KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL  NO: 38/2010

 JUDGMENT DATED:11-02-2011

PRESENT

JUSTICE SHRI. K.R. UDAYABHANU              :  PRESIDENT

SHRI. S. CHANDRAMOHAN NAIR                  : MEMBER

The Branch Manager,

National Insurance Co. Ltd.,

Pulimoottil Shopping Arcade,                                      : APPELLANT

Thodupuzha-685 584.

(By Adv.Sri.S.Rajeev)

          Vs.

Sunil George Jacob,

Rangerwoods Cottage,

Pothenmedu,                                                      : RESPONDENT

Munnar-685 612.

(By Adv.Sri.S.Reghukumar)

    JUDGMENT

JUSTICE SHRI. K.R. UDAYABHANU:  PRESIDENT

The appellants are the opposite parties/insurance company in CC.179/08 in the file of CDRF, Idukki.  The appellants are under orders to pay a sum of Rs.2,70,000/- towards the assured sum and Rs.2000/- towards cost.

2.      It is the case of the complainant that he was running a home stay classified as “Diamond” category.  The building was covered by the standard fire and special perils policy of the appellant. On 29/7/2008 during the period of coverage on account of heavy wind and rain which was present in the area from 26/7/2008 till 30/7/2008, at about 6.30am a big Iron wood tree fell on the building.  The top portion of the building, the first floor and the side room was fully crushed and there was damage to the furniture, fittings etc causing a loss of Rs.30.lakhs altogether.  He was running the home stay availing a loan of Rs.17.lakhs from the KFC.  On the same day the matter was reported to the opposite party and a surveyor visited the property by the evening.  The complainant also got the damages assessed by a competent Engineer on 29/8/2008 and he has assessed a sum of Rs.5.5lakhs.  On 6/9/2008 another surveyor visited the site and assessed the damages.  Due to the continued rain thereafter the first floor of the building was fully flooded and the furniture damaged also.  In the absence of any information from the opposite parties a notice was issued on 18/9/2008.  On 22/9/2008 the opposite parties informed that the claim has been repudiated on the ground that the particular instance is not covered by the terms of the policy.  The complainant has disputed the same and has sought for a sum of Rs.5.5lakhs as compensation.

3.      In the version filed, the opposite parties have denied the allegation that there was heavy wind and rain and thereafter flood in the area.  It is pointed out that the qualified surveyor who conducted a detailed survey and investigation about the incident has reported that the particular tree happened to fall as the bottom portion of the trunk of the tree was seriously infected with fungus which could have been gradually developed for a period of time weakening its strength.  The surveyor has reported that the gradual development of deterioration of the tree trunk had led to the fall.  The surveyor has also observed that there were no marks of evidence of any storm or flood or landslide etc or any other natural calamities.  As per the policy the opposite parties are liable only when damage took place due to storm, cyclone, typhoon, tempest, hurricane, tornado, flood and inundation.  There was no such natural phenomenon during the above period.  Hence the opposite party is not liable for the assessment made by the Engineer engaged by the complainant which is exorbitant and excessive and further he is not a competent person also.  At best the surveyor has assessed only Rs.2.40,000/-.

4.      The evidence adduced consisted of the testimony of PWs1 to 6 and DW1 and 2, Exts.P1 to P10 and R1 to R5.

5.      PW1 is the complainant himself.  He has testified as per the averments in the complaint and marked the documents produced.  In the cross examination he has stated that it is from the compound of the Tall Trees Resort that the particular tree fell on the building of the complainant.  It was also brought out in the cross examination that the trees standing very adjacent to the building were not affected.  The rest of the questions in the cross-examination is with respect to the construction cost of the building, the cost of removing the fallen tree and as to whether the same will be removed by the other resort owner who owned the tree.  There is no suggestion to PW1 in the cross-examination that there was no storm, wind or rainfall on the particular day.

6.      PW2 is the Engineer commissioned by the complainant and who submitted Ext.P6 damage assessment report.  It was brought out in the cross-examination that he is having Diploma in Civil Engineering.  He has denied the suggestion that he is not having expertise in estimating of the loss.  It was also brought out in the cross-examination that it is under his supervision that the particular building was constructed.  He has also stated that the estimate is with respect to doing the entire work of reconstruction. He has stated that he is not assessed the loss as such but only an estimate has been prepared.

7.      PW3 is a Civil Contractor who has stated that he did the re-construction of the building.   Ext.P7 is the copy of the bills as per which the total amount is mentioned as Rs.4,37,949.86.  The same includes the furniture, mattresses, pillows etc.

8.      PW4 is the Manager of Construction Company who was also involved in the reconstruction work.  The bill submitted by him is Ext.P8 which is for an amount of Rs.24,220/-.  The same is with respect to Hittachi 110 operating charges etc.

9.      PW5 is another contractor who was engaged in the reconstruction work.  Ext.P9 is the bill of the contractor who removed the fallen tree.  He has stated that 2 days and nights were spent for removing the tree and he engaged 14 labourers.  Ext.P9 is the bill issued by him for Rs.21,300/-.  It is mentioned therein that he received the amount from the owner of the building.  PW6 is the Village Officer who issued Ext.P10 certificate wherein it is mentioned that on 29/7/2008 in heavy wind and rains the tree was uprooted and fallen on the building owned by the complainant.  He has stated in the cross-examination that he cannot say as to whether there were other complaints of falling trees etc without referring to the office file.  He has stated that the reason for the fall of the tree was natural calamity and that there was wind and rain.  DW1 is the Manager of the opposite party and DW2, the surveyor who submitted the final survey report ie Ext.R3.

