State Consumer Disputes Redressal Commission
The New India Asurance Co Ltd, vs Sheshnarayan Jinning & Pressing ... on 30 March, 2022
1 A/18/202
Date of filing :06.06.2018
Date of order :30.03.2022
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION,MUMBAI, BENCH AT AURANGABAD.
FIRST APPEAL NO. : 202 OF 2018
IN COMPLAINT CASE NO.: 138 OF 2017
DISTRICT CONSUMER FORUM : JALNA
The New India Assurance Co.Ltd. ,
Through its authorised signatory,
K.K.Niwas Lakkadkot, Jalna-Aurangabad Road,
Jalna, Dist.Jalna. ...APPELLANT
VERSUS
Sheshnarayan Jinning and Pressing Factory,
Gut No.140 , Post Water Phata,
Tq.Partur, Dist.Jalna,
Through its proprietor,
Sureshkumar Kanhaiyalal Jethliya,
R/o Partur, Tq.Partur, Dist.Jalna. ...RESPONDENT
CORAM : Smt.S.T.Barne, Hon'ble Presiding Judicial
Member.
Mr.K.M.Lawande, Hon'ble Member.
Present : Adv. M.R.Deshmukh for appellant,
Adv.Kapil C.Sabnis for respondent.
JUDGMENT
(Delivered on 30/03/2022) Per Mr.K.M.Lawande, Hon'ble Member.
1. Being aggrieved by the judgment and order dated 09.04.2018 passed by District Forum, Jalna in C.C.No.138/2017 appellant has preferred this appeal.
2. The appellant is the opponent and the respondent is the complainant in complaint No.138/2017 before the District Consumer Dispute Redressal 2 A/18/202 Forum. The appellant and respondent are hereinafter referred to as 'opponent ' and 'complainant' as per their status in the complaint and District Consumer Disputes Redressal Forum is referred to as 'District Forum' for the sake of convenience.
3. It is the case of complainant that he is running ginning and pressing factory in the name and styled as Sheshnarayan Ginning And Pressing factory at Watur Phata, Tahasil Partur ,District Jalna. He has obtained insurance policy of sum insured of Rs.300,00,000/-, from the opponent Insurance Company, from it's Solapur branch. The period of insurance policy was from 10/ 11/ 2013 to 09/11/2014. It is contended that on 26/02/2014 and 27/02/2014, there was unseasonal hail storm with rains (गारपीट व वादळी वारा), due to which the stock of raw cotton , and processed stalk which was covered under tarpaulin was damaged. Thereby the complainant sustained the loss Rs.15,00,000/-. The incident was reported to Tahsil office Partur. The Talathi of Watur sajja and circle officer have drawn the panchnama. The officer of the Insurance Company also visited the spot. The documents of purchases of material, market value of the damaged goods were supplied to the officer. The surveyor orally accepted the damage of the complainant to the tune of Rs.12 to 15 lacs. The complainant filed Insurance claim with the opponent Insurance Company. However, the opponent Insurance Company has not finalized the claim. The opponent Insurance Company demanded various documents time to time, the complainant also complied the same. Observing deficiency in service the complainant filed the consumer complaint claiming Rs.15 lakhs towards 3 A/18/202 Insurance claim, Rs.1.5 lakhs towards damages and Rs.25,000/-towards cost of litigation.
The complainant in support of his complaint submitted the documents including cover note, Insurance claim, panchnama drawn by Tahasildar.
4. The opponent Insurance Company has filed written statement before the District Forum. The Insurance Company admitted issuance of policy to the complainant. However, resisted the complaint contending that the insured has sustained the loss due to unseasonal rains. Complainant never expected the rainfall at that time. They had stored large quantity of stock in open. The cause of loss mentioned by the insured in the complaint is heavy rain, hail storm and storm. The insured did not prove the operation of Storm peril. Moreover, the commodity was not thrown away. There was seasonal heavy rains prevailing in the area. The proximate cause of loss is rains which is not an insured peril under the policy and the claim is not admissible under the policy. The complaint is filed belatedly beyond three years. The opponent filed policy claim details, survey report and brochure on terms and conditions of policy.
