State Consumer Disputes Redressal Commission
National Insurance Company Ltd. vs M/S Bansal Bakers on 6 June, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR-37A, CHANDIGARH
FIRST APPEAL NO. 282 OF 2012
Date of Institution: 09.03.2012
Date of Decision: 06.06.2013
National Insurance Company Ltd., through authorized signatory, M.S.
Kalsi, Manager, SCO No. 332-334, Sector 34-A, Chandigarh.
.....Appellant/Opposite Party
VERSUS
M/s Bansal Bakers, 14-C, Lawrence Road, Amritsar, through
Sh.Manoj Bansal its Proprietor.
.....Respondent/Complainant
First Appeal against the order
dated 24.1.2012 passed by the
District Consumer Disputes
Redressal Forum, Amritsar.
Quorum:
Hon'ble Mr. Justice Gurdev Singh, President
Sh. Baldev Singh Sekhon, Member
Present:
For the appellant : Sh. J.P. Nahar, Advocate
For respondent : Sh.Anil Chawla, Advocate
BALDEV SINGH SEKHON, MEMBER
This appeal has been filed by the appellant/opposite party against the order dated 24.1.2012, passed by the District Consumer Disputes Redressal Forum, Amritsar (in short "District Forum"), vide which the complaint filed by the respondent/complainant was allowed and the opposite party was directed to pay to the complainant an amount of Rs.2,12,180/-, the loss assessed by the Surveyor of the opposite party, alongwith interest @ 9% from the date of lodging of the claim till realization. Compensation to the tune of Rs.10,000/- for harassment and Rs.1,000/- as litigation expenses were also awarded. First Appeal No. 282 of 2012 Page 2 of 9
2. Briefly stated, the facts of the case are that the complainant had obtained a shopkeeper insurance policy from the opposite party vide cover note No.G40400703548088 for the period 5.8.2008 to 4.8.2009 in respect of his shop as well as business stocks, plate glass etc., as detailed in the cover note itself, by paying a premium of Rs.3,669/-. The total insured amount was Rs.3,00,000/-. According to the complainant, plate glass installed in front of the shop was damaged on 13.11.2008 during the validity of the period of insurance. The claim was lodged with the opposite party vide claim No.98/067/08, which was rejected by the opposite party on the ground that the loss to the plate glass had been caused due to outward bursting of the glass by the pressure of gases developed inside the shop. It was further pleaded that the complainant had replaced the damaged glass with new plate glass by incurring Rs.5,67,843/-. Alleging deficiency in service, the complainant filed the complaint before the District Forum seeking directions to the opposite party to pay Rs.3,00,000/-, alongwith interest @ 18% per annum, from the date of lodging of claim till payment. Compensation of Rs.1,00,000/- for harassment alongwith litigation expenses was also demanded.
3. Upon notice, the opposite party filed written reply pleading that the Surveyor appointed by it, in his report dated 6.5.2009, had opined that the complainant had suffered the loss due to minor explosion inside his shop, which was excluded under the "plate glass" policy terms and conditions. The loss was, however, assessed as Rs.2,12,180/- by him less excess clause. Detailed reasons had been First Appeal No. 282 of 2012 Page 3 of 9 given in the Survey Report dated 6.5.2009 itself and after considering the facts and circumstances of the case, as per terms and conditions of the insurance cover and the survey report, it had rightly repudiated the claim vide letter dated 31.8.2009. Dismissal of the complaint was prayed.
4. Both the parties led their evidence by way of affidavits and documents.
5. The learned District Forum, after going through the pleadings of the parties and evidence on record, allowed the complaint in the terms stated above.
6. Aggrieved by this order, the opposite party has come up in this appeal on the ground that preliminary inspection was carried out by Sh.Kapilesh Bayala who submitted his report on 1.5.2009. The Surveyor, Sh.Kapilesh Bayala received a telephonic call at 8:15 A.M. and he reached at the spot at 8:30 A.M. on 13.11.2008 and found that glass was broken into small pieces which were lying scattered on the ground. He has mentioned in his report that, on enquiry, Mr.Manoj Bansal, Proprietor of the complainant firm, explained as under:-
"Heat generated by the other bakery machines which are automatically working in "ON" position throughout the night to keep the other bakery products fresh, resulted to pressure of gas, due to which explosion occurred."
The detailed survey was conducted by Sh.Sumant Sood, surveyor and loss assessor, who submitted his final report dated 6.5.2009. He has opined that the complainant suffered loss due to First Appeal No. 282 of 2012 Page 4 of 9 minor explosion inside his shop and the complainant, himself, mentioned this fact in his claim form. The loss caused due to explosion is excluded under the plate glass policy terms and conditions. The claim was declared as "no claim" for the reasons stated in the survey report. The learned District Forum has not taken into consideration the statement of the complainant himself. The surveyors are independent and competent professionals and have been licensed under Section 64 UM of the Insurance Act, 1938 by Insurance Regulatory & Development Authority to carry out the assessment job. The following exclusion clause has not been properly interpreted by the District Forum:
"b) The policy does not cover:
(i) damage caused by scratches, Fire or Explosion, war
perils, strike, riot and civil commotion, Typhoon, Flood Hurricane, Volcanic Eruption, Earthquake or other convulsions of nature, nuclear risks."
The learned District Forum has wrongly and illegally added the word "outside" before the word "explosion" appearing in the above clause and interpreted the word "explosion" as an explosion by some outside attack or by way of some explosive material. It is settled principles of law that the terms and conditions of the policy have to be strictly construed.
