1.  These are two appeals arising out of same judgement and order of district forum Akola in consumer complaint number 141/2015 decided on 21/10/2015.

(i) The appeal No.15 /74 is preferred by the appellant Oriental Insurance Company, who is the original opponent in the consumer complaint .

(ii) The other appeal bearing number 15/92 is filed by M/S Jusub Ibrahim/complainant in original complaint for enhancement of the compensation.

       The parties will be referred as complainant or opponent as per their status in the consumer complaint for the sake of convenience.

2.  (i)  It is the case of complainant in brief that they purchased and renewed the standard fire and peril policy time to time to protect materials stored in the godown. The ground floor of the building was used as godown. The policy No. is 182200/11/2015/535.The sum insured is Rs.15 lakhs and the  policy period is 09/06/2014 to 08/06/2015. Policy is issued by the opponent after assessing the strength of the building and verifying the documents. The goods insured are sugar, jaggery, poha, rice, murmura (puffed rice) etc. The complainant  has also purchased separate policy for the  building  from the opponent Insurance Company.

(ii)  That, on 26/06/2014 at around 19.00 pm, the building collapsed all of a sudden and insured materials in the godown at the ground floor of the building are lost and the complainant sustained loss of  Rs. 20 to 25 lakhs for the building and Rs.14,72,478 /- for the materials. The opponent was renewing the policy every year after inspecting of the Godown and materials stored. The opponent did not inform/ appraise of the terms and conditions of the policy to the complainant. The incidence was informed to opponent Insurance Company. The incidence was reported to police. The police and the concerned Talathi had drawn panchnama.

 (iii)The incidence was inquired by the surveyor Shri Anil Borkhade, who assessed the loss of materials to the complainant for Rs.13,03,831/-. The incidence was also investigated by opponent through advocate Amol Chakre.However, the claim is wrongly repudiated by the opponent on the ground that insurance is not covered under the policy vide their  letter  dated 14 /01/2015.Claiming  deficiency on the part of opponent, the complainant filed consumer complaint seeking directions to opponent to pay Rs.14,72,478/- with 18% interest from 26/06/2014 and Rs.3,00,000/-towards compensation for mental, physical agony.

3.  The opponent appeared before the district forum, submitted its written statement and denied the adverse allegations. However, the opponent admitted the issuance policy and appointment of surveyor and investigator. It is contended that the surveyor has reported that the claim is not covering within the terms and conditions of the policy and is not covered within 12 perils stated in the policy. It is contended that policy is purchased for commercial purpose and complainant is not their consumer. The complainant has not approached arbitrator as provided in the policy. The complaint can not be adjudicated by way of summary proceedings .He has not mentioned in the consumer complaint that he sustained loss out of the reason mentioned in the claim.

4. The District Forum allowed the complaint partly and directed opponent Insurance Company to pay Rs.13,03,831/- and Rs.10,000/- towards mental and physical agony within 45 days from the receipt of the order. The district forum further directed to pay 8% interest on the decreed amount  their after if not paid within the directed period.

5.    (i) Aggrieved by the judgement of District Forum the opponent insurance company has filed appeal number 15/74.

(ii) The complainant has also filed appeal number 15/92 for enhancement of compensation and  rate of interest.

6.  The learned counsel Shri S.L.Alasapurkar appeared for the opponent and Iearned counsel  Shri S.B. Kane appeared for the complainant.

7.  learned counsel  Shri S.L.Alasapurkar argued  for the original  opponent Insurance Company that  the collapse of building is not due to subsidence.There is no technical document to support this contention that the building collapsed due to subsidence. Police and Revenue officer are not the competent authorities to conclude the cause of incidence. The surveyor and the investigator have not opined that the building collapsed due to subsidence. On the contrary, the surveyor observed that no signs of subsidence and his contentions are supported by local persons residing in the area. According to surveyor’s report, building collapsed  due to faulty Constructions, Foundation failure, extra ordinary loads and expected failure modes. In fact the building was very old and no reason of collapsing the building due to earthquake or subsidence is established. Therefore, as per terms and conditions of the policy claim is not payable. The district forum wrongly adjudicated both the complaints and awarded compensations for indemnifying for the collapse of building and loss of material due to collapsing of the building. Therefore, the order of District Forum requires to be quashed and set aside and appeal of opponent requires to be allowed and also the appeal of complainant for enhancement of compensation requires dismissal.

