PER JUSTICE R.C.JAIN, PRESIDING MEMBER (ORAL) Alleging deficiency in service on the part of the opposite party-insurance company in not settling the claim under the two insurance policies, the complainant has filed this complaint seeking a total compensation of Rs.39,83,417/- with interest @ 24% p.a. w.e.f. 17.09.97 ( the date of peril) till the date of payment. The facts and circumstance which we would like to notice for deciding the present complaint are in a narrow compass. Complainant had taken the ground and first floor of the building known as ‘B’ Wing, Poonam Chambers on lease for the purpose of running its office. The said building was a seven storeyed structure. Complainants had installed various office equipments like Air conditioners, computers etc., in the said premises for use in their office. They had taken two fire polices, one fire policy-A in the sum of Rs.1,97,17,782/- covering certain perils as mentioned in cover ‘A’ and another fire policy-A in the sum of Rs.1,20,78,185/-, after paying the due premium. During the currency of the said policies, on 16.09.98, there was a mishap inasmuch as the building of Poonam Chambers collapsed and all the floors fell down. The incident was widely publicised in the electronic and print media and concerned authorities i.e. Fire Brigade, Mumbai, Mumbai Municipal Corporation etc, became seized of the matter. Due to the fall of the upper five floors, two floors occupied by the complainant i.e. ground and first floor also fell down and the equipments, office gadgets lying therein were damaged. Five persons including two employees of the complainant also died in the said mishap. Complainants informed the opposite party-insurance company about the said incident on 17.09.97 but the opposite party instead of taking any steps to appoint the Surveyor and Loss Assessor in order to assess the loss and damage caused to the complainant-insured, repudiated the claim of the complainant vide a letter of the even date, which reads as under: “17th September, 1997 National Bank for Agriculture and Rural Development Sterling Centre Shivsagar Estate Dr.Annie Besant Road Worli, Mumbai: 400 018 Kind Attn : Mr.S.V.Dabolkar Deputy General Manager Dear Sirs, Re : Damage of your property due to collapse of the Bldg. Poonam Chambers, Worli We have received your fax Ref. No. NB/GAPD.AES/460/AES/12/97-98 dt.17th September, 1997 and noted the loss. The above premises was covered under Fire Policy ‘A’ No.11/121700 01218 from 01.04.97 to 31.03.98. The Fire Policy ‘A’ covers the losses/damage due to named perils mentioned in the policy. However, the cause of loss in this case is due to sudden collapse of the building which is not covered under the Policy. Therefore, since the loss is not caused due to the perils covered under the policy. We regret that claim is not admissible under the policy. Thanking you, Yours faithfully Sd/- Divisional Manager” 2. However, it appears that on representation made by the complainant, they appointed a surveyor J.B.Goda Surveyors Pvt. Ltd, who first gave a preliminary report dated 27.09.1997 and thereafter final report on 04.12.98 concluding that the loss occasioned to the complainant due to alleged peril of the collapse of the building was not covered under the policies taken by the complainant. Consequently, it did not proceed further to assess the loss occasioned to the complainant. Aggrieved by the said decision, complainant after issuing notice filed the present complaint, claiming the above amount. Complaint was resisted by the opposite party-insurance company thereby not disputing the factum of the issuance of the two policies in the above sums as also the factum of peril but it was denied that there was any deficiency in service on their part in settling the claim. On the other hand, it justified repudiation of the claim made by the complainant on the same ground on which it had earlier repudiated the claim as also based on the observations, findings and conclusion of the surveyor M/s J.B. Boda Surveyors Pvt. Ltd. In the rejoinder, complainant controverted the pleas put forth by the insurance company and reiterated the averments and allegations already made in the complaint. Parties have filed supporting affidavits and also relied upon the insurance policies, the claim lodged by the complainant and the correspondence exchanged between the parties each reiterating its own point of view. 3. We have carefully perused the entire evidence and material brought on record and have heard the counsel for the respective parties. Going by the plea of the opposite party-insurance company that the peril due to which loss / damage has been occasioned to the complainant is not covered by the insurance policies, the crucial question which will decide the fate of the present complaint is as to whether the said plea of the opposite party is tenable or not. Learned counsel for the complainant has invited our attention to the terms and conditions of the Fire Policy ‘A’, relevant clause of which reads as under: “IN CONSIDERATION of the Insured named in the Schedule hereto having paid to the NEW INDIA ASSURANCE COMPANY LIMITED (hereinafter called the Company) the premium mentioned in the said Schedule. THE COMPANY AGREES (subject to the Conditions and Exclusions contained herein or endorsed or otherwise expressed hereon) that if after payment of the premium the Property insured descried in the said Schedule or any part of such Property, be destroyed or damaged by the following: 1. Fire 2. Lightning. 