10.    Ext.R2 is the report of the surveyor who submitted preliminary report.  He visited the place on 30/7/2008.  He has mentioned that the building is a double storied building having an area of 1250.Sq.Ft. in each floor.  He has stated that when he reached the place it was a rainy day.  He was noted that a huge tree has fallen on the top of the building.   It is stated that the tree was very old and it was having heavy branches.   He had directed to cut and remove the tree from the top of the building as he can get a clear view of the damages. According to him the other tall trees around the building were not affected.  According to him the incident was not on account of the natural calamities but due to old age of the tree.

11.    Ext.R3 report by DW2, the surveyor is dated:15/9/08 which is  1½ months after the alleged date of the incident.  He visited the place on 6/9/2008.  He has stated that the fallen tree had at its trunk bottom serious fungus infection and the same could have been developed during a period of time weakening its strength.  We find that in Ext.P9, the bill of the person who removed the tree is dated:4/8/2008.  The present surveyor has visited the spot on 6/9/2008.  As to how DW2 inspected the tree on 6/9/2008 stands not explained.  Anyway the matter has not been questioned in the cross-examination of DW2.  As pointed out by the counsel for the respondent/complainant, the tree portions even if left at the spot by the period of more than one month it is likely that fungus etc will be grown on the tree.  Hence the observation of DW1 in this regard cannot be considered seriously to disclaim the case of the complainant. The surveyor who furnished Ext.R2 report was not examined also.

12.    The counsel for the appellant has laid stress on the report of the surveyor which we find cannot be sustained in view of the above mentioned facts in the previous paragraph.  On the other hand, the counsel for the respondent/complainant has relied on the definition of storm and flood in the text book captioned “Fire Insurance Claims” published by the Insurance Institute of India wherein at page 157  the term ‘storm’ is defined as a violent disturbance of the atmosphere with thunder or strong wind or heavy rainfall.  He has stressed the word heavy rain fall which is sufficient incase there is a violent disturbance of the atmosphere.   Regarding flood also the above text book at the same page mentions that flood can be defined as ‘escape’ from its normal confines, of a body of water, due to a rise in its level or to the break down of the barriers retaining it.  In the instant case the place being Munnar which is a hilly area, the likelihood of flood is very remote and hence the case of the counsel in this regard cannot be sustained.  In support of the case there was heavy rain the evidence of PW6 and Ext.P10 certificate issued by him is relied.  We find the evidence of PW6 stands not discredited.  The evidence of PW6 is also supported by the testimony of PW1 the complainant.  As noted above there is no suggestion in the cross-examination of PW1 that there was no heavy rain or wind on the particular day.

13.    The counsel for the complainant/respondent has also produced at the appellate stage the weather report from the Meteorological Department of the Govt. of India 2 in number covering the dates ie 28/7/2008, 29/7/2008 and 30/7/2008.  As per the same Munnar was having 125.1mm of rain fall and 94.3mm of rainfall on 29/7/2008 and 80mm of rainfall on 30/7/2008.   the same is an indication there was heavy rain fall on the particular day ie 29/7/2008 which is 94.3mm.  The counsel for the appellant had objected as to the receipt of the above additional documents filed at the appellate stage.  We find that the above documents bear the signature of the Meteorologist and the seal of the institution.  The counsel for the appellant could not point out anything to suspect the genuineness of the above documents.  Further the complainant at the appellate stage has also produced the receipt for payment of Rs.3,365/- towards the charges for the above weather reports of the Navel Air Station Observatory at Kochi.  The counsel for the complainant has also relied on the standard as to the intensity of the rain fall down loaded from Wikipedia.  The standard of moderate rain is mentioned as 10mls per hour and heavy rain as 50mls per hour and violent rain above 50mm per hour.  Of course the meteorological report is that of 24 hours as pointed out by the counsel for the appellant.  All the same we find that the month of July is monsoon period in Kerala. Hence the case of the complainant supported by the evidence of PW6, the village officer and Ext.P10 certificate is to be accepted.  We find that the finding of the Forum relying on the evidence including report of the village officer that the tree was uprooted on account of heavy wind and rain is liable to be sustained;  and we do so,

14.    With respect to the estimate of damages we find that the report of the surveyor has to be accepted.  The report of the surveyor is supported by photographs.  The evidence of PW2, the Engineer who has submitted Ext.P6 report is with respect to the reconstruction cost and same includes the price of furniture, mattresses etc etc,  Hence in this regard the order of the Forum is liable to be modified as follows:-

15.    The opposite parties would be liable to pay a sum of Rs.2,40,000/- to the complainant with interest at 6% per annum from the date of complaint ie 24/10/2008 till payment.  The order with respect to cost is sustained.  The amounts are to be paid within 3 months from the date of receipt of this order failing which the complainant will be entitled for interest at 12% per annum from 11/2/2011 the date of this order.

Office will forward the LCR along with the copy of this order to the Forum.

JUSTICE K.R. UDAYABHANU:  PRESIDENT

S. CHANDRAMOHAN NAIR : MEMBER

VL.