5. The District Forum allowed the complaint partly and directed the insurance company to pay the amount of Rs. 4.12 lakhs with interest at the rate of 6% per annum from the date of 27/10/2017, the expenditure of Rs.3,000/- is also awarded. While deciding the consumer complaint the 4 A/18/202 District Forum held that the unseasonal heavy rains/(मोठा पाऊस), hailstorm/(गारपीट) are covered under the definition of storm. The District Forum held the opponent Insurance Company committed deficiency in service. The District Forum observed that the insured persons purchase the insurance policy by paying premium to protect the business against the damages. However, the insurance company wrongly defend the cases contending that the storm do not cover hail storm and heavy rains and there was no wind blown at the speed of 55kms per hour and more.
6. The appellant filed this appeal on the grounds that the District Forum failed to appreciate that the complaint was barred by limitation. The claim was repudiated on 18\09\2014. It was served on complainant on 23/09/2014. The complaint is filed on 27/10/2017 belatedly after 3 years. There was no application for condonation of delay. No specific reasons are attributed for the delay occurred. The District Forum failed to appreciate the surveyor's report. The report is stating that there is no evidences of storm. None of trees in around were uprooted and nearby area was not found affected by the storm. The surveyor noted cause of loss due to unseasonal rains and hail Storm which is not covered under terms and conditions of insurance policy. No liability should have been imposed on appellant Insurance Company. The complainant has not challenged the survey report. The survey report cannot be discarded unless it is specifically objected and some contrary is established. The District Forum failed to appreciate the inclusion in clause No.6 of terms and conditions of contract 5 A/18/202 of insurance. The inclusion provide loss due to operation of storm, cyclone, typhoon, hurricane torrando, flood and inundation. The inclusions provided in clauses No. 1 to 12 of the contract of insurance does not include loss caused due to unseasonal rains and hail storms. The interpretation given to the term by the District Forum is erroneous. The District Forum failed to appreciate the weather report given by the Meteorological centre at Chikalthana, Aurangabad making it clear that there was no operation of storm in the vicinity of factory or surroundings. The District Forum erred in obtaining external aid in respect of definition of storm. There is no Nexus with facts of that case. No external aid is required for interpretation of terms of insurance policy.
7. Heard Adv.M.R.Deshmukh for appellant/org.opponent and Adv.K.C.Sabnis for respondent/org.complainant.
8. From the submissions of parties, following points arise for our consideration. We have noted them along with findings against it for the reasons to follow.
Points Answers
(i) Whether the complainant established deficiency in service on the part of opponents ? -..In affirmative
(ii) Whether there requires interference in the judgement and Order of the Dist.
Forum? ..In negative
(iii) What order? - As per final order
6 A/18/202
REASONING
9. The learned advocate for the appellant Shri.M.R.Deshmukh argued that the District Forum failed to appreciate that the complaint was barred by limitation U/s 24A of Consumer Protection Act. The claim was repudiated on 18\09\2014. It was served on complainant on 23/09/2014. The complaint is filed on 27/10/2017 beyond 3 years. The insurance company filed on record the copy of communication and booking receipt. it reflects that communication was sent by insurance company. it is presumption that it is received by the receiver. The complainant a business entity remained silent for period of three years over claim is not possible. Though it is pleaded that no decision was taken by the Insurance company, such pleadings are false and are pleaded to cover up imitation. There was no application for condonation of delay. No specific reasons are attributed. The District Forum failed to appreciate the surveyors report . The report stating that there is no evidences storm. None of trees in around were uprooted and nearby area found affected by the storm. The buildings of the factories specifically the AC sheet /metal sheet roof of the factory is not damaged. There was no flood or inundation in the campus of insured . The Cotton stock was kept in open. The surveyor noted cause of loss as unseasonal rains and hail Storm .It is confirmed in the report that loss is not due to operation of storm in the absence of operation of storm and more particularly when loss is caused due to unseasonal rain water which is not covered under terms and conditions of insurance policy .No liability should have been imposed on appellant insurance company. The complainant has 7 A/18/202 not challenged the survey report. The survey report cannot be discarded unless it is specifically objected and some contrary is established. The District Forum failed to appreciate the inclusion in clause number 6 of terms and conditions of contract of insurance. The inclusion provide loss due to operation of storm ,cyclone,typhoon , hurricane torrando ,flood and inundation. The inclusions provided in clauses No. 1 to12 of the contract of insurance does not include loss caused due to unseasonal rains and hail storms. The interpretation given to the term by the Hon'ble District Forum is erroneous. The District Forum has passed the judgment and order , which deserves to be quashed and set aside by allowing the appeal.
