State Consumer Disputes Redressal Commission
United India Insurance Company Limited vs Sh. Ramesh Chandra Binjola on 4 September, 2009
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRA DUN
FIRST APPEAL NO. 87 / 2006
United India Insurance Company Limited
having its Registered & Head office at 24, Whites Road
Chennai - 600 014 through Branch Manager
Branch Office Dharampura, Bareilly Road
Haldwani, District Nainital
......Appellant / Opposite Party
Versus
Sh. Ramesh Chandra Binjola
Proprietor M/s Kumaon Refractories
Kamaluwaganja, Tehsil Haldwani, District Nainital
......Respondent / Complainant
Sh. J.K. Jain, Learned Counsel for the Appellant
Sh. P.C. Kandpal, Learned Counsel for Respondent
Coram: Hon'ble Justice Irshad Hussain, President
C.C. Pant, Member
Smt. Kusum Lata Sharma, Member
Dated: 04.09.2009
ORDER
(Per: C.C. Pant, Member):
This is insurance company's appeal against the order dated 15.04.2006 passed by the District Forum, Nainital in consumer complaint No. 283 of 2003. Vide the impugned order, the District Forum has directed the insurer to pay to the complainant sum of Rs. 3,67,957/- together with interest @9% p.a. from 05.09.2002 till the date of actual payment and Rs. 1,500/- as costs of litigation.
2. The facts of the case, in brief, are that the complainant Sh. Ramesh Chandra Binjola is the sole proprietor of a factory known as M/s Kumaon Refractories, Haldwani, District Nainital. The factory shed building, machinery, chimney, boundary wall, office building were insured with the opposite party - United India Insurance 2 Company Limited for a sum of Rs. 44,13,000/- against various perils including subsidence and landslide. The goods, viz. Dead Burn Magnesite, H.A. Bricks, Fire Bricks were insured for sum of Rs. 14,00,000/- under a separate policy. The stock in godown and in open was insured for sum of Rs. 38,00,000/- under another policy. These three policies were in subsistence during the period from 28.01.2001 to 27.01.2002, 13.08.2001 to 12.08.2002 and 17.04.2001 to 16.04.2002 respectively. The complainant's factory shed suddenly collapsed on 08.01.2002, causing damage to the building and stock of Dead Burn Magnesite ("DBM" for short). The complainant's estimate of the loss was to the tune of Rs. 3,74,920/- for DBM and Rs. 56,000/- for the building. The opposite party was informed of the incidence giving details of the losses. The complainant has alleged that the opposite party did not take any action and after six months, it repudiated the claim. The complainant filed a consumer complaint before the District Forum, Nainital, which was decided by the District Forum per impugned order dated 15.04.2006 in the above terms. Aggrieved by the said order, the opposite party - insurance company has filed this appeal.
3. We have heard the learned counsel for the parties and perused the material placed on record in the light of the legal aspects of the case.
4. The main argument of the learned counsel for the appellant was that the factory shed had a defective design and due to such a defective design, the shed had collapsed down. The learned counsel submitted that the observation in respect of the defective design of the factory shed was not of the appellant or it's surveyor / investigator, but such an observation has been made by the architect deputed by the complainant. Learned counsel pointed out to Paper Nos. 20/11 to 3 20/12 of the original record, which is the report dated 16.04.2002 of M/s Mudgal Associates, Haldwani and wherein it is stated that:
"On the basis of inspection of existing structure and rubble lying at the point of damage, I concluded that the wall must have collapsed because of excessive stacking of material on inner side of wall. As the height of wall is 20' and 27' and there appears to be no intermediate tie beam to check the slenderness ratio of wall, the wall appears to have collapsed by the weight of material stacked on the inner side of wall. The roof as it rested on the wall also save in."
5. Thus, the repudiation of the complainant's claim is on just ground. The exclusion clause of the policy clearly provides that the policy shall cover all such damage or destruction caused by subsidence or part of the site on which the property stands or landslide / rockslide, but shall not cover any damage or destruction caused by subsidence due to defective design or workmanship or use of defective material.
6. The learned counsel for the complainant submitted that the ground for repudiation of the claim is not just because the property has been under the insurance cover with the opposite party for the last 20 years and the opposite party, before insuring the property or renewing the policy, visits the site and inspect the same. The opposite party never objected that the shed had a defective design or workmanship or the material used in the construction was defective. The complainant has paid more than Rs. 38,000/- as premium to the insurance company and such a heavy premium is being paid to the insurance company by the complainant for the last several years.
47. We considered the submissions made by the learned counsel for the parties. Though the cause of damage to the property has been alleged to be the defective design, but we are not fully convinced with this sole reason for the collapse of the factory shed. If the structural design was to be defective and the walls were not capable to withstand the pressure from the inner side of the wall, such an incident could have occurred earlier also, but it never happened. To the contrary, as stated by Sh. Hari Mohan Singh Negi, Accounts Manager of the complainant, the appellant always found since the year 1985, after inspection, that the property was worth to be insured and the policy was renewed every year. Cross-examination of this witness would indicate that his claim remained uncontroverted. In view of the evidence of the witness and the fact that the appellant, in all these long years, never objected to the design of the property, the view of the architect referred above and who appear to have examined the already damaged structure, would not safely prevail. Therefore, in our view, the District Forum has taken a just view in allowing the complaint and we do not find any reason to interfere in the order passed by the District Forum, based on loss assessed by appellant's surveyor.
8. For the reasons aforesaid, the appeal is dismissed. No order as to costs.
(SMT. KUSUM LATA SHARMA) (C.C. PANT) (JUSTICE IRSHAD HUSSAIN) K