7. We have thoroughly gone through the pleadings of the parties and carefully perused the evidence on record.
First Appeal No. 282 of 2012 Page 5 of 9
8. The admitted facts of the case are that the shop of the complainant was insured with opposite party under "shopkeepers insurance policy" for the period from 5.8.2008 to 4.8.2009. This policy also covered fire and allied perils which included cover for "plate glass" upto Rs.3,00,000/-. During the subsistence of the policy, the plate glass, installed in the front of the shop, was got damaged on the intervening night 12-13/11/2008. On receipt of intimation from the complainant, the opposite party appointed Sh.Kapilesh Bayala, surveyor and loss assessor, who conducted preliminary inspection and submitted report dated 1.5.2009 (Ex.R-4). Detailed survey was conducted by Sh.Sumant Sood, surveyor and loss assessor, who submitted his final report dated 6.5.2009 (Ex.R-5). The claim submitted by the complainant was repudiated by the opposite party vide letter dated 31.8.2009 (Ex.R-6). The complainant has contended that the loss suffered by him was covered as per the provisions of the policy whereas the categoric stand of the opposite party is that the damage fell under the exclusion clause and hence is not payable. The repudiation letter (Ex.R-6) states that "the loss has taken place due to the outward bursting of the plate glass caused by the pressure of gases developed inside. The loss occurred due to sudden higher air pressure inside a small room which resulted in explosion and causing damage to the glass. The risk of explosion under the plate glass section of the policy is excluded there-under". The opposite party has relied upon the preliminary report of Er. Kapilesh Bayala, who reached the site of First Appeal No. 282 of 2012 Page 6 of 9 the accident within 15 minutes of receiving intimation. This report (Ex.R-4) states as under:-
"On care fully inspection of the damaged glass & all surroundings of the Premises we could not find any Malicious act. Hence Malicious act is ruled out.
The probable cause as Explained by Mr.Bansal was "Heat generated by the Other Bakery Machines which are automatically working & in "ON" Position thru out the night to keep the other Bakery products Fresh, Resulted to pressure of Gas, due to which Explosion occurred."
9. The only point to be adjudicated by this Commission is as to whether the damage caused to the plate glass is covered under the provisions of the insurance policy or if the same falls under the Exclusion Clause. The statement of Sh.Manoj Bansal, Proprietor of the Bansal Bakery has been proved as Ex.R-8, in which he has clearly stated that on 13.11.2008, when he reached his shop, he saw that all the plate glasses of the shop, which were affixed on the front partition, were found broken. After enquiry, they called the persons from the glass shop. Their workers told that due to gas pressure built up during the night, the accident of the breaking of the glass has occurred and they do not have any doubt on anybody. This statement of the complainant goes on to prove that there was no external reason for damage to the plate glass. Reports of both the Surveyors (Ex.R-4 and R-5) as well as the statement of the complainant establishes that the damage was caused due to the explosion caused by the increased gas First Appeal No. 282 of 2012 Page 7 of 9 pressure inside the glass enclosure due to the heat generated by other bakery machines which are automatically in "ON" position throughout the night to keep the bakery products fresh. The policy document describes the scope of cover as under:-
"2. Scope of Cover:
a) The policy covers the cost of making good accidental breakage of insured glass.
b) The policy does not cover
i) damage caused by scratches, Fire or Explosion, war perils, strike, riot and civil commotion, Typhoon, Flood, Hurricane, Volcanic Eruption, Earthquake or other convulsion of nature, nuclear risk."
10. In fact the damage had not occurred due to any accident caused due to external force, miscreants etc. The policy does not cover damage caused by fire or explosion. The word "explosion" is defined by the Wikipedia, the internet Encyclopedia, as under:-
"An explosion is a rapid increase in volume and release of energy in an extreme manner, usually with the generation of high temperatures and the release of gases."
11. It is an admitted version of the complainant that bursting of the plate glass was caused by the pressure of gases developed inside and this loss, due to sudden higher air pressure inside, is a small explosion causing damage to the glass. It is established from the facts stated in the complaint as well as from the enquiry reports of the surveyors that First Appeal No. 282 of 2012 Page 8 of 9 the damage to the plate glass was not due to accidental breakage (which is covered under the policy) but was due to the rise of temperature inside the glass enclosure due to the heat generated by the other bakery machines. This rise in temperature can not be attributed to normal day to day functioning of the bakery. Rather there must have been some sudden extreme development which increased the volume of gases and led to such condition. Since there was no vent to release the increased pressure inside the glass enclosure, it resulted into explosion making the glass plate break into pieces. As per the above definition, such an incident can only be termed as an explosion. Thus damage caused due to such an explosion inside the glass chamber definitely fell under the Exclusion Clause. Accordingly, the damage caused by this "Explosion" was not covered under the provisions of the policy and, therefore, the opposite party was justified in repudiating the claim of the complainant.
12. In view of the above discussion and findings, the appeal of the appellant/opposite party is accepted and the impugned order of the learned District Forum is set aside. Consequently, the complaint filed by the respondent/complainant is dismissed.
13. The appellant/opposite party deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount, alongwith interest, which has accrued thereon, if any, be remitted by the registry to the appellant/opposite party, by way of a crossed cheque/demand draft, after expiry of 45 days under intimation to the learned District Forum.
First Appeal No. 282 of 2012 Page 9 of 9
14. The arguments in the case were heard on 4.6.2013 and the order was reserved. Now, the order be communicated to the parties.
15. The appeal could not be decided within the statutory period because of the heavy pendency of the court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (BALDEV SINGH SEKHON) MEMBER June 06, 2013 VINAY