National Consumer Disputes Redressal
The New India Assurance Co. Ltd. vs M/S. Novelty Palace on 4 December, 2008
BEFORE THE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI REVISION PETITION NO. 2311 OF 2004 (From the Order dated 21.07.2004 in Appeal No. 1790/2004 of State Consumer Disputes Redressal Commission, Haryana, Chandigarh) THE NEW INDIA ASSURANCE CO. LTD. PETITIONER VERSUS M/S. NOVELTY PALACE RESPONDENT BEFORE: - HONBLE MR. JUSTICE ASHOK BHAN, PRESIDENT HONBLE MR. B.K. TAIMNI, MEMBER HONBLE MR. S.K. NAIK, MEMBER FOR THE PETITIONER : MS. MEENAKSHI MIDHA, ADVOCATE. FOR THE RESPONDENT: MR. AVANISH KUMAR, ADVOCATE. PRONOUNCED ON : 04.12.2008 O R D E R
ASHOK BHAN J., PRESIDENT The present Revision Petition arises out of the judgment dated 21.07.2004 passed by the State Consumer Disputes Redressal Commission, Haryana, Chandigarh (hereinafter referred to as the State Commission for short) in First Appeal No. 1790 of 2000 whereby the State Commission dismissed the appeal filed by the petitioner. The brief facts leading to filing of this Revision Petition are as under.
The petitioner-New India Assurance Co. Ltd. (hereinafter referred to as the petitioner for short) issued fire policy No. 1132260011350 with effect from 20.10.1999 to 19.10.2000 in the sum of Rs.8,00,000/- to the respondent-complainant to cover the loss or damages to its building, furniture, fittings, shamiana and other risks mentioned in the policy. The said policy specifically mentioned that fire must be accompanied by visible sparks of flames and there must be ignition. The said clause reads as follows:-
PERILS COVERED-FIRE: (including fire resulting from explosion)
(b) For the purpose of Fire Insurance not every fire is a fire in the language of Fire Insurance. To constitute a fire within the meaning of the policy, it should possess the following attributes:
i) XXXXXX
ii) The fire should be actual. In other words there must be ignition, the fire must be accompanied by visible sparks of flames. Mere heating without ignition is not a fire and any damage in the circumstances due to charring is not covered by the policy.
iii) XXXXXXXXX.
On 13.03.2000, the respondent intimated the petitioner about the loss due to fire on 12.03.2000 in its premises and requested the petitioner to appoint a Surveyor to assess the damages. Petitioner, accordingly, appointed Shri O.P. Madan to carry out the survey and to assess the loss suffered by the respondent. Surveyor by its report dated 27.03.2000 stated that there was no ignition, no fire flames, no continuity of burning of clothes, no ash and, thus, the loss was beyond the scope of the policy as there was no fire. However, without prejudice to the terms and conditions of the policy, the Surveyor made a detailed item-wise assessment for replacement of holed portion of ceiling cloth. Surveyor assessed the loss at Rs.7,800/-. The petitioner after examining the report of the Surveyor and taking into consideration the scope of the policy along with the terms and conditions, repudiated the claim of the respondent by its letter dated 11.04.2000.
Aggrieved by the Order of repudiation of the claim, the respondent field a Claim Petition before the District Consumer Disputes Redressal Forum, Sirsa (hereafter referred to as the District Forum for short). The petitioner filed its detailed reply. Thereafter, the parties filed their respective evidence by way of affidavit. The District Forum allowed the complaint of the respondent and directed the petitioner to pay a sum of Rs.1,18,650/- along with interest @ 12% from the date of institution of the complaint till the realization of the amount. A sum of Rs.1100/- as cost of litigation was also awarded to the respondent.
Aggrieved by the Order passed by the District Forum, petitioner preferred an Appeal before the State Commission, which was dismissed by the impugned Order. The State Commission dismissed the appeal by a short Order upholding the Order of the District Forum.
Counsels for the parties have been heard in detail.
Although, the Counsels for the parties tried to draw our attention to the meaning assigned to the words ignition and fire in various dictionaries, we cannot take the meaning of the words ignition and fire as per the meaning assigned to them in the dictionaries as the parties have agreed to restrict the scope and meaning of the words ignition and fire in the policy. As per clause (b) of the policy, fire must be accompanied by visible sparks of flames and there must be ignition. Clause (b) of the caption Perils Covered-Fire has already been reproduced above.
