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3.     To grant such other reliefs which are deemed fit and proper in the facts and circumstances of this case.
4.     To grant the cost of the complainant for these proceedings from the respondent."
 

4.      The complaint has been resisted by the opposite party/insurance company by filing the written statement.  It has been contended that the peril of storm tempest, inundation etc. resulting from earthquake is not covered. As tsunami is a result of earthquake, any loss resulting from tsunami is not covered.  The case of the complainant is covered under Exclusion Clause Nos.4 & 6 of the policy as well as under the General Condition No.8.  It has been stated that Exclusion Clause No.6 is clearly applicable in the present case.  The damage to the stock has occurred due to change of temperature in the cold storage and therefore, the present case is not covered as the temperature was not maintained for about 4-5 days and nobody was there to look after the plant. The points raised in the repudiation letter were also reiterated which include the following:-

"As the insured, he could reach the premises only on 1-1-05 after the Tsunami on 26-12-04, and next visit to the plant was only on 5-1-05 when visited along with Bank Manager.  As already stated earlier, it is very clear from the insured's letter addressed to the Dist. Collector, Bank officials etc that the stock had been found damaged even during their first visit to the plant on 1-1-2005 itself.  Inspite of the above, the insured switched on the plant on 1-1-05 and kept it in working till the visit of preliminary surveyor on 11-1-05, with the record sheet fixed on the reorder only on 5-1-05, during their second visit.

13.    I have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties and examined the material on record.  Though there are many grounds for repudiation of the claim given in the repudiation letter dated 10.10.2006, but the main point of repudiation is the Exclusion Clause wherein it is mentioned that loss of stock due to change of temperature in the cold storage is not covered.  First of all, it is to be seen whether loss/damage due to  tsunami is covered under the policy.  Clearly peril of cyclone, tempest, flood, inundation etc. are covered if not caused by earthquake.  Clearly, the tsunami is caused by the earthquake inside the sea, therefore, clearly any damage due to tsunami is not covered under the present policy.  The next question comes that due to warning and fear of tsunami and due to instructions from the local administration, the plant was closed and all the employees and the officers of the company left the place from 27.12.2004 till 01.01.2005 whether in such situation the Insurance Company is liable to pay the claim of damaged stocks.  There was nobody inside the plant to operate the plant.  The damage was first known on 01.01.2005.  Thus, it is clear that the damage has happened during the period of 27.12.2004 to 01.01.2005. Damage due to desertion of the employees is clearly not covered under the policy.  It is also a question to be considered if the plant can run without any employee for five days why can't it be run without employee at other occasions. 

 

15.    From the above finding of the surveyor, it is not acceptable that any water leaked inside the cold storage. The surveyor has also pointed out that when the AC plant did not work the moisture inside the cold condense condensed and that is why droplets were seen on the roof of the cold storage.  The explanation given by the surveyor seems to be logical.  No convincing proof/evidence has been filed by the complainant to prove that there was some leakage of water inside the cold storage due to bursting of pipe.  Moreover, it is also not clear, why did the water on the floor of the cold storage due to leakage of water due to bursting of pipe remain confined to 5 mm as water was running continuously and there was high pressure in the water due to high waves in the sea due to tsunami.  It is clear finding of the surveyor that the whole plant was shut down when all the employees deserted the plant and perhaps they did the right thing.  It was apprehended that tsunami may damage the plant and water may enter the plant, so to protect the plant and machinery it was perhaps necessary to shut down the whole plant.  However, the sea water did not enter the cold storage, but by that time the stocks was already damaged due to shut down of the plant.  The complainant has tried to show that all other machinery of the plant were shut down except for the AC plant.  This assertion of the complainant is not supported by the finding of the surveyor.  The complainant is relying on the recordings of the temperature recorder.  It has been argued that there are six recordings on one sheet and that clearly shows that the cold storage was under operation during the period when plant was deserted by the employees.  The surveyor has not accepted this contention and has given clear analysis of the recordings of the temperature recorder as follows:-