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Judgment
S. No.,No. of Exhibits,Details of the documents
1.,Ex.PW1/1 (OSR),Board resolution dated 06.01.2008
2.,Ex.PW1/2,Police Complaint dated 17.03.2013
3.,Ex.PW1/3,"Photocopy of Power of Attorney
dated 28.01.2009
4.,Ex.PW1/4(colly),Certificate of registration
5.,Ex.PW1/5(OSR),Board resolution dated 25.01.2010
6.,Ex.PW1/6(OSR),"Resolution of Board of Directors
dated 01.05.2010
7.,Ex.PW1/7(OSR),"GPA dated 01.05.2010, 23.07.2010
8.,Ex.PW1/8(Colly),Photgraphs
9.,Ex.PW1/9,Digital Camera CD
10.,Ex.PW1/10,Notice dated 01.04.2013
11.,Ex.PW1/11 and Ex.PW1/12,Registered receipts
12.,Ex.PW1/13(colly),Original AD Cards
13.,Ex.PW1/14,"C la im/ inf or ma t ion vide
letter/FIR/Claim dated 30.05.2008
14.,Ex.PW1/15,Letter dated 29.09.2008
15.,Ex.PW1/16,Letter dated 25.11.2008
16.,Ex.PW1/17 to Ex.PW1/19,Speed post receipts
17.,Ex.PW1/20,Email dated 17.12.2008
18.,Ex.PW1/21,Letter dated 20.12.2008
19.,Ex.PW1/22 to Ex.PW1/24,Speed post receipts dated 29.12.2008
20.,Ex.PW1/25,"Reply to letter dated 20.12.2008 and
16.01.2009
21.,Ex.PW1/26,Email letter dated 28.01.2009
22.,Ex.PW1/27,Letter dated 27.02.2009
23.,Ex.PW1/28,Letter dated 27.02.2009
24.,Ex.PW1/29,"Certificate dated 11.10.2007 of M/s
S&S Associates
25.,Ex.PW1/30,Assessment report dated 06.02.2009
26.,Ex.PW1/31,Speed post receipt dated 28.02.2009
27.,Ex.PW1/32,"Work/purchase order dated
26.11.2009
28.,Ex.PW1/33(colly),"Work/purchase order dated
27.11.2009
29.,Ex.PW1/34(colly),Original 2nd RA Bill
30.,Ex.PW1/35(colly),Letter dated 02.07.2010
31.,Ex.PW1/36(colly),Final bill dated 01.10.2010
32.,Ex.PW1/37(colly),1 st and final bill dated 04.11.2010
33.,Ex.PW1/38(colly),Six Vouchers
34.,Ex.P1,"Special Perils policy no.11272884
dated 25.04.2008
35.,Ex.P2,"Surveyor vide letter dated
09.06.2008
36.,Ex.P3,"Defendant’s letter dated
13.06.2008
37.,Ex.P4,All the requisite documents
38.,Ex.P6,Policy no.1184227 dated 15.04.2007
39.,Ex.P7,Communication dated 16.01.2009
40.,Ex.P8,Legal notice dated 29.04.2009
41.,Ex.P9,Reply dated 21.05.2009
Sr. No.,Plaintiff’s witnesses,Name
1.,PW1,"Sh. K.S. Anand, Director of the
plaintiff
2.,PW2,"S h . Devender Singh Anand,
Engineer and Consultant
3.,PW3,"Sh. Sunil Shukla, Owner of ARCS
Construction who carried demolition
and reconstruction of the damage
wall
9.8 Although the cause of loss is due to faulty design & poor drainage, therefore in our opinion, no liability of the underwriters arises in this case.",,
However an assessment has been made in the light of our observations at site for information only of the Underwriters. The details are given in the,,
enclosed Annexure-A. The rates considered are the present market rates for such type of jobs.,,
9.9 Insured have provided repair estimates considering the design improvements & by providing RCC retaining wall which has increased the cost of,,
construction & estimates on the higher side. However we have based the assessment on the present specifications of the wall. The repair to the wall,,
has not been undertaken as yet.""",,
The trial court has rightly observed that though the surveyor appointed by respondent/defendant was examined as DW-2 by the,,
respondent/defendant, but not a single question was put to him by appellant/plaintiff with respect to the facts stated by surveyor in his report with",,
respect to lack of appropriate quality of the civil works of the boundary wall etc. This is stated in para 23 of the impugned judgment and this para 23,,
reads as under:-,,
“23. The said Surveyor has been examined before the Court as DW2. In his cross-examination he has been asked irrelevant questions like,,
specifications for civil works, specifications of boundary wall in various types of soil, difference between PP, OPC etc. The reason as observed",,
by him in his report have not been put to him in his cross-examination. It is not put to him in cross-examination that the wall was not cemented or,,
that there were columns in the walls or that there was no fault in design or that it had not occurred over a period of time. It was not specifically put,,
to this witness that the wall had tilted due to excessive rain of that particular day only. It was not put to the witness that heavy vehicular traffic of,,
loaded vehicles have not put any extra pressure on the wall. It was not put to this witness in his cross-examination that there was no poor drainage in,,
the premises. Hence, there is no cross-examination of this surveyor on the reasons given in his opinion. Hence opinion is unrebutted.â€",,
Trial court in my opinion has rightly rejected the so called surveyor’s report filed by the appellant/plaintiff because not only the surveyor was,,
none other than the brother of the Director of the appellant/plaintiff, but the fact is also that the so called surveyor’s report is just a one small para",,
