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Judgment
Prem Narain, Presiding Member
This appeal has been filed by the appellants Oriental Insurance Co. Ltd. & ors. against the order dated 10.08.2015 of the State Consumer Disputes Redressal Commission, Himachal Pradesh, (in short 'the State Commission') passed in CC No.03/2015.
Brief facts of the case are that the complainant/respondent No.1 is a company incorporated under the Companies Act, 1956 and its President Shri I.D. Aggarwal is authorized by the Board of Directors, vide resolution dated 26.12.2014, to file the present complaint and to pursue it. Complainant has one of its factories at Kala Amb. The building, the plant & machinery, furniture & fixtures, stock and all other goods belonging to the complainant were insured with the appellants/opposite parties for a sum of Rs.36.83 Crores for the period from 13.08.2013 to 12.08.2014. On 18.01.2014, one of two sheds of the factory, where Iron Melting Plant was installed, collapsed, resulting in damage to a vehicle, that was parked there and also to the plant and the machinery. Total loss sustained by the complainant, due to the aforesaid collapse of shed, was to the tune of Rs.72.00 lacs. When the shed collapsed and damage was caused, report was lodged with the police. A Police Officer inspected the shed and drew a report, dated 18.01.2014. Intimation of loss was given to the opposite parties and a Surveyor was deputed. However, nothing was paid to the complainant, despite repeated reminders and supply of documents and other information asked by the appellants or their Surveyor, respondent No.2. Complainant served a legal notice, upon the opposite parties. Notice was replied by the opposite parties, informing that the claim had been closed on account of the shed having not been maintained properly and damage having not occurred due to rain or storm, as alleged. Complainant then filed the present complaint for allowing the insurance claim. Opposite parties have contested the complaint and stated that though a surveyor deputed by them, has assessed the loss at Rs.38,02,957/-, nothing had been paid to the complainant for the reason that damage to the shed and plant & machinery was not caused by any of the perils covered under the policy and that enquiry and investigation conducted by the opposite parties, indicated that damage was caused to the shed due to its poor maintenance. The State Commission however, vide its order dated 10.08.2015 allowed the complaint as under:-
"20. As a result of the above discussion, we allow the complaint and direct opposite parties No.1 to 3, to pay a sum of Rs.38,02,957/-, by way of insurance money, with interest at the rate of 9% , per annum, from the date of filing of complaint, i.e. 31.03.2015, to the date of payment of the aforesaid amount of money, and also to pay Rs.2.00 lacs as compensation for deficiency in service and a sum of Rs.20,000/-, on account of litigation expenses."
Hence the present appeal.
Heard the learned counsel for the parties and perused the record. Learned counsel for the appellants first of all stated that complainants are Private Limited Company hence the complainants are not consumer. The shed of the complainants collapsed on account of the weak pillars, however, there was some rain on the day of collapse. The rain as a peril is not covered in the policy. The State Commission has allowed the complaint considering the damage to be due to storm whereas, the complainant has not pleaded anywhere in the complaint that there was storm and the damage was due to storm. The State Commission has wrongly observed that the complainant pleaded heavy rains and storm. The State Commission has relied on the report of the Sarpanch whereas, the report of the Sarpanch cannot be relied upon as against the report of the surveyor, who is technically qualified as well as authorized under the Insurance Act,1938 to submit survey report. It was further argued by the learned counsel for the appellants that there was no reinstatement by the complainant nor any bills were produced before the State Commission. However, the State Commission has still allowed the claim.
By taking the help of the Oxford English Dictionary Thumb Index Edition for meaning of word 'storm', the State Commission has categorized simple rains as storm. The surveyor has also observed in the survey report that shed was not properly maintained and was old and had lost strength and that is why it collapsed. However, the State Commission has dismissed this observation of the surveyor as being only an opinion without any evidence. The fact is that a surveyor is appointed under the provisions of Insurance Act, 1938 and he is supposed to inspect the site and then to form his opinion. It is true that any observation of the surveyor is an opinion formed by him on the basis of his inspection and other material supplied by the insured. His opinion cannot be brushed aside without any cogent reason. The report of a surveyor is an important document and has to be considered for finalizing the insurance claim unless the same is rejected with some cogent reason. Treating observation or report of the surveyor as an opinion is not a cogent reason to reject the surveyor's report.
The State Commission has also awarded a compensation of Rs.2,00,000/- whereas, a private limited company cannot be awarded any compensation. Moreover, when the interest on the claim amount is being allowed, there should be no question of any compensation.
