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Judgment
BY way of this complaint, the complainants have prayed for complainant No. 2 compensation in the sum of Rs. 8,10,500/-, miscellaneous/legal expenses in the sum of Rs. 1,000/-, and cost in the sum of Rs. 500/- on following brief allegations of facts.
COMPLAINANT No. 2 got the stock of his shop insured with the opponent Insurance Company. He also availed of cash credit facility for his stock from Bank of Bardoa, Pandmavati Branch. He accordingly got the cash credit facility for the period of three years before the date of the complaint and got also the insurance for the stock of chappals, shoes and other articles in his shop in the name and style of Novelty Chappal Stores located opposite Sursagar, Padmavati Chowgan, Vadodara. The insurance was in the sum of Rs. 7,60,000/- as per the policy of insurance for the period from 3.7.1997 to 2.7.1998 as per the policy particulars set out in the complaint. It is the complainant''s case that under the mass demolition drive of shops by the Municipal Corporation of Vadodara, aforesaid shop which was existing for last 40 years was instantly demolished on 3.8.1997 without giving any chance to the complainant to remove the insured stock. This resulted into demolition of not only the shop premises but also loss to stock. The complainant sent written representation to the opponent Insurance Company to supply claim forms for preferring claim for loss of stock. But the opponent Insurance Company regretted the very availability of the claim expressing its inability to send the claim form. The complainants have, therefore, prayed for compensation in the sum of Rs. 3,50,000/- for the risk of fire and allied peril, in the sum of Rs. 3,50,000/- for the risk of burglary and house-breaking, Rs. 8,500/- for money insurance breaking, Rs. 1,000/- towards compensation on the head of mental agony and hardship, and Rs. 2,000/- in respect of neon and glow and baggage insurance, in all Rs. 8,10,500/-. The opponent Insurance Company has resisted the complaint inter alia on the ground that it is not maintainable at law, that there is no deficiency in service on the part of the opponent Insurance Company, that the shop keepers'' policy in question which is a written contract does not provide for alleged peril, that Bank of Boroda being pawnee has not been joined as party although the contract of insurance in question is with Bank of Baroda, that there are highly disputed questions of facts and law requiring detailed evidence and, therefore, the complainant should be relegated to the Civil Court, that maximum sum insured under items A and B of the policy would not exceed Rs. 5 lakhs and the claim has been grossly exaggerated by the complainants, that the Vadodara Municipal Corporation is governed under the Bombay Provincial Municipal Corporation Act, 1949 and it has given notice of 30 days to remove the structure after getting and hearing objections in respect of the street line and since the impugned shop happened to be illegal construction, the Corporation removed it as unauthorised construction and, therefore, the opponent Insurance Company would not be liable for any consequential loss. The opponent has further asserted that as a prudent person complainant No. 2 ought to have taken reasonable steps to safeguard the stock of chappals and shoes and other articles lying in the shop. The complainants have also not stated the exact amount of loss occurred as a result of the aforesaid demolition drive undertaken by the Vadodara Municipal Corporation. The opponent Insurance Company has (sic) denied the allegations of facts and has prayed for dismissal of the complaint with cost.
