perusal of those photographs would show that no other damage other than the damage to charcoal godown building was caused. The trees and other shruks and wild growth standing in the factory compound were not affected. Thus, Ext.B3 survey report would give an indication that the damage to the charcoal godown occurred not due to any storm but the damage was caused due to lack of maintenance and deterioration of the said structure. It would also give an indication that no damage was caused to the other buildings or structures in the factory compound.
21. The opposite party/insurance company had also deputed another approved surveyor and loss assessor by name M/s Zanders. The 2nd inspection was conducted by the surveyor by name K.U.Varunni. The 2nd surveyor was examined as RW2. He deposed that he is an Engineering graduate in Mechanical Engineering and is also having experience in Automobile Engineering and Civil Engineering. He had experience as Assistant Engineer, PWD, Buildings Division for six years and experience as an approved surveyor for 12 years. He is the owner of M/s Zanders, General Insurance Surveyors, Loss Assessors and project consultants. Ext.B4 is the surveyor report dated:25..10..2000 submitted by RW2. He conducted the inspection in the presence of PW1, the power of attorney holder and Director (Operations) of the complainant/company. PW1 admitted the fact that he was present at the time of the survey conducted by RW2, K.U.Varunni. RW2 deposed that he had also taken photographs. But the photographs produced along with B4 survey report could not be admitted in evidence because the negatives of those photographs were not produced. It is to be noted that PW1, the representative of the complainant/company admitted in his oral version that the 2nd surveyor had taken photographs of the factory buildings including the damaged one. According to RW2, the final surveyor the damage to the charcoal godown building (godown shed) occurred not due to any storm. In Ext.B4 final report it is reported that-
"We have examined the surrounding area of the building and also adjascent godowns, the plant buildings, the guest house, the office buildings etc at the factory site. We could not find any damage anywhere which could have been taken place due to storm. Not a single tree in the factory site was found disturbed, due to storm".
22. The final surveyor has also noticed the trees standing in the factory compound and by the nature of the standing trees he made approximate assessment of the wind speed at about 10 - 15 Km per hour. He is specifically reported that no trees were affected due to the alleged blow of wind. It is also specifically reported that no damage caused to any other structures in the factory compound. Another important fact to be noted in Ext.B4 survey report is regarding the condition and nature of the collapsed structure (charcoal go down) by the surveyor. It is reported that on our detailed examination of the trusses, we do not found that the M.S.Pipe used in the fabrication of the truss have not been painted for years and they have gone badly rusted. From the photographs marked 'Y', one could ably note the extent of damage taken place on the truss due to rust. The rusty metal thickness in the failed section was found to be even less than 0.25.mm. These trusses must have been exposed to pollution also, right from installation, since chemical process was going on in the factory". The final surveyor in his B4 report recorded his opinion that the collapse of the charcoal godown shed is as follows:-
"Under these circumstances we are of the opinion that the building collapsed due to the light pressure of the wind, which was blowing from west, presumably at about 10 to 15 Kms. The trusses were so weak that they could not withstand the additional load caused by the wind. Since the extension trusses had been detached from the wall plate on west end, the RSJ pillars got bent towards east due to the weight of the collapsed roof in the main span. It has to be specially noted that the factory was under lock out for about 1 ½ years; and no production or maintenance was going on during these period".
23. It is also reported in B4 survey report that the policy covers damages caused by storm. The insured has produced the weather report of 9..7..2000 of Chingavanam area which clearly indicates that the surface wind was blowing at about 10 to 15 Km per hour. As per the 'wind velocity chart' maintained by the Meteorological Department the range of the storm commences from 34 knots (62 Kms per hour). Since the policy does not cover damages due to wind blow at the speed less than 62 Kms per hour, the claim preferred by the insured need not be entertained. Thus, RW2, the final surveyor in his B4 survey report did not recommend the insurance claim.
