(Delivered on 2/9/2016)

Per Mr. S.B. Sawarkar, Hon’ble Member

1. The instant appeal is filed  against the order of the District Forum, Amravati passed in Consumer complaint No. 134/2007, dated 30/04/2008 granting partly the complaint and directing opposite party ( for short OP) No.  2 to provide the insurance claim of Rs. 3,00,000/- to the complainant which be paid after deducting Rs. 62,600/- as cost of salvage. The OP NO. 2 to provide Rs. 10,000/- as compensation to the complainant for physical and mental harassment with a cost of Rs. 5,000/- for complaint. The amount so directed be paid by the OP No. 2 from 23/10/2006 till final payment with an interest at the rate of Rs. 8/- The above order to be complied with  in the span of 30 days from the receipt of the order and in case of failure to pay interest at the rate of 9 p.a. percent thereafter.
2. The brief facts of the complaint are that the complainant alleged that he set up a incinerator to burn the biomedical waste  from Amravati after taking loan from OP No. 1. It also took the insurance policy of the natural calamities as per the advise of OP No. 1 of OP No. 2 under the peril of natural calamity which was operative from 14/8/2005 to 13/8/2006 and had paid proper premium.
3. However on 23/5/2006 there was strong storm and rains which damaged the exhaust chimney  which fell on the ground. The complainant informed to OP No. 1 and OP No. 2 which sent its representative Mr. Kakani to inspect the site. The representative directed to prepare the panchanama and to file a claim which was filed on 5/6/2006. The chimney was repaired by spending Rs. 4,71,757/-. The broken chimney was sold as scrap for Rs. 62,600/-. The complainant then filed the insurance claim and provided all the papers. He was asked to provide the meteorological report of the incident date which he supplied. However at the district of complainant, atmospheric recordings are taken only in the morning and evening and  hence the recording were of morning and evening and not of afternoon. The complainant claimed that  in the area of complainant, the Vidarbha, strong air currents flow in the afternoon due to severe heat and is accompanied by a storm and rains. With one such air current, the chimney fell because of natural calamity. However his claim was rejected by OP No. 1 and 2.
4. As the claim  of the complainant was rejected in spite of providing all the documents, the complainant made a request to OP Nos. 1 and 2 but the OP No. 2 refused the claim vide letter dated 25/4/2007. The complainant filed the complaint with a prayer to get the following compensation  from OP Nos. 1 and 2. Rs. 3,76,000/- as expenditure to raise the new chimney. Rs. 10,000/- to temporary raise the old chimney for use, Rs. 20,000/- for causing physical and mental harassment. Rs. 50,000/- for the loss caused  for deprival of business and Rs. 5,000/- for expenditure of correspondence and cost totaling to Rs. 4,61,000/- with interest at the rate of 12 percent upon it from the date of the complaint and  in addition Rs. 5,000/- as Court Fee.
5. On notice OP Nos. 1 and 2 appeared  before the learned Forum and countered the complaint by written version.
6. OP No. 1 denied the complaint,  deficiency and claimed to have provided the best service to the complainant. The OP No. 1 admitted to be the franchisee of OP NO. 2 and to have taken the standard fire and special peril policy  of the complainants incinerator. The OP No. 1 informed that  the site was verified by a surveyor whose report was submitted to OP No. 2. The complainant did not inform immediately of the incident and did not take permission to raise the new chimney. The OP no. 1 denied that the chimney topelled  due to natural calamity but claimed to have fallen by the rusting of lower portion making it weak which gave way resulting in the fall. Also the chimney was raised improperly. Hence  requested the claim being non coverable under the policy requested to dismiss the complaint.
7. The OP No. 2 also supported the contention of OP No. 1 and claimed that the site was surveyed but as the chimney had fallen down due to rusting of lower portion, the fall loss claim is not coverable under the standard fire and special peril policy and hence requested to dismiss the complaint.
8. The learned Forum considered the contentions of both the parties and perused the evidence on record. The leaned Forum considered the setting up of exhaust chimney on the concrit  base, and held that the policy was given after inspection by the OP No. 2. It also held that the complainant informed OP Nos. 1 and 2 of the incident and the representative of OP no. 2 Shree Kakani visited the place on 24/5/2007 and submitted his report to OP on 20/7/2006 after taking all papers by the surveyor. The surveyor assessed the loss at Rs. 132400/- but declared it to be uncoverable under the policy.
9. The learned Forum held that the complainants claim was of the fall due to storm and rains but the OPs based on the atmospheric readings of the day repudiated the claim. The Ops, did not bring any evidence to show that the complainant’s claim was false because it did not want to pay the claim. The OPs also did  not file expert opinion that the chimney had fallen due to rusting of the base and therefore denied the evidence of the OPs.
10. The learned Forum based its evaluation on the report of the Naib Tahasildar Panchanama and held that the survey report claimed cost of the chimney to be Rs. 3,29,728/- Therefore  the learned Forum held that probable price of the chimney to be Rs. 3,00,000/- and by deducting the declared salvage value of Rs. 62,600/- passed the order as above.
11.  Aggrieved against the order the original OP No. 2 filed the appeal and is represented by advocate Mr. Kukadey. Hence is now referred as appellant. The original complainant is referred as respondent No.  1 and original OP No. 1 is referred as respondent No. 2.
