New India Assurance Co. Ltd. VS Nandeetas

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
C. Viswanath, Presiding Member and Ram Surat Ram Maurya, Member
New India Assurance Co. Ltd. – Appellant
versus
M/s. Nandeetas – Respondent
First Appeal No.2170 of 2017
(Against the Order dated 28/07/2017 in Complaint No.122/2013 of the State Commission Delhi)
Decided on 5.1.2022

Counsel for the Parties:
For the Appellant:Mr. C.K. Gola and Mr. Abhishek Kr., Advocates
For the Respondent:Mr. Shridhar Y. Chitale, Advocate

Headnote:
Consumer Protection Act, 1986 – Section 21 [Consumer Protection Act, 2019 – Section 58] – Services – Insurance – Repudiation of Claim on premise that the weather could not be the cause of loss as the wind speed at 54 kmph was a normal wind velocity – State commission fastened deficiency in service on the part of the OP – Appeal filed against order of State Commission – Whether the factum of incident is covered by the principle of res ipsa locuitur meaning thereby that “thing speaks for itself” – A perusal of letter by Regional MET Office Lodi Road, New Delhi shows that the wind speed of 54 kmph is not considered as normal wind. The Appellant/Opposite Party had repudiated the claim based on the Survey Report that the “damages could be due to breakage over a period of time and damages to dome could due to poor quality/manufacturing defect/technical fault, which are not covered under the policy.” The Opposite Party had not filed any evidence to prove that the damage to the factory premises including the dome was due to manufacturing defect or technical fault – Therefore, claim based on conjecture and surmises – The stand of the Opposite Party that weather could not be the cause of loss is, therefore, held not valid – State Commission rightly held that the damage to the building, caused by the wind, was covered under the Insurance Policy. Appellant/Opposite Party failed to point out any illegality or irregularity in the impugned order warranting interference in the Appellate jurisdiction. The First Appeal is accordingly dismissed. [Para 9].
Result: Appeal dismissed.

ORDER

The present Appeal is filed against the order dated 28.07.2017 passed by State Consumer Disputes Redressal Commission, Delhi (in short ‘State Commission’) in Consumer Complaint No. 122/2013.

2. The Complainant/Respondent is a proprietorship concern engaged in the business of export of exclusive hand embroidered and beaded garments, bags, belts, stolls, home furnishings etc. since the year 2000. The manufacturing activity is carried out in the factory premises at Manesar, District Gurgaon, Haryana. The Complainant had taken Policy No.31010011110100000277 valid from 26.08.2011 to 25.08.2012 from the Opposite Party. As per Clause VI of the Policy, the Complainant firm was insured against Storm, Cyclone, Thyphoon, Tempest, Hurricane, Tornado, Flood and inundation resulting in any material damage to the factory building. The total sum insured under the Policy was Rs.2,07,10,000/-. According to the Complainant, on the intervening night of 5th and 6th May, 2012 a storm/tempest lashed the town of Manesar causing severe damages in the Complainant factory. The force of the storm also damaged the central dome installed in the factory premises. There was also damage to the expensive polycarbonate sheets and the hydraulic system attached to the central eclipse. The Complainant informed the Opposite Party, vide email dated 07.05.2012. On 11.05.2012, another storm hit the town of Manesar causing further damage to the Complainant’s factory premises. The Complainant, vide email dated 12.05.2012, again informed the Opposite Party about the storm and the loss caused. Complainant received letter dated 14.05.2012 from M/s S. Soni & Company, Surveyors and Loss Assessors requiring the Complainant to produce certain documents relating the loss caused. The Complainant had taken the quotations for repair from M/s Fabcons for an amount of Rs.26,66,939.25. On 28.06.2012, the Complainant received an email from the Surveyor stating that the dome was not covered under the Policy and certain queries were also made. The Complainant addressed those queries and submitted proof of payment for construction of the dome. The Opposite Party, however, did not settle the claim. The Opposite Party also insisted for a report from the Metrological Department regarding the storm. The Complainant obtained report dated 09.08.2012 from the Metrological Department disclosing that on 05.05.2012 the wind speed was 54 kmph with no rain or weather phenomenon occurring. In spite of furnishing all relevant documents, including the report from the Metrological Department, the Opposite Party, vide letter dated 27.08.2012 repudiated the claim of the Complainant. Aggrieved by repudiation of the Insurance Claim, the Complainant filed a Consumer Complaint with the State Commission with following prayer: -

“(A) Allow the complaint and direct the opposite party to pay the complainant a principle amount of Rs.26,66,939.25 towards damage caused complainant’s factory premises under the standard fire and special perils policy bearing no. 31010011110100000277.

(B) Pass an Order directing the Opposite Party to additionally pay interest of 18% per annum from 07.05.2012 till the realization of the principle amount from the Opposite Parties.

(C) Pay compensation to the Complainant totaling Rs.2,00,000/- owing to the harassment, mental agony, and expenses for the follow up/various visits to the Opposite Party’s Office and towards litigation expenses.

(D) Pass any other Order(s) as this Hon’ble Commission may deem fit and proper in the facts and circumstances of the present case.”

3. The Complaint was resisted by the Opposite Parties by filing Written Statement stating that as per the terms and condition of the Insurance Policy, the Insurance Company was not liable to make any payment under the Policy because 54 kmph was normal wind velocity and could not be the cause of loss.

4. The Complainant filed its rejoinder reiterating the averments made in the Complaint. It was stated that the

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