24. The final surveyor estimated the total loss at Rs.19,16,785/-. He deducted 50% of the said amount towards depreciation. The age of the building has been assessed by the surveyor at 14 years. The net loss assessed by the surveyor would come to Rs.9,58,393/-. He assessed the salvage value at Rs.1,34,500/-. Thus the loss after deducting the salvage value has been fixed at Rs.8,23,893/-.
25. The final surveyor, RW2 has deposed in support of his B4 survey report. Even though he has been cross-examined at length nothing could be brought out to disbelieve the testimony of RW2. The case of the complainant that RW2 has given evidence to support the contention of the opposite party/Insurance Company and that he filed Ext.B4 survey report in favour of the opposite party/Insurance company cannot be believed or accepted without any acceptable reason or ground. The complainant could not point out any such circumstances or material to doubt the testimony of RW2 or B4 survey report. It is to be borne in mind that the approved and licensed surveyors are independent surveyors appointed by the authority of the Central Government. The report of the approved surveyors are to be treated as important and valid documents. This survey report cannot be ignored without assigning any valid reasons. [(2000) 10 Supreme Court Cases 19] So we do not find any ground to ignore B3 and B4 survey reports submitted by the approved and licensed surveyors.
27. The complainant much relied on C1 Commission report and the oral testimony of CW1, the expert commissioner. The complainant filed an interlocutory application I.A.500/02 for appointment of an Advocate Commissioner. Thereby Advocate, Mr.N.Satheeshkumar was appointed as Advocate Commissioner who submitted Ext.A6 preliminary report. He had inspected the factory site on 18..4..2003. The A6 preliminary report would show that the godown No:2 was seen collapsed and the compound wall on the eastern side of the godown No:2 is seen demolished and that the roof sheets of AB plant is also seen damaged and the roof of the club house building was seen broken. The Advocate Commissioner was also asked to calculate the loss incurred by the complainant/company. For that purpose he requested the assistance of an expert. Thereby Advocate Mr.Davy Cheriyan was appointed by this commission as an expert to assist the advocate commissioner. The aforesaid expert who was appointed to assist the Advocate Commissioner has been examined as CW1. Ext.C1 is the report submitted by the expert. A reading of C1 report would show that the expert who was appointed to assist the Advocate commissioner has taken the role of the commissioner. The expert was specifically appointed to assist the Advocate Commissioner in assessing the loss incurred by the complainant/company. But in fact the expert reported so many matters which were not assigned to him. The expert was appointed by this commission because of his experience as a Civil Engineer who served the Kerala Electricity Board. But the expert has gone to the extent as to how the peril occurred and whether there was any storm in Chingavanam area on 9..7..2000 midnight. He also acted as an expert in the field of Meteorology. In C1 report he has also opined about the cause of the peril as " Extra natural force". It is to be noted that the expert was not asked to find out the reason for the loss or damage or as to how the peril occurred. The unwanted curiosity and anxiety expressed by the expert Mr.Devy Cheriyan would give an indication that he was interested in the complainant/company and to find out the cause of the peril. At the very same time the expert failed to call for the necessary records from the complainant/company to ascertain the age of the damaged charcoal building. He also failed to assess the value of the salvage. The above mentioned over enthusiasm and the failure to note the important factors would create genuine doubt about the impartiality of the expert Advocate Shri.Devy Cheriyan.
27. CW1, the expert visited the complainant/company and its premises only on 28..8..2003. The Advocate Commissioner inspected the site on 18..4..2003. The incident of collapse of charcoal godown occurred on 9..7..2000. Thus, the Advocate Commissioner and the expert had the opportunity to visit or inspect the site only after the lapse of about 3 years. The Advocate Commissioner and the expert reported about the damage to the charcoal building (shed No:2) and also about the damage caused to the club house building, roof of the AB plant and compound wall. An important aspect to be noted at this juncture is the definite case of the complainant on 10..7..2000 ie, on the very next day of the incident. Ext.A2 is the letter dated:10..7..2000 issued by the complainant/company and signed by Director (Operations) (PW1) to the opposite party/Insurance Company. The subject matter of the said letter is written as damage caused to the building due to heavy winds and rain. The said letter reads as follows:-
"We regret to inform you that due to heavy winds and rain in the midnight of 9..7..2000, our charcoal go down No:2 east of our office building has collapsed causing extensive damage to the building. Kindly register our claim and send us the claim form and arrange for inspection/survey of the damaged building at the earliest."
