JASUMATI CHHOTALAL RATHOD vs DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LTD.-/

THE appellant is an original complainant whose complaint had been dismissed by the District Forum, Bhavnagar by its order dated February 22,1991 has filed this appeal. THE short facts are that the appellant is having his Studio in the name of Jagdish Studio in Kanwarram Chowk at Bhavnagar. He has taken a policy of insurance which was accepted by the National Insurance Company Limited, the opposite party. THE Insurance Policy has been produced at Exhibit 10 which is at Page 32 of the file of the District Forum. THE Policy is shopkeepers'' insurance policy and indemnifies the insured in respect of loss of or damage to the building/contents "whilst contained in the insured premises as per eventualities (a) to (g) of the policy. THE important for our purpose is the liability, in respect of (f) and (g) which read as under: (f) flood Inundation Storm, Tempest, Typhoon hurricane, tornado or cyclone (g) impact damage

IT is alleged by the complainant that he is taking this Policy since last 10 years and the present policy was in force from 6.1.90 to 5.1.91 and the total sum insured was Rs. 1,00,000/-. According to the complainant, on account of heavy rains and storm on 23rd and 24th August, 1990, one wall of the building in which the Studio was situated collapsed which has damaged the furniture, photography goods and wall to the extent of Rs. 25,000/-. The complainant informed the Insurance Company which has. sent its officer for survey assessment and had submitted the survey report to the Company. However, the respondent opposite party did not make any payment and, therefore, he filed a complaint before the District Forum, Bhavnagar.

The Insurance Company had raised the question of jurisdiction. The District Forum came to the conclusion that even if it is believed for a while that because of the torrential rain in the city from 16.8.90 the wall of the studio abutting on the road towards Kanwarram complex collapsed, as a result certain amount of water entered into the premises and caused damage to the photography material and furniture, the petitioners are not entitled to the relief they have sought for, though it was true that the insurance policy was taken. According to the learned Judge in Clause 4 risk was covered relating to flood, inundation, typhoon, hurricane tornado or cyclone. Rain or heavy rain is not at all mentioned. The District Forum has noted that the dictionary meaning of the flood inundation is "overwhelming or large quantity of water covering what is usually dry land as the result of a river or sea''s flowing over its usual limits, the breaking of a dam, a tidal wave, or a strong wind which drives waves in land the state of a river that is very full of water at the time of high tide". The Forum has further observed that it would appear that the flood or inundation does not cover the rain or heavy rains. In this case there is admittedly no large quantity of water went over the premises as a result of a river or sea''s flowing over its usual limits or the breaking of the dam or tidal wave or strong wind driving the river or sea water in land in abundance. 4A. According to the District Forum the definition of flood does not cover torrential rains or heavy rains and since there was no flood inundation for which the risk is covered and since there is no damage due to flood, inundation, storm tempest typhoon hurricane etc. but by heavy rain and when heavy rain is not covered by any of the terms or the condition of the policy the Insurance Company is not under contractual obligation to indemnify the loss and arriving at this conclusion the District Forum dismissed the complaint.

MR. Bipin Mehta, the learned Advocate for the appellant has read the policy and according to his arguments the policy is a comprehensive policy so far the risk to goods is concerned because according to him it is a shop keepers insurance policy and according to the learned Advocate it covers all the contents of the building excluding money and valuables. Para 2 of the policy in term states that the Company hereby agrees subject to the terms and conditions contained herein on endorsed or other- wise expressed hereon that if the insured shall sustain Loss or Damage to property or incur liability or the insured or the partners, directors or managerial staff or employee of the insured permanently working with the insured shall sustain bodily injury as described herein at any time during the period of insurance stated herein or any subsequent period in respect of which the insured shall have paid or agreed to pay and the Company shall have accepted or agreed to accept the premium required for the renewal thereof the Company will pay to the insured the value at the time of happening of such loss of the property so lost or the amount of such damage the insured value at the time of happening of such loss etc. He has drawn our attention to the general conditions also which consists of claim procedure etc. We are concerned with Section I - Building/ Contents (excluding Money and Valuables) which read as under: "The Company will indemnify the Insured in respect of loss of or damage to the building/ contents whilst contained in the insured premises by (a) xxx xxx xxx xxx xxx (b) xxx xxx xxx xxx xxx (c) xxx xxx xxx xxx xxx (d) xxx xxx xxx xxx xxx (e) xxx xxx xxx xxx xxx (f) xxx flood inundation storm tempest typhoon hurricane tornado or cyclone (g) ...Impact damage."