It was argued by the learned counsel for the appellant that in the first letter of information dated 18.01.2014 about the damage of the shed, the complainant had only informed that "today at about 9.00 a. m. major portion of factory shed suddenly fell down and damaged". Learned counsel stated that no reason has been given for the fall of the shed. Had there been heavy rains or any storm, the same should have been mentioned in the first letter. Similarly in the intimation given to the police dated 18.01.2014, only rain is mentioned and no mention of storm is there. Even the police report also says only rain and does not corroborate the storm. On the basis of the above arguments, learned counsel for the appellants stated that the State Commission has tried to bring in the peril of storm to allow the claim of the complainant though there was no storm on the day of loss and the complainant had also not claimed any damage due to storm in its intimation to the police and the Insurance Company.
Learned counsel further stated that the State Commission has relied upon the meaning of 'storm' given in one particular dictionary to reach to conclusion that even only the rains can be termed as "storm" and thus the peril of storm was attracted in the present case, which is really not true.
Learned counsel for the appellants stated that there is a delay of 109 days in filing the present appeal. The delay has occurred due to obtaining higher orders and for taking inter-departmental consultations. It was requested to condone the delay as the appellants have merit in the appeal and the delay is not intentional.
On the other hand, learned counsel for the respondent/complainant stated that the State Commission has relied upon the definition of "storm" given in the Oxford English Dictionary Thumb Index Edition and has observed the following:-
"13. .... Definition of Storm, as per New Shorter Oxford English dictionary Thumb Index Edition (volume-2), re-printed in 1993, includes heavy fall of rain, hail, or snow, a violent outbreak of thunder and lightning, unaccompanied by strong wind. Relevant portion reads as follows:-
"A violent disturbance of the atmosphere, taking the form of high winds, often with heavy falls of rain, hail, or snow, thunder and lightning, rough conditions with high foaming waves at sea, and clouds of sand or dust in arid regions. Occas., a heavy fall of rain, hail, or snow, a violent outbreak of thunder and lightning, unaccompanied by strong wind."
That means, storm does not necessarily involve the flowing of strong winds. Even heavy fall of rain or violent outbreak of thunder and lightning, unaccompanied by strong wind, would fall within the definition of storm. The term storm is not defined in the policy and, therefore, dictionary meaning of the term can be looked into."
Learned counsel for the complainant further stated that if the shed was 9 years old (as reported by the surveyor), the Insurance Company should not have insured the same. It was further stated by the learned counsel that the surveyor's report does not mention any meteorological data or reports to prove that there was no storm.
Learned counsel for the respondent/complainant stated that this is no ground to reject the claim that no other properties in the area were damaged. The insurance is an individual contract between the insured and the insurer. The location of the factory is such that local area becomes a funnel shape so more wind at the factory.
Learned counsel for the complainant further stated that the appeal has been filed with delay of 109 days and the grounds mentioned in the application for condonation of delay are not sufficient to condone the huge delay of 109 days. The appellants are required to give details of each event which has contributed to delay in filing the appeal. In the present appeal, no clear dates of any of the events have been given and only months are mentioned. Though the blame has been put on the counsel, however, no name of the counsel has been given in the application for condonation of delay. Similarly, it is mentioned in the application for condonation of delay that the officer of the Insurance Company wanted to discuss with the counsel, however, no name of this officer has been given to identify the officer. It has also been mentioned in the application for condonation of delay that the file was misplaced. However, no dates are mentioned for this misplacement of the file. Neither the date of misplacement nor any date of recovery of file is mentioned. Thus, all the facts given in the application for condonation of delay are frivolous and imaginary and have only been concocted to justify the delay. It was requested by the learned counsel for the complainant that the appeal is liable to be dismissed only on the ground of delay.
It was further stated by the learned counsel for the complainant that reinstatement has already been done for expenditure of Rs.72,00,000/-. The claim was accordingly filed for Rs.72,00,000/-, however, the surveyor has assessed the loss to be only Rs.38,02,957/-. The learned counsel for the complainant further stated that he is ready to accept the amount as per the report of the surveyor and the State Commission has awarded the same.