28. Ext.A2 letter would make it abundantly clear that damage was caused only to the charcoal godown No:2 of the complainant/company and the said damage was caused due to heavy winds and rain which occurred in the midnight of 9..7..2000. There is no whisper in A2 letter about any other damage caused to any other structure situated in the compound of the complainant/company. There is no whisper in A2 letter about any sort of damage to the AB plant building or club house building or to the compound wall. There is also no whisper about the fall of any type of tree standing in the factory compound. Had there been any such damage caused to the club house building or the AB plant or the compound wall that fact should be found a place in A2 letter. Thus, A2 letter can be treated as the first information given by the complainant/company to the opposite party/insurance company about the damage caused due to the heavy winds and rain which occurred on 9..7..2000 midnight. Ext.B2 (A3 copy) is the Fire insurance claim submitted by the Deputy General Manager, Finance of the complainant/company. It is dated:17..7..2000. In B2 claim therein is no whisper about any other damage to any other structures other than damage to the charcoal godown No:2 and the loss was estimated at Rs.20,00,000/-. Had there been any other damage as the alleged damage to the club house building or AB plant or compound wall that would have been found a space at least in B2 claim. This is a strong circumstance that would create genuine doubt about the complainant's case regarding damage to other structures other than the charcoal godown building. It is to be noted that the case regarding the damage to the club house, AB plant and compound wall was put forward only after submission of B3 and B4 survey report with the photographs. It is also to be noted that in the repudiation letters and in the reply lawyer notice of the opposite party/insurance company it wascategorically stated that there was no other damage to any other structures or trees or plants standing in the factory compound.
29. Another important aspect to be noted at this juncture is Ext.A8 letter dated:17..7..2000 issued by the complainant/company to the opposite party/insurance company Ext.A8 can be treated as the covering letter issued by the complainant/company along with Ext.B2 claim. In Ext.A8 there is no whisper about damage caused to any other structures other than charcoal godown No:2. In Ext.A8 it is categorically stated that the charcoal godown alone was damaged due to heavy storm and rains. Ext.A12 is the abstract of the estimate produced by the complainant/company and signed by Deputy General Manager (Finance). In Ext.A12 abstract also there is no whisper about the alleged damage caused to any other structures other than the charcoal godown No:2. No loss has been assessed with respect to the alleged damage caused to the club house building, AB plant or compound wall. These are all strong circumstances that would belie the case of the complainant that some other structures were also affected in the peril which occurred on 9..7..2000 midnight. It is also to be noted that in Ext.A4 lawyer notice issued at the instance of the complainant/company to the Divisional Manager of the opposite party/Insurance company nothing is stated about the damage caused to other structures. In A4 there is only reference to the claim form submitted on 17..7..2000 and the estimate. Nothing is stated about any other damage caused to any other structures or trees standing in the factory compound. These are all strong circumstances that would make the case of the complainant regarding damage to other structures unacceptable. In this situation and circumstances the C1 report submitted by CW1 regarding damage caused to the AB plant building, club house building, compound wall etc cannot be believed or accepted. This is also a strong circumstance to doubt the genuineness and correctness of C1 report.
