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7. Insurance company contested and resisted the complaints on the ground, that the respondents has deliberately and purposely concealed the material facts from it at the time of obtaining insurance because as per report of the Investigator/Loss Assessor, it was found that the tilt in the building in question had started much prior to the purchase of insurance which came to its notice after investigator/loss assessors report. The insured had been carrying on precautionary and preventive measures by making necessary repairs in parts of the building even prior to 23.9.2003 when they got the insurance cover, and this fact was purposely concealed by all of them. As such they had clandestinely got their entire building covered for a heavy sum of Rs. 70 lacs collectively on 23.9.2003.

Further plea of the insurer was, that it was conclusively found by the surveyor, that the tilting of the building and minor damages caused to it were due to deficient design and faulty construction. As the tilt of the building was not due to subsidence soil, as such the claim of the insured had been rightly repudiated and there was no deficiency of service on its part.

 

8. Brief resume of evidence led by the parties in the present case in nutshell is being noted now. Insured in the present case placed on record their own affidavits Ext. C-1 to C-4 and affidavits of S/Sh. R.P. Swami Retd. Civil Engineer, Praveen Bansal, Prop of M/s Shivalik Agency Solan, Karam Chand Govt./ Private contractor, Trilochan Singh building material contractor, Rattan Singh, Lal Singh, Nitin Goel, Prop of M/s Goel Brothers, Pawan Kumar Prop of Shani Traders, Mohan Lal, Ganga Ram, Dila Ram, Ashraf Khan, Ram Lal, Bashir Chand and Ram Singh, Exts. C-5 to C-20. Documents viz. Tatima, Jamabandies, certificate of District Revenue Officer, letters exchanged between the Executive Officer Municipal Council Solan and the insured as well as the letters exchanged between them and the insurer, besides correspondence exchanged between the Chartered Engineer/ Surveyor Annexures C-21 to C-24. Letter addressed to Executive Engineer (B &R) Solan by the insured, Annexure C-25 letter addressed to the insured by the Executive Officer Annexure C-26 and Annexure C-27 copy of the notice served upon the insurer by the insured through their Advocate P.S. Goverdhan and letters exchanged between appellant Manorama and the Branch Manager Annexures C-28 to C-31, sale deed Annexure C-32, jamabandi Annexure C-33, insurance cover note Annexure C-34 and various bills/receipts Annexures C-35 to C-117, photographs Annexures C-118 to C-126, report of the Expert Engineer R.P. Swami Annexures C-127 to C-128 and building plan Annexure C-129.

 

13. Further per Mr. Goverdhan, even the report Annexure C-17 is not supported by any reason, when the surveyor concluded that the cause of damage to the building was due to deficient designing, coupled with extensively poor workmanship and the fact that the building had tilted due to deficient design in construction, had also placed reliance on the opinion of Mr. Dhillon who had also attributed damage on the building because no provision for the drainage of soil water was kept while constructing the retaining wall, and thus it wrongly concluded that building had tilted without subsidence of base soil below foundation, but due to the inadequate construction is also not legally warranted as per evidence on record.

20. It is clear from the report of Sh.

H.N. Gandhi Annexure R-8, wherein he had given various probable factors involved in the damage to the building at page 88 thereof in para 4 (i) to the effect, that this building is located just on Solan Rajgarh road which is a very busy road and heavy traffic passes over it. The fact of heavy traffic can be assumed to effect the above building. That the traffic pressure, impact on R/walls and columns tilt could be possible. Even from the report of surveyor it is clearly depicted that the insured building had been found tilted as such the tilting of the building cannot be said to be due to normal cracking or the settlement of the building so as to make out a case falling within the exclusionary clause 8(a), but it does fall within the inclusionary clause 7 of the insurance policy. Condition No. 7 and 8 of the insurance policy have been reproduced in detail by the District Forum below in para 7 of the impugned order which need not be repeated for the sake of brevity.