We have heard the learned Advocates for the parties. Reference has first been made to a decision of the honourable High Court of Gujarat dated 7.8.1997 in Special Civil Application No. 3420 of 1997 and other matters and then to a decision of a Division Bench rendered in Letters Patent Appeal No. 917/1997 and other matters on 5/19/20/23.8.1999. In our considered opinion, we need not take ourselves to both these decisions of the High Court for the simple reason that they essentially deal with the case of shop keepers including the present complainant against the Vadodara Municipal Corporation in respect of demolition drive undertaken by the authorities of the said Municipal Corporation. What is important to be noticed in this complaint is whether the peril and/or risk with regard to demolition drive undertaken by the Competent Authority is covered under the policy of insurance or not ? For that purpose, we need to take ourselves to the risk undertaken by the opponent Insurance Company in the first place. Xerox copy of the shopkeeper''s policy is placed on record along with the complaint at Page 5. In Section I of the policy, the risk covered is fire and allied perils. Sum insured is Rs. 3,50,000/- for ware chapple, shoes etc. with a note that total sum insured under this section would not exceed Rs. 5,00,000/-. Section II relates to burglary and housebreaking and the amount of risk covered is Rs. 3,50,000/-. It would, therefore, prima facie appear that the risk on account of demolition drive undertaken by the authority concerned of the Vadodara Municipal Corporation in exercise of powers under the provisions of that Act is apparently not covered under the policy of insurance in question. We would reproduce the elaboration of the perils printed overleaf the aforesaid policy. "Section I : (A) BUILDING OF CLASS ''A'' CONSTRUCTION ONLY & (B) CONTENTS : Against Fire (including Fire resulting from explosion, lightning, explosion of gas in domestic appliances, bursting and overflowing of water tanks, apparatus of pipes, aircraft or articles dropped therefrom riot and strike. Earthquake (Fire and/or Shock) malicious act, flood inundation, storm, cyclone subsidence and landslide (including Rockslide) damage impact damage. CLASS A CONSTRUCION Buildings shall have external wall(s) of Stone/Bricks/Concrete Blocks/Asbestos Sheets Cladding Glass Panel/partly or fully open sided and roof of RCC/Masonry/Asbestos Concrete Sheets/Metal Sheets/Tiles/Wooden Shingles or Boardings on RCC/steel/wooden frame work. N.B. 1. Thin layer of grass hay or reeds on incombustible roofing is permitted. 2. Use of Thermosetting resin fibre glass reinforced sheets is permitted for skylights. Section II : BURGLARY AND HOUSE BREAKING : Loss or damage to property by theft involving entry into or exit from the insured premise by forcible and violent means or following assault, or violence or threat thereof to the insured or any employee of the insured or member of the insured''s family."
ON a plain reading of the aforesaid elaborated perils also it would appear that the aforesaid risk is not covered under the policy of insurance in question. It might be noted at this stage that one of the claims is with respect to money insurance breaking. That relates to Section III of the policy. The cover of insurance is in the sum of Rs. 5,000/- for money in transit and Rs. 3,500/- in respect of money in till/counter. Elaboration of this risk overleaf the policy is in Section III and it reads as under : "Section III : MONEY INSURANCE. Money-in-transit and/or in safe and in steel cupboards, cash box and in such other places under lock and key (covering all business transactions) loss due to any accident or misfortune subject to limits of liability specified in the Schedule."
The risk covered is loss due to any accident or misfortune subject to limits of liability specified in the Schedule. This is not a case of accident. This is also not a case of any other misfortune. This is clearly a case of incident of demolition drive undertaken by the Vadodara Municipal Corporartion in exercise of the powers vested in it under the provisions of the Bombay Provincial Municipal Corporation Act, 1949. It has been submitted on behalf of the complainant that there was some illegality in the sense that a statement made by learned Advocate for the Corporation before the High Court was not honoured by the authorities of the Vadodara Municipal Corporation. Thus, contempt of Court was committed by the said authorities. This cannot be said to be an accident. It also cannot be said to be any of the other perils noted hereinabove. Even the contempt proceedings have ended in favour of the authorities of the Vadodara Municipal Corporation. Bearing in mind all these aspects of the matter, there was no scope for the complainants to make or prefer claim before the opponent Insurance Company and the opponent Insurance Company was under no legal obligation to furnish claim forms to the complainant. If that is so, written intimation given by the opponent Insurance Company saying that the claim was not available under the policy of insurance in question will not tantamount to deficiency in service.
APART from what is stated above, we do not see any material on record of the complaint to substantiate the claim preferred by the complainants or any portion thereof. In view of what is stated above and in view of the facts and circumstances of the present complaint, following order is required to be passed. ORDER This complaint is dismissed, with no order as to costs. Complaint dismissed.