The Clause (f) contains several calamities and the last is ''or cyclone''. Therefore each of the calamities -typhoon, inundation, storm etc. shall read separately. In other words, if the loss occurred due to flood, inundation, storm, tempest etc. the Company would be liable. Not only that but the item suggested that the Company will also be liable for impact damage and the exceptions are enumerated below that. The third is important which read as under: "(iii) the first Rs. 2,500/- or 21/2% of the sum insured whichever is less of each and every loss arising under Section 1''f'' hereof,"

IN the written statement the opposite party has disputed the damage of Rs. 25,000/-. IN para 15 the opponent has merely denied that there was a heavy rain and cyclone and on that account the building had fallen down with the result that the complainant had suffered damages. The Company has admitted that it had sent the surveyor but survey report has not been produced. IN other words, the Company has not raised any technical objection and has only rested by denying the facts stated by the complainant. It appears that the Company has also repudiated the claim by its letter dated 17.12.90 by merely saying that the loss incurred to the complainant was not on account of perils covered under the policy and, therefore, the Company did not admit the liability. The question therefore arises for our consideration is whether there was heavy rain and storm as alleged by the complainant. Complainant No. 2 filed an affidavit after the receipt of the reply reiterating what is stated in the complaint and has in terms stated that during the currency of the policy he had suffered the loss on account of natural calamities inasmuch as on 23rd and 24th August ''90 there was heavy rain and cyclone and one wal of the building had fallen down on account of this and in support of that incident he has also produced the certificate of the City Mamlatdar office. He has denied that the surveyor has made proper enquiry after a lapse of time and according to him the Company had arrived at a wrong conclusion relying upon the alleged report of the surveyor which was not given to him. It appears that on the very day the wall had collapsed the complainant No. 1 had informed the Divisional Manager, Bhavnagar. The letter is produced at Annexure-11. He has also produced a newspaper cutting with a photograph which clearly shows that the wall had collapsed and the furniture and photography goods have been damaged to the extent of about 30,000/-. The certified copy pro duced from the City Mamlatdar''s office, Bhavnagar is a copy of a wireless message which shows that there was a forecast for 22.8.90 of a heavy rain within 48 hrs. and directing the officers to take proper step. He has also produced a newspaper of 25.8.90 which shows that the Bor Talav was full on account of incessant rains since last several days.

THE building where the complainant had the studio was a 1st class building. THEre is no dispute to that. We do not know how old it was. One wall of the building appears to have been collapsed. A column of the policy states that the building was of Class A construction and it has not been sug-gested that the building was not of Class A construction. In that view of the matter, if the building is of Class A construction and if one of the walls collapsed on account of incessant rains and storm we are not able to understand how the risk cannot be said to have been covered because Clause ''f'' of Section I takes into account every type of eventualities including flood, cyclone etc. On account of rain water had collected and as soon as the wall collapsed water entered into the pucca building which ultimately damaged the articles kept by the appellant for which he had taken insurance. We, there- fore, are of the opinion that the goods of the complainant is covered under Clause ''f'' and also under ''g'' because it can also be said that the damages are also a result of the impact of falling of the wall. So even if the goods have been damaged by the falling of the wall, the Insurance Company is liable for the damages.

DURING the course of the arguments the learned Advocate of the Insurance Company had tried to produce a survey report. But the said report has never been exhibited and no chance has been given to the complaint to refute the same. It may be noted that such a late production of a document when the arguments of the complainant was over and that too in the appeal cannot be permitted. We cannot take any document on record at the appellate stage and no prayer having made for the same in writing and no reasons having shown for nonproduction. The District Forum has rejected the claim solely on the ground that the Clause ''f'' does not mention heavy rains and the dictionary meaning of the word flood inundation will not cover heavy rain, But the learned Judge has not taken into consideration the whole policy and the object of covering the risk. The Insurance Company has not produced the proposal form. The District Forum was of the opinion that if overwhelming or large quantity of water covering what is usually dry land as the result of a river or sea''s flowing over its usual limits, breaking of a dam a tidal wave etc., the risk will be covered. We are unable to agree with the learned Judge.

The whole purpose of shopkeepers policy is to give protection to the articles against fire and water hazards. The damage is not directly done by rain but on account of heavy rain and cyclone the wall collapsed and water entered in and goods were damaged. In a policy of comprehensive risk if such eventualities are not covered then taking of insurance will become meaningless. The claimant has claimed loss of Rs. 25,000/- in which he has included the cost of constructing wall which cannot be granted. He has produced the bills also. We, therefore, are of the opinion that if Rs. 8,000/- is awarded to the claimant having regard to 2.5% of claim, the complainant claimant will be fully satisfied. We therefore pass an order to award Rs. 8,000/-. Since the appeal has been partly allowed, the appellant will also be entitled for interest. ORDER The appeal is allowed. The judgment and order of the District Forum, Bhavnagar is set aside. The respondent opposite party will pay Rs. 8,000/- to the complainant with running interest @ 12% p.a. from the date of damage till the date of payment. The respondent will pay cost of Rs. 250/- and bear its own cost. The respondent Insurance Company will pay this amount within 4 weeks from the date of receipt of the copy of the order. Appeal allowed.