Complaint was filed, inter-alia, alleging  that  the  complainant-firm  had  been  running  a cold  storage  since  the  year  1968.   The firm  availed  of   the  credit   limit   facility   of  Rs. 10.00 lakhs  from Banaras   State  Bank  Ltd.- OP No. 2.  Policies No. 1142160201287  for  the   period  from  1.4.1997  to  31.3.1998 of Rs. 25.00 lakhs,   No. 142160201274 for the period from 30.3.1997 to 29.10.1997 of Rs. 25.00 lakhs,  No. 4442160237033 for the period from 30.3.1997 to 29.10.1997 of Rs. 25.00 lakhs and No. 4442160237051 for the period from 1.4.1997 t0 31.3.1998 of Rs. 10,09,100/-  were purchased by the complainant from OP No. 1- Insurance Co.    Cold storage was having three chambers.  On 17.4.1997, Sabir Hussain, Supervisor informed that inside chamber No. 2, there was big noise and it had collapsed resulting into damage to the walls, plant & machinery and the stocks of potato.  Incident was reported to the police and also to the Insurance Co.   OP No. 1 appointed R. M. Goel, Surveyor.  However, he was replaced by B.S. Chawla- surveyor for the reasons best known to OP No. 1- Insurance co.  Complainant submitted the claim form claiming disbursement of the loss of Rs. 18,39,750/- suffered by it.  It was stated that the attitude of B.S. Chawla was biased since the very inception.  Vide letter dated 31.3.1999, the OP No. 1 – insurance Co. had repudiated the  claim.  Attributing deficiency in service, direction was sought to be made to OP No. 1- Insurance Co. to pay a total amount of Rs. 36,62,030/-, the details whereof have been set out in para No. 19 of the complaint, alongwith interest to the complainant.

          Opposite party No. 1- Insurance Co. contested the complaint by filing written version.  Issuance of four insurance policies to the complainant was not denied.  However, it was alleged that by the letter dated 18.4.1997, the complainant gave intimation to the branch Manager of the Insurance Co.  at Badaun about the alleged occurrence dated 17.4.1997.   Replying opposite party immediately appointed R.M. Goyal  as preliminary surveyor.  He inspected the site on 18.4.1997 itself alongwith Rajiv Aggarwal, Branch Manager.   B.S. Chawla appointed as surveyor joined R.M. Goel. Preliminary survey report was submitted on/or about 6.6.1997.  It was pleaded that the complainant overloaded chamber No. 2 which resulted into collapse of the north & east walls, roof, rack structure which in turn damaged the stocks of potato.  It was asserted that the claim is not covered by the terms of policies and is barred by limitation.  B.S. Chalwa-surveyor submitted the final report dated 24.3.1998.   It was admitted that the claim was repudiated by the letter dated 31.3.1999.  Liability to pay the claimed amount was denied.

          Name of opposite party No. 2 was deleted from the array of parties vide order dated 19.10.2001.

          Complainant filed the affidavit of Gulshan Dhingra, one of the partners by way of evidence.  Affidavit of S.K. Kundra, Assistant Manager was filed on behalf of the Insurance Co.   Since the opposite party Insurance Co. alleges that the claim made is not payable under the terms of the policies purchased, it would be profitable to deal with that plea in the first instance.  Copies of the four policies have been filed alongwith the complaint.  In these policies the name of the insured is shown as ‘Banaras State Bank Ltd., Budaun, A/c M/s. C.K. Cold Storage Ujhani (Budaun).  Policy No. 1142160201287 would show that it pertains to the coverage of risks to the building, shade, office, wooden racks & machinery.  Portion dealing with the risks covered under this policy is re-produced below:-

“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 described in the said schedule or any part of such property be destroyed or damaged by:

1.                  Fire

2.                  Lightning

3.                  Explosion/implosion but excluding loss of or damage a) to boilers (other than domestic boilers) economizers or other vessels, machinery or apparatus which steam is generated or their contents resulting from their own explosion/implosion; b) caused by centrifugal forces.

4.                  Impact by any Rail/Road vehicles or animal

5.                  Aircraft and other aerial and/ or space devices and/or articles dropped therefrom, excluding destruction or damage occasioned by pressure waves caused by such devices

6.                  Riot, strike Malicious and Terrorist Damages as per  clause printed hereon 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 to the insured the value of the property at the time of the happening of its destructions 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 the insured thereon or in the whole the total sum insured hereby, or such other sum or sums as may be substituted therefore by memorandum hereon or attached hereto signed by or on behalf of the Company.”

          Risks covered under policy No. 1142160201274X in respect of the potatoes in gunny bags, is identical to that of policy No. 1142160201287 re-produced above.  Policy No. 4442160237033 relates to the Deterioration of stocks/potatoes in the cold storage and the portion dealing with the risks covered under the policy being material, is re-produced below:-

“WHEREAS the insured named in the Schedule hereto has made to the NEW INDIA ASSURANCE COMPANY LIMITED,(hereinafter called ‘the Company’) a written proposal by completing a Questionaire which together with any other statement made in writing by the Insured for the purpose of this Policy shall be the basis of contract and is deemed to be incorporated herein.

