R P BRICKS vs ORIENTAL INSURANCE CO LTD

-BY this complaint under Section 17 of the Consumer Protection Act, 1986 complainant-insured alleging deficiency in service on the part of opposite party-Oriental Insurance Company Ltd. , claims compensation Rs. 68,62,922 as sum assured and general damages Rs. 2 lacs under a Standard Fire and Special Perils Policy (Annexure D/1 ).

COMPLAINANT-M/s. R. P. Bricks is a proprietorship concern of Smt. Rukhsana Parvin having its bricks manufacturing unit at village Tapra Pathari, District Raisen (M. P. ). The Unit was established in early 2004. The complainant is engaged in making hand made burnt bricks from mud. The policy in question was obtained by the complainant on 21. 5. 2004 for a period of one year i. e. upto 20. 5. 2005 carrying insurance coverage of Rs. 1 crore against any loss caused to the stock of green bricks, finished bricks and the kiln by storm, tempest, cyclone, flood and inundation. It is more or less admitted between the parties that on account of heavy rains on the evening of 13. 6. 2004 damage was caused to the bricks, both green and finished as also to the kiln of the complainant. An intimation of the loss was sent by registered post to the O. P.-company on 15. 6. 2004 (Annexure D/2 ). The O. P.-company initially appointed Surveyor Shri S. K. Kansal to assess the loss. He visited the spot on 23. 6. 2004, conducted preliminary survey of the loss and also took photographs. He however, vide his report dated 25. 6. 2004 (Annexure D/3) expressed his inability to continue with the assignment. The O. P.-company, therefore, appointed another Surveyor Shri V. K. Gupta to survey and assess the loss. Shri Gupta vide his report dated 10th June, 2005 (Annexure D/4) confirmed the damage to the subject insured and assessed the total loss at Rs. 31,77,655 as against the complainant''s claim for Rs. 68,62,922. He however, concluded that the loss is caused by normal mansoon rains, not covered by the policy. The O. P.-company acting on this report of Shri Gupta repudiated the complainant''s claim in toto vide letter dated 20. 1. 2006 (Annexure D/8 ). The complainant has challenged the assessment of loss made by Shri Gupta and also the ground of repudiation of her claim by opposite party-company. As against it, the O. P.-company has justified the repudiation and it was contended that the loss due to mansoon rains did not fall within the purview of the perils as specified in the policy and no claim was, therefore, payable to the complainant.

We have heard Mr. Mohan Chouksey, learned Counsel for complainant, Mr. Ravindra Tiwari, learned Counsel for opposite party and also gone through the evidentiary material on record. While we find ourselves in full agreement with the assessment of loss made by Surveyor Shri V. K. Gupta, we are however, unable to agree with the ground of repudiation.

ADMITTEDLY, the loss to the bricks and kiln was caused by rainy water. The policy provides for coverage of loss resulting directly by "storm, cyclone, typhoon, tempest, hurricane, tornado, flood and inundation excluding those resulting from earthquake volcanic eruption or other convulsions of nature. It may be noted at the out-set that loss by mansoon rains is not excluded by the policy. Needless to say that flood and inundation is invariably the result of heavy or excess rains. The opposite party-company has relied heavily on the report dated 27. 7. 2004 given by Tehsildar, Raisen certifying the extent of rains in Raisen Tehsil during the relevant period i. e. from 13. 6. 2004 to 15. 6. 2004. The report thus reads : "hindi mater omitted" Surveyor Shri Gupta as also the O. P.-Insurance Company were of the view that the rains on the relevant days were to the tune of 13. 6 mm (1. 25 inches) and that there was no flood or inundation caused in the area. We are afraid, the Surveyor and the officers of the O. P.-company seem to have misread the report. The report consists of two limbs. The first part pertains to the extent of rains as recorded at the District/tehsil Headquarter, Raisen while the second part pertains to the rains experienced on 13th and 14th of June, 2004 at village Tapra Pathari where the subject insured was situated. If we go by the first part of the report, there were no rains on 13th and 14th. It was on 15th of June, 2004 that 13. 6 mm rains were recorded. However in village Tapra Pathari there have been heavy rain fall on 13th and 14th of June, 2004 creating flood like situation. It is true that no water body like river or pond was situated in the nearby area of the complainant''s unit, but, that by itself is no ground to conclude that there was no flood or inundation. In fact, both these terms flood and inundation are synonyms which as per Chamber''s Dictionary means "over flowing". As per Webster''s Comprehensive Dictionary "inundation" means a flood, a condition of super abundance. Words inundate, flood, over flow are treated as synonyms.

IT will be thus seen that flood or inundation does not mean that there should be flood in any nearby river or water pond etc. A flood or inundation may take place even in planes due to heavy rains. The report dated 27. 7. 2004 of the Tehsildar clearly revealed that on 13th and 14th of June, 2004 there were heavy rains in village Tapra Pathari creating flood situation in the area. In any case the loss caused by mansoon rains cannot be treated on different footing from the loss caused by flood or inundation. As noted by the Surveyor, a kiln is always situated in open and the work of preparation of bricks is also carried out in open fields. It was, therefore, wrong on the part of Surveyor and opposite party-company to say that the loss caused by rains was not covered by the policy. The opposite party-company in our considered view, was liable to compensate the loss as assessed by the Surveyor. As regards the compensation, the Surveyor Shri V. K. Gupta has assessed the total loss at Rs. 31,77,655 as against the complainant''s claim Rs. 68,62,922. The Surveyor has dealt with in detail each and every item wise loss and assigned proper reasons for arriving to various figures of loss. Significantly, the complainant herself in her first letter dated 15. 6. 2004 written to the O. P.-company has assessed the total loss at Rs. 35 lacs only. Her subsequent claim for Rs. 68,62,992 was thus clearly exaggerated and after-thought. We thus, allow the complaint in part and direct opposite party-Insurance Company to pay to complainant Rs. 31,77,665 with interest @ 6% p. a. from the date of repudiation i. e. 9. 11. 2005 till payment. The opposite party shall also bear complainant''s cost and the same is quantified at Rs. 5,000. Complaint partly allowed.