3. Explosion/Implosion but excluding Loss of or Damage (a) to boilers (other than domestic boilers) economisers or other vessels, machinery or apparatus in which steam is generated or their contents resulting from their own explosion/implosion. (b) Caused by centrifugal force. 4. Root, Strike, Malicious and Terrorist Damge 5. Impact by any Rail/Road vehicle or animal. 6. Aircraft and other serial and/or space devices and/or articles dropped therefrom, excluding destruction or damage occasioned by pressure waves caused by such devices. 7. Storm Cyclone, Typhoon, Tempest, Hurricane, Tornado, Flood and Inundation. 8. Subsidence and Landslide (including Rockslide) damage. 9. Earthquake, Fire and Shock. During the period of insurance named in the said Schedule or of any subsequent period in respect of which the Insured shall have paid and the Company shall have accepted the premium required for the renewal of the Policy, the Company will pay the Insured the value of the property at the time of happening of its destruction or the amount of such damage or at its option reinstate or replace such property or any part thereof. PROVIDED that the liability of the Company shall in no case exceed in respect of each item the sum expressed in the said Schedule to be insured thereon or in the whole the total Sum Insured hereby or such other sum or sums as may be substituted thereof by memorandum hereon or attached hereto signed by or on behalf of the Company”. 4. For deciding the issue, clause 8 (supra) is the relevant clause and the complainant also seeks indemnification of the loss suffered by it under this clause alone. Counsel for the complainant has strongly urged before us that the fall of the building Poonam Chambers in which the office of the complainant was housed was due to incidence of ‘subsidence’. To support his contention, he has heavily relied upon a decision of the King’s Bench Division rendered in 1939-David Allen & Sons Billposting Limited Vs. Drysdale (193() 4 ALL E.R. 113. In that case, the said Bench had an occasion to deal with a case where the owner of a building in London had taken an insurance policy against loss or damage caused by ‘subsidence and/or collapse’. During the currency of the policy, the building was pulled down by London County Council on October 7, 1938 after serving a notice because the building was declared dangerous structure. The insured filed claim, in which he was non suited by the bench after due consideration of the submission of the parties holding that the pulling down of the insured building by the London County Council did not fall either in the peril of ‘subsidence’ or ‘collapse’. While doing so, the said Bench had an occasion to interpret the terms ‘subsidence’ and ‘collapse’ in the following manner: Held : (i) “Subsidence” means primarily sinking in a vertical direction but may also include settlement i.e., movement in a lateral direction. (ii) “collapse” denotes falling, shrinking together, breaking down or giving way through external pressure or loss of rigidity or support. The Bench then considered it in some greater details as what amounts to subsidence or collapse. There cannot be any quarrel to the proposition laid down by the King’s Bench Division in the said case and we are prepared to follow the same for the sake of the complainant because he seeks support from such a decision. In our view even after doing so, the complainant does not get any support from it. We say so because in the case in hand what is covered is the loss or damage to the property of the complainant due to several perils including the peril of ‘subsidence’. Whether the loss in the case in hand can be said to be a result of ‘subsidence’ is the question which we must consider and decide. In Oxford’s Advanced Learner’s Dictionary, ‘subsidence’ is defined as “the process by which an area of land sinks to a lower level than normal, or by which a building sinks into the ground” and “collapse” is defined as “to fall down or fall in suddenly, often after breaking apart”. 5. Consideration of these definitions should not leave any doubt in anybody’s mind that ‘subsidence’ and ‘collapse’ are not one and same thing, rather these are mutually inconsistent. In the case in hand, admittedly the peril of collapse as was also noted in the case before a King’s Bench is not covered. The report of the surveyor would clearly bring out the entire circumstances relating to the occurrence, the cause of accident and its conclusion in the following manner: “As reported by Tahira Malik, an employee of Sentera Power Limited, situated on the third floor of the building (who sustained serious injuries because of the collapse and was lying buried under the debris) said that they had just returned from lunch and she was taking a printout when they felt the tremors. Initially, some sand, pieces of plaster and bits of concrete started falling down from the ceiling. This was noticed by a person working in one of the offices on the seventh floor. The building then shook violently. Thereafter, at about 2.50 P.M., there were two deafening bangs. Windows blew to pieces as though bursting of bombs. Most of the people ran out of their offices in utter panic. First the top three floors gave way one after the other because of the impact of the load on the topmost slab giving it a cumulative effect, onto the rest of the structure, which could not take the sudden massive load and collapsed down the well of the building, making a loud thud, almost resembling an explosion. The debris fell through four floors to the basement, creating a gaping hole inside the building. The structure crashed/puckered into a wreck of debris in a couple of minutes raising a huge cloud of dust. Window panes and iron grills hung down precariously. The