State Consumer Disputes Redressal Commission
The National Insurance Co. Ltd., vs K. Abdulla on 20 July, 2011
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. 60/2007 (Arisen out of Order Dated null in Case No. of District ) 1. The National Insurance Co Ltd Administrative Officer,Kasargod BEFORE: HONARABLE MR. SRI.M.V.VISWANATHAN PRESIDING MEMBER PRESENT: ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO.60/2007
JUDGMENT DATED:20-07-2011
PRESENT:
SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER
The National Insurance Co. Ltd.,
Kasaragod, represented by its-
Administrative Officer, : APPELLANT
Regional Office, M.G. Road,
Ernakulam.
(Rep. by Adv. Sri. Rajan P. Kaliyath)
Vs
K. Abdulla
Proprietor,
M/s Manjeshwara Wood Industries, : RESPONDENT
Kadambar, Manjeshwara,
Kasargod Taluk.
(Rep. by Adv. Sri. N. Sukumaran)
JUDGMENT
SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER Appellant is the opposite party and respondent is the complainant in OP.107/2005 on the file of CDRF, Kasaragod. The complaint therein was filed alleging deficiency of service on the part of the opposite party/National Insurance Company Ltd. in repudiating the insurance claim preferred by the complainant with respect to the damage caused to the complainant's insured building. The complainant alleged that the subject building was collapsed on 10/11/2004 at about 3.30.am due to heavy storm and cyclone. Thereby the complainant claimed the insurance amount for the damage caused to the subject insured building. The opposite party repudiated the claim on the ground that there was no storm or cyclone on 10/11/2004 and they expressed their inability to settle the insurance claim. Hence the complaint in OP.107/05.
2. Notice was served on the opposite party and he entered appearance and filed written version denying the alleged deficiency of service. It was contended that the damage to the insured building was happened not due to storm or cyclone and that the said damage is not covered by the insurance policy issued by the opposite party. It was further contended that the damage to the building occurred due to poor quality of construction of the building and the said matter was reported by the approved surveyor and loss assessor. Thus, the opposite party prayed for dismissal of the complaint.
3. Before the Forum below, the complainant was examined as PW1 and a witness on his side was examined as PW2. Exts.A1 to A3 documents were also marked on the side of the complainant. On the side of the opposite party, Ext.B1 to B6 documents were produced and marked. No oral evidence was adduced from the side of the opposite party. On an appreciation of the evidence on record, the Forum below passed the impugned order dated:8th August 2006 allowing the complaint and thereby the opposite party is directed to pay Rs.1,38,113/- as insurance amount along with Rs.5000/- as cost. The opposite party is also directed to pay compensation of Rs.20,000/- to the complainant. Aggrieved by the said order, the present appeal is preferred.
4. We heard the counsel for the appellant/opposite party and the respondent/complainant. The learned counsel for the appellant submitted his arguments based on the grounds urged in the memorandum of the present appeal. He argued for the position that there is nothing on record to substantiate the case of the complainant that there was storm or cyclone on 10/11/2004 and that the materials on record would show that there was no such storm or cyclone in the area where the insured building is located. He also relied on B5 survey report submitted by the approved surveyor and loss assessor and Ext.B1 to B3 photographs in support of the case of the appellant/opposite party that there was no storm or cyclone on 10/11/2004 or on the near dates in the area in Kadambar area of Manjeswaram. Thus, the appellant justified his action in repudiating the insurance claim preferred by the respondent/complainant. On the other hand, the learned counsel for the respondent/complainant supported the impugned order passed by the Forum below. He much relied on the testimony of PW2 to substantiate the case of the complainant that there was storm or cyclone on 10/11/2004 in Kadambar area of Kasaragod Taluk. Thus, the respondent prayed for dismissal of the present appeal.
4. The points that arise for consideration are:-
1. Whether the respondent/complainant (insured) has succeeded in establishing his case that the insured building was collapsed due to storm and cyclone in Kadambar area on 10/11/2004?
2. Whether there was any deficiency of service on the part of the opposite party/National Insurance Company Limited in repudiating the insurance claim preferred by the complainant/insured?
3. Whether the Forum below can be justified in finding deficiency of service on the part of the opposite party/National Insurance Company Ltd in repudiating the insurance claim preferred by the complainant/insured?
