Madras High Court
The New India Assurance Company ... vs M/S.Opg Energy (P) Ltd on 3 January, 2022
O.S.A. Nos.282 & 283 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.01.2022
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
O.S.A.Nos.282 & 283 of 2018
1.The New India Assurance Company Ltd.
rep. by its Divisional Manager,
Divisional Officer:710300,
No.603, Anna Salai,
Chennai-6.
2.The New India Assurance Company Ltd.,
rep. by its Regional Manager,
2nd Floor, B-Block “Mac Milan House”,
No.21, Pattulos Road,
Chennai-6. .. Appellants in both the appeals
Vs.
M/s.OPG Energy (P) Ltd.,
Rep. by its General Manager,
No.117, P.S.Sivasamy Salai,
Mylapore, Chennai-4. .. Respondent in O.S.A. No.282 of 2018
M/s.Swiss Park Vanijya (P) Ltd.,
rep. by its General Manager,
No.167, St. Marry's Road,
Alwarpet, Chennai-18. .. Respondent in O.S.A. No.283 of 2018
Prayer in both the appeals : Original Side Appeals filed under Order
XXXVI Rule 1/11 of O.S. Rules r/w Clause 15 of Letters Patent against
the Judgment and Decree dated 03.01.2018 in C.S. Nos.856 & 857 of
2013.
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For Appellants in both the appeals : Mr.V.Ganesan
For Respondents in both the appeals : Mr.Vinodkumar
COMMON JUDGMENT
[Judgment of this Court was delivered by T.RAJA, J.]
These Original Side Appeals have been filed by the New India
Assurance Company Ltd. questioning the correctness of the reasonings
given by the learned Single Judge in rejecting the repudiation made by
the Insurance Company for the payment of claim amounts.
2.Learned counsel appearing for the Insurance Company/
appellants submitted that when the policies covers only the risk of
damage having been caused by storm, the respondents were not able
to prove that on the date of the alleged occurrence, there was storm,
cyclone, typhoon, tempest, hurricane, tornado, flood or inundation etc.
Though the area in which the factory of the respondents situate had
experienced bad weather during May 2012, there was no severe
cyclonic storm as alleged by the respondents. Relying upon the Beaufort
Wind Force Scale, learned counsel appearing for the appellants argued
that the velocity of the wind has been reported only at 32 km per hour
even according to the IMD report and therefore, there was neither
storm nor hurricane in the area of the respondents on 13.05.2012 and
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there is no survey report to show that there was a shortage of
production of electricity immediately after the alleged accident.
2.1.Therefore, written statement has been filed by the appellants
stating that the suits suffer from want of jurisdiction as this Court does
not have jurisdiction to try the cases; there is no severe cyclonic storm
with hurricane wind, rain and lightening in and around the factory area
on 13.05.2012; there is no evidence to show that owing to storm the
insured property, being solar panels and other materials, were badly
damaged and that the solar panels were thrown away and got spread
over within the premises of the factory area; weather report issued by
the Meteorological Department is an evidence to show that cyclonic
storm took place in and around the respondents' factory on the said
dates and on the alleged date of loss, the wind speed was reported only
at 32 km/h and on the consecutive days, not exceeding 14 km/h and
the rainfall was also insignificant; as per Beaufort Wind Force Scale, an
empirical measure that relates to wind speed, storm could be described
when the wind speed is between 89-102 km/h and there was violent
storm when the wind speed is between 103-117 km/h. and therefore,
even as per the weather report issued by the Meteorological
Department, the speed of the wind on the relevant date was only 32
km/h. Since the policies cover only the risk of damage being caused by
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storm and not due to fresh breeze, there was no storm, typhoon, flood
etc. on the alleged date of occurrence; as per terminologies and
glossary published by Indian Meteorological Department, cyclonic storm
has been defined as 'intense low pressure system' represented on a
synoptic chart by more than four closed isobars at 2hPa interval; the
surveyor deputed by the appellants, upon investigation in the premises
of the respondents, had found out that the solar panels have been
damaged in transit during October-November 2011; if the storm would
have taken place as alleged by the respondents, the tables of the entire
power plant could have been uprooted and the whole 1,15,000 solar
panels would have been damaged. Thus, the alleged loss is not due to
storm, but, due to the damage caused to the solar panels in transit and
hence, the respondents' claim is nothing but bogus.