30. The Advocate Commissioner and the expert who assisted the Advocate Commissioner visited the factory compound and the structures thereon after the lapse of 3 years of the incident which took place on 9..7..2000. They did not get the opportunity to inspect the nature and condition of the structures and the impact of the natural calamity on those structures. A close study of A6 and C1 reports and A7 series of photographs attached to C1 report would make it clear that those reports are based on the interested statements of the officers and employees of the complainant/company. To some extent A6 and C1 reports are based on hear-say evidence. It is to be noted that the officials of the complainant/company were in a position to stage manage things so as to make it appear that extensive damage was caused in the incident which occurred on 9..7..2000 midnight. We have already considered the alleged damage said to have been caused to the other structures other than the charcoal go down No:2. The recitals in C1 report would give an indication that the expert has given some exaggerated version with respect to the incident which occurred on 9..7..2000 midnight. According to the expert, on 9..7..2000 midnight damage was caused to the structures due to some extra natural forces. He is certain that the collapsed godown No:2 was properly maintained. It is to be noted that he had no opportunity to witness the condition of the collapsed godown No:2 immediately after the incident. The observation of the expert that the godown was regularly maintained cannot be accepted as such without any supporting data or material. Admittedly the complainant/company is having well maintained accounts. According to PW1 the complainant/company is a Public Limited Company, though no evidence is forthcoming. The articles of association or the memorandum of association of the said company has not been produced. At any rate the complainant/company has been keeping regular accounts. There can be no doubt that the well maintained accounts will show the expenses incurred for the maintenance of the buildings and structures including the collapsed godown No:2. The entries in those audited accounts could be treated as acceptable piece of evidence. The complainant/company did not care to produce those accounts to show that the collapsed godown and the other buildings and structures were well maintained by meeting the expenses for the regular maintenance of those structures. The expert commissioner has also failed to get those documents for ascertaining the fact as to whether the buildings and structures were regularly maintained. Instead of that the expert commissioner relied on the interested versions of the officials and employees of the complainant/company. He presumed that the complainant/company which was under lockout was having skeleton staff to maintain the buildings and structures. It can be concluded that the observations and findings in C1 report are based on presumptions and assumptions of the expert commissioner.
31. Ext.B3 survey report was submitted on 30..8..2000. PW1 has also admitted the fact that the preliminary surveyor Mr.K.J.Philip inspected the factory site immediately after the incident of 9..7..2000. The preliminary surveyor after inspection of the collapsed godown building came to the conclusion that the said godown collapsed due to deterioration of the structure and that the said godown was in a bad stage due to lack of maintenance. The preliminary surveyor has categorically reported that there was no other damage occurred other than the damage to the charcoal godown building. Had there been any other damage to the other structures or there was any uprooting of coconut tree or fall of other trees that could have been noticed by the preliminary surveyor. It is hard to believe that the preliminary surveyor suppressed any material facts. The approved and licensed surveyor can only be treated as an independent person. There is no other material available on record to take a different view.
32. The final surveyor submitted B4 survey report dt:25..10..2000. He categorically reported about the nature and condition of the collapsed go down building. He also noticed rusting of the MS pipe used for fabrication of the trusses of the said structure. He has also given the metal thickness of that rusted portion and it is categorically stated that the metal thickness in the failed section was found to be even less than 0.25mm. Thus, the lack of maintenance of the collapsed godown could be seen from the B3 and B4 reports. The final surveyor further reported that the charcoal godown building collapsed due to the light pressure of the wind which was blowing from west presumably at about 10 to 15 Kms; that the trusses were so weak that they could not withstand the additional load caused by the wind. Admittedly the complainant/company was under the lock out for about 1 ½ years and that might be the reason for the failure to maintain the structures and buildings situated in the factory compound. Therefore, the materials available on record would support the case of the opposite party/Insurance Company that there was lack of maintenance to the collapsed charcoal godown building and that the damage to the said building occurred only due to lack of maintenance; that there was no storm on 9..7..2000 midnight. It can very safely be concluded that the damage to the charcoal godown building occurred not due to storm and so the peril which occurred on 9..7..2000 midnight is not covered by A1 policy. If that be so, the opposite party/Insurance company is perfectly justified in repudiating the insurance claim put forward by the complainant/company. Hence we hold that there was no deficiency of service on the part of the opposite party/insurance company. Hence these points are answered against the complainant.