5. Point Nos:1 to 3:-
There is no dispute that the respondent/complainant, insured his wood industry including the factory buildings, office buildings, plant/machinery and accessories, furniture, fixtures and fittings, stock and stock in process. Ext.A3 is the policy issued by the opposite party/National Insurance Company Ltd insuring the complainant's wood industry by name M/s Manjeswaram Wood Industry. There is also no dispute about the fact that a portion of the factory building was collapsed on 10/11/2004. The case of the complainant is that due to the collapse of the said factory building he suffered a loss of Rs.2.lakhs. Admittedly the collapsed building was covered by Ext.A3 policy of insurance viz, Standard Fire and Special Perils Policy. The risks covered by the said policy would take in storm, cyclone, typhoon, tempest, hurricane, tornado, flood and inundations among the other perils. It is the case of the respondent/complainant that the subject insured building was collapsed due to storm and cyclone which blown on 10/11/2004 at about 3.30.am. The appellant/opposite party admitted existence of insurance coverage for the building which was collapsed on 10/11/2004. The insurance company has also admitted the collapse of the said building on 10/11/2004. But, the insurance company categorically denied the allegation that the building was collapsed due to storm and cyclone. It is the definite case of the opposite party/insurance company that there was no such storm or cyclone on 10/11/2004 in Kadambar area of Manjeswaram in Kasaragod Taluk and that the insured building collapsed due to poor quality of construction of the building. Thus, the appellant/opposite party, insurance company repudiated the insurance claim on the ground that the said damage was not covered by the policy of insurance issued by them.
6. The complainant in OP.107/05 was examined before the Forum below as PW1. Admittedly, the complainant was not available in that area on 10/11/2004, the date on which the insured building was collapsed. PW1 admitted the fact that he was on his Hujj pilgrimage and he has no direct knowledge about the collapse of the insured building and his knowledge is based on the information which he collected from others. It can be concluded that the evidence of PW1 regarding the alleged storm or cyclone and also regarding the fall of the insured building is based on hear-say evidence. So, no reliance can be placed on the testimony of PW1 that there was storm or cyclone on 10/11/2004 and that the insured building collapsed due to storm and cyclone.
7. Another witness was examined on the side of the complainant as PW2. PW2 is a neighbour of the complainant's wood industry and that PW2 is having a stationary and grocery shop in a tiled building which is near to the wood industry of the complainant. PW2 is having acquaintance with the complainant for the last 15 years. It is deposed by PW2 that on 10/11/2004 at about 3.am there was heavy wind compared to the normal wind and that the building of the wood industry collapsed due to the said heavy wind. PW2 has also deposed that the tiles of his shop building were also thrown away due to heavy wind. But PW2 had not filed any application claiming damages for the loss sustained by him due to natural calamity. There is no supporting evidence to substantiate the case of PW2 that there was heavy wind on 10/11/2004 at about 3.am in Kadambar area.
8. PW2 in his examination in chief deposed that he knows the complainant for the last 15 years; but in cross-examination he deposed that he knows the complainant for the last 10 years. PW2 further deposed that coconut tree was standing at the southern side of the collapsed insured building and that the said coconut tree was fallen due to heavy wind. But PW1 the complainant has no such case regarding the falling of coconut tree standing near the collapsed building. On the other hand, PW1 admitted the existence of a coconut garden on the western side of the collapsed building and the said coconut garden is shown in Ext.B3 photographs. He has no case that any one of the coconut palms standing in the said coconut garden was fallen. PW2 has deposed that there is a Eucalyptus tree standing on the eastern side of the collapsed building and the said tree is not fallen. PW2 has no case that the branches of the said Eucalyptus tree are fallen due to storm. On the other hand, PW1, the complainant has deposed that there exists a Eucalyptus tree on the north western corner of the collapsed building and that the branches of Eucalyptus tree were fallen due to storm and cyclone. Thus, there is inconsistency in the testimonies of PWs 1 and 2 with respect to the damage caused to the nearby trees standing in that area. PW2 further deposed that tiles of the nearby building were fallen and arecanut trees, plantains were fallen due to storm and cyclone. But, no such case for PW1 regarding the falling of arecanut trees and plantains due to storm and cyclone. Thus, the testimony of PW2 cannot be accepted as such without any supporting evidence or material.
