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2008(3) CPR 292 (NC)
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,
NEW DELHI
S.N. Kapoor, Presiding Member and B.K. Taimni, Member
United India Insurance Co. Ltd. —Appellant
versus
M/s. Sri Dwarika Dhees
Industries —Respondent
First Appeal No. 309 of 2002
Decided on 7.7.2008
Counsel for the Parties:
For the Appellant:Mr. Vishnu Mehra, Advocate.
For the Respondent:Ms. Rachna Gupta, Advocate.
IMPORTANT POINT
Proceedings before Commission being essentially summary in nature, adjudication of issues which involve disputed factual questions should be examined by an appropriate court of law and not by the Commission.
Headnote:Consumer Protection Act, 1986—Sections 12 and 17—Fire insurance Policy—Damage caused to rice mill insured due to thunderstorm with lightning and high velocity winds—Complaint alleging deficiency in service on non-settlement of claim—Allowed by State Commission—Appeal—Evidence on record showed that there were various disputed questions of facts in view of pleadings which required recording of voluminous evidence—It was required to be seen whether value of alleged newly constructed open to sky godowns was included in value of building while taking the policy—It required evidence about time of their construction, value of building mentioned in earlier policy and need of adding additional value of newly constructed open to sky godowns, if they were taken to be building—Wherever not only complicated questions of law but disputed questions of facts and law relating to forgery etc. are involved requiring recording of voluminous evidence, it would be desirable that matter should not be dealt with by any Consumer Fora and complainant could be directed to approach the civil court or any other appropriate Fora—Appeal allowed giving liberty to complainant to approach Civil Court. (Paras 8 to 11)
Result: Appeal allowed.
S.N. Kapoor, Presiding Member— United India Insurance Company Limited is aggrieved by the direction of the State Commission to pay a sum of Rs.15,78,279 alongwith interest @18% p.a. from the date of complaint till the date of payment alongwith cost of Rs. 3,000.
2. Shri Dwarika Dhees Industries a partnership firm running a rice mill got it insured and obtained a Fire Policy ‘C’ valid between 6.12.96 to 5.12.97 covering the risk in all of Rs. 55,00,000 (Rs. 35,00,000 for building and Rs. 20,00,000 towards plant & machinery and accessories). This policy covered the risk of damage by fire, lightning, explosion, implosion, impact by any rail/road vehicle, riot and strike. Unfortunately, in the night of 17/18.4.1997, there was a thunderstorm with lightening and high velocity winds. On account of the lightning, the walls of the godown of the western side of the rice mill collapsed and due to the collapse of walls of godown, the driers three in number, elevators ten in number, chimneys two in number, pipe line with two inch C-class pipe of the boiler of the valves were also damaged. An information of this incident was communicated to the Insurance Company on 18.4.96. Thereafter, the appellant appointed a spot surveyor, M/s. Suman Associates, who inspected the spot. The complainant asked M/s. Civil Consultant, Rana Pratap Marg, Lucknow, to visit the site and assess the estimated cost of the reconstruction of the damaged property. The consultant assessed the cost of reconstruction at Rs. 9,00,000 towards repairs of damaged machinery and Rs. 26,63,284 for reconstruction/repair of damaged godown. Thus, a total sum of Rs. 35,63,284 was required for repairing the damaged articles. The claim was accordingly lodged with the Insurance Company, who firstly appointed M/s. Mehrotra Associates, Surveyor to estimate the loss suffered by the complainant and later on withdrew from survey proceedings. Thereafter, Lt. Col. D.P. Rairath was appointed as surveyor. All the documents were produced. A copy of certificate issued by Tehsildar Sadar, Shahjahanpur, verifying the fact that there was a lightning and high speed winds in the night of 17/18.4.96 and the building of the complainant’s rice mill collapsed due to lightning and heavy loss was caused. The Tehsildar was the only designated authority to verify the natural calamity including that of lightning. The surveyor visited the site after completion of the repair and reconstruction work and submitted its report. After number of visits and personal requests when the claim was not settled, the complainant sent a reminder dated 17.11.99 for settlement of claim to the appellant. After a lapse of more than three years, the opposite party repudiated the claim vide letter dated 31.5.2000.
3. The respondent/complainant filed a complaint alleging deficiency in service on the part of the opposite party before the State Commission.
4. The appellant contested the matter inter alia on the ground that the loss was not caused due to any risk covered by the terms of policy. Loss was neither caused by storm nor by lightning but it was due to poor construction. Certificate of Tehsildar about lightning was fabricated as well as it was vague and could not be relied upon. Open sky godown was not a building, covered in the policy. It was merely a building under construction. No new building constructed in 1994 was included in the policy in Dec. 1994 or in subsequent years. The building could not cater for even the normal wind load. It would be useful to reproduce the repudiation letter:
“Regd.
Without Prejudice
Dated 31st May 2000
To,
Shree Dwarikadheesh Industries, Villaage Chak Bhitara,
District Shahjahanpur
Ref: Your Fire Claim No. 082600/11/13/7/0001/97-98 (Date of loss: 17/18.4.1997).
Dear Sir,
With reference to above, we have to inform you that the competent authority has decided to repudiate your claim. Reasons are as under:
That a Fire Policy ‘C’ was taken by you for the period from 6.12.2006 to 5.12.
