R L Steels and Energy LimitedversusThe New india Assurance Co Ltd

                                 (1)                 FA-2267-2025




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD

                  FIRST APPEAL NO. 2267 OF 2025
                              WITH
               CIVIL APPLICATION NO. 9437 OF 2025
                              WITH
               CIVIL APPLICATION NO. 13699 OF 2025

The New India Assurance Co. Ltd.
Registered Office Address:
New India Assurance Building,
87 M.G. Road, Fort, Mumbai-400 001.
Through its Divisional Manager/Authorized Signatory,
Ajay Engineering Compound,
Adalat Road, Aurangabad,
Dist. Aurangabad                                       ...Appellant
                                                 (Orig. Defendant)
      VERSUS

R. L. Steels and Energy Limited
[ A public Limited company Incorporated under
 Company Law]
Corporate office address: Gat No.78 to 81, 73, 85,
86, 90 and 71, Pangra Shivar, Paithan Road, Chitegaon,
Aurangabad-431005.
Through: Pradip Madhukar Nijampurkar (Director)
Age: 58 years, Occu: Service,
R/o. Plot No.60, Harshdeep, Jawahar Nagar Police
Station Road, Behind Jain Sweet Home, Jai Vishwa
Bharti Colony, Aurangabad-9.                              ...Respondent
                                                         (Orig. Plaintiff)
                                  ...
                                     (2)                 FA-2267-2025


Smt. Anagha Rotte, Advocate for the Appellant.
Mr. P. R. Katneshwarkar, Senior Advocate a/w. Mr. Harshwardhan Karad
i/by Mr. B. B. Yenge, Advocate for Respondent.

                      CORAM                  : KISHORE C. SANT &
                                              SUSHIL M. GHODESWAR, JJ.

                      RESERVED ON            : 8th MAY 2026.
                      PRONOUNCED ON : 22nd JUNE 2026.

ORDER :- [PER- KISHORE C. SANT, J.]

1.    Heard Smt. Rotte, the learned Advocate for Appellant-Insurance

Company and Mr. Katneshwarkar, the Senior Advocate i/by Mr. Yenge,

the learned Advocate for Respondent.

2.    The appellant is the original defendant-Insurance Company

against whom the decree is passed in Special Civil Suit No.118 of 2018

by the learned Civil Judge, Senior Division, Aurangabad. The respondent

is the original plaintiff who filed the said Suit.


3.    By consent of the parties, the Appeal is taken up for final hearing

at the stage of admission, as the record and proceeding is received. The

parties are referred to as per their original status in the Suit for the

purpose of convenience.
                                    (3)                FA-2267-2025


4.    By way of impugned Judgment and Decree, the learned Civil

Judge, Senior Division Aurangabad, has allowed the Suit directing the

defendant to pay an amount of Rs.2,00,94,361/- to the plaintiff with

interest at the rate of 14% per annum from the date of filing of the Suit

till actual realization of the entire amount.



5.    The facts, as appearing from pleadings, giving rise to the present

appeal are as below:


.     the plaintiff is having its steel plant at Pangra Shivar, Chitegaon

Road, Tal. Paithan Dist. Aurangabad. The said is insured with

defendant/Insurance Company vide policy No.45110011160100000421

which was valid till 17.06.2017. The total amount of sum assured was

Rs.280,00,95,000/-. During the period of validity of insurance policy,

there was a storm occurred in the area on 05.07.2016. Due to storm, the

shade of steel melting shop collapsed, causing damage to the machinery

and the building. At the time of storm, it was raining heavily and the

stock of steel got exposed to the rain. Because of coming into contact

with the rain, the steel stock got damaged by oxidization, causing loss to
                                    (4)                  FA-2267-2025


the plaintiff. The First Information Report (FIR) was immediately lodged

with Bidkin Police Station. Intimation of the incident was given to Group

Gram Panchayat Pangra and to the Deputy Director, Industrial Safety

and Health. Intimation was also given to the Defendant and the claim

was raised for Rs.1,87,00,000/-.