I have carefully considered the arguments advanced by both the sides and have examined the material on record. First of all, it is seen that there is a delay of 109 days in filing the present appeal by the appellant Insurance Company. The application for condonation of delay has been objected to by the learned counsel for the complainant on the ground that no definite dates of different events have been given, which have contributed to the delay. It has been stated that the reasons given are of general nature and the blame has been put on the counsel. Clearly, the client should not suffer for the mistake or delay caused by actions of the counsel. As the appellant Insurance Company is a Government Company, the decisions in the company are to be taken in the overall interest of the company and the public cause. For considering the responsibility of deciding a particular matter, the decision is taken at the highest level after getting the views of different officers, Administration, law etc. These consultations take some more time in a Government body as compared to a normal private sector body. Hon'ble Supreme Court in Manoharan Vs. Sivarajan & Ors, Civil Appeal No.10581 of 2013, decided on 25.11.2013 (SC) has held that:
"9. In the case of State of Bihar & Ors. v. Kameshwar Prasad Singh & Anr., it was held that power to condone the delay in approaching the Court has been conferred upon the Courts to enable them to do substantial justice to parties by disposing the cases on merit. The relevant paragraphs of the case read as under:
"11. Power to condone the delay in approaching the Court has been conferred upon the Courts to enable them to do substantial justice to parties by disposing of matters on merits. This Court in Collector, Land Acquisition, Anantnag v. Mst. Katiji (1987)ILLJ 500 SC held that the expression 'sufficient cause' employed by the legislature in the Limitation Act is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice-that being the life purpose for the existence of the institution of Courts. It was further observed that a liberal approach is adopted on principle as it is realised that:
Ordinarily a litigant does not stand to benefit by lodging an appeal late.
Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
'Every day's delay must be explained' does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."
Hon'ble High Court of Gujarat in The Municipal Corporation of.. Vs. Manish Enterprises Ltd., AIR 1993, Guj, 145 has held as follows:-
In my opinion, the Court has to bear in mind the principle of 'substantial justice' and if the expression 'sufficient cause' has to receive liberal construction, in the facts and circumstances of the case, sufficient cause can be said to have been made out by the applicant. For that purpose, in my opinion, it is altogether immaterial whether the advocate could have telephoned the officer concerned; whether the said officer could have immediately rushed to the advocate in the High Court; or whether the appeal could have been filed little earlier. The question is whether there is inaction, negligence or want of bona fides as observed by the Supreme Court. According to me, it cannot be said that any of the above elements is present in the instant case. 'Sufficient Cause' has been made out by the applicant Corporation in approaching this Court in filing the appeal and accordingly delay is required to be condoned.
In my judgment, the legal position cannot be disputed that the provisions of the law of limitation must be applied to all persons equally and uniformly. Government departments and local authorities cannot claim any privilege in that regard and they must be treated on par with private individuals. However, as observed by the Supreme Court, the realities of life also cannot altogether be ignored. Whereas a private individual takes a decision one way or the other almost instantaneously, a democratic government or a bureaucratic department hesitates and halts, discusses and debates, considers and consults, peeps through papers and files, speaks through notes and drafts, moves horizontally and vertically till at last it gravitates towards a conclusion, unmindful and oblivious of urgency and emergency.
Looking to the principles laid down by the Hon'ble Supreme Court arid applying them to the case on hand keeping in mind, the hard realities, I have no hesitation in holding that there is no inaction, want of bona fides or negligence on the part of the applicant Corporation in approaching this Court and delay of 38 days should be condoned in the larger interest of justice."
The Hon'ble Supreme Court in another case N. Balakrishnan Vs. M.Krishnamurthy, (1998) Supp. 1 SCR 403, has laid down the following:-
"11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis Mum (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" Under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain V. KuntalKumari, MANU/SC/0335/1968: [AIR 1969 SCR1006 and State of West Bengal Vs. The Administrator, Howrah Municipality, MANU/SC/0534/1971: [1972]2SCR874a.
It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss."
The above judgments seem to be equally applicable in the present case and the application for condonation of delay is allowed at a cost of Rs.2 lacs.
It has been argued by the learned counsel for the appellants that the State Commission has allowed the complaint on the ground that the peril of storm was attracted in the case and the definition of storm as given in Oxford English Dictionary Thumb Index Edition allows only heavy rains along with thunder though unaccompanied by strong winds to be considered as storm. It has been argued that both these grounds taken by the State Commission are not correct. The complainant has nowhere informed that there was any storm and peril of storm was attracted. The information sent to the police and information sent to the Insurance Company both only mention damage due to rainfall and there is no mention of storm. Thus, the peril of storm as understood in its natural meaning was not attracted. The Hon'ble Supreme Court in United India Insurance Co. Ltd. Vs. Harchand Rai Chandan Lal, (2004) 8 SCC 644, has observed:-
"6. ....The terms of the policy have to be construed as it is and we cannot add or subtract something: Howsoever liberally we may construe the policy but we cannot take liberalism to the extent of substituting the words which are not intended.