12.  The  Respondent No. 2 remained absent and hence was declared exparte. Advocate Mr. Manish Meshram appeared for respondent No. 1. Both appellant and respondent No. 2 filed written notes of arguments.
13. Advocate Mr. Kukadey reiterated the contentions of appellant before the learned Forum and claimed that the policy given to the respondent No. 1 was standard fire and special peril policy which was covering the damage due to natural calamity. He placed the report of metrological department which used to take the climatic  readings daily at the District headquarter of the complainants site which showed that on the fateful  day that is on23/5/2006, the observatory recorded readings at 8.30 IST and 7.30 IST that the wind was westerly 06 KMPH and at 7.30 Easterly 04 KMPH. The rain at 8.30 IST for 24 hours was 002.4MM. He also  filed the survey report of the IRDA expert which claimed that the chimney was 2 feet diameter  by 100 feet  high exhaust pipe, consisted of 5 parts of 20 feet each, nut bolted together and raised straight by stay wires attached at a height of 60 feet. The above 40 feet was free standing structure. The surveyor observed that the chimney had deteriorated due to development of rust at the base near foundation weakening the lower part which was due to natural process. Thus due to low velocity of wind  jerk it fell down. The surveyor therefore claimed the loss to be not due to natural calamity and uncoverable by the policy. The surveryor also assessed the loss to be of  Rs. 1,32,400/- in admissible  by considering the salvage value of the scrap.
14. The learned advocate for the appellant thereon resubmitted that the fall and loss caused to the chimney was due to normal wear and tear and because of neglect to prevent the rusting by the respondent. Hence claimed it to be inadmissible in the policy which was only coverable in case of natural calamity. The advocate therefore submitted that the learned Forum based its contentions on erroneous presumption and passed unreasonable order which needs to be set aside.
15. The advocate for the respondent No. 1/original complainant reiterated the contentions  made before the Forum in the complaint and claimed that it provided correct information and papers to the appellant. Also supported his contention with a affidavit of a neighbouring  persons who claimed a loss to his farm because of the storm and rains. He submitted that the District where the incinerator  is located, there is a part time observatory. He submitted the report of that observatory to the appellant. He also informed to the local Tahasildar who got the inspection of the site done by the Talathi on 30/5/2006 in which  the Talathi recorded about the storm and rains at the relevant time causing the damage. He submitted that the respondent gave all the documents as were available along with the expenditure required to raise a new chimney as it was a incineration burning of biomedical waste. Hence could not be kept non functional. He also lost many contracts due to non functional incinerator  and therefore claimed that the claim being correct, truthful. The order passed by the learned Forum is correct and considerate. Hence deserves to  be confirmed.
16. We considered the contentions of both the parties. We find that the surveyor has held that the chimney was a two feet diameter pipe raised with stay wires on all four sides showing that the chimney was balanced above the base. The surveyor also accepted that jerk by strong wind could have caused the fall of the chimney. However the insurance was not payable as the fall was not due to natural calamity but was due to neglected  up keep of chimney. There is also an evidence of one Shoaib Ahamad Haji Ahamd Ibrahim showing that on fateful date strong air currents had flown the shed tins of his farm. It shows that  strong  winds must have swept the area of incinerator which damaged the chimney, though, the district headquarter observatory may not have recorded it.  
17. We also find that the policy covered the loss due to natural calamity. The rusting of iron parts is a natural process but does not always results into a total collapse of a standing structure.  In these  circumstances, we find that the fall of the chimney   due to strong storm is more probable more correct and supporter of the claim of the respondent.
18.  We hold that the surveyors report and evaluation of the cost of the chimney needs to be considered to  give the respondent No. 1 the claim by appellants. We therefore partly allow the appeal but by modifying  the order of the learned Forum to the extent of financial evaluation of loss which is mostly based on assumption. Therefore we decide that respondent No. 1 deserves to get the compensation of the claim to the extent, it is calculated by the  surveyor. The surveyor has also calculated the loss of salvage and deducted it. Therefore we now find that it is most justifiable to allow the salvage cost of the scrap chimney to be with the respondent No. 1. We also intend to maintain the compensation given for physical and mental harassment and cost  with  interest upon it. We therefore pass the order as below.

ORDER

1. The appeal is partly allowed.
2. The impugned order is amended to the extent of its clause No. 2 which is modified & substituted as under.  

Clause No. 2- The appellant to provide respondent No. 1 the claim of loss of Rs. 1,32,400/- as recorded by the surveyor without claiming the cost of salvage acquired by the respondent No. 1

3. The remaining order of the Forum is confirmed.
4. Parties to bear own cost
5. Copy of the order be given to both the parties free of cost.
6. Stay if any stands vacated.