To support his contentions, Learned advocate for O.P. relied upon following citations :-

1. Hind Auto Center.......V/s......Natiional Insurance Co.Ltd, in Revision Petition No.3945 of 2012 decided on 04/09/2014 reported in IV(2014) CPJ 356 (NC), that the Hon’ble National Consumer Commission held that complainant has to lead cogent and convincing evidence to rebut the report of surveyor.
2. New India Assurance Co.Ltd. and others........V/s.......Amrish Kumar, in appeal No.50/2006 decided by State Consumer Commission, Himachal Pradesh on 31/08/2006 wherein the Sate Consumer Commission Himachal Pradesh held that insurance is contract between the parties and for the construction of the terms and conditions, no aid outside terms of that contract is to be sought unless meaning is ambiguous on plain reading of terms. It is also held that premium paid for said limited risks and benefit can not be given to the complainant beyond the risk covered.
3. Sarat Chandra Dash........V/s......New India Assurance Company and others, in Revision Petition No.1129 of 2008 decided by Hon’ble National Consumer Commission on 21/11/2014  and reported in II (2015) CPJ 85 (NC), wherein petitioner/complainant failed to show the alleged loss suffered by him in cyclone. The Hon’ble National Consumer Commission also held that no provision under the Act for award of compensation to any victim on humanitarian ground or otherwise.
4. Karnavati Vinners Pvt.Ltd........V/s......New India Assurance Company and other, in First Appeal No.111 of 2012 decided by Hon’ble National Consumer Commission on 03/09/2012  and reported in IV (2012) CPJ 269 (NC), wherein the Hon’ble National Consumer Commission held that evidence was to be led by complainant in support of theory advanced by it that the fire may have been caused by burning fireworks failing in factory premises.

8   (i) The counsel of the complainant Shri. Kane argued for the complainant that the Insurance Company did not deny issuance of the policies for building and material, the policy period and occurrence of incidence during the policy period. The incidence of collapsing of the building is not denied and the damage/loss of materials and building is also not denied by the opponent Insurance Company. It is denied by the insurance company that the collapsing of the building is not out of subsidence. If policy is perused, subsidence is covered under one of the perils. The surveyor has wrongly interpreted that the collapsing of the building not covered in the subsidence. He could not make out any substantial reason for the building collapsed. The insurance company wrongly repudiated the complainant's claims for materials and building relying on the surveyor's report. Collapsing of the building is out of subsidence only, requires consideration. And therefore, complainant/s  are entitled for compensation towards loss of insured materials and loss to the building as claimed in the Insurance claim towards the two separate  policies.     

(ii)  Also, the complainant sustained loss of goods or Rs.14,72,478/-. He has filed the bills and estimate of the loss on record, which is not challenged by the opponent . The surveyor wrongly assessed the loss to Rs.13,03,831/- only. The district forum wrongly relied on the assessment of loss in the survey report and awarded compensation to that extent only. The district forum not awarded interest on the amount awarded on the wrong ground that complaint has not issued legal notice to the opponent before filing of the complaint. The District Forum also awarded less compensation towards agony. Therefore, the appeal deserves to be allowed for enhancement of the compensation, agony and interest there upon.

(9) Discussion

(i)    Heard the learned counsels .Perused the record.

(ii)  The police pachanama is stating that the building is collapsed due to subsidence (i.e भूस्खलन in Marathi language) .The Talathi has stated that the loss is due to building  collapsed. The surveyor's report is at page 52 to 58  of appeal compilation 15/74 filed by the opponent Insurance Company. It reveals that the surveyor has reported that the cause of loss is collapsing of building and peril has not operated in the said incidence and claim does not fall within the purview of policy.

(iii)   Question before us is whether the complaint's case is covered under the terms and conditions of policy or not. For that, we have perused the policy document which is at page number 42-43 of appeal compilation No.15/74. It is standard fire and peril policy for the causes including Fire, Lightning (explosion/implosion), Aircraft damage, Riot/ Malicious Damage, Storm, Cyclone, Typhoon, Tempest, Hurricane ,Tornado Flood and Inundation, Impact Damage, Subsidence and Landslide including Rock Slide, Bursting and/or  overflowing  of water Tanks, Apparatus and Pipes, Missile Testing operations, Leakage from Automatic Sprinkler installations.

 (iv) As the issue of subsidence is involved, We are rather only concerned with the clause on subsidence in the policy. It is stated as below.

Subsidence And Landslide Including Rock Slide-

Loss , destruction or damage directly caused by subsidence of part of the site on which the properties stands or landslide/Rock slide excluding

(a) the normal cracking, settlement or bedding down of new structures

(b) the settlement or movement of made up ground

(c) coastal or river erosion

(d) defective design or workmanship or use of defective material

(e) demolition ,construction, structural alterations or repair of any property or ground works or excavations.