...It is settled law that terms of the policy shall govern the contract between the parties, they have to abide by the definition given therein and all those expressions appearing in the policy should be interpreted with reference to the terms of policy and not with reference to the definition given in other laws. It is a matter of contract and in terms of the contract the relation of the parties shall abide and it is presumed that when the parties have entered into a contract of insurance with their eyes wide open, they cannot rely on definition given in other enactment.
Therefore, it is settled law that the terms of the contract has to be strictly read and natural meaning be given to it. No outside aid should be sought unless the meaning is ambiguous."
The word 'storm' is not defined in the policy and its natural meaning that is normally understood is high velocity winds accompanied or unaccompanied by rainfall or thunder. The above referred judgment of the Hon'ble Supreme Court says that an insurance claim should be understood in its natural terms and outside help may not be sought. However, in the present case, the natural meaning has not been accepted by the State Commission. The State Commission has relied on the meaning of storm as given in the Oxford English Dictionary Thumb Index Edition as "Occas., a heavy fall of rain, hail, or snow, a violent outbreak of thunder and lightning, unaccompanied by strong wind". The question arises as to why the meaning of only one particular English dictionary should be considered whereas, there are national and international organizations relating to meteorology and it should be explored as to what do these organizations say about the storm. The definition of storm by World Meteorological Organization as taken out from their website is as follows:-
"Storm
(1) An atmospheric disturbance involving perturbations of the prevailing pressure and wind fields, on scales ranging from tornadoes (1km across) to extratropical cyclones (2000-3000 km across).
(2) Wind with a speed between 48 and 55 knots (Beaufort scale wind force 10). (source: International Meteorological vocabulary, WMO-No.182)"
From the above definition, it is seen that this definition does not correspond with the definition given by the said Oxford English Dictionary Thumb Index Edition. Moreover, even if the definition of the said Dictionary is accepted, there has to be heavy rainfall as per the definition. The State Commission has observed the following:-
"Complainant also submitted Annexure C15, copy of daily data, maintained by the Meteorological Department, with regard to the rain. As per this document, total rainfall in Nahan Block was 84 mm in the month of January, out of which 41.2 mm rainfall took place on 18.01.2014, i.e. the day on which the shed collapsed. Kala Amb is at a distance of fifteen to sixteen kilometers from Nahan, by road. The aerial distance, may not be more than 3-4 Kilometres. Kala Amb is located at the foot of the hill, on the top of which Nahan is located. Document conclusively proves that on the day of occurrence, there was heavy rainfall in the area."
The State Commission has observed that the rainfall in area was 41.2mm on 18.01.2014 the date of incident. As this rain fall is in India one has to see whether this rainfall is a heavy fall of rain or not. The categorisation of high rainfall given by the Indian Meteorological Department in their website is mentioned below :-
"Intensity of Rainfall
Descriptive Term used
Rainfall amount in mms
No Rain
0.0
Very light Rain
0.1-2.4
Light Rain
2.5-7.5
Moderate Rain
7.6-35.5
Rather Heavy
35.6-64.4
Heavy Rain
64.5-124.4
Very Heavy Rain
124.5-244.4
Extremely Heavy Rain
244.5
Exceptionally Heavy Rain
When the amount is a value near about the highest recorded rainfall at or near the station for the month or season. However, this term will be used only when the actual rainfall amount exceeds 12 cm
Exceptionally Heavy Rain When the amount is a value near about the highest recorded rainfall at or near the station for the month or season. However, this term will be used only when the actual rainfall amount exceeds 12 cm.
From the above information, it would be clear that rain fall of 41.2 mm cannot be called heavy rainfall and it only comes in the category of 'rather heavy'. Thus, even if one goes by the definition of storm as accepted by the State Commission as given in the Oxford English Dictionary Thumb Index Edition, the criterion is not satisfied because it was not heavy rain as per the Indian Meteorological Department data on the date of incident.
On the basis of the above discussion, I find merit in the present appeal and it is found that the peril of storm is not attracted in the present case going by any definition of storm. The peril of rains is admittedly not covered under the policy. Consequently, the First Appeal No.35 of 2016 is allowed and the order of the State Commission dated 10.08.2015 is set aside and the complaint is also dismissed. However, the appellants shall pay an amount of Rs.2,00,000/- (rupees two lakhs only) to the complainant for condoning the delay in filing the appeal.