NOW THIS POLICY OF INSURANCE WITNESSETH that in consideration of the insured having paid to the Company the premium mentioned in the Schedule and subject to the terms, provisions, exceptions, warranties and conditions contained herein or endorsed hereon, the Company hereby agrees with the Insured that at any time during the period of Insurance stated in the Schedule II or during any subsequent period for which the insured pays and the Company may accept the premium for the renewal of this Policy, the Company will indemnify the Insured in the manner and to the extent hereinafter provided for damage to the stocks described in schedule II by Contamination and/or deterioration, putrefaction as a result of rise in temperature in the Refrigeration Chambers caused by any loss or damage due to an accident, as defined hereafter to the Plant and Machinery specified in Schedule I and indemnifiable under the Machinery Insurance Policy in force.

The total liability of the Company under this Policy shall be limited to the Sum Insured specified in Schedule II.

(i)                 During the entire period of this Insurance the Insured shall be in possession of an un-qualified permission in writing of the competent Licensing Authority to operate the Cold Storage.

(ii)               At the time of the loss or damage the said stocks are contained in the said Refrigeration Chambers.

(iii)             The Plant and Machinery specified in Schedule I is Insured under Machinery Insurance Policy in force and payment shall have been made or liability admitted under such Insurance: if no payment shall have been made under such insurance solely as a result of the operation of any ‘cess’ thereunder Liability of the Company under this Policy shall not be affected.

(iv)             The Insured maintains, on a daily basis, a stock book in the Proforma prescribed by the Company, in which the type, quantity and value of the stocks stored and the beginning and the end of the storage period are entered for each Refrigeration Chamber separately.

(v)               During the entire period of storage the Insured records in Log Book as per the Proforma supplied by the Company the readings of the temperature and relative humidity of the Refrigeration Chambers as also the suction discharge and oil pressure on four hourly basis throughout the day.

(vi)             Stock Book, Log Book and all other records of the Insured relating to the stocks stored shall at all reasonable time be open to inspections by duly authorized representatives of the Company.

DEFINITIONS

THE TERM ‘’ACCIDENT’’ shall mean and be limited to:

(a)               Any sudden or unforeseen loss or damage to the Plant and Machinery described in Schedule I of this Policy due to an accidental cause covered by the Machinery Insurance Policy specified in Schedule I and not hereinafter excluded.

Exclusion:

(i)                 Failure of any part (s) requiring periodical renewal (such as failure of belts, gaskets, packing material, joints of any kind and insulation).

(ii)               Operation of fuses and kindred devices.

(b)               Escape of Refrigerant in the Chamber as a direct result of damage to the Plant and Machinery described in Schedule I for which damage a claim is admissible under the Machinery Insurance Policy specified in the Schedule 1.”

Policy No. 4442160237051 is a Machinery Insurance Policy covering the risks to the machineries against the perils extracted below:-

“WHEREAS the insured named in the Schedule hereto by a proposal and declaration which shall be the basis of this contract and is deemed to be incorporated herein has applied to the New India Assurance Co. Ltd. (hereinafter called the Company) for the Insurance hereinafter contained and had paid the premium as consideration for such Insurance in respect of accident or damage occurring during the Period of Insurance stated in the Schedule or during any subsequent period for which the Insured pays and the Company may accept the premium for the renewal of the Policy NOW THIS POLICY OF INSURANCE WITNESSETH.

THAT  subject to the terms exceptions, exclusions, provisions and conditions contained herein or endorsed hereon, the company will at its own option by payment or reinstatement or repair indemnify the Insured against unforeseen and sudden physical damage by any cause not hereinafter excluded to any insured property specified in the attached Schedule(s) whilst in the premises therein mentioned necessitating its immediate repair or replacement.  This policy shall apply to the insured items after successful completion of the performance/acceptance tests, whether they are at work at rest, or being dismantled for the purpose of cleaning or overhauling, or in the course of the aforesaid operations themselves or when being shifted within the premises, or during subsequent re-erection.  The liability of the Company for any one item of the insured property shall not exceed in the aggregate in any one Period of Insurance the Sum Insured set against such item in the attached Schedule9s), unless the Sum Insured under such item is reinstated after occurrence of a claim for balance period.”

           General Exception No. 1 of this Policy also  need be referred to.  Same runs as under:-

“1. Loss, damage and/or liability caused by or arising from or in consequences, directly or indirectly of Fire including extinguishment of a fire or clearance of debris and dismanting necessitated thereby smoke, soot, aggressive substance, lightning, explosion of any kind (other than bursting or disruption or turbines, compressors, cylinders of steam engines, hydraulic cylinders of fly wheels or other apparatus subject to centrifugal force, internal pressure theft, collapse of buildings, subsidence, landslide, rockslide, water which escapes from water containing apparatus, flood, inundation storm, tempest, earthquake, volcanic eruption or other Act of God, impact of landborne, waterborne or airborne craft or other aerial devices and/or articles dropped therefrom.

……………………………………...

……………………………………..”