10. The ld.advocate for the complainant Shri.Sabnis argued in the line of complaint that the complainant has filed Insurance claim before the insurance company, however, the insurance company, failed to decide the complainant's claim and therefore the complainant required to file the complaint. This Commission in two appeals have decided the identical issue and dismissed the appeals of Insurance Company. 11(i) It appears that , the first ground of appeal of the appellant is that the complaint is filed belatedly. It is argued by the Advocate of the opponent that the complainant is wrongly contending that the insurance company has not decided the claim and kept the claim pending. However, the Insurance company has already repudiated the claim on 18.09.2014. The complainant is also already communicated on 23.09.2014. The advocate of complainant denied this contention on the ground that the opponent has not produced 8 A/18/202 receipt on record. In our opinion, the opponent is under liability that the repudiation is duly served on the complainant. In the absence of the receipt of repudiation or track report of service ,it can not be said that repudiation is served. Therefore, the defense of opponent that the complaint is filed belatedly is not justified.
11(ii) The opponent has taken second ground that the surveyor has visited the spot and submitted report that the damage of the stock was due to rains and hail Storm ,which is not covered under the peril of storm. It is contended by opponent that the parties can not go beyond the terms and conditions of the contract. Therefore, the complainant is not entitled for the insurance claimed. It is also argued that the complainant did not expect the untimely rains, hail storm and kept the stock in open lethargically. It is also argued that the trees were not uprooted. The roof of the unit also not affected. The wind speed also not found exceeded 55 km per hour. It is argued that the District Forum wrongly interpreted the definition of storm taking external aid. Question therefore comes ,whether the unseasonal rain fall (अवकाळी पाऊस)and hail storm (गारपीट)that damaged the stock of Complainant can be covered under the definition of storm. The clause No.VIth of the policy (at page 71 of appeal compilation) is providing damages under the head of storm cyclone, Typhoon, Tempest, Hurricane, Tornado, Flood and inundation. The Clause VI is further explaining that the loss, destruction or damage directly caused by storm, cyclone, Typhoon, Tempest, Hurricane, Tornado, Flood and inundation excluding those result in from earthquake volcanic eruption or other conversions of nature weather 9 A/18/202 earthquake cover is given as an and on cover the words excluding those resulting from earthquake volcanic eruption or other convulsions of nature shall stand deleted.
(iii) Thus ,it appears that the hail storm and untimely rains are not excluded as peril in the definition of storm. There is separate clause under the head of general exclusions on page 71 of appeal compilation. The said clause also not stating exclusion of hail storm and untimely heavy rains from storm. The complainant has relied upon the book Fire and Consequential Loss Insurance published by Insurance Institute of India. The chapter 1 of the book is on basic principles and the fire policy, wherein clause 42 defines storm, cyclone, Typhoon, Tempest, Hurricane, Tornado, Flood and inundation as, "These terms are not defined in the policy . Therefore, these terms have to be given their popularly accepted meanings. Storm is defined as some severe, if not violent atmospheric disturbances such as unusually heavy rain, hail, wind, snowstorm or some combination of these". Cyclone, Typhoon etc. are the examples of storm of Greater intensity.
