JUDGMENT :

DHANANJAYA Y CHANDRACHUD, J.

     1.  Delay condoned.

     2. Admit.

3. This appeal arises from a judgment and order dated 23 February 2016 of the National Consumer Disputes Redressal Commission. [“NCDRC”]. The NCDRC rejected the complaint of the appellant alleging a deficiency of service in the rejection of a claim under an insurance policy.

The appellant was undertaking the resurfacing, metalling and asphalting of roads in Nashik. An insurance policy was obtained by the appellant. The insurance cover encompassed ‘material damage’. Section 1 of the insurance policy was in the following terms:

“SECTION-1 MATERIAL DAMAGE

The Company hereby agrees with the insured (subject to the exclusions and conditions contained herein or endorsed hereon) that if, at any time during the period of insurance stated in the said Schedule, or during any further period of extension thereof the property (except packing materials of any kind) or any part thereof described in the said Schedule be lost, damaged or destroyed by any cause, other than those specifically excluded hereunder, in a manner necessitating replacement or repair the Company will pay or make good all such loss or damage upto an amount not exceeding in respect of each of the items specified in the Schedule the sum set opposite thereto and not exceeding in the whole the total sum insured hereby. The Company will also reimburse the insured for the cost of clearance and removal of debris following upon any event giving rise to an admissible claim under this Policy but not exceeding in all the sum (if any) set opposite thereto in the Schedule.”

However, the exclusions to Section 1, inter alia, were to the following effect:

“EXCLUSIONS TO SECTION – 1

The Company shall not, however, be liable for:

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(c) normal wear and tear, gradual deterioration due to atmospheric conditions or lack of use or obsolescence or otherwise, rust scratching of painted or polished surfaces or breakage of glass;”

There were specific conditions applicable to Section1. Among the ‘major perils/Act of God perils’ described in Memo 8 was “Flood/Inundation”.

The appellant submitted a claim on the ground that between 25 June 2007 and 5 July 2007, it had suffered a loss and damage to the roads which had been worked upon due to “abnormal rainfall and water logging”. By its letter dated 14 September 2007, the appellant stated that due to heavy rains on 29 June 2007, the roads were inundated and the top layer had been washed out.

By a communication dated 28 March 2008, the insurer rejected the claim, inter alia, on the ground that the damage had been caused by defective workmanship and materials and due to the failure to provide an alternative route for traffic. Subsequently, after further correspondence, the insurer informed the appellant on 13 May 2008 that the loss or damage to the roads had been caused due to (i) monsoon rains; and (ii) damage/peeling off of the top surface of the asphalt due to the plying of vehicular traffic on wet roads, resulting in wear and tear. The exclusion in the insurance policy of damage due to normal wear and tear or due to gradual deterioration as a result of atmospheric conditions was relied upon.

The report of the Surveyor, B.P. Shah & Associates, dated 21 March 2008, was in the following terms, insofar as is material:

“PROBABLE CAUSE:

According to the insured loss was caused due to heavy abnormal rains etc. Copy of their letter dated 28th July 2007 is enclosed herewith (Encl.4).

What was observed was surface damages & neither any rain cuts nor erosion of base soil of the roads by flowing floodwater were seen. Top surface of the asphalt had peeled off/got damaged due to movement of traffic over a period of time on wet roads and normal wear & tear which also created few pot holes. Policy excludes normal wear & tear, gradual deterioration due to atmospheric conditions (Exclusion C under Section 1) & also damage due to movement of traffic, which is by no means fortuitous.”

    4.   The NCDRC rejec