9. Admittedly, an approved surveyor and loss assessor was deputed by the insurance company to report about the alleged peril and also to assess the loss sustained by the insured. Ext.B5 is the survey report submitted by the insurance surveyor and loss assessor, Mr.K.P.Raghavan. The surveyor is a qualified Chartered Engineer having BSc Engineering Degree. Along with Ext.B5 survey report, the surveyor has also submitted the photographs with negatives of the collapsed building and also the photographs of the surrounding area where the insured's wood industry is located. Those photographs have been marked before the Forum below as Ext.B1 to B3 series. The complainant as PW1 has also admitted the correctness of those photographs which were marked before the Forum below. A perusal of those photographs would not give any indication that the trees including the coconut palms standing in the surrounding area were affected by the alleged storm or cyclone. It is true that the said photographs would show the collapse of a portion of the factory building of the insured wood industry. But those photographs would negative the case of the complainant that the building collapsed due to storm or cyclone. Those photographs would also show the existence of a dried tree standing near the collapsed building. Even the said dried tree was not affected by the so called storm or cyclone. If there was any such storm or cyclone as alleged by the complainant/insured there can be no doubt that the said dried tree would have been fallen or at least branches of the said tree would have been broken. But no such damage was caused to the said dried tree. This would give a strong indication that there was no such storm or cyclone on 10/11/2004. It would in turn negative the case of the complainant that the insured building collapsed due to storm and cyclone.
10. The photographs marked as Exts.B1 to B3 would make it crystal clear that there are standing coconut palms in and around the insured wood industry and those coconut palms are not affected by any such storm or cyclone. If there was in fact any such storm or cyclone that would necessarily affect the coconut palms and its cadjan leaves. Another important aspect to be noted is the existence of coconut palms with dried cadjan leaves hanging on those coconut palms. It is pertinent to note that the aforesaid dried cadjan leaves can be seen hanging on the said coconut palms. If there was any such storm or cyclone, definitely the aforesaid dried cadjan leaves would have been fallen. But the photographs would show the said dried leaves which are about to fallen are still hanging to the said coconut palms. This is a very clear indication that there was no such cyclone or storm as alleged by the complainant. It is also to be noted that the alleged storm and cyclone was on 10/11/2004 at about 3.30 am. The approved surveyor inspected the wood industry on 10/11/2004 at 3.30.pm. So, the report submitted by the surveyor regarding the facts noted at the site has got much importance. The photographs were also taken by the surveyor at the time of his inspection. So, those photographs (Exts.B1 to B3) have also got much evidentiary value. More over, the complainant has not challenged or disputed the genuineness and correctness of Ext.B1 to B3 series of photographs. So, the case of the opposite party/insurance company that there was no storm or cyclone on 10/11/2004 as alleged by the complainant is to be believed and accepted. The appellant/opposite party is justified in repudiating the insurance claim preferred by the complainant. The materials available on record would show that there was no such storm or cyclone on 10/11/2004 in the Kadambar area of Manjeswar. In such a situation, the appellant/opposite party, National Insurance Company is to be justified in repudiating the insurance claim preferred by the complainant. The Forum below has gone wrong in finding deficiency of service on the part of the opposite party, the Branch Manager, National Insurance Company Ltd., Kasaragod.
11. There can be no doubt that the opposite party/insurance company was bound to conduct inspection of the wood industry before issuing the policy of insurance covering the risks covered therein. It is not just or proper on the part of the opposite party/insurance company in repudiating the insurance claim by stating that the insured building was collapsed due to poor quality of construction of the building and that the insurance company issued the policy without conducting inspection of the insured premises. It was the bounden duty of the insurer to make necessary inspection of the premises to be insured. It is not just or proper on the part of the insurance company in adopting the contention that the policy was issued without conducting inspection of the premises and thereby adopting the stand that the materials used for the insured building were of poor quality or that the insured building was having poor quality of construction etc. Moreover, in this case, the appellant/opposite party, insurance company has not succeeded in establishing their case that the insured building collapsed due to poor quality of construction of the building. The mere production of B5 survey report cannot be taken as a ground to hold that the insured building was collapsed due to poor quality of construction. It is for the insurance company (insurer) to substantiate the contention that the building was collapsed due to poor quality of construction. In such a situation, the Forum below can be justified in holding that it is the duty of the opposite party to inspect the premises of the complainant before issuing the policy and that issuance of the policy without conducting inspection of the premises is a fault on the part of the opposite party/insurer.
12. The Forum below has shifted the burden of proof on the insurer that there was no cyclone or storm on the date of the incident. It is held by the Forum below that it is the duty of the opposite party to prove that there was no cyclone or storm on the date of incident. The aforesaid finding and conclusion of the Forum below cannot be upheld as the same is against the principle regarding burden of proof. There can be no doubt about the fact that the burden of proof is on the insured to substantiate his case that the damage to the insured building was covered by the policy of insurance issued by the insurer. It was the definite case of the complainant/insured that his factory building collapsed due to storm and cyclone which happened on 10/11/2004 at 3.30.am. No doubt that storm and cyclone are the risks covered by the A3 insurance policy viz. Standard Fire and Special Perils Policy. But, it is for the insured to establish or to prove that the damage to the insured building was covered by the risk under the policy. If that be so, it was the bounden duty of the complainant/insured to substantiate his case that there was cyclone or storm on the date of the incident and the insured building was collapsed due to storm or cyclone. But the complainant/insured miserably failed in establishing his case that there was storm or cyclone on 10/11/2004. So, this State Commission have no hesitation to set aside the finding of the Forum below that it was the duty of the opposite party/insurer to prove that there was no cyclone or storm on the date of the incident.