         The policy also includes General conditions in it's part ‘C’ as under

(1)    This policy shall be voidable in the event of mis-representation miss description or non disclosure of any material particular.

(2)    All insurances under this policy shall cease on expiry of 7 days from the date of fall or displacement of any building or part thereof or of whole or any part of any range of buildings or of  any structure of which such building forms part.

       Provided, such a fall or displacement is not caused by insured perils, loss or damage which is covered by this policy or would be covered if such building, range of buildings or structure were insured under the policy.

Reading the clause 2 in the general conditions, it can be inferred that the fall of the building up to seven days is included in the policy out of peril.

(v)     In the case in hand the fall or collapse  of the building is not denied by the opponent .However, only the cause behind the collapse of the building is disputed contending by opponent that  it is not a case of  subsidence. The word subsidence has dictionary meaning coming down (खचणे ).Therefore, in our opinion case of collapse of building is covered in the policy except the conditions mentioned in exclusion clause.  Upon reading the exclusion clause of subsidence, it reveals that the collapsing of building has not occurred in conditions of exclusion clause. Only normal cracking, settlement or bedding down of new structure, settlement or movement of made up ground, coastal or river erosion, defective design or workmanship or use of defective material, demolition construction structural alteration or repair of any property or ground works or excavations are stated as exclusions. Therefore, it can be safely said that the opponent wrongly repudiated the claim  without assessing the conditions under the exclusion clause in the policy. Moreover, the general conditions in the policy state that, it will be voidable to settle the claim beyond seven days of fall of building and also voidable if fall of building is not due to insured perils/conditions, in the policy. Considering the general clause, it can be inferred that the case of collapse of building comes under the subsidence except the conditions in exclusion clause. Therefore, it can be inferred that  the opponent wrongly repudiated the claim  without verifying the facts with the conditions  under the  general condition clause in the policy.

(vi).  It appears that the opponent Insurance Company repudiated the complainant's claim keeping reliance upon the report of surveyor. We have perused the report of the surveyor.

    The report of surveyor in para 2 , 5 and 6 under the head "Comments  Remarks on " reads as,

Para(2) : However, the cause of loss is collapsing of the building and the insured peril has not been operated in the said incident. Hence, the claim does not fall within the purview of policy.

Para (5) : The insured initially submitted the intimation, the cause of loss is "Bhuskalan", i.e. subsidence. At the time of my visits, I have thoroughly verified examined the entire affected site and also made inquiries in the nearby area in which I observed that there was no any sign of subsidence. Further, people residing nearby area also supported the same.

      Further subsidence means the motion of surface (usually the earth surface) as it shift downward relative to datum such as sea level. The land subsistence occurs when large amount of groundwater have nee excessively withdrawn from an aquifer. The clay layers within the aquifer compact and settle resulting in lowering the ground surface in the area from which groundwater is being pumped. Overtime as water is removed from the area, the ground drops and creates a cone. Once the water has been removed from the sediment, it cannot be replaced. Such type of activities  were not noticed at affected site and nearby area. The government authority also certified that the building collapsed suddenly.

Para (6) : In view of the above, the cause of loss as mentioned in the intimation as " i.e. subsidence is  categorically  ruled out.

(vii)      It appears that the surveyor on one side is reporting that motion of earth surface is subsidence and other Side he is reporting that the incidence of subsidence can be occurred at sea level and where the large amount of groundwater have  excessively withdrawn from an aquifer . It is not acceptable that the subsistence occurs only in sea level areas only. In our opinion, the investigator is not the technical expert. To support his observations in the report, It is not stated by him that how he could comment on the incidence technically. No supportive evidence is also adduced by him. In Catena of judgements, the Courts have held that the report of surveyor is not sacrosanct and final one to decide Insurance claim.

(viii)   The surveyor has reported in para, “location and construction” (page 53) that the building is not a Kaccha construction as per standard fire and peril policy. Though, the surveyor observed that it is a case of building collapse. However, he opined that it is not a case of subsidence. However, in our opinion defence of opponent Insurance Company in arguments that the building was old and other reasons as to bad design,  faulty structure, foundation failure, extraordinary load etc expected are not justified in the absence of substantial technical evidence, when they have already issued the policies for the building materials in the godown and for building. It can be inferred that opponent   issued policies after verifying the structure, it's strength and  life expectancy as pleaded by the complainant.