2.2.Learned counsel appearing for the appellants further
submitted that the surveyor had suggested to collect the damaged solar
panels, which were spread across the premises of the factory and keep
them at the site of the factory for his verification. However, no
damaged panels were available at the place, where they were alleged to
have been damaged and the damaged solar panels chart provided to
the Surveyor were totally mis-matched with the physical verification
and the quantity mentioned was not available for inspection. Further,
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the percentage claimed was hardly 1.21% of the total number of panels
and they were spread across the plant and in such manner, the damage
cannot be attributed to any storm. If the damage had taken place due
to storm, it would indicate a clear pattern, which was completely absent
in the instant cases. Since the claim for damages to solar panel itself is
not found sustainable, as a natural corollary, the alleged claim arising
under the Business Interruption Policy becomes inadmissible and there
is no drop in generation of power, either before or after the alleged
incident. Learned counsel appearing for the appellants further submitted
that the respondents have not carried out the replacement of the
damaged solar panels even as on 26.11.2012, when the Surveyor had
visited the respondents' factory for inspection for the second time.
Therefore, the respondents have misconstrued and mis-conceived the
scope and purview of the policy document. Hence, the allegation of the
respondents that the appellants denied their claim as illegal, arbitrary
and unjustified is untenable. Since the respondents are attempting to
make good the loss that might have been caused to the solar panels
due to other reasons and that the damage having not been caused due
to any one of the factors covered by the policy, the appellants
Insurance Company cannot be made liable. Without considering these
aspects, after framing issues, the learned Single Judge, based on
Ex.P4/weather report issued by the Meteorological Department, Jaipur
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dated 02.07.2012 and Ex.P6/photographs of the final loss assessment
report of Surveyor dated 12.01.2013, came to the conclusion that the
appellants are liable to accept the amount quoted by the Surveyor in his
report marked as Ex.P6 and decreed the suits for the sum of
Rs.72,05,559/- and Rs.19,49,994/- with interest at 9% per annum.
Therefore, the same are liable to be set aside.
2.3.With regard to the jurisdiction to try the cases before this
Court, learned counsel appearing for the appellants submitted that
though the insurance policies have been issued in Chennai, the
jurisdiction to try the cases do not vest with this Court and the cause of
action for the suits has wholly arisen outside the jurisdiction of this
Court, namely, the loss or damage said to have caused to the insurer,
was occurred only in Jodhpur District, State of Rajasthan.
3.Opposing the above submission made by the learned counsel
appearing for the appellants, learned counsel appearing for the
respondents submitted that the respondents are manufacturers of
Power generating from Solar Energy and supplying power to its
customers including Central Government and State Government
undertakings, who obtained Fire and Special Perils Policy (Material
Damage) Nos.71030011110100000135 and 71030011110100000134
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and Business Interruption (Fire) Policy Nos.71030011110500000002
and 71030011110500000003 concurrently from the first appellant
covering the risk on 5 MW Solar Power plant inclusive of Solar panels
installed at the plant, transformer cables, electrical equipments and
other miscellaneous assets, civil works on plant, machinery and building
against the loss/damage caused by Fire, Lightening, Explosion/
Implosion, Bush Fire, Missile testing operations, Impact damage due to
rail, road vehicle or animal, Aircraft damages, Bursting/Overflowing of
water tanks/Pipes/Apparatus, Sprinkler Leakage, Storm, Cyclone,
Typhoon, Hurricane, Tornado flood and Inundation, riot, strike,
malicious damage, earthquake for the property located at Bap Village,
Phalodi Taluk and Tinwari Village, Tehsil Osian, Jodhpur District in the
State of Rajasthan respectively. Learned counsel appearing for the
respondents further submitted that the period of insurance commences
from 29.02.2012 to 27.02.2013 and the sum insured were
Rs.78,00,00,000/- (Rupees Seventy Eight Crores) and
Rs.75,00,00,000/- (Rupees Seventy Five Crores) respectively and the
respondents have paid premium of Rs.1,56,006/- and Rs.1,50,008/- in
consideration of risk accepted by the first appellant and the sum of
Rs.32,959/- and Rs.32,960/- in business interruption (Fire) Policy and
that the first appellant issued Fire policy alone subject to the
reinstatement value clause and they have also issued consequential loss
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(Fire) Policy covering Gross profit of Rs.12,00,00,000/- with Indemnity
period of 6 months commencing from 29.02.2012 to 27.02.2013 with
exclusion of 14 days and the risk covered are as per Standard Fire and
Special Perils Policy and that the appellants agrees to pay the
loss/damage be destroyed or damaged by the perils covered under the
Fire policy and/or interrupted or interfered with.
