F.A.No.520/2008  against C.C.No.328/2007,   Dist. Forum,  Prakasam Dist at  Ongole.

Between:

M/s. Bajaj  Allianz  General Insurance Company Ltd.,

Pee Jay Plaza, Door No.10-1-44/9,

3^rd floor, V.I.P.Road,

V.I.P.Compound,

Visakhapatnam, 530 016.                             …  Appellant/

                                                                     Opp.party

          And

Jagarlamudi Anjamma,

W/o.Raja  Rao,

Aged about 45 years, Hindu,

Cultivation,  R/o.Pothavaram,

N.G.Padu Mandal,

Prakasam Dist.                                           …  Respondent/

                                                                     Complainant 

Counsel for the Appellant       :  M/s. V.Gowrisankara Rao     

Counsel for the Respondent   :   Mr.A.Ramakrishna               

CORAM: THE HON’BLE JUSTICE SRI D.APPA RAO, PRESIDENT,

AND

SMT.M.SHREESHA, HON’BLE MEMBER,

WEDNESDAY, THE  TWENTY SEVENTH DAY OF OCTOBER

TWO THOUSAND TEN.

Oral Order : (Per  Smt.M.Shreesha, Hon’ble Member)

****

            Aggrieved by the  order in  C.C.NO.328/2007  on the file  of District Forum, Prakasam District at Ongole,  the  opposite party preferred this appeal.  

            The  complainant is an agriculturist  and resident of Pothavaram Village, N.G.Padu Mandal  and having  barn  T.B.G.R. NO.19-162-119   of Pothavaram Village  come under  the purview  of Auction platform  no.23, Ongole-II  and he paid  insurance premium through Tobacco Board,  Ongole and obtained policy no. OG-071804500100000586.  On 22.6.2007 due  to Cyclone and  heavy gale, winds and rains  the complainant’s barn fell down upto ground level and the said fact  was immediately intimated to the Tobacco Board officials, Ongole   and central office at Pune and also brought to the notice of  the Tahsildar, N.G.Padu  and the revenue authorities visited the locality  and gave  a certificate in favour of the complainant  stating that the  said barn fell down due to cyclone gale winds and rains  and the  estimation of loss of the said barn is Rs.1,27,010/-.  The opposite party is   bound to pay the loss of compensation to the complainant.  Though the  damage of the barn is intimated, the opposite party did not respond. On 11.8.2007  the  complainant got issued   registered legal notice but there was no  response.   Hence the complaint  seeking direction  to the  opposite party to  pay  premium amount of Rs.1 lakh, to pay 10,000/- towards mental agony and  to pay Rs.1000/-towards  costs.

         Opposite party  filed counter  stating that after intimation from the complainant they have appointed one surveyor   who had inspected the barn and gave report  stating that the damage to the barn was due to heavy  rains   and assessed the net loss at  Rs.26,975/-  and he  sent a letter dt.12.9.2007  to the Meteorological Department  Cyclone Warning Centre  for which  he received a reply dt.29.9.2007 with details of depression and cyclone from 21.6.2007  to 24.6.2007 and as per the said letter there is no cyclone on 22.6.2007  at Prakasam District.   The reasons  for not accepting the claim is as follows:

(a)            As per clause VI (Sec-11) of policy, it cover  loss, destruction  or damage directly caused by  story, cyclone, typhoon, tempest, hurricane, tornado, Flood  or inundation excluding those  resulting from earth quake, Volcanic eruption or other convulsion of nature (where ever earth quake cover is given as an add on cover), the words “ excluding  those resulting  from earth quake” shall stand deleted but it does not cover the loss due to heavy rains and not report of the meteorological department’s  report is filed by the complainant showing that on 22.6.2007 there was  cyclone.  With out  which the complainants are not  entitled to any thing.

(b)               To categorize  the cyclone, the wind velocity will be in the range of 62 to 69  KMPH resulting in tree branches being uprooted and damages to  kuncha houses and in case of severe cyclone the wind velocity will be in the range of 90 to 117 KMPH  resulting in big tree being uprooted and damages to houses and installations but he event  narrated by the complaints as well as the legal notice and in the petition is the loss is occurred due to heavy rains which is not covered under the policy and as per the  information available, the rain fall during the date 22.6.2007 was moderate rain fall which will not result in collapse of  barn.

