Non examination of expert – fatal to claim insurance claim and failure to prove excess rain fall and water logging on road = where damage had been caused by any cause other than what was specifically excluded = among the exclusions provided in the insurance policy was normal wear and tear and gradual deterioration due to atmospheric conditions.= 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. 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.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.7315 OF 2016
MAHAVIR ROAD AND INFRASTRUCTURE PVT LTD. APPELLANT(s)
VERSUS
IFFCO TOKIO GENERAL INSURANCE CO LTD RESPONDENT(s)
J U D G M E N T
DR DHANANJAYA Y CHANDRACHUD, J
Delay condoned.
Admit.
This appeal arises from a judgment and order dated 23
February 2016 of the National Consumer Disputes Redressal
Commission1. The NCDRC rejected the complaint of the
appellant alleging a deficiency of service in the
rejection of a claim under an insurance policy.
The appellant was undertaking the resurfacing,
metalling and asphalting of roads in Nashik. An
insurance policy was obtained by the appellant. The
insurance cover encompassed ‘material damage’. Section 1
of the insurance policy was in the following terms:
“SECTION-1 MATERIAL DAMAGE
The Company hereby agrees with the insured
(subject to the exclusions and conditions
contained herein or endorsed hereon) that if, at
any time during the period of insurance stated in
the said Schedule, or during any further period
of extension thereof the property (except packing
1 “NCDRC”
2
materials of any kind) or any part thereof
described in the said Schedule be lost, damaged
or destroyed by any cause, other than those
specifically excluded hereunder, in a manner
necessitating replacement or repair the Company
will pay or make good all such loss or damage
upto an amount not exceeding in respect of each
of the items specified in the Schedule the sum
set opposite thereto and not exceeding in the
whole the total sum insured hereby.
The Company will also reimburse the insured for
the cost of clearance and removal of debris
following upon any event giving rise to an
admissible claim under this Policy but not
exceeding in all the sum (if any) set opposite
thereto in the Schedule.”
However, the exclusions to Section 1, inter alia,
were to the following effect:
“EXCLUSIONS TO SECTION – 1
The Company shall not, however, be liable for:


c) normal wear and tear, gradual deterioration
due to atmospheric conditions or lack of use or
obsolescence or otherwise, rust scratching of
painted or polished surfaces or breakage of
glass;”
There were specific conditions applicable to Section

  1. Among the ‘major perils/Act of God perils’ described
    in Memo 8 was “Flood/Inundation”.
    The appellant submitted a claim on the ground that
    between 25 June 2007 and 5 July 2007, it had suffered a
    loss and damage to the roads which had been worked upon
    due to “abnormal rainfall and water logging”. By its
    letter dated 14 September 2007, the appellant stated that
    due to heavy rains on 29 June 2007, the roads were
    inundated and the top layer had been washed out.
    3
    By a communication dated 28 March 2008, the insurer
    rejected the claim, inter alia, on the ground that the
    damage had been caused by defective workmanship and
    materials and due to the failure to provide an
    alternative route for traffic. Subsequently, after
    further correspondence, the insurer informed the
    appellant on 13 May 2008 that the loss or damage to the
    roads had been caused due to (i) monsoon rains; and (ii)
    damage/peeling off of the top surface of the asphalt due
    to the plying of vehicular traffic on wet roads,
    resulting in wear and tear. The exclusion in the
    insurance policy of damage due to normal wear and tear or
    due to gradual deterioration as a result of atmospheric
    conditions was relied upon.
    The report of the Surveyor, B.P. Shah & Associates,
    dated 21 March 2008, was in the following terms, insofar
    as is material:
    “PROBABLE CAUSE:
    According to the insured loss was caused due to
    heavy abnormal rains etc. Copy of their letter
    dated 28th July 2007 is enclosed herewith
    (Encl.4).
    What was observed was surface damages & neither
    any rain cuts nor erosion of base soil of the
    roads by flowing floodwater were seen. Top
    surface of the asphalt had peeled off/got damaged
    due to movement of traffic over a period of time
    on wet roads and normal wear & tear which also
    crerated few pot holes. Policy excludes normal
    wear & tear, gradual deterioration due to
    atmospheric conditions (Exclusion C under Section
    1) & also damage due to movement of traffic,
    which is by no means fortuitous.”
    4
    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.
    Mr. Anirudha Joshi, learned counsel appearing on
    behalf of the appellant, submits that the insurance
    5
    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.
    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.
    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
    6
    March 2008. The basis of the claim was found to be
    false.
    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.
    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.”
    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
    7
    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.
    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.
    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.
    In this view of the matter and for the reasons we
    have indicated, we are unable to come to the conclusion
    8
    that the order pased by the NCDRC suffered from any
    error. We accordingly do not find any reason to
    entertain the appeal. The appeal is dismissed.
    Pending application, if any, stands disposed of.
    ………………………..J.
    (DR DHANANJAYA Y CHANDRACHUD)
    ………………………..J.
    (HEMANT GUPTA)
    NEW DELHI
    MARCH 26, 2019
    9
    ITEM NO.38 COURT NO.8 SECTION XVII
    S U P R E M E C O U R T O F I N D I A
    RECORD OF PROCEEDINGS
    Civil Appeal No(s).7315/2016
    MAHAVIR ROAD AND INFRASTRUCTURE PVT LTD. Appellant(s)
    VERSUS
    IFFCO TOKIO GENERAL INSURANCE CO LTD Respondent(s)
    (WITH APPLN.(S) FOR CONDONATION OF DELAY IN FILING APPEAL)
    Date : 25-03-2019 This appeal was called on for hearing today.
    CORAM :
    HON’BLE DR. JUSTICE D.Y. CHANDRACHUD
    HON’BLE MR. JUSTICE HEMANT GUPTA
    For Appellant(s) Mr. Anirudha Joshi, Adv.
    Mr. Abhishek Singh, Adv.
    Mr. Onkar Singh, Adv.
    Mr. Saurabh Mishra, AOR

For Respondent(s) Mr. Abhishek Mishra, Adv.
Mr. Rajat Khattry, Adv.
Mr. Vivek Kishore, AOR

UPON hearing the counsel the Court made the following
O R D E R
Delay condoned.
Admit.
The appeal is dismissed in terms of the signed
reportable judgment.
Pending application, if any, stands disposed of.
(SANJAY KUMAR-I) (SAROJ KUMARI GAUR)
AR-CUM-PS COURT MASTER
(Signed reportable judgment is placed on the file)