report which does not at all deal with any issue of the quality of material used in the boundary wall or lack of structural stability on account of lack of,,
columns or other aspects of the boundary wall being not plastered and there being lack of appropriate drainage system. These aspects have been,,
rightly discussed by the trial court in paras 25 and 26, and with which I agree, and these paras read as under:",,
“25. Plaintiff has filed the report of his own Surveyor on record who has appeared before the Court as PW2. Needless to say that he is brother of,,
PW1 who deposed before the Court on behalf of the plaintiff company. According to the report of PW2, the reason for the tiling of the wall is as",,
follows-,,
The main cause for the inclination of boundary wall is due to continuous rain which lasted 3-4 days (Generally not a rainy season). The accumulation",,
of excess surface water during the continuous rain, the surface water goes below the filled up area and built the additional pressure on the retaining",,
wall and since the Natural Ground Level (NGL) of adjacent plot is lower by 2.65m w.r.t Mita Harig (I) Pvt. Ltd.,,
This additional pressure pushed the wall towards the adjacent plot & resulted inclination of boundary wall. The same as happened in Dawarka under,,
pass, made by L&T.""",,
His report is silent regarding the fault and design which is the main reason for the rejection of claim of plaintiff. It does not mention whether the,,
wall had columns, whether RCC was there, whether cementing was there on the wall. It is silent about the drainage as well. Hence, this report is of",,
no help to the plaintiff. Plaintiff has also examined before the Court PW3 namely Sushil Shukla who is the Contractor who according to plaintiff,,
demolished the earlier wall and carried out construction of the new wall. The said witness stated in his cross-examination for the first time that wall,,
was made of RCC also. But the onus which is on plaintiff cannot be said to the discharged on the basis of statement of this witness in cross-,,
examination.â€,,
I may also note that the trial court after observing in para 36 of the impugned judgment that contracts of insurance are contracts of good faith and,,
the appellant/plaintiff/insured cannot claim under the policy on account of defects in structure and faulty design of the boundary wall. It has then been,,
correctly concluded by the trial court that in fact the subject boundary wall was demolished during the pendency of the suit and the re-construction,,
which started in 2012 was complete by 4.11.2012, but no notice regarding the same was given to the respondent/defendant by the appellant/plaintiff",,
and if this was done, the respondent/defendant would have had an opportunity to inspect the boundary wall. Trial court has rightly rejected the",,
testimonies of PW-2 and PW-3 because costs of dismantling of RCC or columns through, is mentioned in the bills produced by the appellant/plaintiff,",,
but existence of Bills in itself cannot be enough to prove that there existed RCC in the Wall ,especially when in the photographs filed, no columns or",,
cementing of the walls was found to be visible. Trial court has noted that as per the photographs filed, there were no columns which were visible in",,
the boundary wall and there was no cementing of the wall and which was only an unplastered brick wall. On all these vital aspects there was also no,,
crossexamination of the surveyor of the respondent/defendant by the appellant/plaintiff.,,
The argument urged on behalf of the appellant/plaintiff that the respondent/defendant had earlier under the similar policy paid for damage to the,,
boundary wall cannot mean that in the facts of the present case, trial court was in error in dismissing the suit because the argument of the",,
appellant/plaintiff only shows that the appellant/plaintiff was probably lucky earlier on the last occasion when a similar claim was allowed, and this",,
has to be taken with the fact that the court does not know that what were the facts at the earlier point of time when the claim was allowed, and",,
whether there was any surveyor’s report with respect to earlier claim under the insurance policy by the appellant/plaintiff against the,,
respondent/defendant, which showed the reason for boundary wall damage (and for which claim was allowed) was or was not made of requisite",,
quality material having structural stability. Therefore, merely because in the past a similar claim was allowed by the respondent/defendant does not",,
mean that in the facts of the present case the appellant/plaintiff is entitled to succeed in the suit.,,
In view of the aforesaid discussion, I do not find any merit in the appeal. Dismissed.",,