Therefore, we would like to rely upon the definitions explained by the Insurance Institute of India in the said book. The District Forum has decided the complaint in favour of complainant keeping reliance on the definition of 'storm' in the aforesaid book .We have also no hesitation to hold that the untimely Rains and hail Storm occurred on the day which damaged the stock of the complainant is well within covered under the definition of storm. Though it is argued by the ld.advocate of the opponent 10 A/18/202 that the Chikhalthana Meteorological report is not show wind speed of 55 kmph on those days, as Collin dictionary describes storm. However, it requires to be considered that the place of damages is atleast 100 kms away from Chikhalthana. The report therefore can not be held applicable for places in Partur Tahasil. Also ,we would not like to rely upon the some definition in Collin Dictionary when definition given by authority i.e. Insurance Institute of India is available.
(iv) The complainant has relied upon the judgements of this Commission in FA 27/2016 in United India Insurance Company Limited versus Naitik Traders decided on 16/08/2016 and C.C.36/2016 in Mahaveera Ginning and pressing factory versus branch manager New India Assurance Company and other wherein the identical issue was before this Commission. It reveals that on the same days i.e. on 26/02/2014 and 27/02/2014 there were hail storm with rains at some places in Partur Tahasil which has caused damages to stocks of ginning factories. This Commission while dismissing the appeal No.27/16 held that the surveyor mentioned in his report that there was no storm as defined in the Collins dictionary which requires 55 to 63 mph wind speed. But in absence of Meteorological report his unfounded opinion can not be accepted.
Also this Commission in allowing the CC 36/16 held that , "We find much force in the argument as advanced by learned counsel Shri.Sabnis. Firstly, because, as per the definition given in the said book it is evident that, storm does include rain also. In the present case, the complainant has also produced on record the newspaper wherein it is mentioned that , on the 11 A/18/202 relevant date i.e. 26 & 27.2.2014 there was hail storm and the storm associated with heavy rain which caused damage to the standing crop and also to the cotton stored in open area by various Ginning factories in the District Jalna, wherein the present Ginning and Pressing factory is situated. Thus, it can be concluded that, the loss sustained by the complainant is not only because of "rain", but because of "storm" associated with rain and also helm storm. Hence, the resultant loss sustained by the complainant does fall within the scope of the insurance policies. As regards the other objection of the opponent insurance policies about reasonable care of the goods stored, it is evident from the Talathi panchanama that, the said stock was covered by the tarpoline, but despite taking proper care due to storm associating with rain etc. the stock was damaged and the complainant sustained the loss. We therefore conclude that, although complainant's claim is within the scope of the insurance policy , the opponent insurance companies repudiated the claim and thereby committed deficiency in service as alleged by the complainant. We have therefore given our findings as in affirmative, against this issue.
12. Though the complainant has filed the consumer complaint claiming compensation of Rs.15 lakhs towards insurance claim. However, the District Forum has allowed the complaint partly and directed opponent to pay Rs.4.12 lakhs with interest @ 6% p.a. from the date of 27.10.2017. We find that the District Forum has rightly allowed the complainant's claim on the basis of surveyor's report holding that the opponent insurance company has committed deficiency in service in wrongly repudiating the complainant's 12 A/18/202 claim. We find no infirmity or illegality in the impugned judgment and order. Hence no interference is warranted.
13. In view of our aforesaid discussion, the appeal being devoid of any merit deserves to be dismissed with cost. Hence, the following order.
O R D E R
1. Appeal is dismissed with no order as to cost.
2. Copies of the judgment be supplied to both the parties.
Mr.K.M.Lawande Smt.S.T.Barne,
Member Presiding Judicial Member
MBM