3.1.Learned counsel appearing for the respondents further
submitted that the appellants also agree to pay the respondents under
Consequential Loss (Fire) Policy that if any building or other property or
any part thereof used by the insured at the premises for the purpose of
Business, be destroyed or damaged by the perils covered under the fire
policy and the business carried on by the insured at the premises be in
consequence thereof interrupted or interfered with, then the Company
will pay the insured in respect of each item, namely, the amount of loss
resulting from such interruption or interference in accordance with the
provision contained therein. While so, on 13.05.2012, “Severe Cyclonic
Storm” with Hurricane wind and rain and lightening has been occurred
in and around the factory area from 00:50 to 02:10, 20:35 to 23:35
hours IST and continued on the following days accompanied by rain,
Storm, Cyclone, Typhoon, Tempest, Hurricane, Tornado, Flood and
Inundation (STFI Cover). As a result, the insured property namely,
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Solar Panels and other materials were badly damaged and thin sheets
of solar panels thrown away, were erected on the table and spread over
within the premises of factory area. Learned counsel appearing for the
respondents also submitted that the weather report issued by the office
of the Director of India Meteorological Department (IMD), Jaipur Station
dated 02.07.2012 for the period from 11.05.2012 to 16.05.2012 is an
evidence to show that the cyclonic storm took place in and around the
respondents' factory on various dates and the said occurrence had also
been reported in local newspaper. Since the same was duly reported to
the first appellant requesting him to register a claim in the claim
register and depute a Surveyor to assess extent of loss suffered due to
damage caused to the insured property by STFI perils, the Surveyor had
visited the factory on 29.05.2012 and conducted preliminary survey at
the factory and submitted his report directly to the insurer without
giving a copy of the preliminary survey report to the respondents.
Thereafter, the Surveyor suggested the respondents' Manager to collect
all the damaged Solar Panels, which were spread over within the
premises of factory and keep them at the site of factory for his
verification. Accordingly, the respondents, by engaging a technical staff,
collected all the damaged Solar Panels and other materials from the
factory area and kept on the site of factory. Again on 26.11.2012, the
Surveyor came to the factory and verified the damaged materials and
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advised the respondents to submit a claim bill/estimate of loss suffered
due to the damaged caused to the insured property by STFI perils.
Accordingly, the respondents had imported new solar panels from
abroad and replaced all damaged solar panels to workable condition and
submitted actual loss for Rs.1,16,68,921/- and Rs.58,64,642/- under
Fire and Special Peril Policy and the sum of Rs.23,79,150/- and
Rs.21,66,037/- under Business Interruption (Fire) Policy.
3.2.Learned counsel appearing for the respondents further
submitted that since the second appellant misconstrued the scope of
policy and legal definition of 'Storm' defined in the dictionary, the
reasons stated by the second appellant are wrong and contrary to the
facts of the case. Moreover, the appellants did not consider the weather
report issued by the Office of the Director of Meteorological
Department, Jaipur. Since the reasons stated by the second appellant
are not supported by the legal evidence except on the observation of
Surveyor, the rejection of the claim by the second appellant is unjust
and unfair. Though the cause of loss has already been reported by the
Surveyor, who has given his report stating the damages to the solar
panels due to strong wind and the Surveyor has also submitted his final
assessment report on the basis of the self assessment of loss assessed
by the respondents/Insured and the same was taken into consideration
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by the Surveyor, the second appellant has not properly appreciated the
legal definition of Storm defined in the law dictionary and General
Clause Act. Therefore, the respondents are liable to indemnify the
insured to the extent of actual loss suffered by them in view of risk
covered under the Fire Policy and it is an obligation on the part of the
appellants to settle the claim of the respondents, as the insured
properties were extensively damaged due to STFI Perils covered under
the Policies. Further, the occurrence took place during the period of
insurance and the occurrence of loss due to storm was supported by
legal evidence such as weather report, photographs and also bills and
invoices.
