BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION
AT HYDERABAD
F.A. 186/2008 against C.C. 844/2005, Dist. Forum-I, Hyderabad
Between:
The Divisional Manager
New India Assurance Company Ltd.
Divisional Office, Anasuya Complex
2nd Floor, Opp. TTD Kalyanamandapam
Himayatnagar, Hyderabad. *** Appellant/
Opposite Party
And
M/s. Kuldeep Wines
Rep. by its Proprietor
Gurucharan Singh Bagga
S/o. Late Nand Singh Bagga
Age: 50 years, Business
Shop at 15-4-587, Afzulgunj
Hyderabad. *** Respondent/
Complainant.
Counsel for the Appellant: M/s. Katta Laxmi Prasad
Counsel for the Resps: M/s. K. Anup Kumar
CORAM:
HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT
&
SMT. M. SHREESHA, MEMBER
FRIDAY, THIS THE TWENTY NINETH DAY OF OCTOBER 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. 7,09,391/- together with interest and costs.
2) The case of the complainant in brief is that he has been dealing in sale of liquor and beer in retail. He insured his goods with the appellant under standard fire and special perils policy for Rs. 35 lakhs. It was issued after inspecting the premises. While so, on 27.9.2004 a portion of the building was collapsed and consequently liquor products were damaged. When the same was intimated the appellant had failed to settle the claim. When registered notice was given it has given reply with false allegations. Therefore he claimed Rs. 10 lakhs with interest @ 18% p.a., together with compensation and costs.
3) The insurance company resisted the case. While admitting issuance of policy it denied the averments made in the complaint. The insurance policy was issued in regard to stock in trade and not in respect of premises. The claim was not covered by peril in question. The collapse of building was not due to heavy rains but due to aging and degradation of structures over the years. The allegation that premises was inspected was not true. The complainant had kept the stocks in a building which was in a dilapidated condition, knowing full well that it was not safe. The building which was collapsed was not insured nor additional premium was paid for storage places. For the notice issued it has given correct reply. It had appointed an independent surveyor who after enquiry found that the building was collapsed due to dilapidated condition and peril was not covered. Accordingly repudiation was made. The complainant was not entitled to any amount 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 A19 marked, while the insurance company filed the affidavit evidence of its Senior Divisional Manager and got Ex. B1 to B3 marked.
5) The Dist. Forum after considering the evidence placed on record opined that the policy covers the peril and the value of the loss assessed by the surveyor based on the Excise Department Panchanama was at Rs. 7,09,391/- and therefore awarded the same directing it to pay with interest @ 9% p.a., from the date of claim viz., 28.9.2004 till the date of realization together with costs of Rs. 2,000/-.
6) Aggrieved by the said decision, the insurance company preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective. It ought to have seen that the building was not insured and therefore the insurance policy does not cover the peril. It had relied the Panchanama of Excise Department without any proof. The Dist. Forum ought to have relied the report of the surveyor. The repudiation was just and therefore prayed for dismissal of the complaint.
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 is running a wine shop under the name and style of M/s. Kuldeep Wines and had obtained standard fire and special perils policy for Rs. 35 lakhs covering the period from 4.11.2003 to 3.11.20004 covering “on stocks of all kinds of Indian made foreign liquor and occupied as shop-cum-godown” situated at 15-4-587, Afzulgunj, Hyderabad evidenced under Ex. A1. The complainant alleges that the building was collapsed and the entire stock was damaged. He estimated the loss at Rs. 10 lakhs evidenced by his letter Ex. A2 dt. 28.9.2004.”
9) The complainant while intimating under Ex. A2 dt. 28.9.2004 immediately after the incident did not confirm that the building was collapsed either due to rain or inundation. What all he stated was “With reference to the above, it is to inform you that the above said premises was collapsed at
about 4.00 a.m. on 27.9.2004 and damaged the stock. We would request you to kindly depute your surveyor to assess the loss immediately. The estimated loss would be Rs. 10 lakhs.” He again reiterated the same under Ex. A3 however he did not mention as to the reason for collapse of the structures. He informed the same to Excise Department under letter Ex. A4. However he did not mention that the building was collapsed due to heavy rain or inundation. Even the Excise officials when they had conducted Panchanama on 28.9.2004 at about 5.30 p.m. immediately on the next day of incident they stated that the building was collapsed from roof and the stock was damaged.
Obviously in order to mitigate the damage they have shifted the stock to different premises. None of the authorities including the complainant alleged that collapse of building was due to any of the perils covered under the policy.
Sri J. M. Seetharam, Surveyor & Loss Assessor who was appointed to conduct survey visited the premises on 28.9.2004 had opined that:
“the insured attributes it to “heavy rains during the season”. There was no rain fall in the city on 26.9.2004 and 27.9.2004 as reported in the weather report of the local news papers. Enquiries at the Meteorological Department at Begumpet, Hyderabad revealed that there was no rain fall as per their records during the day pertaining to 4.00 a.m. of 27.9.2004.
The building is an old structure, constructed in the pre-RCC era, the upper floors were apparently considered to be unsafe, and so were not inhabited, as no casualty is reported. It was observed during the survey that the remaining partitions of the first floor were in a dilapidated condition, with not even doors or door frames, and appeared to have been left uninhabited for a long time.
A report on the age of the building by Sri K. V. Phaniswar, Architect suggests that the building could have been constructed any time between 1920 and 1955.
Considering the architecture and the dilapidated condition of the building, it is more likely that the building belonged to the earlier dates suggested by the architect.
The collapse of the upper floors of the building could be attributed to aging and degradation of the structure over the years.”
After considering the terms of policy it opined that it was not due to any of the perils specified in the policy and therefore recommended for repudiation.
10) Obviously the complainant realized that after finding that the peril is not covered and he would not get any amount he must have stated in the complaint that it was collapsed due to heavy rains. The surveyor after noting weather reports reported in local news papers and enquiries at the Meteorological Department at Begumpet, Hyderabad opined that there was no rain fall as per their records during the said period recommended for repudiation.
11) When the complainant attributed collapse due to heavy rains or inundation of water necessarily he had to prove that collapse was due to one of the perils mentioned in the policy. At the cost of repetition, we may state that the complainant did not allege in the complaint or in his affidavit evidence or at least in the report given to the insurance company that the building was collapsed due to rains. When the damage was not due to any of the perils covered under the policy by sheer collapse of building by itself would not enable the complainant to claim the amount. At no time the complainant alleged that there were rains and therefore building was collapsed. He did not give any reason except representation to the surveyor that the building was collapsed. Therefore, we accept the contention taken by the insurance company that the collapse of the building was not due to any perils covered under the policy and therefore the complainant was not entitled to any compensation. The Dist. Forum did not consider this aspect at all.
12) In the result the appeal is allowed , consequently the complaint is dismissed. However, no costs.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
Dt. 29. 10. 2010
*pnr
“UP LOAD – O.K.”