6.    It is the case of the plaintiff that after intimation of incident, the

inspection was carried out by the defendant/Insurance Company.

However, the Insurance Company repudiated the insurance claim stating

that there was no record to show that the storm had occurred in the

nearby area or vicinity, and therefore, the policy would not cover such

losses. The plaintiff, therefore, approached the Court of learned Civil

Judge (Senior Division), Aurangabad.



7.    The defendant in written statement denied the occurrence of a

storm on the date of alleged incident. It is stated there was only rain.

The   shed   collapsed    because   of    the   fumes   generated       during

manufacturing process wherein chemically hazardous and corrosive

substances were used. There was no proper maintenance. For the above
                                    (5)                  FA-2267-2025


reasons, when the temperature was high, truss members of the furnace

melted, as they were in a dilapidated condition. For these reasons, there

was insufficient strength to hold the weight of the shed.


8.    It is further stated that there is no news of such storm appeared in

the standard newspapers. In the FIR, there is no loss shown to have been

caused due to storm. The story of the storm is concocted story. So far as

the extent of loss is concerned, it is denied that the losses were to the

tune of Rs.1,87,00,000/-. It is also denied that the intimation was given

to the Group Gram Panchayat Pangra and the Deputy Director, Industrial

Safety and Health. Thus, the main ground is that the policy does not

cover the incident. Lastly, it is submitted that the losses were assessed

only to the extent of Rs.79,41,114/-. The claim was rightly repudiated

etc. It is submitted that the plaint deserved to be dismissed.


9.    In support of his case, the plaintiff examined three witnesses i.e.

(i) Pradip s/o Madhukar Nijampurkar, (PW-1) the Director of Plaintiff,

(ii) Sakharam Rambhau Divte, (PW-2) the then Gram Sevak, Group

Gram Panchayat Pangra and Samsher Maheboob Pathan, (PW-3), News
                                    (6)                FA-2267-2025


Reporter, resident of Pangra. The plaintiff relied upon the voluminous

evidence through these witnesses.



10.   The defendant examined Shankar Nathu Sangle (DW-1), the in-

charge of Legal Hub of the defendant company, and Mr. Shrinivas

Shankar Kutumbale (DW-2), a Structural Consultant and Engineer. Both

the parties relied upon the Insurance Policy. The defendant relied upon

the Preliminary Survey Report dated 18.07.2016, status report dated

28.07.2016 and Inspection Report made by Mr. Kutumbale on

26.09.2016.



11.   The trial Court after assessing evidence and record, partly decreed

the suit. The defendant is thus before this Court.



12.   Smt. Rotte, learned Advocate for the appellant, vehemently argued

that the present case is a case where the plaintiff has approached the

learned trial Court with a concocted and afterthought story. The incident

is not covered under the policy. The plaintiff failed to show that there

was, in fact, a storm-like situation on the date of incident. It was the
                                   (7)                 FA-2267-2025


duty of the plaintiff to specifically prove that the incident took place

because of the storm and the losses were suffered because of the same.

She further argued that the learned trial Judge has committed an error

in appreciating the evidence of record. No sufficient evidence is

produced on record by the plaintiff. The learned trial Court has failed to

appreciate the specific case of the defendant. In any case, the loss was

assessed only to the extent of Rs.79,41,114/- whereas, the Court has

wrongly awarded an amount of Rs.2,00,94,361/-, which is exorbitant

and excessive. The claim was rightly repudiated. She accepted the fact

that, on the date of incident, the insurance contract was in force for the

industrial shed. However, the said incident was not covered under the

Standard Fire and Special Perils Policy by relying upon Exclusion Clauses

4(b) and 6. She submitted that, to maintain the shed properly was the

responsibility of the owner. Though the alleged incident occurred on

05.07.2016, immediately on receiving intimation, one Mr. Robert

Rodrigues, a Surveyor and Loss Assessor, was sent for preliminary

investigation. He immediately visited the site on 05.07.2016 and

conducted a preliminary survey. She further invited attention to Clause
                                   (8)                 FA-2267-2025


7 which is at Exh. 85 i.e. Preliminary Survey Report. She further relied

upon the Status Report prepared by one Mr. Navin Jain, Surveyor and

Loss Assessor, at Exh.86, a Final Survey Report prepared by Navin Jain

is at Exh. 87 and the Report prepared by one Mr. S. S. Kutumbale,

Structural    Engineer   at   Exh.88. There   is   no report    from   the

Meteorological Department to show the occurrence of a storm. She

made various submissions on the evidence of the witnesses, which have

been discussed with foregoing paragraphs.



