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New India Assurance Co. Ltd., Delhi v/s M/s. Nandeetas Through Its Proprietor, Nandita Shaunak, Haryana

    First Appeal No. 2170 of 2017

    Decided On, 05 January 2022

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. C. VISWANATH
    By, PRESIDING MEMBER & THE HONOURABLE MR. JUSTICE RAM SURAT RAM MAURYA
    By, MEMBER

    For the Appellant: C.K. Gola, Abhishek Kr. Advocates. For the Respondent: Shridhar Y. Chitale, Advocate.



Judgment Text

1. The present Appeal is filed against the order dated 28.07.2017 passed by State Consumer Disputes Redressal Commission, Delhi (in short 'State Commission') in Consumer Complaint No. 122/2013.

2. The Complainant/Respondent is a proprietorship concern engaged in the business of export of exclusive hand embroidered and beaded garments, bags, belts, stolls, home furnishings etc. since the year 2000. The manufacturing activity is carried out in the factory premises at Manesar, District Gurgaon, Haryana. The Complainant had taken Policy No.31010011110100000277 valid from 26.08.2011 to 25.08.2012 from the Opposite Party. As per Clause VI of the Policy, the Complainant firm was insured against Storm, Cyclone, Thyphoon, Tempest, Hurricane, Tornado, Flood and inundation resulting in any material damage to the factory building. The total sum insured under the Policy was Rs.2,07,10,000/-. According to the Complainant, on the intervening night of 5th and 6th May, 2012 a storm/tempest lashed the town of Manesar causing severe damages in the Complainant factory. The force of the storm also damaged the central dome installed in the factory premises. There was also damage to the expensive polycarbonate sheets and the hydraulic system attached to the central eclipse. The Complainant informed the Opposite Party, vide email dated 07.05.2012. On 11.05.2012, another storm hit the town of Manesar causing further damage to the Complainant's factory premises. The Complainant, vide email dated 12.05.2012, again informed the Opposite Party about the storm and the loss caused. Complainant received letter dated 14.05.2012 from M/s S. Soni & Company, Surveyors and Loss Assessors requiring the Complainant to produce certain documents relating the loss caused. The Complainant had taken the quotations for repair from M/s Fabcons for an amount of Rs.26,66,939.25. On 28.06.2012, the Complainant received an email from the Surveyor stating that the dome was not covered under the Policy and certain queries were also made. The Complainant addressed those queries and submitted proof of payment for construction of the dome. The Opposite Party, however, did not settle the claim. The Opposite Party also insisted for a report from the Metrological Department regarding the storm. The Complainant obtained report dated 09.08.2012 from the Metrological Department disclosing that on 05.05.2012 the wind speed was 54 kmph with no rain or weather phenomenon occurring. In spite of furnishing all relevant documents, including the report from the Metrological Department, the Opposite Party, vide letter dated 27.08.2012 repudiated the claim of the Complainant. Aggrieved by repudiation of the Insurance Claim, the Complainant filed a Consumer Complaint with the State Commission with following prayer: -

"(A) Allow the complaint and direct the opposite party to pay the complainant a principle amount of Rs.26,66,939.25 towards damage caused complainant's factory premises under the standard fire and special perils policy bearing no. 31010011110100000277.

(B) Pass an Order directing the Opposite Party to additionally pay interest of 18% per annum from 07.05.2012 till the realization of the principle amount from the Opposite Parties.

(C) Pay compensation to the Complainant totaling Rs.2,00,000/- owing to the harassment, mental agony, and expenses for the follow up/various visits to the Opposite Party's Office and towards litigation expenses.

(D) Pass any other Order(s) as this Hon'ble Commission may deem fit and proper in the facts and circumstances of the present case."

3. The Complaint was resisted by the Opposite Parties by filing Written Statement stating that as per the terms and condition of the Insurance Policy, the Insurance Company was not liable to make any payment under the Policy because 54 kmph was normal wind velocity and could not be the cause of loss.

4. The Complainant filed its rejoinder reiterating the averments made in the Complaint. It was stated that the Surveyor was not competent to determine that the wind speed at 54 kmph was a normal wind velocity and could be the cause of loss.

5. The Opposite Party did not appear after filing the Written Statement nor filed affidavit evidence and were proceeded ex-parte. The State Commission, after hearing the Learned Counsel for the Complainant and perusing the record, vide imputed order dated 28.07.2017, allowed the Complaint in following terms: -

"We find that there is deficiency in service on the part of the OP. Repudiation of complainant's claim on the ground that none of the insured peril had operated on the date of occurrence is not justified. Accordingly, we allow the present complaint and direct the OP to pay the loss suffered by the complainant i.e. Rs.26,66,939.25P (Rupees Twenty Six Lakh Sixty Six Thousand Nine Hundred 'Thirty Nine and Twenty Five Paisa only) alongwith interest @9% from the date of repudiation of the claim till payment. Since amount has been ordered to be refunded with interest, no compensation and litigation costs is awarded to the complainant."