13. The complainant as PW1 has categorically admitted the fact that he has not produced any document to show that there was storm or cyclone in the surrounding area of his wood industry on 10/11/2004 or on the near dates. PW1 has also admitted that if the crops or agricultural cultivations are destroyed by natural calamity like storm or cyclone, the affected individuals would report the same to the concerned village, Taluk or Krishi Bhavan authorities. But the complainant has not produced any documents to show that any such report or application was submitted by the affected individuals claiming compensation for the damages sustained due to storm or cyclone. He has also deposed that he has not taken any steps to call for documents from the concerned village, Taluk or Krishi Bhavan to show that there was such natural calamities in that area on 10/11/2004. The insurance surveyor has also reported that there was no newspaper report about the alleged storm or cyclone in the local newspaper. The complainant has no case of any such newspaper report published about the alleged storm or cyclone. It can be concluded that there will be ever so many documents to show the happening of any such natural calamities like storm or cyclone. It is to be noted that the complainant/insured is asserting a positive fact that there was storm and cyclone on 10/11/2004 in Kadambar area of Manjeswar. But the aforesaid positive fact has not been proved or established by the complainant/insured. It is further to be noted that it is more difficult to prove a negative fact or aspect. It is the case of the opposite party/insurer that there was no such storm or cyclone on 10/11/2004. It was not just or proper on the part of the Forum below in insisting the opposite party to prove a negative aspect. In that respect also, the Forum below has gone wrong in finding fault with the opposite party/insurer in his failure to prove the negative fact or aspect that there was no cyclone or storm on 10/11/2004.
14. Ext.B4 is the letter dated: 10/11/2004 issued by the complainant to the opposite party, Branch Manager, National Insurance Company Limited, Kasaragod. The subject matter of the said letter was regarding intimation of the damage caused to the factory building. In Ext.B4 letter the case of the complainant/insured was that the factory building is completely damaged due to heavy rain. It is pertinent to note at this juncture that in B4 letter there no case that the factory building was damaged due to heavy wind or storm or cyclone. It is also to be noted that heavy rain is not covered by A3 policy of insurance. Ext.B4 letter would give an indication that there was no storm or cyclone on 10/11/2004; but there was only heavy rain. Ext.B4 letter would negative the case of the complainant that there was storm and cyclone on 10/11/2004.
15. Ext.B6 is the report dated:14/2/2005 issued by Assistant Meteorologist Grade-I for Director in Charge, India Meteorological Department, Government of India. Ext.B6 report/letter would show that the said report was submitted with reference to the letter dated:25/11/2004 submitted by the complainant, the proprietor, Manjeswar Wood Industries, Manjeswaram, Kasaragod. As per B6 weather report it can be seen that there was no storm or cyclone on 10/11/2004 in Manjeswaram and neighbourhood. As per Ext.B6, the surface wind speed is shown as 10 to 15 KMPH and the weather is reported as shower accompanied by gusty winds of speed occasionally reaching 45 KMPH. B6 report would also show that the said weather report was issued in connection with the settlement of insurance claim preferred by the complainant. B6 weather report would not suggest the existence of any such storm or cyclone on 10/11/2004 or on the near dates. In that respect also, it can be concluded there was no such storm or cyclone on 10/11/2004 in Kadambar area of Manjeswaram, where the insured Wood Industry of the complainant is situated. So, the case of the complainant/respondent that the insured building collapsed due to storm or cyclone which occurred on 10/11/2004 at about 3.30.am cannot be believed or accepted. If that be so, there was no deficiency of service on the part of the appellant/opposite party in repudiating the insurance claim preferred by the respondent/complainant. The impugned order passed by the Forum below is liable to be set aside. Hence we do so. These points are answered accordingly.
In the result the appeal is allowed. The impugned order dated:8th August 2006 passed by CDRF, Kasaragod in OP.107/05 is set aside and thereby the complaint therein is dismissed. The parties to this appeal are directed to suffer their respective costs throughout.
M.V. VISWANATHAN : JUDICIAL MEMBER VL.
[HONARABLE MR. SRI.M.V.VISWANATHAN] PRESIDING MEMBER