13.   In support of her submission, she relied upon the following

judgments.


       (i)    Sri Venkateswara Syndicate Vs. Oriental Insurance
              Company Limited and Anr. [(2009) 8 SCC 507].

       (ii)   New India Assurance Company Limited Vs. Sri
              Buchiyyamma Rice Mill and Anr. [(2020) 12 SCC
              105].

14.   Mr. Katneshwarkar, the learned Senior Advocate, vehemently

opposes the Appeal. He submits that the policy is in existence since long.

The job of the company is to collect the scrap and to manufacture iron
                                   (9)                      FA-2267-2025


sheets   etc.   for   which   furnace    is   used.   The     policy       is   for

Rs.2,80,00,95,000/-. The damage was caused to sponge iron, which can

be affected in such incidents. The premium of Rs.8,00,000/- was paid.

Every year inspection is carried before issuing policy. It was open for the

company to carry out the inspection before issuance of policy.

Immediately after the incident, the intimation was given. Mr. Robert

Rodrigues, the first surveyor, who visited the spot immediately is not

examined by the defendant/Insurance Company. He submits that the

plaintiff has proved the panchnama conducted by Gram Panchayat

Pangra showing that there was a storm. The Police also conducted spot

panchnama. All these are proved through the evidence of the plaintiff’s,

witnesses. A meeting was conducted between the plaintiff and defendant

and minutes were prepared. However, the same were not exhibited. He

invited attention to the cross-examination of DW-2 Mr. Kutumbale.



15.   In support of his submissions, learned Senior Advocate relied upon

the following judgments:
                                         ( 10 )          FA-2267-2025


       (i)     Food Court the Company Garden Society Vs. Universal
               Sompo General Insurance Co. Ltd. and Ors. [2025 SCC
               OnLine SC 2907];

       (ii)    United India Insurance Co. Ltd. Vs. Kiran Combers and
               Spinners [(2007) 1 SCC 368].


16.    In rebuttal, Smt. Rotte submitted that, no bills are produced to

show that the material shown was lying in the factory premises. The

quantum of loss therefore, cannot be determined. In the survey, the

plaintiff participated and still no objection was raised. There is no report

of any injuries to any employees when the incident took place. There is

no complaint made to Insurance Regulatory and Development Authority

of India (IRDAI) and thus, the remedy is not availed and directly a Suit

is filed. The Surveyor Mr. Kutumbale was not appointed by the Company.

There is nothing on record to show that as to how he conducted the

survey, that too 28 days after the incident etc.



17.    Following points arises for consideration of this Court.

      (i)     Whether the appellant has made out a case to show that the
              suit is wrongly decreed?
                                     ( 11 )              FA-2267-2025


      (ii)   Whether the trial Court has rightly directed to pay the
             compensation of Rs.2,00,94,361/- to the plaintiff by the
             defendant?
      (iii) Whether the judgment and order passed by the trial Court
             needs to be interfered with?


18.    In his evidence, PW-1 deposed about the incident and the

intimation given of the incident. He proved the tender notice showing

that the scrap was purchased, the assessment of loss, and the structural

stability certificate issued by the Structural Engineer. He also referred to

the report of Mr. Kutumbale and Mr. Navin Jain, stating that the wrong

findings are recorded in the reports. The valuation of the shed and the

material, the expenses incurred, cost of materials, the amount required

for repair of machinery, the damage caused to stock and consultancy

charges are not considered by the surveyor. The total claim of

Rs.2,00,94,361/-.