3.3.Learned counsel appearing for the respondents further
submitted that since all the efforts of the respondents' in recovering the
amount of compensation from the appellants went in vain and the
appellants have failed and neglected to pay the amount of claim of
insured, in spite of respondents' legal notice to the appellants, the
respondents are constrained to approach this Court to recover the
compensation of Rs.1,40,48,071/- and Rs.80,30,679/- and the sum of
Rs.25,28,640/- and Rs.14,45,508/- towards interest, which totally
comes to Rs.1,65,76,711/- and Rs.94,76,187/- respectively payable to
the respondents arising out of Contract of Insurance by instituting the
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suits. When the Insurance Company, accepting the request of the
respondents, has appointed the Surveyor, who is none other than the
officer of the Insurance company, assessed the loss at Rs.72,05,559/-
and Rs.19,49,994/- and the same have also been accepted by the
learned Single Judge as the amount payable to the respondents, the
contentions made by the learned counsel appearing for the appellants
and the grounds raised in these appeals filed by the Insurance company
challenging the correctness of the findings and the conclusion reached
by the learned Single Judge are wholly un-acceptable and un-justifiable.
Therefore, the same are liable to be dismissed.
3.4.With regard to the jurisdiction to try the cases before this
Court, learned counsel appearing for the appellants submitted that since
the cause of action for the suits arose in Chennai and the policies were
issued in Chennai and the appellants have carried on business in
Chennai within the jurisdiction of this Court, the respondents have come
to this Court with the above suits.
4.Heard the learned counsel appearing for the appellants and the
learned counsel appearing for the respondents.
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5.It is the case of the respondents plaintiffs that on 13.05.2012, a
“Severe Cyclonic Storm” with Hurricane wind, rain and lightening
occurred in and and around the factory area from 00:50 to 02:10,
20:35 to 23:35 hours IST and continued on the following days
accompanied by rain, Storm, Cyclone, Typhoon, Tempest, Hurricane,
Tornado, Flood and Inundation (STFI Cover). As a result, the insured
property, namely, Solar Panels and other materials were badly
damaged and thin sheets of solar panels thrown away due to storm,
were erected on the table and spread over within the premises of the
factory area of the respondents. Learned counsel appearing for the
appellants also submitted that the weather report issued by the office of
the Director of India Meteorological Department (IMD), Jaipur Station
dated 02.07.2012 for the period from 11.05.2012 to 16.05.2012 is an
evidence to show that the cyclonic storm took place in and around the
respondents' factory on various dates and the said occurrence had also
been reported in local newspaper. In this regard, on 26.11.2012, the
Surveyor came to the respondents' factory and verified the damaged
materials and advised them to submit a claim bill/estimate of loss
suffered due to damaged caused to the insured property by STFI perils.
Despite the same, the appellants have not come forward to pay the
amount of claim of insured. Since the cause of action for the suits arose
in Chennai, the policies were issued in Chennai and the appellants were
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carried on business in Chennai, within the jurisdiction of this Court, the
respondents have come to this Court to recover the compensation of
Rs.1,40,48,071/- and Rs.80,30,679/- and the sum of Rs.25,28,640/-
and Rs.14,45,508/- towards interest, which totally comes to
Rs.1,65,76,711/- and Rs.94,76,187/- respectively payable to the
respondents.