curtain in one of the offices could be seen fluttering in the indifferent air. All that remained intact after the collapse was the hoarding of Cable Corporation of India and Wockhardt as seen from outside of the building. There was 18 fire engines, seven ambulances and the police present at the site. They were continuing search and rescue operation round the clock. Man and machine (Fire Brigade snorkels) battled to bring down the outer structure and caved-in sections of “b” Wing of Poonam Chambers to facilitate the rescuer operations / in an attempt to seek out people trapped inside the debris. At around 1.A.M. on 17.09.97, a shower of plaster sent a wave of panic through rescue workers. Thereafter at 2 A.M., six fire tenders were still helping to rescue person trapped inside. Three ambulances stood ready for any help required. The debris were being cleared by bull dozers, excavators and other mechanical equipment. As reported by the press, some people died-burried under the debris and many were badly injured due to the collapse. 10 Nos. photographs showing the site and damages to the building and the property of the Insured are enclosed. Cause of Accident As per some engineers, experts, architects, civic officials and office goers, in the information given in newspaper reports, a variety of factors appear to have led to the collapse. (These remarks have appeared in local newspapers etc.) a. Wanton renovation, abject neglect, poor maintenance etc. b. The building was in urgent need of repairs 6 years ago, but nothing was done about it. c. The old slab of the terrace had weakened over time and the new slab, built recently, did not meet requirements. Together, they could not sustain the weight of the recently installed iron water tank. The new, 20-inch cement “flat slab” was not supported by beams. d. Iron beams in about 20 years old building may have corroded due to the saline air and the hydrogen sulfide emanating from the nearby Lovegrove sewage pumping station, further weakening the building. e. The slab thickness of the top floor that fell was @ 1.5 feet. The floor had a lot of water leakage and therefore they had done water proofing by piling one slab over another. f. The building’s basement was always flooded and water was constantly being pumped out. g. Standard chartered Bank, located in the basement had been carring out larte scale renovation in their premises. The bank had removed the iron rods from the walls to construction an office in the basement. The bank had not sought permission from the department (zone I) before carrying out renovation. h. Chloride ions penetrating the steel bars of the building as it is constructed within 500 metres of the sea and reducing the alkaline nature of the bars, causing corrosion. i. Fixing/installation of heavy water tanks/cooling towers on the terrace, i.e., directly on the topmost slab of Poonam Chambers, thus subjecting the structure to their vibrations and therefore reducing the life span of the building. j. Structural changes made, tinkering with load bearing columns or removing them. k. Structural violations inside the building where there are mezzanine floors and overloading of floors. l. Alterations made without taking into consideration the structural design calculations. m. Breaking or adding of balconies. n. Concrete use for the building was of inferior quality. o. Deterioration of concrete. p. Illegal constructions made in the basement of the building, few pillars had been removed, thus weakening entire structure. Conclusion: Considering the circumstances under which the collapse of Poonam Chambers ‘B’ Wing has occurred and various report and published in the newspapers etc., we are of the opinion that such a collapse has not occurred because of any of the Insured perils. Under the circumstances, we are of the opinion that the claim under the fire policy referred above, is not tenable, subject to terms, conditions and warranties of the policy issued to and held by the Insured”. 6. Nothing has been placed on record to contradict the above observations, findings and conclusions of the surveyor. The question is as to whether the conclusion reached by the surveyor is based on correct and proper appreciation of the relevant circumstances and terms of the policy or not. In our view, the surveyor has done a thorough job in taking into account all the relevant circumstances and coming to the conclusion that collapse of the building has not occurred due to subsidence or on account of any other insured perils. In absence of any other material brought on record, we find no reason to discard this cogent report of the surveyor. Even otherwise we have examined the matter and going by the entirety of the facts and circumstances and the version of the complainant itself in regard to the manner in which the peril had taken place, we are clearly of the view that it was pure and simple case of building collapsing due to its dilapidated condition or for some other reason. Learned counsel for the complainant has urged that such type of peril is not excluded in the exclusionary clause and therefore, it should be deemed to have been covered under the policy. We have simply noted this submission to be rejected. We are, therefore, of the view that opposite party-insurance company was further justified in repudiating the claim on the ground that peril is not covered under the terms and conditions of the insurance policy. We have, therefore, no hesitation to hold that complainant has miserably failed to establish its claim. .7. In the result, the complaint fails and is hereby dismissed, leaving the parties to bear their own costs. . | 
