Regular Second Appeal No. 1378 of 2007 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 1378 of 2007 Date of decision : November 22, 2010 M/s Sarhaddi Iron & Steel Mills and others ....Appellants versus National Insurance Company Limited & others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. R.K. Bashamboo, Advocate, for the appellants Mr. Suvir Dewan, Advocate, for respondent nos. 1 and 3 Mr. Vikas Mohan Gupta, Advocate, for respondent no. 2 L.N. Mittal, J. (Oral) This is second appeal by plaintiffs no. 1, 2 and 4 after remaining unsuccessful in both the courts below. Suit was filed by appellants and respondent no. 4 against respondent nos. 1 to 3. Building and machinery of the plaintiffs was allegedly insured with National Insurance Company Limited (defendants no. 1 and 3). The insurance policy had been taken out by defendant no.2– Punjab Financial Corporation from which the plaintiffs had taken loan. The plaintiffs' case is that on the night between 9/10.5.1987 there was wind storm in which the factory of the plaintiffs caught fire by lightening and Regular Second Appeal No. 1378 of 2007 -2- consequently walls and roof of shed had fallen and were damaged by fire, storm and lightening. Defendants no. 1 and 3, however, rejected insurance claim lodged by the plaintiffs with them. The said rejection was challenged in the suit being arbitrary, illegal etc. The plaintiffs accordingly sought recovery of ` 4 lacs i.e. ` 2,60,000/- being insurance amount of loss and ` 1,40,000/- being interest thereon for pre-suit period. Defendant no. 2 admitted the insurance policy but denied the incident of storm and lightening and damage to the property of the plaintiffs by the same. On the contrary, in intimation dated 14.5.1987 sent by the plaintiffs to defendant no. 2 it was intimated that the loss was caused to wood, diesel and other articles catching fire on account of wind storm. Surveyor of the Insurance Company, however, found that there was no fire. Defendants no. 1 and 3 also while admitting insurance policy, controverted other averments of the plaintiffs. It was pleaded that insurance claim lodged by the plaintiffs was rightly rejected because the same was not covered by the policy. No fire of any kind had occurred. Roof had fallen probably on account of neglect about six months prior to the alleged occurrence as the factory seemed to have been deserted. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Amritsar vide judgment and decree dated 18.9.2002 dismissed the plaintiffs' suit. First appeal preferred by plaintiffs no. 1, 2 and 4 stands dismissed by learned District Judge, Amritsar vide judgment and decree dated 1.3.2006. Feeling aggrieved, the plaintiffs have preferred the instant second appeal. I have heard learned counsel for the parties and perused the Regular Second Appeal No. 1378 of 2007 -3- case file. Learned counsel for the appellants contended that terms and conditions of the insurance policy could not be proved in the trial court as the insurance policy which was in possession of the defendants was not produced by them and application for additional evidence moved before the lower appellate court for summoning officials of the defendants to produce the insurance policy has been erroneously dismissed by lower appellate court. I have considered the aforesaid contention but find no merit therein. Even according to the terms and conditions of the insurance policy now placed on record at pages 64 to 76 of the paper book, it was fire insurance policy. However, plaintiffs have failed to prove that alleged loss to their factory was caused by fire. On the other hand, it is the case of the plaintiffs that loss was caused due to wind storm and lightening resulting in fire. However, loss by wind storm is not covered as loss by typhoon, hurricane, tornado, cyclone or other atmospheric disturbance has been specifically excluded from the purview of the policy. Occurrence of the fire in the factory is not proved by the plaintiffs. On the other hand, according to plaintiffs' own evidence, it had also rained at the time of alleged occurrence. Consequently, the factory could not have caught fire on account of lightening while it was raining. Loss by wind storm is not covered by the insurance policy as loss by atmospheric disturbance or typhoon is excluded from the purview of the policy. Thus, even if the proposed additional evidence had been allowed by the lower appellate court it would have not served any purpose. Regular Second Appeal No. 1378 of 2007 -4- For the reasons aforesaid, I find no merit in the instant second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. Accordingly, the appeal is dismissed. ( L.N. Mittal ) November 22, 2010 Judge 'dalbir'