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The New India Assurance Company Ltd., Rep. by its Divisional Manager, Chennai & Another Vesus M/s. Swiss Park Vanijya (P) Ltd, Rep. by its General Manager Alwarpet, Chennai & Another

    Review Application Nos. 130 & 131 of 2022

    Decided On, 13 September 2022

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE T. RAJA & THE HONOURABLE MR. JUSTICE D. BHARATHA CHAKRAVARTHY

    For the Appellants: S.P. Chockalingam, Advocate. For the Respondents: ------



Judgment Text

(Prayer: Review Application No.130 of 2022 is filed to review the judgment dated 03.01.2022 made in O.S.A.No.283 of 2018 on the file of this Court.

Review Application No.131 of 2022 is filed to review the judgment dated 03.01.2022 made in O.S.A.No.282 of 2018 on the file of this Court.)

Common Order:

D. Bharatha Chakravarthy, J.

1. The present Review Applications are filed by the Appellant Insurance Company, having lost the intra-court appeal filed by it. By the judgment under review dated 03.01.2022, we had dismissed the appeal and confirmed the Judgment and Decree of the Learned single Judge decreeing the suit against the appellant.

2. The facts in brief are that the respondent/plaintiff in the suits got his Solar Unit insured against any loss caused due to Storm etc. by the appellant Company. There was loss of solar panels on account of storm and when the respondents/plaintiffs made a claim, the same was repudiated by the appellant Insurance Company. The main contention of the Insurance Company is that the policy covers only loss due to Storm. As per the Beaufort Scale, if only there is wind of 80Km per hour and above, it can be termed as 'Storm', but in the instant case, the speed of the wind was only 32 Km per hour.

3. The learned Judge did not accept the said contention as there was no specification in the Insurance Policy that the term ‘storm’ will be construed only as per ‘Beaufort Scale’. On appeal, we also reasoned that the term ‘storm’ has to be taken as per the ordinary dictionary meaning and accordingly, confirmed the Judgment and Decree of the Learned Judge.

4. Now, the present Reviews are filed by the Appellant Insurance Company through a different counsel than the one who argued the Original Side Appeals. According to the learned Counsel for the Review Petitioners, the Judgment suffers from error apparent on the face of the record for the following :

(i) Only Beaufort Scale is followed universally and therefore, the wind speed of 32kmph should not be considered as storm;

(ii) If there had been a storm, the entire field of solar panel including the tables would have been uprooted and damaged and therefore, the damage is not due to storm, but due to transit only;

(iii) There is a mismatch between the claim and the actual loss suffered and only about 2.5% of the panels which were damaged;

(iv) When the surveyor assessed the field, the damaged items were not even there and therefore, the Insurance Company is not liable for the damage;

(v) Even on a subsequent inspection, the respondents/claimants did not even replace the damaged panels and therefore, are not entitled for compensation.

5. As far as the submissions made in Point Nos.(ii) to (iv) are concerned, the submission of the learned counsel is factually erroneous in as much as their own surveyor report, which is marked as Ex.P6, clearly says that the reason for loss is because of strong winds upto 32Km per hour. As far as the mismatch between the claim and actual loss is concerned, the same is also taken into account by the surveyor of the appellant Company itself in the report and even though the claim was made for a sum of Rs.58,64,642/-, had assessed the actual loss at Rs.19,49,994/-. Therefore, neither the learned single Judge nor this Court quantified the damage independently, but one by the actual loss as quantified by the surveyor was only taken into account. The reason for damage is mentioned as strong winds, the amount of damaged solar panels were inspected and quantified and even though higher amount was claimed as loss, the Surveyor's Reports admitted only part of the amount, after giving rebate to the mismatched claim and therefore, the suit was decreed only as per the quantum of loss as submitted by the Surveyor of the appellant Company. As far as the submission made by the learned counsel in Point No.(v) above, it is highly illogical. When the insured solar panels were damaged by the storm, the appellant Company is liable to reimburse the loss. Whether after reimbursement or before reimbursement, the claimant company replaces the panel by purchasing a new one is immaterial for deciding the suit claim.

6. Now coming to the submission made by the learned counsel in Point No. (i). We have already held in paragraph 9 of the Judgment under Review that the term 'storm' has to be taken as per the plain meaning and we had gone by the meaning given to the term under Merriam Webster Dictionary. The term 'storm' mentioned in the Insurance Policy would mean the 'storm' which is construed generally in its literal meaning. If it has to be made as a special term, it should be expressly mentioned in the Insurance Policy that the term 'storm' will be construed only as per the Beaufort Scale and the appellant Company being in the dominant position to draft the policy has to suffer for the expressed non-mentioning of the said terminology in the Insurance Policy. This position has been clearly held by the the Hon'ble Supreme Court of India in “Central Bank of India ..vs.. Virudhunagar Steel Rolling Mills Ltd., and others [(2015) 16 SCC 207]”, which is known as 'contra proferentum' rule. It is useful to extract paragraph 6 of the said judgment, which reads as follows:-

6. The decision in Sita Ram Gupta v. Punjab National Bank [(2008) 5 SCC 711] is of no advantage to the appellant Bank. That decision concerns the possibility of a guarantor revoking his continuing guarantee, with the objective of escaping his liability. This is not the case before us inasmuch as the defence of Respondents 2 to 4 is that they had agreed to stand surety only for transactions after 30-8-1974. Our attention was also drawn to B.G.Vasantha v. Corporation Bank [(2005) 10 SCC 215] as also M.S.Anirudhan v. Thomco's Bank Ltd. [AIR 1963 SC 746] but these decisions do not call for a detailed analysis. It is the appellant Bank which drafted the

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guarantee deed, and in case of doubt, the document would be read against it. This is the contra proferentem rule, which is of a vintage which brooks no contradiction.” In that view of the matter, already the learned single Judge and this Court had decided the issue on merits. 7. It is pertinent to state here that it is only a re-argument of the Appeal, which is made in the disguise of the Review and it has been seen none of the above grounds can be said to be pointed out any error apparent on the face of the record. In this view of the matter, there are absolutely no merits in the Review Applications and are accordingly, dismissed. No costs.
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