6.It is the case of the appellants that when the policies covered
only the risk of damage having been caused by storm, the respondents
were not able to prove that on the date of alleged occurrence there was
storm, cyclone, typhoon, tempest, hurricane, tornado, flood or
inundation etc. Though the area in which the factory of the respondents
situated had experienced bad weather during May 2012, there was no
severe cyclonic storm as alleged by the respondents. When the velocity
of the wind has been reported only at 32 km per hour even according to
the IMD report and there was no survey report to show that there was
shortage of production of electricity immediately after the alleged
accident, there was neither storm nor hurricane in the area of the
respondents on 13.05.2012 as alleged by them. Though the insurance
policy has been issued in Chennai, the jurisdiction to try the cases do
not vest with this Court. When the cause of action, being loss or
damage to the insurer, had occurred in Jodhpur District, State of
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Rajasthan, the suits suffer from want of jurisdiction as this Court does
not have any jurisdiction to try the cases. Thus, the alleged loss is not
due to storm, but due to damage caused to the solar panels in transit
and hence, the respondents' claim is nothing but bogus.
7.On the above pleadings, this Court had framed the following
issues and on the side of the respondents, marked Exs.P1 to P12 and
examined one witness, namely, Sudhir Singhi as P.W.1 and on the side
the appellants, marked Exs.D1 and Ex.D2 and examined one witness,
namely, Vijaykumar Sadanand Saokar as D.W.1.:
'1.Whether the plaintiffs is entitled to the suit claim with
interest?
2.Whether this Court has got jurisdiction to try the suit?
3.Whether the alleged loss is due to cyclonic storm?
4.Whether the claim of the plaintiffs on Business Interruption
Policy is admissible?
5.Whether the rejection of the policy claims by the defendant
is valid?'
8.In this regard, in order to reach a logical conclusion, this Court
frames the following questions:
'1.Whether there was a severe cyclonic storm on
13.05.2012?
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2.Whether the respondents are entitled to file the suits
before this Court as the appellants have raised the plea of
want of jurisdiction of this Court to try these suits?
3.Whether the rejection of the policies made by the
appellants was valid?'
9.It is not in dispute that a severe cyclonic storm had occurred on
13.05.2012 accompanied by a Hurricane wind, rain and lightening, in
and around the factory premises and continued on the following dates
accompanied by rain, Storm, Cyclone, Typhoon, Tempest, Hurricane,
Tornado, Flood and Inundation (STFI Cover) and as a result, the insured
properties, namely, Solar Panels and other materials were badly
damaged. When Ex.P4/weather report issued by the office of the
Director of India, Meteorological Department, dated 02.07.2012, Jaipur
Station for the period from 11.05.2012 to 16.05.2012 and the local
newspaper report would confirm that there was a severe cyclonic storm
on 13.05.2012 in and around the factory area of the respondents and
the Insurance Company, accepting the request of the respondents, has
appointed the Surveyor, who is none other than the officer of the
Insurance company, assessed the loss at Rs.72,05,559/- and
Rs.19,49,994/-, we are of the view that there was a severe cyclonic
storm on 13.05.2012. Moreover, the New Webster's Dictionary defines
'storm' as “a disturbance of normal condition of the atmosphere,
manifesting itself by winds at an unusual force or direction, often
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accompanied by rain, snow, hail, thunder and lightening are flying sand
or dust. Therefore, the first question is answered accordingly.
10.Anticipating the risk, the respondents have obtained Fire and
Special Perils Policy and Business Interruption Policy from the appellants
covering the risk at 5 MW solar power plant inclusive of solar panels
installed at the plant, transformer cables, electrical equipments and
other miscellaneous assets, civil works on plant, machinery and building
against the loss/damage caused by Fire, Lightening, Explosion/
Implosion, Bush Fire, Missile testing operations, Impact damage due to
rail, road, vehicle or animal, Aircraft damages, Bursting/Overflowing of
water tanks/Pipes/Apparatus, Sprinkler Leakage, Storm, Cyclone,
Typhoon, Hurricane, Tornado flood and Inundation, riot, strike,
malicious damage, earthquake for the property located at Bap Village,
Phalodi Taluk and Tinwari Village, Tehsil Osian, Jodhpur District in the
State of Rajasthan respectively. The appellants also accepting the risk,
issued the Fire and Special Perils Policy (Material Damage)
Nos.71030011110100000135 and 71030011110100000134 and
Business Interruption (Fire) Policy Nos.71030011110500000002 and
71030011110500000003 to the respondents. When the risk has been
covered as per the above policies, the respondents, having suffered the
severe cyclonic storm causing huge damage to the solar panels and
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other materials, are entitled to make a claim before the appellants.