33. POINT NO:4:-
The foregoing discussions and the findings thereon would make it clear that the complainant/company is not entitled to get the insurance claim or compensation against the opposite party/Insurance company. Therefore the present complaint is liable to be dismissed. Hence we do so.
In the result the complaint is dismissed. Considering the facts and circumstances of the case the parties are directed to suffer their respective costs.
M.V. VISWANATHAN : JUDICIAL MEMBER S.CHANDRAMOAHN NAIR : MEMBER VL.
OP:39/2001 APPENDIX COMPLAINANT'S EXHIBITS:
Ext.A1 : Fire policy together with valuation schedule.
Ext.A2 : Letter from Complainant dt:10..7..2000 to the opposite
Party.
Ext.A3 : Fire Insurance claim form.
Ext.A3(a) : Letter from Chemicals & Hydro Power Ltd. dt:22.8.2000
To The New India Assurance Company.
Ext.A3(b) : Letter from India Mateorological Dept. to Tecil Chemicals
Dt:18..8..2000.
Ext.A4 : Advocate notice to The Divisional Manager, New India
Assurance Company Ltd.
Ext.A5 : Acknowledgement cards.
Ext.A5(a) : Reply letter from New India Assurance Company
dt:1.2.2001 to Adv.Radhakrishnan K. Warrier.
Ext.A6 : Preliminary report filed by the Advocate Commissioner.
Ext.A7series: Photos and negatives (9 Nos.)
Ext.A8 : Letter from Tecil Chemicals dt:17..7..2000 to New India
Assurance Co. Ltd.
Ext.A9 : Letter from Tecil Chemicals dt:29..12..2000 to the
Divisional Manager, New India Assurance Co.
Ext.A10. : Reply letter from New India Assurance Co. to The
Manager, Tecil Chemicals.
Ext.A11 : Photos (12 NOs.)
Ext.A11 (a): Negatives.
Ext.A12 : Abstract & Detailed estimate for proposed reconstruction
of collapsed charcoal shed No:2.
Ext.A13 : Letter from New India Assurance Co. dt:25..1..2001. to
The Manager, Tecil Chemicals.
Ext.A14 : Power of Attorney.
COMPLAINANT'S WITNESS
PW1 : G.Joy.
PW2 : K.Santhosh
OPPOSITE PARTY'S EXHIBITS
Ext.B1 : Copy of Fire Policy.
Ext.B1(a) : Condition, warranties and Bank Clause attached to Ext.B1.
Ext.B2 : Claim Form dt:17..7..2000 subd. by the complainant.
Ext.B3 : Preliminary survey report dt:3..8..2001 prepared by
Sri.K.J.Philip.
Ext.B3(a) : Photographs attached to Ext.B3.
Ext.B3(b) : Negatives of Ext.D3(a)
Ext.B4 : Final survey report dt:25..10..2000 prepared by M/s
Zanders.
Ext.B5 : Weather report of M/s India Meteorological Centre
dt:19.10.2000.
Ext.B6 : Letter dt:31..8..2000 of opposite party to India
Meteorological Centre.
Ext.B7 : Weather report dt:18..8..2000 of India Meteorological
Centre.
Ext.B8 : Letter dt:23..1..2000 of M/s Zanders to the opposite party.
Ext.B9 : Letter dt:7..12..2000 of opposite party to the complainant.
Ext.B10 : Repudiation letter dt:25..1..2001 of opposite party to the
Complainant.
Ext.B11 : Reply Notice dt:1..2..2001 of opposite party to the
complainant.
OPPOSITE PARTY'S WITNESS
RW1 : K.J. Philip.
RW2 : K.U.Varunny.
RW3 : Rajeev.
COURT EXHIBIT
C1 : Report on the extent of damage submitted by Advocate
Advocate Expert Commissioner.
CW1 : Davy Cheriyan.
M.V. VISWANATHAN : JUDICIAL MEMBER
S.CHANDRAMOAHN NAIR : MEMBER
VL.
Pronounced
Dated the 29 September 2008