6. Aggrieved by the impugned order dated 28.07.2017 passed by the State Commission, the Appellant/Opposite Party preferred the present First Appeal before this Commission with the following prayer:-

"(a) Please to call for titled M/s Nandeetas Vs. The New India Assurance Co. Ltd. decided vide impugned order dated 28.07.2017 and after perusing the same set aside the same and the present appeal filed by appellant be accepted with cost or in alternative the case be remanded back to the Hon'ble State Commission to decide on merits and the Appellant/ respondent Company be permitted to file all the documents and evidence on record.

(b) Pass any other/further order as this Hon'ble Commission may deem fit, just and proper in the facts and circumstances of the case in favour of the appellant."

7. Learned Counsel for the Appellant/Opposite Party submitted that the impugned order of the State Commission is not based on evidence, documents and averments as made by the Appellant/Opposite Party. The Respondent/Complainant had not filed the proof of heavy storm on 05.05.2012 at Manesar. The dome was covered under the warranty and the manufacturer was liable for the same. The loss to the building had been caused due to manufacturing defect/technical fault which were not covered under the Policy. The Respondent had provided a highly exaggerated estimate of repairs in the State Commission, without carrying out any repair. The Commission failed to examine the contact of Insurance between the parties, and passed the order without appreciating the facts in totality. The impugned order, therefore, was liable to be set aside.

8. Learned Counsel for the Respondent/Complainant submitted that at no point of time, the Opposite Party raised any objection that the dome was not covered under the Policy. The roof of the factory premises including the newly constructed central dome was made of high quality polycarbonate sheets and forming an integral part of the building. The Appellant/Opposite Party assessed the premium in respect of the building which included dome as well. If the Appellant were to exclude the dome from the Insurance Policy, such exclusion should have been specifically stated in the Policy as per Rules. The order of the State Commission is well reasoned order based on the material on record.

9. Admittedly the Policy was valid from 26.08.2011 to 25.08.2012 for a sum of Rs.2,07,10,000/-. The Respondent suffered severe damage in the insured premises due to heavy winds on 05.05.2012 and 11.05.2012 which damaged the hydraulic dome, glass panels etc. Clause VI of the Policy is relevant, reads as follows:-

"VI. Storm, Cyclone, Typhoon, Tempest, Hurricane, Tornado, Flood and Inundation.

Loss destruction or damage directly cause by storm. Storm, Cyclone, Typhoon, Tempest, Hurricane, Tornado, Flood or Inundation excluding those resulting from earthquake, volcano eruption or other convulsions of nature (Wherever earthquake cover is given as an "add on cover" the words "excluding those relating from earthquake" shall stand deleted)"

The Claim of the Complainant was repudiated by the Opposite Party, vide letter dated 27.08.2012, on the ground that the weather could not be the cause of loss as the wind speed at 54 kmph was a normal wind velocity. In this regard, repudiation letter dated 27.08.2012 is relevant, which reads as follows: -

"As per the Survey Report of M/s S. Soni & Co. "The speed of wind as 54 kmph confirmed in the weather report could not be the cause of loss as it is the normal wind velocity." He has also stated that these damages could be due to breakage over a period of time and damages to dome could be due to poor quality/manufacturing defect/technical fault, which are not covered under the policy."

The factum of incident is covered by the principle of res ipsa locuitur meaning thereby that "thing speaks for itself." The Opposite Party repudiated the claim on the ground that the weather could not be the cause of loss as the wind speed at 54 kmph was a normal wind velocity. A perusal of letter by Regional MET Office Lodi Road, New Delhi shows that the wind speed of 54 kmph is not considered as normal wind. The Appellant/Opposite Party had repudiated the claim based on the Survey Report that the "damages could be due to breakage over a period of time and damages to dome could due to poor quality/manufacturing defect/technical fault, which are not covered under the policy." The Opposite Party had not filed any evidence to prove that the damage to the factory premises including the dome was due to manufacturing defect or technical fault. They repudiated the claim based on conjecture and surmises. State Commission recorded that "the Complainant has placed on record the data taken from World Weather & Climate Information to show the average wind speeds over the year in Manesar, Gurgaon. As per the said information the average wind speed in the month of May in Mane

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sar is recorded as 12.6 kmph. It is not the stand of the OP that survey report is based on an expert opinion." As seen from the report of the Assistant Meteorologist, Regional Meteorological Centre, Lodi Road, New Delhi dated 09.08.2012, on 05.05.2012 and 11.05.2012 a maximum wind speed during squall/gust was 54 kmph and 66 kmph respectively. The stand of the Opposite Party that weather could not be the cause of loss is, therefore, held not valid. Further, the Insurance Policy nowhere mentions that the dome was not covered under the Insurance Policy. Even in the repudiation letter dated 27.08.2012 there is no mention that the dome was not covered under the Policy. The argument of the Appellant/Opposite Party that the dome was not covered under the Policy is, therefore, rejected. The State Commission rightly held that the damage to the building, caused by the wind, was covered under the Insurance Policy. Appellant/Opposite Party failed to point out any illegality or irregularity in the impugned order warranting interference in the Appellate jurisdiction. The First Appeal is accordingly dismissed with no order as to costs.
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