State Consumer Disputes Redressal Commission
M/S Nagwanshi Mining & Crushing vs Manager, New India Assurance Company ... on 27 June, 2012
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Appeal No.FA/12/143
Instituted on : 23.03.2012
M/s Nagwanshi Mining & Crushing,
Village : Chaparbhanpuri,
Tehsil - Jagdalpur, District - Bastar (C.G.)
Proprietor : Bali Nagwanshi,
S/o Late Shri Buterram Nagwanshi,
R/o : Suncity,
Jagdalpur, District : Bastar (C.G.) .... Appellant.
Vs.
Manager,
New India Assurance Company Limited,
Near Jhankar Talkies,
Jagdalpur, District - Bastar (C.G.) .... Respondent.
PRESENT :
HON'BLE SHRI JUSTICE S.C. VYAS, PRESIDENT
HON'BLE SHRI V.K. PATIL, MEMBER
COUNSEL FOR THE PARTIES :
Shri Harshad Vyas, for appellant.
Shri Viplav Sharma, for respondent.
ORDER (ORAL)
DATED : 27/06/2012 PER :- HON'BLE SHRI JUSTICE S.C. VYAS, PRESIDENT This appeal is directed against, order dated 23.02.2012 of District Consumer Disputes Redressal Forum, Bastar at Jagdalapur (C.G.), passed in Complaint Case No.03/2011, whereby the complaint of the appellant herein, seeking compensation of Rs.20,00,000/- from the respondent/Insurance Company on the allegation that the plant // 2 // and machinery, which was insured by the respondent suffered heavy damages due to heavy rains, so the Insurance Company, was liable to pay compensation, has been dismissed.
2. In nutshell, the facts of the case are that appellant is a mining and crushing company. It purchased a Standard Fire and Special Perils Policy from the Insurance Company for a period between 28.01.2010 to 27.01.2011. The contention of the complainant before District Forum was that from 03.08.2010 to 05.08.2010, there was untimely heavy rains and on account of this natural calamity, the plant and machinery of the complainant suffered damages, intimation of which was given to the Insurance Company. Then, Shri Hitesh H Chitaliya, Surveyor was appointed by the Insurance Company, who after inspection on 13.12.2010 assessed the loss of Rs.4,81,000/-, but had not recommended for payment of any amount to the complainant on the ground that heavy rains does not come under the insured perils. The claim was thus repudiated by the Insurance Company on this ground, as well as on the ground that desired documents were not filed by the complainant before the Surveyor and the Insurance Company. Then, complainant filed the complaint before District Forum, was also resisted by the Insurance Company on the same grounds.
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3. Learned District Forum, agreed with the defence taken by the Insurance Company and dismissed the complaint by the impugned order.
4. We have heard arguments advanced by both parties and perused the record of the District Forum.
5. Learned counsel for the appellant has submitted that plant & machinery of the complainant/appellant suffered heavy damages on account of heavy rains and such incident of heavy rains comes in the category of Flood. In this regard he placed reliance upon the decision of Hon'ble National Commission in the case of United India Insurance Co. Ltd. v. Imperial Gift House & Anr., I (2007) CPJ 6 (NC). In the facts of the aforesaid case, roof of insured building collapsed due to heavy rainfall and damaged the insurer property. On these facts, the State Commission interpreting the words "Tornado and Flood", has found that collapse of roof of the insured building and sufferance of the damages to the insured properties by the complainant comes under the insured perils. In the policy which was obtained by the complainant of that case, Flood, Inundation, Storm, Tempest Typhoon, hurricane, tornado or cyclone, were also insured perils and learned District Forum on the basis of Concise Oxford Dictionary meaning given for word "Tornado", came to the conclusion that collapse of building due to heavy rainfall causing damage to the // 4 // goods lying therein, also comes in covered risk under the Insurance Policy.
6. The facts of that case were quite different, whereas in the facts of the present case, the complainant/appellant in the complaint has simply stated that there were untimely heavy rains and on account of this natural calamity, the mines of the complainant/appellant suffered loss, which was intimated to the Insurance Company. The affidavit of the complainant/appellant, in support of the complaint also says that whatever has been stated in the complaint, is true. Thus, neither in the affidavit of the complainant/appellant nor in the complaint, any description of the so-called untimely rains, has been given nor it has been specified as to whether it resulted into water logging, inundation or flood. Even record of the Government Offices, the Meteorological Department, have not been filed by the complainant/appellant to show that there was in fact occurrence of heavy rains continuously for three days from 03.08.2010 to 05.08.2010 resulting in inundation or flood in Village - Chapar Bhanpuri. Mere statement of the complainant/appellant in the affidavit, cannot be said to be sufficient to hold that rains were so heavy, which resulted into inundation or flood or damages to the property of the complainant/appellant.
7. Surveyor Shri Hitesh H. Chitalia, inspected the site and in his report it has been stated by him that as per statement of Insured in // 5 // claim form that due to Excessive rains From 03/08/2010 to 05/08/2010, Plant Ramp cracked at base due to water accumulation at both side of the involved Ramp and intimation of this was given to the Insurance Company on 13.08.2010 i.e. after delay of around 8 days and, so the damages could not be verified by the Surveyor on spot, when he inspected the place. On his observations, it was found that the Plant base cracked at places of both sides and suffered loss was due to heavy rains only. It has also been specifically stated by him that insured could not establish the reason for water accumulations and had not submitted any supporting documents till date of final report to establish/possibilities that occurrence was due to water accumulations. Ultimately, the Surveyor found that as damage to the Plant & Machinery of the complainant was only due to heavy rains, so it was not covered under Standard Fire and Special Perils Policy and, so, the insurer was advised to close the claim file of the complainant.
8. From this Report, it appears that the documents, which were demanded by the Surveyor, were not provided to him by the complainant/appellant. Letters written by the Surveyor to the complainant/appellant are also available in the record as Ex.B-5, B-8 and B-9. By these letters, persistent demand was made by the Surveyor from the complainant/appellant to file some documents, but the supporting documents were not filed, on the basis of which reasons for water accumulation or possibility of occurrence due to water // 6 // accumulation may be ascertained. Thus, in the facts of the case, there appears no material on the basis of which it can be said that loss occurred to the Plant & Machinery of the complainant/appellant due to water accumulation anywhere.
9. There may be numerous reasons for the loss suffered by the complainant/appellant, may be lack of maintenance of Plant, may be lack of proper supervision of the Plant, may be not providing spaces for the rainy water to divert it's flow from one place to some other place through some canal etc. When the reasons were that of negligence of the complainant/appellant himself, then the Insurance Company, cannot be directed to pay any amount, particularly when the Standard Fire and Special Perils Policy under Clause VI under the head Storm, Cyclone, Typhoon, Tempest, Hurricane, Tornado, Flood and Inundation says that "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." Thus unless it is shown that the damage is direct result of any flood or any inundation, no one can claim any compensation from the Insurance Company merely on the ground of rains on the basis of this Standard Fire & Special Perils Policy.
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10. Whatever material has been brought on record by the complainant/appellant, simply shows that probably there were some rains and there was some damages, which could not be verified later on. Even the photographs, which have been filed by the complainant/appellant in the complaint case, which are Ex.A-4 & A-5 nowhere show any damage to any of the property. So on the basis of these photographs also, nothing can be concluded in favour of the complainant/appellant.
11. In view of aforesaid, we find that District Forum, has come to a right conclusion. The order of the District Forum calls for no interference.
12. Thus, the appeal fails and is hereby dismissed. No order as to the cost of this appeal.
(Justice S.C. Vyas) (V.K. Patil)
President Member
/06/2012 /06/2012