1.       The present Revision Petition (RP) has been filed by the Petitioner against Respondent as detailed above, under section 58 (1) (b) of Consumer Protection Act 2019, against the order dated 23.03.2021 of the State Consumer Disputes Redressal Commission, Gujarat (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No.1389 of 2013 in which order dated 21.03.2013 of Junagarh District Consumer Disputes Redressal Forum (hereinafter referred to as District Forum) in Consumer Complaint (CC) no.115 of 2010 was challenged, inter alia praying for setting aside the orders of State Commission dated 23.03.021 and District Forum dated 21.03.2013.

2.       While the Revision Petitioner(s) (hereinafter also referred to as OP) was Appellant and the Respondent (hereinafter also referred to as Complainant) was Respondent in the said FA No. 1389 of 2013 before the State Commission, the Revision Petitioner was OP and Respondents was Complainant before the District  Forum in the CC No.115 of 2010.

3.       Notice was issued to the Respondent(s) on 18.08.2021. Parties filed Written Arguments/Synopsis on 04.05.2022 and 29.08.2023 respectively.

4.       Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Forum and other case records are that Complainant is a partnership firm and has a building of the said partnership firm at Mangrol for which the insurance policy was taken from the opponent Insurance Company.  The insured amount of the said policy was Rs.20,00,000/- and period of policy was 07.01.2009 to 06.01.2010.  According to the complainant, during the policy period dated 14.07.2009 to 24.07.2009 there was a heavy rain in Mangrol due to which building of the insured was damaged to the tune of Rs.3,92,450/- and stock also got damaged to the tune of Rs.4,80,000/-.  Insurance Company was informed and Surveyor Mr. A.M. Patel was appointed by Insurance Company who assessed the loss at Rs. 6,71,590/-.  However, the claim of the complainant was repudiated by the Insurance Company on the ground that damage to building under the policy was not in the name of the complainant and stock loss is not due to insured period covered under the policy.  Being aggrieved, the Complainant filed CC before the District Forum and District Forum vide order dated 21.03.2013 allowed the Complaint.  Being aggrieved, the OP appealed in State Commission and State Commission vide order dated 23.03.2021 partly allowed the Appeal of the OP.  The OP is now before this Commission in the present RP praying for setting aside the order dated 23.03.2021 of the State Commission and order dated 21.03.2013 of the District Forum.

5.       Petitioner(s) have challenged the said Order dated 23.03.3021 of the State Commission inter alia on following grounds:

6.       Heard counsels of both sides.  Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.

6.1     Counsel for the Petitioner argued that State Commission failed to examine the sum insured against the building as Rs.00 and wrongly allowed the quotation of repair at Rs.3,92,450/- which was even not assessed by the surveyor in their survey report in the absence of any insurance policy covering the building given by the respondent and therefore there is no coverage for building demanded by the respondent or their banker and given by the Company in respect of building, hence there is no question of consideration of any claim in the absence of premium consideration.

6.2.    Counsel further argued that Petitioner granted cover only for Dry fish for Rs.20.00 lacs as per the loan requirement of the State Bank of India in favour of the respondent.  It is further argued that in the absence of any premium consideration, the petitioner cannot be made liable for any claim in respect of building on account of breach of Section 64 UB of the Insurance Act, 1938.  Reliance is  placed on the order of the Supreme Court in Vikram Greentech Ltd. Vs. New India Assurance Co. Ltd. 2009 ( 5) SCC 599.  It is further contended by the counsel that the Fora below have committed jurisdictional error by allowing the claim of building which was not covered.

6.3.    Counsel for the Respondent argued that respondent has purchased the fire and special peril policy covering the damages for the property which was valid upto Rs.20,00,000/- only on the date the damages caused.  It is further contended that surveyor appointed by the insurer has prepared the false and arbitral survey report dated 02.09.2009.  The surveyor intentionally and falsely stated that damages were not found occurred due to operating any perils covered under the Standard Fire and Special Perils Policy. It is further contended that District Forum has right appreciated that the risk of the building was covered under the policy as building is in the name of Mr. Naranbhai N Khetarpal who is a partner of M/s N R H Co. and that claim of the entire stock is admissible as it was damaged due to seepage of water which arose from the direct rain water. 