          Copy of the FIR dated 18.4.1997, admittedly, lodged by the complainant with the SHO, Ujhani Kotwali has been filed during the course of argument on 5.10.2010 by Shri Pramod Dayal, Adv. for the opposite party – Insurance Co.   Copy of another report made by the complainant to Ujhani Kotwali dated 10.5.1997 filed by the complainant is at page No. 126 on the paper book.  In the FIR dated 18.4.1997, it is stated that Chamber No. 2 which housed 16,000 bags of potatoes, had fallen/destroyed due to natural calamity on 17.4.1997 at around 9.30 A.M.  However, in the report dated 10.5.1997, it is mentioned that 4 horizontal raffters of wooden had haxa cut marks and those had broken from the cut sides which caused the collapse of the building and this appeared to have been done maliciously by somebody who wanted to harm the complainant.   This shift regarding cause of collapse of said chamber No. 2 was made by the complainant after about 3 weeks of the lodging of the said FIR.  In the claim form, Exh. C-8 & C-9 submitted by the complainant to the Insurance Co., the cause of collapse of two walls of the cold storage building was alleged to be the malicious act.  Contention advanced by Shri Vijay Tandon, Adv. for the complainant was that it being a case of explosion, the claim made under said two fire policy ‘C’ Nos. 1142160201287 and 1142160201274 falls under clause 3 which reads thus:-

“Explosion/Implosion but excluding loss of or damage a) to boilers (other than domestic boilers0 economizers or other vessels, machinery or apparatus, which steam is generated or their contents resulting from their own explosion/implosion b) caused by centrifugal forces.”

He conceded that there is no evidence that the damage was caused due to malicious act by someone as mentioned in the report dated 10.5.1997 and the claim forms.  Meaning of the word “plosion” as given in  Concise Oxford English Dictionary Tenth Edition Revised is  ‘an act or instance of exploding’.   Meaning of the word ‘Explode’ has been defined as  “1. burst or shatter violently, especially as a result of rapid combustion or excessive internal pressure. 2. suddenly give expression to violent emotion, especially anger.  3 show (a belief or theory) to be false or unfounded.  4(as adj. Exploded) (of a diagram) showing the components of a mechanism in the normal relative positions but slightly separated from each other.  5 increase suddenly in number or extent”.   Portion of the survey report dealing with the cause of collapse dated 24.3.1998 of B.S. Chawla & Co.  runs as under:-

“Cause of Collapse was discussed with Insured. However, no satisfactory reply was received from them.  In the claim form, he has mentioned as malicious damage.  However, no such thing was found on Inspection. 

Apparently building/ cold storage has collapsed on its own and as there was no room available in other two chamber side and the northern-eastern side being the cosy side and empty side.  The chamber wall collapsed on this sides.

The building has collapsed on its own.  May be because of breakage of some wooden racks leading to disbalancing of loads and collapsing of building….”

          Considering the dictionary meaning of the words ‘explosion/ explode’ , the claim made obviously does not fall under clause 3 of the two policies.   Conclusion reached by Shri Chawla about the cause of collapse is supported by the FIR dated 18.4.1997 which contained the first version of the occurrence dated 17.4.1997.  It being a case of collapse of a portion of building of said chamber No. 2 on its on,  the loss was not payable either under clause 3 or any other clause of the aforesaid two policies. 

          This brings us to the claim made under the remaining policies.  Loss under the  ‘Deterioration of stocks of potato’ policy is payable only when it was caused by contamination and /or deterioration, putrefaction as a result of rise in temperature in the refrigeration chambers caused by any loss or damage due to an accident to the plant & machinery and indemnifiable under the Machinery Insurance Policy.  The terms  ‘cident’  has been defined as any sudden or unforeseen loss or damage to the Plant & Machinery described in Schedule I of the Insurance policy.  Damage to the stocks of potato in the present case was not caused due to any of the said causes/perils.  Same was as a result of collapse of the two walls etc. of Chamber No. 2.  Further, from the aforesaid two claim forms Exh. C-8 & C-9, it may be seen that the potatoes stored in the said chamber belonged to different agriculturists and not the complainant.  Those agriculturists have not been  paid for the damage caused to the potatoes by the complainant nor have they been impleaded as parties in this complaint.  Their remedy to recover the damages has become time barred.  It would be unjust enrichment of the complaint if the award is made in its favour for the damage caused to the stocks of potato not belonging/owned by it.  For all these reasons the complainant is, therefore, not  entitled  to  the  compensation in  respect  of  policy No. 4442160237033.

          As regards Machinery Insurance Policy No. 4442160237051, under General Exception No. 1, referred to above, the Insurance Co. is not liable to pay in respect of the loss/damage caused to the insured machinery if the same was caused due to the collapse of the building.  Damage to the insured machinery was caused as a result of collapse of aforementioned two walls of Chamber No. 2 of the cold storage.

          Having reached this conclusion, the question of quantum of loss suffered by the complainant in the occurrence dated 17.4.1997 need not be gone into on merits.

          For the foregoing discussion, the complaint is dismissed.  No order as to cost.