New India Assurance Co.Ltd vs K.VISWANANDHAM

THE complainant, who is the respondent in this appeal, insured the limekiln with the opposite party for a sum of Rs. 70,000/- covering the godowns for a sum of Rs. 35,000/- and machinery for Rs. 25,000/-. According to him, damage was caused to the limekiln, which collapsed on 19.9.1991 when the lime was burning, due to heavy rains on 21 and 22.9.1991. He incurred the loss of Rs. 50,000/- due to collapse of limekiln and Rs. 30,000/- for damage caused to the godowns.

THE claim was mainly opposed on the ground that the limekiln collapsed due to heat and was covered as per exclusion in Clause (c), that therefore, the Insurance Company is not liable to pay and it has rightly repudiated its liability. Before the District Forum, the complainant examined himself as PW1. No documents were marked. On behalf of the opposite party Exs. B2 to B5 were marked.

On a consideration of the material on record, the District Forum came to the conclusion that by virtue of exclusion Clause (c), it cannot be said that the complainant is not entitled to claim damages caused to the godown as well as to the limekiln. When the lime was burning with the help of the coal and wood and also marble stones alongwith limestones in the limekiln, there will be always some heat, that generates in the limekiln. It further held that the plea taken, regarding the preliminary objection by the opposite party, is purely technical. It accordingly allowed the C.D. and directed the opposite parties to appoint a Surveyor to assess the damage caused to the limekiln of the complainant.

AGGRIEVED by the said order this appeal is preferred. Sri. K. Subba Rao the learned Counsel for the appellant submitted that the controversy in the appeal is relating to the damage caused in the limekiln. According to him, the exclusion Clause (c) comes into operation. The said clause reads as follows: "Loss or damage to the property occasioned by its fermentation, natural heating or spontaneous combustion or by its undergoing any heating, or drying process". If the policy relates to limekiln, the aforesaid clause has no application as by the very nature, the heating process will be going on in the limekiln. Admittedly in this case, the limekiln was insured under fire policy for a sum of Rs. 70,000/-. It is also pertinent to note that the complainant insured some godowns, in which event, Clause (c) is relevant so far as the godowns are concerned. We are, therefore, not inclined to accept this contention of the Counsel. It is next submitted by the learned Counsel for the appellant, that the Surveyor, in his report, stated that the complainant used some marble stones, which is a scrap, for generating heat, that resulted in over-heating causing damage to the limekiln. But the condition of the policy does not mention against the using of the marble stones. The clause also does not say that in case of over-heating, the Insurance Company is not liable. Hence we are not inclined to accept the contention of the learned Counsel for the appellant. Now the Surveyor will go into the question of determination of the quantum of compensation as directed by the District Forum and submit a report.

IN the result, the appeal is dismissed. No Costs. Appeal dismissed.