7.       The two issues requiring consideration in this case are (a) whether the ‘building’ was covered under the policy (b) whether the damage was on account of perils covered under the policy.  District Forum, dealing with the entire facts and evidences placed before it had come to a finding that the claim is covered and Insurance Company is liable for payment towards damages caused due to ‘storm’.  Relevant extract s of orders of District Forum are reproduced below:

“6.  The only argument of the Ld. Advocate Mr. K. B. Sanghvi  of the Insurance company is that the damage caused to the complainant's building is not caused due to insured peril, so the insurance company is not responsible to pay the damage. A copy of the Letter of Repudiation is produced vide Mark 4/8, wherein also the insurance company has stated only one reason for repudiation of the claim that the Insurance company has stated only one reason for repudiation of the claim that the Insurance Company is not responsible as the damage is not caused due to insured peril. The Ld. Advocate Mr. D. C. Vora for the applicant submits that the damage which is caused, has caused due to insured peril, so the insurance company is responsible to pay the damage. As per this fact, the only disputed issue between the parties is that whether the damage caused to the applicant's building and goods stocks is caused due to insured peril? A clause of Standard Fire and Special Perif is produced here, whereby the clause VI of it is as follows.

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

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

7.  As per the above facts, it is a clear fact that the insurance company is responsible for payment towards the damage caused due to storm. The applicant, from the very beginning has approached with a case that it rained very heavily at the region of Magrol during the period from dated 14/07/2009 to dated 24/07/2009 which had caused damage to the building of its factory. The surveyor is not accepting the fact of heavy rain, but evidence is produced, in number of cases which have been decided earlier by this Forum, that it rained very heavily at the region of Magrol during the period from dated 14/07/2009 to dated 24/07/2009. We believe that very heavy rain gets incorporated into the word Storm, so the Peril, due to which the damage was caused, gets covered under the insurance policy. So, we believe that the surveyor has also expressed his opinion that the damage is caused due to weak construction erected by using low quality material in the construction. We do not agree with this fact mentioned in the survey report because an insurance of Rs.20,00,000/- was purchased for the building and goods stock etc., and it is unbelievable that despite the engineers of insurance company do not inspect the building, the insurance company issues an insurance for such a huge amount. Thus, we believe that the engineers and technical persons of the insurance company would have inspected the building as a general custom, and must have issued the insurance due to proper constriction thereof.

8. As per the facts mentioned above, the surveyor has made a mistake by not considering the fact of continuous and very heavy rain which continued for some days, as Storm. The surveyor has also made a mistake in arriving to an opinion about weak construction of the building and about construction using low quality material. Thus, we believe that the surveyor has committed a serious type of error by expressing his opinion in his survey report that, as a result, the insurance company is not responsible to pay the insurance claim. We believe that the insurance company has committed a serious error in repudiating the insurance claim, relying on the survey report. So, we believe that the insurance company has committed deficiency in its service by repudiating to pay the insurance claim. Thus, the decision of Issue No.1 is affirmative.”

8.       In this regard, relevant paras of orders of State Commission are reproduced below:

“7.            First of all learned Advocate Mr. Darshil Parikh argued out that learned District Commission ought to have appreciated that the claim for damage to the entire stock is not admissible as it was damaged due to seepage of water which is arising from direct rain water and such claim is not admissible under the standard fire and special peril policy. Learned Advocate Mr. Darshil Parikh further argued out that the learned District Commission while adjudicating the complaint ought to have appreciated that the damage to the building is not payable as the risk is not covered under the policy, therefore complainant at the most would be entitled for claim of Rs.2,79,140/- towards damages to the stock alone and thus the learned District Commission has committed serious jurisdictional error. Learned Advocate Mr. Darshil Parikh further submitted that the learned District Commission also ought to have considered the survey report, whereby it was found that all the bags of fish meal stored in the premises were damaged due to the water dropping/leakages from the ceiling during rain fall which is not covered under the policy. 

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11. In the present case following are the two contentions raised by opponent Insurance Company:

(A) Building is not covered under the policy as owner of the building is Mr. Naranbhai while insured is M/s. N.R.H. Co.