19.    In the cross-examination, he admitted that there is an arbitration

clause in the policy. A representation was made to the General Manager

(Arbitration), but he could not give any details about further progress.
                                   ( 12 )              FA-2267-2025


He further stated in the cross-examination that there are various other

units of different companies in the vicinity. He could not state as to

whether damage was caused to other sheds as well. He also stated that

he could not state as to whether there is meteorological unit at

Chitegaon. It is tried to be taken that the damage was not due to natural

climate conditions. This witness proved the policy.



20.   PW-2, Sakharam Diwate, Gram Sevak, Group Gram Panchayat

Pangra, proved the panchnama showing that the damage was caused to

the factory premises, and to some agricultural fields. He also stated that

the information of the panchnama was given to the Tahsildar. In the

cross-examination, it was tried to be taken that no prior permission was

taken from the Tahsildar before drawing the panchnama. However, he

stated that such permission is not required.



21.   PW-3 Shamsher Pathan, Reporter, Newspaper Shalivahan Varta

(Weekly), in his evidence stated that, the news item about storm was

published in one weekly newspaper namely, Shalivahan Varta. In the
                                   ( 13 )              FA-2267-2025


said newspaper, a news was given of the storm and the damage caused

to the plaintiff company. He stated that he happens to be an auditor of

the said newspaper. In the cross-examination, he admitted that the said

newspaper was started in the year 2010. However, the same was closed

in covid-19 pandemic period.



22.   DW-1 Shankar Sangle, In-charge of Legal Hub New India

Assurance Co., stated in his evidence about the policy. He stated that

though the intimation of loss was given to the defendant, the reason of

cause of loss was not mentioned in the panchnama. On receipt of

intimation, a spot survey was conducted by one Robert Rodrigues and

company. It is stated in the report that insured did not know the cause of

collapse of the shed. Therefore, Mr. Jain was appointed as a Surveyor

and Loss Assessor, who is duly authorized by Insurance Regulatory and

Development Authority of India (IRDAI) and is a Member of Indian

Institute of Insurance Surveyors and Loss Assessors (IIISLA) as per

provisions under Section 64UM of Insurance Act, 1938. Mr. Navin Jain

did not find any signs of storm in the area and no sheets of adjoining
                                    ( 14 )                FA-2267-2025


shed were uprooted. Nearby trees within the plant premises also were

not found to be fallen etc. He stated that the existing shed, where the

steel melting work was carried out, was heavily corroded along with its

trusses. The structure of adjoining shed was also corroded for want of

maintenance, and it is on that basis, it was concluded that no storm took

place in the area of plaintiff’s factory. There was only rain. He

specifically deposed that, as per expert report, it was clearly concluded

that no storm took place in the area of the plaintiff.



23.   In the cross-examination, he accepted that the plaintiff had

sustained loss. He disputed the quantum of loss caused. He accepted

that generally defendant would not issue policy for structures in

dilapidated or ruined condition. It is only on the satisfaction about

condition of structure that the policy is issued. Before issuing a fresh

policy, it is required to inspect the premises. He accepted that there was

a valid policy on the date of renewal. The sum insured under the policy

was   Rs.2,80,95,000/-    for   location     one   and   for   location   two

Rs.2,00,00,000/-. The total sum insured of Rs.2,82,95,000/-. Presently
                                    ( 15 )               FA-2267-2025


was the case of policy of two crore. The incident took place at location

two.



24.    DW-2 Shrinivas Shankar Kutumbale, Structural Consultant and

Engineer, stated in his evidence that, he observed that the chimney was

located just by side of steel melting shop. Shed was standing intact and

no damage was noticed. Another shed at a distance of about 50 meters

was also standing intact. The shed of adjoining industry were intact.

Trees and electric lines outside and inside the premises were intact. The

RCC etc. were also intact. In the cross examination, he accepted the

reports. He accepted that he visited the premises after one month i.e. on

05.07.2016 of happening of the incident. He accepted that he submitted

the report on 22.09.2016.