According to the petitioner, there was no fire and the loss occurred due to falling of hot melted insulated material of electric wire at a few place on false ceiling of cloth. That the claim in question does fall within the purview of the fire policy. We find force in this submission. The fact that there was no fire is evident from the letter written by the respondent to the Manager of Punjab National Bank, Sirsa (hereafter referred to as the bank for short) which reads as under:-
It is submitted that on 9th March, 2000 at night two persons were working with me as watchman at my palace. Electricity supplied from the place below the water tank. There was short circuit on account of fusion of wire which resulted in melting of wire and they fall on false ceiling. Because of that, I suffered a lot. Please compensate me so that I can start my work.
It is evident from the reading of this letter that due to short circuit, there was a fusion of wire which resulted into melting of wire, which in turn fell on the false ceiling resulting in wide holes at certain places in the cloth. Respondent in this letter does not even mention that there was fire. This was the earliest version of the respondent. The version now given is at variance with the earliest version which is an afterthought.
There was no fire as such. As per the meaning assigned to the word fire in the policy, fire had to be actual and accompanied by visible sparks of flames. Mere heating without ignition is not a fire and any damage in the circumstances due to charring is not covered by the policy.
The insurance policy issued by the petitioner provided that there must be ignition and the fire must be accompanied by visible sparks of flames. In the present case, there was no fire. Loss occurred due to falling of hot melted insulated material of electric wire at a few place on false ceiling cloth. The claim in question, therefore, would not fall within the purview of the fire policy.
As per Earl of Halsbury edited by Viscount Simonds The Laws of England Third Edition Volume 22 at Page 304: -
There is no fire within the meaning of a policy of fire insurance unless there is ignition, either of the property insured or of the premises where it is situated(r); heating or fermentation, unaccompanied by ignition is not sufficient. That which is ignited must be something, which was not intended to be ignited(s). Hence, if property in proximity to a source of heat in ordinary use is damaged by the excessive heat thrown out, but it is not actually ignited, the damage is not within the policy, since there is no ignition except such ignition as was intended and nothing has been burned except what ought to have been burned(t).
According to Strouds Judicial Dictionary Fourth Edition Volume 2 Page Page 1042:-
FIRE. (1)Loss or damage occasioned by fire. In a fire policy, are words to be construed as ordinary people would construe them. They mean loss or damage either by ignition of the articles consumed, or by ignition of part of the premises where the article is: in the one case there is a loss, in the other a damage, occasioned by fire (per Byles J. Everett Vs London Assurance, 34 L.J.C.P. 301). Fire means, in this connection an actual burning directly causing the injury, for in jure non remota causa, sed proxima spectatur (Bac. Max. Reg 1). An insurance against loss or damage by fie held to be enforceable where the property had been hidden for safety in a fireplace and the fire was inadvertently lighted (Harris v. Poland) [1941] 1 K.B. 462) (2) Thus, neither artificial nor solar heat (Austin Vs. Drewe, 6. 436; 2 Marsh. 130; per Byles J. Everett Vs London Assurance supra), nor lightning, nor an explosion of gunpowder, or fire damp, or of a steam engine, nor the discharge of ordnance, nor a projectile from neither a volcano or a gun, is fire within a fire policy, unless there be an actual setting of fire directly causing the injury insured against (Everett Vs London Assurance, Supra) The District Forum as well as the State Commission came to wrong conclusion that the entire ceiling cloth of the respondents palace got burnt as a result of electric short circuit. They also failed to appreciate that due to fusion of wire, the wire melted and fell on the false ceiling and there was no ignition of fire or the fire itself. Due to short circuit, the electric wire got melted and it fell on the false ceiling made of cloth. The Surveyor, in its report, has also found that the cloth of the ceiling had got pierced wherever the melted electric cables fell on the cloth making holes in the cloth. The report of the Surveyor gets corroborated from the letter of the respondent written to the Bank on 12.03.2008 wherein he had stated that due to short circuit wire melted which fell on the false ceiling.
That shows that there was no ignition followed by fire with flames.
Another interesting thing to be noted is that in the complaint, the petitioner has stated that the fire took place on 12.03.2000 at 08.00 P.M. whereas in the letter addressed to the Bank (reproduced above), it is mentioned that on 09.03.2000, there was short circuit on account of fusion of wire which resulted into melting of wire which fall on false ceiling. Counsel appearing for the respondent states that the date 09.03.2000 was a typographical mistake. We cannot agree to this view, as this has never been the case of the complainant-respondent anywhere.
As per clause (b) of the policy every fire is not a fire and for a fire, there had to be an ignition, which is accompanied by visible sparks of flames. Mere heating without ignition is not a fire and any damage in the circumstances due to charring is not covered by the policy.
For the reasons stated above, we accept this appeal and set aside the order passed by the District Forum as well as the State Commission. The complaint filed by the respondent is dismissed. No costs.
(ASHOK BHAN J.) PRESIDENT ..
(B.K. TAIMNI) MEMBER ..
(S.K. NAIK) MEMBERs