(B)Stock was damaged due to water dropping/leakage from ceiling during rain falling which is not covered under the policy.

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14. In the instant case, building is in the name of Mr. Naranbhai a partner of M/s. N.R.H. Co. and the building is being used by M/s N.R.H. Co. The policy schedule is on record at page no. 32 in this case wherein it has been specifically shown that risks were covered for building (Block No. 14) and therefore in the considered opinion of this Commission when property - building is in the name of Mr. Naranbhai a partner of insured firm and building is used for the activities of company and opponent Insurance Company has received consideration for the risk of the said building then risk of building is covered under the policy and therefore insured is entitled to get claim amount of Rs. 3,92,450/- from Insurance Company as per surveyor report.

Moreover it is an averment of opponent Insurance Company that building was damaged due to ageing problem but in the opinion of this Commission before issuing policy as per practice insurer may have inspected the building and hence opponent Insurance Company cannot raise the point of ageing problem building at the later stage.

15.  Regarding Claim admissibility of the stock is concerned it is specifically mentioned in the survey report in clause 6.2 that, "The said claimed loss/damages were found occurred only due to dropping of rain water from the leaky ceiling of the factory building because of ageing problem." 

9.         State Commission keeping in view the observations of this Commission in 1 (2016) CPJ 360 (NC):- IND-SWIFT Ltd. Vs. United India Ins. Co. Ltd. and Anr. held that complainant is not entitled to get claim amount of damaged stock.

“18.  On the basis of the above discussion in depth, I am of the opinion that the said building is covered under the insurance policy and hence the complainant is only entitled to get the claim amount of building alone.  Therefore the order passed by the learned District Commission is not just and proper and hence it should be required interference by this Commission.  Therefore the following final order is passed.”

10.     After careful consideration of all the facts and circumstances of the case, we do not agree with the observations and findings of State Commission in paras 15 to 17 but tend to agree with the observations and findings of District Forum in  paras 6 to 8 of its order. ‘Storm’ and ‘flood’ being covered under the policy is not in dispute.  Now the question is, can heavy rains leading to seepage of water into the building and causing damage to the stock be covered as ‘storm’ and/or ‘flood’.  District Forum has observed ‘we believe that very heavy rain gets incorporated into the word storm, so the perils, due to which damage was caused, gets covered under the insurance policy. Now, lets see what do the words ‘storm’ and/or ‘flood’ mean. We could gather some of the dictionary meaning of word ‘storm’ and ‘flood’ as follows:-

Oxford dictionary

Storm-very bad weather with strong winds and rain, and often thunder and lightning

Flood– amount of water covering an area that is usually dry

Cambridge Dictionary-

Storm- an extreme weather condition with very strong wind, heavy rain, and often thunder and lightning.

Flood- to cause to fill or become covered with water, especially in a way that causes problems.

In simple words ‘storm’ is an extreme weather condition with very strong wind, heavy rain and often thunder and lightning.  Similarly, in simple language, a flood is an overflow of water on land.  Sometimes a river might receive extra water, either from heavy rains or other natural disaster.  When this happens, the water overflows from its normal path in the river bed and onto the dry land.  Floods are a type of natural disaster that can cause heavy destruction to life and property. It is a condition when rain water accumulates at a place flooding populated areas. 

11.     From the above, it is clear that Complainant/Respondent is justified in claiming that his risk is covered under the policy.  Hence, we tend to agree with the observations and findings of the District Forum in this regard.  It was observed by Hon’ble Supreme Court in Canara Bank Vs. United India Insurance Co. Ltd. & Ors. (2020) 3 SCC 455 “…..Insurance Policy must be read holistically so as to give effect to reasonable expectations of all the parties including the insured and the beneficiaries-  it must be interpreted in a commercially sensible manner- coverage clauses to be read broadly, and ambiguity, if any, to be resolved in favour of insured-exclusions to be read narrowly…..”. 

12.     For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, we agreeing with the contentions of the Respondent herein,  tend to agree with the findings of the District Forum in toto.  Accordingly, the order dated 23.03.2021 of State Commission is modified by restoring the reliefs granted by District Forum in toto.  Revision Petition is disposed off accordingly.

13      The pending IAs in the case, if any, also stand disposed off.