(ix)   It reveals that the opponent Insurance Company further investigated the incidence through their investigator advocate Chakre. His report is at page number 59 to 69 of the appeal compilation (appeal 15/74). It is reported in para 3 that he personally visited the spot and found that the building was collapsed from up to down and the waste material was gathered all over the place. It is further stated that he found that the said building was accidentally collapsed due to unwanted reason. It is not stated in his report that what is the unwanted reason behind the collapse of the building. The report of the investigator is not specifically making out any reason behind the collapse of the building.

(x)  The opponent insurance company also not come with any additional technical evidence to support the reasoning in the report of the surveyor.

(xi) Though, the learned counsel of the opponent insurance company has relied upon following citations.

1. Hind Auto Center.......V/s......Natiional Insurance Co.Ltd, in Revision Petition No.3945 of 2012 decided on 04/09/2014 reported in IV(2014) CPJ 356 (NC), that the Hon’ble National Consumer Commission held that complainant has to lead cogent and convincing evidence to rebut the report of surveyor.
2. New India Assurance Co.Ltd. and others........V/s.......Amrish Kumar, in appeal No.50/2006 decided by State Consumer Commission, Himachal Pradesh on 31/08/2006 wherein the Sate Consumer Commission Himachal Pradesh held that insurance is contract between the parties and for the construction of the terms and conditions no aid outside terms of that contract is to be sought unless meaning is ambiguous on plain reading of terms. It is also held that premium paid for said limited risks and benefit can not be given to the complainant beyond the risk covered.
3. Sarat Chandra Dash........V/s......New India Assurance Company and other, in Revision Petition No.1129 of 2008 decided by Hon’ble National Consumer Commission on 21/11/2014  and reported in II (2015) CPJ 85 (NC), wherein petitioner/complainant failed to show the alleged loss suffered by him in cyclone. The Hon’ble National Consumer Commission also held that no provision under the Act for award of compensation to any victim on humanitarian ground or otherwise.
4. Karnavati Vinners Pvt.Ltd........V/s......New India Assurance Company and other, in First Appeal No.111 of 2012 decided by Hon’ble National Consumer Commission on 03/09/2012  and reported in IV (2012) CPJ 269 (NC), wherein the Hon’ble National Consumer Commission held that evidence was to be led by complainant in support of theory advanced by it that the fire may have been caused by burning fireworks failing in factory premises.

           However, as discussed earlier, it is not the case that the complainant is claiming beyond the terms and conditions of the policy. Therefore, the citations relied upon opponent are of no help to him.

10.  It is contended by the opponent that the complainant is engaged in commercial activity and is not covered in the definition of consumer. However, it appears from the pleadings of the complainant that  he is engaged in purchase and sale of business of sundry food items like sugar, jaggery, murmura etc. It appears that the complainant contended the stock of Rs.14 to 15 lakh only.  ln our opinion, it  is not commercial business for making huge profit and it is for livelihood purpose. Moreover, opponent has not brought any cogent evidence that the complainant is engaged in making huge profit making business. Though, it is contended that the complaint cannot be decided in summary processing and huge evidence is required to be assessed before the competent court. However, considering the evidence led before the District Forum by both the parties, it does not reveal that matter requires to be decided by the Civil Court and not by consumer forum. It is contended by the opponent that matter required to be adjudicated before the arbitrator in view of terms and conditions of the policy However, considering S.3A of consumer Protection Act 1986, it cannot be accepted that District Forum erred in deciding the complaints.

11.   It appears that the complainant has filed consumer complaint claiming total amount of Rs.14,72478/-, which is total loss of materials to the complainant with 18% interest from 26/06/2014 (the date of collapsing of the building). The District Forum has considered the amount assessed by the surveyor and awarded the interest of 8% on the said amount, if it is not paid within 45 days. The District Forum also observed that the complainant failed to reply to repudiation letter 14/01/2015 of opponent within 15 days.

12.      The surveyor has assessed the loss of material to Rs.13,03,831/-. It reveals that the surveyor has assessed this compensation after assessing the Salvage value to Rs.1 lakh. In our opinion, the District Forum has rightly allowed the complaint observing that the incidence of collapse of building is out of subsidence and directed to pay the Insurance claim to the extent of assessment done by the surveyor. The complainant has his claim for Rs.3 lakhs towards mental and physical agony. However, in our opinion District Forum has rightly considered complainant's claim for agony for Rs.10,000 /- only. Therefore, there requires  no interference in the impugned judgment and order of District Forum.

13.  In the circumstances appeals filed by both the complainant and opponent deserves to be dismissed. Hence we pass the following order.

                                             // ORDER //

1. Appeal No.A/15/74 and A/15/92, both are hereby dismissed.

    ii)       No order as to cost.

   iii)      The copy of  order be furnished to both parties free of cost.