Since they are failed and neglected to pay the amount of claim of
insured, the respondents have come to this Court by filing the above
suits. As the registered office of the respondents is situated at Chennai
and the policies were issued in Chennai, the entire cause of action has
rightly arisen within the jurisdiction of this Court at Chennai and
therefore, the respondents have rightly come before this Court.
Therefore, the second question is answered accordingly.
11.While coming to the third question namely, whether rejection
of the policies made by the appellants was valid, it could be seen from
the two material evidences namely, Ex.P4/the weather report issued by
the office of the Director of India, Meteorological Department, dated
02.07.2012, Jaipur Station for the period from 11.05.2012 to
16.05.2012 and the local newspaper report that on 13.05.2012,
“Severe Cyclonic Storm” with Hurricane wind and rain and lightening
has been occurred in and around the factory area from 00:50 to 02:10,
20:35 to 23:35 hours IST and continued on the following days
accompanied by rain, Storm, Cyclone, Typhoon, Tempest, Hurricane,
Tornado, Flood and Inundation (STFI Cover). As a result, the insured
property namely, Solar Panels and other materials were badly damaged
and thin sheets of solar panels thrown away, were erected on the table
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and spread over within the premises of factory area. Since the same
was duly reported to the first appellant requesting him to register a
claim in the claim register and depute a Surveyor to assess the extent
of loss suffered due to damage caused to the insured property by STFI
perils, the Surveyor had visited the factory on 29.05.2012 and
conducted preliminary survey at the factory and submitted his report
directly to the insurer, without giving a copy of the preliminary survey
report to the respondents. Thereafter, the Surveyor suggested the
respondents' Manager to collect all the damaged Solar Panels, which
were spread over within the premises of factory and keep them at the
site of factory for his verification. Accordingly, the respondents, by
engaging a technical staff, collected all the damaged Solar Panels and
other materials from the factory area and kept on the site of factory.
Again on 26.11.2012, the Surveyor came to the factory and verified the
damaged materials and advised the respondents to submit a claim
bill/estimate of loss suffered due to the damaged caused to the insured
property by STFI perils. Ex.P6/Series are the photocopies of the final
loss assessment report of Surveyor dated 12.01.2013. When the
appellants, accepting the risk, issued the Fire and Special Perils Policy
(Material Damage) Nos.71030011110100000135 and
71030011110100000134 and Business Interruption (Fire) Policy
Nos.71030011110500000002 and 71030011110500000003 to the
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respondents and their own Surveyor, deputed by the appellants,
assessing the final loss, has given his assessment report dated
12.01.2013, the rejection of the policies made by the appellants was
not valid. Therefore, the third question is answered accordingly.
12.Though an argument made by the learned counsel for the
appellants before us is that Ex.P4/weather report issued by the
Meteorological Department, Jaipur dated 02.07.2012 is against the
terms of the Insurance policy and the same could not be accepted,
Ex.P2/series of Standard Fire and Special Perils Policy bearing Policy
No.71030011110100000135 dated 08.03.2012 and Ex.P3/series of
business interruption (Fire Policy) bearing No.71030011110500000002
dated 13.03.2012 showing the period of insurance from 29.02.2012 to
27.02.2013, at no point of time, has specified the default committed by
the respondents.
13.Since there is no error or infirmity in the judgment passed by
the learned Single Judge and the appellants have erroneously rejected
the claim of the respondents, we are of the considered view that these
appeals are liable to be dismissed with costs of Rs.50,000/- each
payable to the respondents. Accordingly, these appeals are dismissed
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with costs of Rs.50,000/- each payable by the appellants to the
respondents.
(T.R.,J.) (D.B.C.,J.)
03.01.2022
Index : Yes / No
Speaking/Non speaking order
vga
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T.RAJA,J.
and
D.BHARATHA CHAKRAVARTHY, J.
vga
O.S.A.Nos.282 & 283 of 2018
03.01.2022
https://www.mhc.tn.gov.in/judis
