BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION
AT HYDERABAD.
F.A. 441/2008 against C.C. 327/2007, Dist. Forum, Ongole.
Between:
The Bajaj Allianz General Insurance Company Ltd.
Peejay Plaza, D.No. 10-1-44/9
3rd Floor, V.I.P. Road, VIP Compound
Visakapatnam-3 *** Appellant/
O.P.
And
Dacherla Anjaiah,
S/o. Venkata Narsu
Age: 48 years, Cultivation
R/o. Pothavaram,
N.G. Padu Mandal
Prakasham Dist. *** Respondent/
Complainant
Counsel for the Appellant: M/s. V. Gourisankara Rao
Counsel for the Resp: M/s. A. Ramakrishna.
CORAM:
HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT
&
SMT. M. SHREESHA, MEMBER
MONDAY, THIS THE TWENTIETH DAY OF DECEMBER TWO THOUSAND TEN
Oral Order: (Per Hon’ble Justice D. Appa Rao, President)
***
1) This is an appeal preferred by the opposite party insurance company against the order of the Dist. Forum directing it to pay Rs. 74,880/- together with interest and costs.
2) The case of the complainant in brief is that he is an agriculturist and that he had obtained a policy covering the tobacco barn, thatched pendals, farm sheds for storage of tobacco for assured sum of Rs. 2,50,000/- covering the period from 19.12.2006 to 18.10.2007. While so on 22.6.2007 there was heavy cyclone with gale winds and rains due to which the barn fell down. Immediately the said fact was informed to the tobacco board as well as to the insurance company. The Revenue officials on information had inspected and gave a certificate that the barn was fell down due to cyclone, and he sustained a loss of Rs. 1,13,750/-. Since the insurance company did not respond, he gave a registered lawyer notice which did not evoke any response. Therefore he filed the complaint claiming Rs. 1 lakh covered under the policy together with compensation of Rs. 10,000/- and costs.
3) The appellant insurance company resisted the case. While admitting issuance of policy it alleged that on intimation immediately it had appointed a surveyor who inspected the barn and gave report that either the cyclone or heavy gale winds and rains did not cause damage to the barn. At any rate the net loss was assessed at Rs. 8,150/-. Since there was no cyclone evidenced from certificate issued by Meteorological Department (MET) the claim was repudiated as the peril does not cover heavy rains and gales. They gave a reply to the notice issued by the complainant, and therefore prayed for dismissal of the complaint with costs.
4) The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A6 marked, while the appellant filed the affidavit evidence of its Executive (Legal) and filed Exs. B1 to B4.
5) The Dist. Forum after considering the evidence placed on record opined that the surveyor had deducted heavy amounts and estimated the loss at Rs. 74,880/- and the peril is covered by terms of the policy and therefore awarded the said amount together with interest @ 9% p.a., from 5.9.2007 till the date of realization together with costs of Rs. 2,000/-.
6) Aggrieved by the said decision, the appellant insurance company preferred the appeal contending that the Dist. Forum did not appreciate either the facts or law in correct perspective. It ought to have seen that the loss is not covered by the terms of the policy. The damage to the barn was caused due to heavy rains but not cyclone. Therefore it prayed for dismissal of the complaint with costs.
7) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?
8) It is an undisputed fact that the complainant had taken Ex. B2 policy covering the risk of tobacco barn covering the period from 19.10.2006 to 18.10.2007. It is also not in dispute that on 22.6.2007 the deep depression over West Central Bay of Bengal towards North-West crossed the Andhra Pradesh coastal area close to Kakinada around 04.30 hours, and that there was heavy rain. The complainant alleges that there was heavy rain and the barn was damaged. There was lot of inundation of water. When the said fact was informed, the Village Revenue Officer issued a certificate Ex. A3 mentioning that the barn was damaged in rains due to cyclone. The insurance company equally appointed a surveyor immediately after receipt of report. He opined that the barn was completely damaged. According to him,
“On account of South West monsoon the depression was formed in the West Central Bay of Bengal on 21.6.2007 due to this effect heavy rains followed by gale on 22.6.2007, 23.6.2007 in the coastal Andhra Pradesh includes in Prakasham District. Thunder showers are occurred in many places. Equally winds with speed of 50-60 KMPH followed by heavy rain in some places… Due to effect of the depression, heavy rain fall all over the Prakasham District. Mose of the rivers were over flown, the traffic was jammed at various places, low cast areas were inundated. Four persons were died in Prakasham District, trees were uprooted, and the electrical poles were fallen on the ground. The electronic media telecasted about heavy rains, and news papers were published about the intensity of the depression and heavy rains. The depression crossed the coast near Kakinada, due to this effect the gale force winds with the range from 45 – 50 KMPH were flown.
After thorough verification the insured property got damaged due to heavy rains which occurred on account of South West monsoon followed by depression. It was informed by the insured that their tobacco barn got damaged on 22.6.2007 due to the effect of heavy cyclone, gale winds and rains. The insured submitted the certificate from the VRO counter signed by te Tahsildhar.”
9) The fact remains that the insured had informed about the damage to the barn was due to winds and rains and submitted Ex. A3 certificate issued by Village Revenue Officer certifying that the barn was damaged. The surveyor assessed the net loss at Rs. 8,150/- . In the remarks coloumn he mentioned that “The sum assured is Rs. 1 lakh, where as per the reinstatement value of the tobacco barn is Rs. 1,50,000/-. Under market value after consideration of the depreciation comes to Rs. 75,000/-. Hence, it is less than the sum insured. Hence no average clause is applicable. If the settlement is under re-instatement value basis the average clause has to be applied.” Except his statement no evidence whatsoever was filed to prove that after depreciation it comes to Rs. 75,000/-. Having accepted the value of barn and issued policy, the insurance company cannot made to say that it was either over valued or undervalued. They are estopped from stating so. They cannot blow hot and cold at the same time. They are bound by the value for which the policy was issued. It has become a routine for the surveyors to assess as they feel without any evidence to substantiate the same. He did not obtain any market value certificate from the Sub-Registrar to state so. Therefore the estimate issued by surveyor is not accepted.
10) Learned counsel for the appellant contended that the peril does not cover under the terms of the policy. It may be stated herein that clause-VI of the policy reads which we excerpt hereunder:
VI. “Storm, cyclone, typhoon, tempest, hurricane, tornado, flood and
‘inundation’:
“Loss destruction or damage directly caused by Storm, cyclone,
typhoon, tempest, hurricane, tornado, flood and ‘inundation’
excluding those resulting from earthquake, volcanic eruption
or other convulsions of nature.”
11) The insurance company has forgotten the fact that inundation also covers which word exactly used by the surveyor. The insurance company wants to repudiate the claim on hyper technical grounds. Despite the fact that the reports show that there was depression which led to heavy rains, gales and winds the insurance company alleges that it does not cover the description of cyclone. Even otherwise a perusal of terms and conditions of the policy shows that ‘inundation’ is also covered and the fact that the tobacco barn was damaged due to it. When the surveyor himself has estimated market value of the barn at Rs. 75,000/- granting Rs. 74,880/- cannot be said to be irrational. We do not see any mis-appreciation of fact or law by the Dist. Forum in this regard. We do not see any merits in the appeal.
12) In the result the appeal is dismissed with costs computed at Rs. 5,000/-. Time for compliance four weeks.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
Dt. 20 .12. 2010.
*pnr
“UP LOAD – O.K.”
