MANJUNATHA TILE FACTORY vs Oriental Insurance Company Ltd.

APPELLANT was the complainant before the State Commission where he had filed a complaint alleging deficiency in service on the part of the respondent Insurance Company, which was dismissed, hence this appeal.

UNDISPUTEDLY, the facts of the case are that the appellant/complainant owned a tile factory whose machinery, building was insured with the respondent company for the period 16.11.1990 to 15.11.1991. It is the case of the complainant that on the night of 10.2.1991 the factory building was got damaged by explosion. This episode was reported to the Police, Fire Brigade as well as to the opposite parties. The spot Surveyor was appointed by the respondent company and then a survey was carried out by M/s. J.B. Boda Surveyors, who as per the complainant assessed the loss at Rs. 4,00,000 but the claim of the respondent was repudiated on 12.12.1991 stating that "Collapse" of the building does not fall within the purview of the policy. It is in these circumstances that a complaint was filed before the State Commission, who after hearing the parties and by a detailed order dismissed the complaint. Aggrieved by this order, this appeal has been filed before us. We heard the learned Counsel for the parties at some length. The basic contention on which the whole case depends is a question whether it was a case of ''explosion'' or it was a simple case of ''collapse?

Firstly, the learned Counsel for the appellant relies upon the report of the police in respect of their contention that it was a case of ''explosion''. We have gone through this very carefully. Two things leave us with a nagging thought - firstly, that no conclusion can be drawn without any evidence and if it was a case of explosion then the Police should have registered a case of explosion. No evidence has been laid that any such case was registered and the fate of such a case/investigation. We also see on record a report of Controller of Explosives, dated 31.7.1991, which has been reproduced in toto by the State Commission even though the burnt black cord was identified as ''safety fuse'', yet, no report has been filed that there was indeed an explosion. There is no material on record to substantiate this point. Onus of proof to do so was with the appellant and in our view he has failed to do so. There is no material on record that on getting this report based on a ''material'' termed ''safety fuse'' found after quite some time of the collapse of the building any followup action was taken or any case of explosion registered by the police. Mere finding of a ''safety fuse'' that too after almost over a month''s time, does not lead us anywhere because if it was a case of ''explosion'' by using a ''fuse'' to blast dynamite, then a case of explosion should have been registered, which has not happened. The tell-tale evidence of any explosion like any crater, blackening of the material on the side or scattering of debris were not found by the Surveyor who visited the spot on 11.2.1991 and his report is on record. He has given clear finding in following terms: "I went to the spot on 11.2.1991 and again I visited the spot at about 9.30 a.m. on 12.2.1991. The representative of the insured was present. I found the factory building had collapsed on Mysore-K.R. Nagar Road side. I found the bricks scattered all over. No crater was visible. There was no sign of explosion. There was no black powder. I found only building debris."

THE weakness of the case on which State Commission dismissed the complaint had come within the knowledge of the payment as early late as 1996 yet in our view they have not discharged their duty of proving the case when the burden of proof lay on them, that this indeed was a case of explosion. Once they came to know in mid-1991 that it was a case of explosion, then in order to make the case fall within the terms of the Policy they have obtained a certificate that explosion did take place resulting in collapse/damage to the building. No such evidence is on record. Mere finding of a ''safety fuse'' after quite some time of the episode of collapse leave few questions unanswered as to how the safety fuse landed there? Especially when this is a running factory and is manned, when closed. It would take quite some time for anyone to plant dynamite, connect with the fuse and let it go. But we are not going into that question. At this stage a feeble attempt is made to introduce the element of ''malicious damage'' to make it fall within the terms of policy. We are afraid, we do not buy the plea for the simple reason that it was never pleaded at any stage. It is not in dispute that if there was an explosion then it would have left some marks. None of these were noticed by the spot Surveyor who visited there on 11.2.1991 less than 24 hours of the episode. This finding of the spot Surveyor remained unrebutted and no counter evidence has been led to negative these observations/findings, in the absence of which we find no merit in the contention of the appellant that this was a case of explosion making it fall within the terms of the policy.

THE complainant failed before the State Commission as also before us to prove that this indeed was a case of explosion. In view of this, the detailed order passed by the State Commission does not call for any interference. This appeal is devoid of merit, hence dismissed. Appeal dismissed.