25.    On appreciating the evidence, the learned trial Judge has

considered mainly that the incident had admittedly taken place. There is

a loss suffered by the plaintiff due to the said incident. The plaintiff has

proved that the incident took place because of the storm. So far as

amount is concerned, the learned trial Judge has relied upon the oral
                                    ( 16 )                FA-2267-2025


and documentary evidence produced by the plaintiff on record to

establish the loss. While considering this aspect, the Court has not

accepted that the loss was only to the extent of Rs.79,41,114/-, as stated

by the expert in their reports.


26.   This Court finds that the learned trial Judge has rightly considered

that the incident took place because of the storm, as there is nothing on

record to show that the incident took place due to bending of the trusses

or corrosion of the iron angles of sheets. It is also rightly considered that

height of the shed was 85 feet, based on the evidence of respondent in

cross-examination. So far as finding on these aspects are concerned, this

Court does not find that any case is made out calling for interference.

The question is about the amount of compensation, the learned trial

Judge has solely relied upon oral and documentary evidence produced

by the plaintiff.



27.   So far as assessment of the loss by the expert is concerned, it is

only the defendant who has submitted the experts report. The report of

Mr. Navin Jain and S. S. Kutumbale, both have stated loss to be to the
                                    ( 17 )              FA-2267-2025


extent of Rs.79,41,114/-. PW-1 in order to prove the loss, has also given

figures of the cost required for fabrication, erection and alignment,

material purchase for reconstruction of building and machinery, the

amount required for repair of machinery, damages to the stock etc.

Further, it is considered that the losses are admitted by the defendant. In

the pleadings, there is no specific denial that the losses are not to the

extent of Rs.2,00,94,361/-. This aspect needs to be considered as to

whether there is specific denial in the pleadings.



28.   Paragraph No.11 of the written statement, in clear terms, stated

the loss only to the extent of Rs.79,41,114/-. Once the same is denied, it

was expected of the plaintiff to specifically prove the damage to the

extent claimed. While calculating the loss, the plaintiff has also taken in

consideration cost required for repairing etc. The insurance policy would

cover only the damage/cause sustained by the plaintiff and would not

cover further expenses. There is evidence of experts on assessment

showing the damages to be Rs.79,41,114/-. These witnesses have been

examined and cross-examined. It was for the plaintiff to bring on record
                                       ( 18 )                  FA-2267-2025


specific material to show the actual damage caused as claimed. This

Court does not find any sufficient material on record to prove the

damage claim. On the contrary, the defendant has placed on record the

reports prepared by experts showing the amount of damages.



29.   The learned trial Judge has rightly concluded that Mr. Robert

Rodrigues who had visited the spot at the earliest, ought to have been

examined. An adverse inference is therefore rightly drawn. Provisions of

Section 64 UM of the Insurance Company Act, 1938 pressed into service

by the defendant. Sub-section (4) of Section 64UM reads as under:


      “(4). No claim in respect of a loss which has occurred in India and
      requiring to be paid or settled in India equal to or exceeding an
      amount specified in the regulations by the Authority in value on any
      policy of insurance, arising or intimated to an insurer at any time after
      the expiry of a period of one year from the commencement of the
      Insurance Laws (Amendment) Act, 2015 (5 of 2015), shall unless
      otherwise directed by the Authority, be admitted for payment or settled
      by the insurer unless he has obtained a report, on the loss that has
      occurred, from a person who holds a licence issued under this section
      to act as a surveyor or loss assessor (hereafter referred to as “approved
      surveyor or loss assessor”).
      Provided that nothing in this sub-section shall be deemed to take away
      or abridge the right of the insurer to pay or settle any claim at any
      amount different from the amount assessed by the approved surveyor
      or loss assessor.”
                                    ( 19 )                FA-2267-2025


30.   It is submitted that though the surveyor has assessed the losses

still the defendant is not liable to pay the entire amount assessed by the

surveyor.



