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Judgment
THIS appeal filed by the org. O.P. in C -45/04 is directed against the order dated 2.2.2005 passed by District Consumer Forum, Thane.
IN brief, facts giving rise to this appeal are as under : Respondent No. 1 is a Registered Co -operative Housing Society known as Vrundavan Co -op. Housing Society Ltd. Mr. Mahesh Shah is a Secretary of the Housing Society. The Housing Society has 2 residential buildings i.e., Wing A & Wing B. Each building consists of in all 24 flats. The building has ground floor plus 3 storeyed RCC structure. Ground floor of the building is having shop centres used for commercial purpose and upper 3 floors of the building is used for residential purpose. Both the buildings i.e., Wing A and Wing B were connected by means of compound wall provided with M.S. Grill, fencing on the top of the compound wall. The Society had taken a fire policy from the appellant. There was a heavy rainfall on 25th and 26th June, 2002. Thane District in Mahasrashtra was devastated by heavy deluge. The highest rainfall in the Thane District was recorded at Wada, Bhiwandi, Jawhar and Vasai locality. As per newspaper information, the rain fall in 24 hours in above localities was approximately 375 cms. i.e., 15 inches.
THE heavy rains resulted in accumulation of water at the catchment areas of Vaitarna and Surya Dams. The excess water from the dam was discharged. This resulted in release of water into townships and villages at Thane District and in particular all areas referred above. At several places, the highway was submerged under sheet of water and traffic came to a virtual halt for several days. Even the Railway bridge between Palghar and Boisar station was washed away and, therefore, Western Railway services were totally stopped for few days.
AS a result of continuous heavy down pour, high tide in the sea and blockage of drainage system, the major part of Dahanu belt was inundated with flood water. As a result of this, dirty flood water entered in insureds premises resulting in inundation. Because of pressure of water, the compound wall of insured Society was collapsed. There was heavy damage caused to electric meters and cables. Insured preferred a claim for Rs. 2,69,444 for construction of collapsed/damaged compound wall and Rs. 90,530 for repairing the electrical meters and cable wires. On receiving instructions from United India Insurance Co. Ltd., Dahanu Branch office, District Thane, the Surveyor attached to J.B. Boda Surveyors Pvt. Ltd. visited insureds premises on 2.7.2002. The Surveyor inspected the insureds premises in the presence of Secretary of the Society. On local inspection compound wall on Southern, Eastern and Northern side was found collapsed. Electric meters were also found submerged into flood water. On verification of the policy submitted by the insured, it was observed that the insured had covered only building for Rs. 2,26,93,000/ - under Fire Policy.
ACCORDING to the Insurance Company, insured had not covered the compound wall and electrical fittings. Insurance Company, therefore, came to the conclusion that claim preferred by the insured was not tenable as per the terms and conditions of the policy issued to and held by the insured. Consequently, claim preferred by the insured was repudiated.
FEELING dissatisfied by the repudiation of the claim by the Insurance Company, the Housing Society through Mr. Mahesh Shah filed Consumer Complaint No. 45/2004, before the District Consumer Forum, Thane. The said complaint was resisted by the Insurance Company. According to the Insurance Company, compound wall not being the part of the main building and electric installations were not insured. The Insurance Company maintained that repudiation of the claim was justified.
DISTRICT Consumer Forum after perusal of the record and after having heard the rival submissions advanced at the Bar, allowed the complaint and directed the Insurance Company to pay a sum of Rs. 4,34,355 to the complainant within 3 months from the date of receipt of the order.
FEELING aggrieved by the impugned order passed by the District Consumer Forum, Thane, original O.P. has filed this appeal. We heard the learned Advocate Mr. A.S. Vidyarthi for the appellant. Learned Advocate Mr. Vidyarthi vehemently submitted before us that the compound wall is not part and parcel of the main building and, therefore, risk of the compound wall is not covered. He further submitted that only 2 buildings i.e., A Wing and B Wing were insured by the Housing Society. Learned Advocate Mr. Vidyarthi brought to our notice the proposal form and the Surveyors report. We do not agree with the learned Advocate Mr. Vidyarthi. The object and purpose for which the compound wall is constructed are some of the factors required to be taken into account. It is our common experience that before erection of main building compound wall is constructed at the first instance to avoid trespass. Purpose of erection of compound wall is also made to avoid cattle trespass. Main purpose is to protect the land and the builing standing thereon. Because of construction of compound wall, occupants of the flats get additional protection and safety. Compound wall is meant for permanent beneficial enjoyment of the flats. Therefore, the compound is very much necessary for better enjoyment of the building. Therefore, enclosure made of wood, metal and bricks which forms compound wall would necesarily come within the definition of term building. Land under compound wall and the land under two buildings cannot be separated. They are integral part of one plot on which two buildings are erected.
A reference with profit can be made to the decision of the Supreme Court in the case of Municipal Corporation of Greater Bombay and Others v. Indian Oil Corporation, AIR 1991 Supreme Court 686. In the said case issue of taxation was in question with relation to petroleum storage tank. The provisions of Bombay Municipal Corporation Act were under consideration.
IT is observed by the Supreme Court that the definition of word building is inclusive definition bringing within its ambit amongst others every other such structure. The structure must be an entity in itself, although not necessarily a building in itself, adopted to the particular purpose it serves, in its ordinary sense a structure is something which is constructed by way of being built as is a building. It is further observed that under the Act, the incidence of taxation is on the building or land. So the building or its accompaniments like house, outhouse, garage, stable, shed, hut and such other structures must also be an entity by itself although not necessarily a building, erected on the land.
IN the case of Commissioner of Income Tax, Bombay v. M/s. Gwalior Rayon Silk Manufacturing Co. Ltd., AIR 1992 SC 1782, Supreme Court held that building includes the roads laid within the factory premises. In this case Supreme Court observed that roads laid within the factory premises as links or provided approach to the buildings are necessary adjuncts to the factory buildings to carry on business activity.
IN the case of Pune Municipal Corporation, Pune v. Nanasaheb Nagoji Bhosale, AIR 1995 Bombay 164, the Bombay High Court has held that Enclosure i.e., compound wall or fencing made of wood, metal, etc. would come within definition of building, while interpreting the definition of the term building under Sub -section (5) of Bombay Provincial Municipal Corporation Act, 1949. High Court observed that building includes a house, out -house, stable, shed, hut and other enclosure or structure whether of masonry, bricks, wood, mud, metal or any other material whatever, whether used as a human dwelling or otherwise, and also includes verandah fixed platforms, plinths, doorsteps, walls including compound walls and fencing and the like. Having regard to the legal meaning of building, we are of the clear opinion that the compound wall cannot be segregated from the main building. Compound wall is meant for safety and protection of the inmates residing in the flats. Therefore, compound wall is integral part of the main building. Therefore, action of Insurance Company in separating the compound wall from the main building is contrary to the well settled legal position. Repudiation of the claim preferred by the original complainants is not at all justified in law. Impugned order under challenge, therefore, does not suffer from any illegality. Appeal filed by the Insurance Company is without any merits. In the result, we pass following order : ORDER 1. Appeal stands dismissed in limine. 2. No order as to costs. 3. Pronounced and dictated in the open Court. 4. Copies of the order herein to be furnished to the parties. Appeal dismissed.