Case: MAHAVIR ROAD AND INFRASTRUCTURE PVT LTD Vs. IFFCO TOKIO GENERAL INSURANCE CO LTD

& tear which also crerated few pot holes. Policy excludes normal wear & tear, gradual deterioration due to atmospheric conditions (Exclusion C under Section1) & also damage due to movement of traffic, which is by no means fortuitous.” 9. The NCDRC rejected the consumer complaint on several grounds. It held that: (i) The appellant had initially stated in its claim form that the loss had occurred between 25 June 2007 and 5 July 2007. In its letter dated 14 September 2007, the appellant claimed that due to heavy rains on 29 June 2007, the roads were inundated and the top layers were washed out. The report of the Surveyor indicated that the stand taken before it was that the damage had occurred on 2/3 July 2007. Thus, the appellant had not been consistent in the date of the allaged damage;(ii) In breach of the obligation contained in the insurance policy which required that the damage should be immediately notified, intimation was furnished only on 9 July 2007 and there was no explanation for the delay in reporting the damage to the insurer;(iii) According to the Surveyor, there was no evidence of any damage on account of flood water and only surface damage was found. The data of the Meteorological Department indicated minimal rains on the alleged dates of damage;(iv) No expert had been examined by the appellant in support of its claim that rainfall, to the extent that had occurred, would have resulted in severe damage to the road. 10. Mr. Anirudha Joshi, learned counsel appearing on behalf of the appellant, submits that the insurance policy covered damage due to ‘any cause whatsoever’. Hence, it was urged that whether or not the damage had been caused by excessive rainfall was really not material at all since the appellant was entitled to be indemnified for the damage which was sustained to the roads. In this regard, Section 1 of the insurance policy was relied upon, which has been extracted earlier.11. On the alleged failure of the appellant to intimate the insurer of the cause of the loss or damage, learned counsel submitted that Clause 5 of the General Conditions stipulated that the insurer shall not be liable, in any case, when no notice has been received within fourteen days of the occurrence. In the present case, it was submitted that the notice on 9 July 2007 was within a period of fourteen days. On these grounds, it has been submitted that the reasons which have weighed with the NCDRC in dismissing the complaint are unsustainable. 12. On the other hand, it was urged on behalf of the insurer by Mr. Abhishek Mishra, learned counsel that the specific ground on which the claim was filed under the terms of the insurance policy was that there was abnormal rainfall and water logging. This was evidently in pursuance of the provisions of the insurance policy under which flood/inundation constituted the major perils which were within the purview of the insurance cover. Learned counsel has adverted to the claim form, the letter dated 14 September 2007 and the Surveyor’s report dated 21 March 2008. The basis of the claim was found to be false. 13. While analyzing the rival submissions, it must, at the outset, be noted that the basis of the claim which was submitted by the appellant was that there was abnormal rainfall and water logging between 25 June 2007 and 5 July 2007. Subsequently, in its letter dated 14 September 2007, the appellant claimed that it was due to heavy rains on 29 June 2007 that the roads were inundated and the top layer had been washed out. 14. While dealing with this submission, the NCDRC has made the following findings: “As per the data quoted from the Meteorological Department, the rainfall was 15.2 mm on 25.6.2007, 9.2 mm on 26.6.2007, 0 mm on 27.6.2007, 5mm on 28.06.2007, 0 mm on 29.6.2007, 0 mm on 30.6.2007, 10.6 mm on 01.7.2007, 49.2 mm on 02.7.2007 and 116.6 mm on 30.7.2007.” 15. Upon analysing the data which was placed before it, the NCDRC observed: “In fact, there was no rain at all on 29.6.2007 or even on 30.6.2007. In fact, the rainfall from 25.6.2007 to 01.7.2007 was nil or nominal. The rainfall on 02.7.2007 was 49.2 mm, whereas the rainfall on 03.7.2007 was 111.6 mm.” But, it has been urged on behalf of the appellant that, whether or not, there was abnormal rain and water logging is irrelevant because the appellant was entitled to claim in terms of Section 1 of the insurance policy where damage had been caused by any cause other than what was specifically excluded. In this background, it is necessary to note that among the exclusions provided in the insurance policy was normal wear and tear and gradual deterioration due to atmospheric conditions. The case of the appellant was that it was due to excess rainfall that the roads were damaged. By necessary implication, the submission was that this would not constitute normal wear and tear in terms of the exclusions contained in the policy.16. We have adverted to the report of the Surveyor, which found that there was only surface damage and no evidence of the road having been washed out as a result of excessive monsoon rain or inundation.17. That apart, as we have noted from the findings of the NCDRC, the dates on which the alleged damage is stated to have occurred had not witnessed excessive rainfall and the rain was within normal parameters. The failure of the appellant to examine any expert in regard to the cause of the damage is a significant omission which has been correctly relied upon by the NCDRC. The insurance policy specifically excluded normal wear and tear. In order to establish that this was not a case involving normal wear and tear, the appellant sought to rely upon what it described as abnormal rainfall and water logging. The evidence on the record did not sustain the basis of such a claim.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]13. While analyzing the rival submissions, it must, at the outset, be noted that the basis of the claim which was submitted by the appellant was that there was abnormalrainfall and waterlogging between 25 June 2007 and 5 July 2007. Subsequently, in its letter dated 14 September 2007, the appellant claimed that it was due to heavy rains on 29 June 2007 that the roads were inundated and the top layer had been washed out.Upon analysing the data which was placed before it, the NCDRCfact, there was no rain at all on 29.6.2007 or even on 30.6.2007. In fact, the rainfall from 25.6.2007 to 01.7.2007 was nil or nominal. The rainfall on 02.7.2007 was 49.2 mm, whereas the rainfall on 03.7.2007 was 111.6it has been urged on behalf of the appellant that, whether or not, there was abnormal rain and water logging is irrelevant because the appellant was entitled to claim in terms of Section 1 of the insurance policy where damage had been caused by any cause other than what was specifically excluded.In this background, it is necessary to note that among the exclusions provided in the insurance policy was normal wear and tear and gradual deterioration due to atmospheric conditions. The case of the appellant was that it was due to excess rainfall that the roads were damaged. By necessary implication, the submission was that this would not constitute normal wear and tear in terms of the exclusions contained in the policy.16. We have adverted to the report of the Surveyor, which found that there was only surface damage and no evidence of the road having been washed out as a result of excessive monsoon rain or inundation.17. That apart, as we have noted from the findings of the NCDRC, the dates on which the alleged damage is stated to have occurred had not witnessed excessive rainfall and the rain was within normal parameters. The failure of the appellant to examine any expert in regard to the cause of the damage is a significant omission which has been correctly relied upon by the NCDRC. The insurance policy specifically excluded normal wear and tear. In order to establish that this was not a case involving normal wear and tear, the appellant sought to rely upon what it described as abnormalrainfall and waterlogging. The evidence on the record did not sustain the basis of such a claim.