31.   The plaintiff has vehemently argued that the second surveyor was

appointed without any statutory provision and that his report cannot be

relied upon. To counter the said argument, the defendant relied upon

the judgment in the case of Shri Venkateswara Syndicate Vs. Oriental

Insurance Company Ltd. And Anr. (supra). The Hon’ble Apex Court in

the said judgment has held two things that, the insurer is not prohibited

from appointing second or another surveyor for fresh estimation of loss;

however, such appointment should not be made to obtain tailor-made

report to the satisfaction of the insurer. Secondly, it is held that the

surveyor’s report can be rejected by the insurer. It is further held that the

assistance of surveyor while settling a claim is mandatory under the Act.

It is however open for the insurer to accept the report or not to accept

the report of surveyor. When it is found that the report is prepared in

good faith, with due application of mind and in absence of any error or
                                   ( 20 )                FA-2267-2025


ill-motive, the insurance company cannot reject the report of surveyors.

In such cases, the courts or the forums can certainly intervene if it finds

that the rejection of the survey report is arbitrary or based on no

acceptable reasons. It is further held that the appointment of surveyor is

statutory in nature. They are link between the insurer and the insured

for determination of settlement of the loss or damage.



32.   This Court finds that, in the present case, the appointment of

second surveyor cannot be doubted. The plaintiff has not shown that the

surveyor’s report is motivated or is biased. At the same time, the

defendant has not given any acceptable reason or the reasonable cause

for not accepting the damage assessment given by the expert. It is seen

that the second surveyor is appointed. The surveyor is even examined by

the defendant as its witness and it is for this reason also, the report

needs to be accepted, as there is nothing pointed out by the defendant

not to believe the report.


33.   So far as judgment in the case of New India Assurance Company

Limited Vs. Sri Buchiyyamma Rice Milll and Anr. (Supra) is concerned,
                                   ( 21 )              FA-2267-2025


in the said case, the policy was issued under Standard Fire and Special

Perils Insurance Policy, covering specific risks in respect of plant and

machinery. It was the case of the insurer that the boiler collapsed due to

impact of a collision with a reversing lorry. The same was denied by the

insurance company as the incident was unlikely to have taken place in

the manner as claimed by the insured. The surveyor opined that the

structural expert be called to ascertain the real cause of damage. It is

thereupon further report was obtained from the structural expert. On

submission of report, the insurer again obtained the opinion of an

investigator. The claim was made before State Consumer Disputes

Redressal Commission (SCDRC). The State Commission rejected the

complaint. The NCDRC, in appeal, allowed the claim stating the reason

that report of surveyor is submitted beyond the period of two years and

in the breach of 2002 Regulations. The Court considered the necessity of

appointing the second surveyor. In this case, the Hon’ble Apex Court

considered the judgment in the case of Shri Venkateswara Syndicate

(supra).   On the facts of that case, it was held that the procedure

followed by insurer was not designed to obtain a report which would
                                   ( 22 )              FA-2267-2025


suit the stand of the insurer. There was no malafide and in that case, the

appeal filed by the insurance company was allowed. The Hon’ble Apex

Court dismissed the complaint holding the judgment of the State

Consumer Disputes Redressal Commission (SCDRC).


34.   So far as judgment in the case of Food Court the Company Garden

Society Vs. Universal Sompo General Insurance co. Ltd. And Ors . (supra)

is concerned, the loss was caused due to snowfall. A defence was taken

that the same would not fall under the damage caused by storm. It is

held that the term “storm” cannot be given a restrictive meaning and

would include events like extreme or unusually intense precipitation.

Under such circumstances, the Court considered exclusion clause and

found that such calamity is not specifically excluded and allowed the

appeal of the insured.



35.   In the case of United India Insurance Co. Ltd. Vs. M/s. Kiran

Combers and Spinners (supra), the building collapsed due to

floodwaters entering the building. The defence of the insurance

company that the policy did not cover subsidence (gradual caving in or
                                        ( 23 )                  FA-2267-2025


sinking of area of land) is not tenable. The Hon’ble Apex Court

considered Clause 8 of the Exclusions in the policy. It was held that the

Exclusion Clause did not contain any reference to subsidence. Clause

8(b) was only to the extent of typhoon, storm, cyclone, tempest,

hurricane, tornado flood and inundation.