(c)             Since the policy does not cover the risk i.e. damage due to heavy rains the opposite party informed the same to the clients. Even then the complainant had sent a legal notice and the same was also replied by the opposite party by explaining the above reasons.

(d)            Since the petition filed by the complainants for the damages it is also equally their duty to prove that the loss occurs due to cyclone that too from competent authority.  

 The opposite party submits  that since the policy does not cover  the risk i.e. damage due to heavy  rains, the claim amount could not be paid  and there is no consumer relationship   and the complainant is not a consumer under Section 2(d)  of  Consumer Protection Act.    The opposite party submits  that there  is no deficiency in service on their behalf and prayed for dismissal of the complaint. 

        The District Forum based on the evidence adduced  i.e. Exs.A1 to A10 and  B1 to B4  and pleadings put forward,  allowed the complaint partly directing the opp.party to pay an amount of Rs.70,650/- with subsequent interest @ 9% p.a. from the date of Ex.B1 (Surveyor report) i.e. 5.9.2007  till the date of realization and also to pay an amount of Rs.2,000/- towards compensation    and Rs.1000/- towards costs.

        Aggrieved by the  said order, opposite party preferred this appeal.

        Both sides filed written arguments.

        The facts not in dispute are that the complainant was issued an insurance policy through  Tobacco Board covering the  period from 19.10.2006 to 18.10.2007 for an insured sum of Rs.1,00,000/- .  It is the complainant’s case that on 22.6.2007 due to heavy gale, winds, rains and cyclone  the tobacco barn fell down upto the ground level  and the VRO inspected the damage and gave a certificate on 4.7.2007    as evidenced under Ex.A3.   The complainant submits that  the estimated loss of barn is Rs.1,27,010/-.  The complainant made a claim application vide Ex.A1 to the  opposite party but did not receive any response and therefore got issued a legal notice vide Ex.A4 dt.11.8.2007.

        It is the appellant/opp.party’s case that the policy issued does not cover the risk of heavy rains  but only covers the risk of cyclone.  They rely on Ex.B4 dt.29.9.2007  which is  the letter issued by India Meteorological  Department   showing  the details of depression and cyclone  from 21.6.2007  to 24.6.2007. The learned counsel for the appellant contended that as per this letter there is no cyclone on 22.6. 2007 in that District

        It is not in dispute that the barn itself  has fallen down due to heavy rains, gale and winds. The insured also submitted a certificate issued by V.R.O. dt.4.7.2007  that the  barn collapsed due to cyclone on 22.6.2007.  A brief perusal of the policy terms and conditions  also shows that the heavy gale, rain and winds  is not exclude.  The contention of the opposite party that only ‘cyclone’ is covered by the policy and not heavy rain, gale and wind is unsustainable on the ground that the definition of ‘Cyclone’ does include heavy rain, gale and winds. We also observe from the record  that the complainant has filed Exs.A6 to A10 which are the bills   for the amounts that he has   spent for repairing the barn.

         We  address ourselves  to the quantum of amount awarded  by the District Forum.  A brief perusal of the Survey Report i.e. Ex.B1  shows  that the surveyor has assessed the total loss  at Rs.75,950/- but deducted 50% depreciation  on the entire amount which also includes  Item No.(12).Repairs to furnace etc., Item No.(13). Masonry Labour charges, Item No.(14).Carpentry Labour charges  apart from  50% depreciation  on bricks, mud, sand, cement, purloins, Trusses, tiers, furnishing material, CGO sheets, Flue tubes etc.  and arrived at Rs.26,975/-.  When the masonry  and labour charges itself are Rs.15,000/-, as per the survey report it is not explained as on what grounds/reasons the surveyor has deducted 50% depreciation on masonry charges and also on carpentry charges. The District Forum has taken into consideration all the bills submitted by the complainant which  amounted to Rs.89,500/-  and deducted salvage and 10%  depreciation and arrived at Rs.70,650/-  which is slightly less than what the surveyor assessed on total loss basis i.e. Rs.75,950/- . The complainant did not  prefer any appeal.  Keeping in view the  afore mentioned reasons this appeal is dismissed with costs of Rs.2000/- and order of the District Forum stands confirmed.

         In the result this appeal is dismissed with costs of Rs.2000/- and order of the District Forum  is  confirmed. Time for compliance four weeks.

                                                                                                        Sd./-PRESIDENT

                                                                                                        Sd./MEMBER

                                                                                                        Dt.27.10.2010.