36.   In the policy of New India Assurance Co. Ltd., clause 6 reads as

under:

         “6). STORM, CYCLONE, TYPHOON, TEMPEST, HURRICANE,
         TORNADO, FLOOD & INUNDATION:- Loss, destruction or damage
         directly caused by Storm, Cyclone, Typhoon, Tempest, Hurricane,
         Tornado, Flood or Inundation excluding those resulting from
         earthquake, Volcanic eruption or other convulsions of nature.
         (whenever earthquake cover is given as an “add on cover” the words
         “excluding those resulting from earthquake volcanic eruption or other
         convulsions of nature” shall stand deleted.)


.     Coverage is provided for the losses due to destruction or

damage caused by storm, cyclone, typhoon, tempest, hurricane,

tornado, flood or inundation excluding those resulting from

earthquake, volcanic eruption or other convulsions of nature. The

said clause clearly provides that loss, destruction or damage caused

by the storm, cyclone etc. It is nothing to specifically indicate that
                                   ( 24 )               FA-2267-2025


there is no storm. Thus, looking to the clause, it does not find that

present claim fall under Exclusion Clause. As already observed,

there is no case that the claim is made only to grab the amount.


37.   In the present case, this Court finds that the incident is not

disputed. In the evidence of Mr. Shrinivas Shankar Kutumbale (DW-2), it

has come on record that there “may be a storm or may not be a storm”.

It is not specifically denied that there was no storm. Secondly, it has

come on record in the evidence of defendant’s witness that while issuing

the policy, inspection is required. Normally inspection is conducted in

the premises and it is thereafter the policy is taken. There is nothing on

record to show that during the inspection, it was found that the pieces

were corroded or that there was insufficient strength to hold the

structure (shed). There is also no case that the plaintiff has raised the

false claim just to grab the insurance amount. The only defence is that

there was no storm. This Court finds that such defence cannot be

accepted in absence of any specific evidence. Plaintiff has clearly made

out a case that there was some incident in which the shed collapsed. The
                                   ( 25 )              FA-2267-2025


defence could not prove that it was because of the corrosion or the

manufacturing process, etc. This Court has seen the Exclusion Clause.

Present case would not fall under Exclusion Clause considering

judgment in the case of Food Court the Company Garden Society

(supra).


38.   So far as quantum is concerned, this Court has already discussed

that the plaintiff though has produced material it is not sufficient to

prove the damage to the extent as claimed. On the contrary, there is

experts evidence led by the defence which was sufficient to arrive at the

conclusion of the amount of loss. Nothing contrary has been produced

on record. The trial Court has accepted the claim of the plaintiff without

therebeing sufficient evidence. This Court thus finds that the amount of

Rs.79,41,114/- would be appropriate amount towards damages. There is

nothing to show that the report is malafide or otherwise. This Court

finds no difficult in accepting the damages to the extent of

Rs.79,41,114/-. This Court thus hold that, to that extent the decree

needs to be modified. Hence, the following order:
                                          ( 26 )               FA-2267-2025


                              ORDER

(i)          First Appeal is partly allowed. Decree is modified.

(ii)         The appellant/orig. defendant is directed to pay Rs. 79,41,114/- to
             the Respondent/orig. plaintiff with interest at the rate of 14% per
             annum from the date of filing of the suit till actual realization of
             the entire amount.

(iii) Decree be drawn up accordingly.

(iv) In view of disposal of First Appeal, pending Civil Applications, if
             any, do not survive and the same stand disposed off accordingly.


[SUSHIL M. GHODESWAR, J.]                             [KISHORE C. SANT, J.]


1.           At this stage, learned Advocate for the Appellant seeks
continuation of interim order for a period of six weeks from today.

2.           The said prayer is opposed by the learned Advocate for the
Respondent.

3.           Considering that the stay is already in operation, we hereby extend
the same for a period of six weeks from today.



[SUSHIL M. GHODESWAR, J.]                             [KISHORE C. SANT, J.]

D.A.ETHAPE