A.P. SAHI, J. (PRESIDENT)

            This complaint was heard on 16.10.2023 and again on 26.10.2023 when inal arguments proceeded and the judgment was reserved on 3.11.2023 when the Ld. Counsel for the parties finally concluded their arguments supported by their Written Submissions and the Judgments relied upon by them.  However, in order to reduce the narration of facts in this judgment, the same which came to be recorded on two previous occasions are extracted hereinunder.  The Order dated 16.10.2023 records the initial submissions of the Learned Counsel for the parties which are as follows –

“Heard learned Counsel for the Complainant and learned Counsel for the Opposite Parties.

The dispute relates to an Insurance claim arising out of an incident on 11.06.2008 stated to have occurred between 02.45 p.m. to 03.35 p.m. It is stated that a temporary structure covered with tarpaulin was blown off on account of certain high wind speeds that fell on the dome of the insured structure causing damage which has given rise to the claim.

The question which arises for consideration after having heard the learned Counsel, can be clearly located to the repudiation by the Insurance Company which proceeds on the ground that the speed of the wind which was approximately 80 kilometers an hour did not qualify as a storm keeping in view the beaufort scale which defines the speed of a storm between 88 kms. to 100 kms. an hour. Thus the damage was not due to any storm as such not a covered risk under the policy. This repudiation dated 18.11.2010 gave rise to this Complaint which was instituted in 2011.

The arguments advanced by the learned Counsel for the Complainant is to the effect that this claim is supported by a weather report issued by the Observatory at Santa Cruz, Mumbai that was tendered after an application was moved for the said purpose. The weather report indicates the status of a thunderstorm on 11.06.2008 having occurred between the timings of the incident as is sought to be canvassed in the present Complaint. Learned Counsel therefore submits that the said weather report which is an official weather report of the Indian Meteorological Department, Government of India cannot be overlooked and the same confirms the occurrence of a storm, the direct impact whereof resulted in the blowing off the tarpaulin structure that fell down and damaged the dome which risk stands covered under the policy.

For this reliance has been placed on certain definitions of the word ‘storm’, including the literature on cyclonic storm issued by the Indian Meteorological Department and also the literature available from the World Meteorological Organization, Geneva, Switzerland. Learned Counsel has also invited the attention of the Bench to the terminologies described by the Indian Meteorological Department to urge that the word “thunderstorm” has been defined in a manner which has a wind speed of the velocity as is covered under the definitions in the aforesaid Meteorological literature.

Learned Counsel has then invited the attention of the Bench to two decisions in support of this contention. The first is by this Commission in the case of Shree Ganesh Metal Industries Versus Oriental Insurance Company 2015 SCC NCDRC 3093 to urge that the velocity of wind as indicated in the Meteorological report in the present case was also considered in the aforesaid judgment and therefore even a borderline storm case stands covered under the policy. The second judgment relied on by the learned Counsel is in the case of M/s OPG Energy (P) Limited versus the New India Assurance Company Limited and Anr. reported in 2018 SCC MAD 16 where a learned Single Judge of the Madras High Court while proceeding to consider a similar policy had the occasion to assess the impact of the speed of wind for the purpose of construing the meaning of the word storm as used in the Insurance Policy. The conclusion drawn was that the word storm is used in a more general nature and it cannot be confined only to a wind with a speed above 88 kms. per hour. Paragraphs 15, 16, 19 and 20 of the said judgment have been relied upon to urge that the speed of the wind is not the ultimate determining factor for the purposes of construing as to whether a storm had occurred or not. In essence taking help from the judgment it is urged that hypertechnical view of the word storm cannot be taken for the purpose of defining the word in a contract of insurance which in essence is a contract of indemnification where the purpose is to indemnify the loss and not to minimize the impact of a natural calamity to deny the claim.

It is further submitted that in the background of the reports and the claim, the only cause for repudiation is the aforesaid hypertechnical view with regard to the speed of the wind and in such circumstances the repudiation cannot be sustained and the claim deserves to be allowed.

Mr. Yogesh Malhotra, learned Counsel for the Opposite Parties responded and has advanced his submissions contending that the Complainant itself had proceeded to describe the happening on account of some wind having caused the tarpaulin structure to fall. He submits that it was not the case of the complainant while reporting the matter that any storm or thunderstorm had occurred. He submits that this improvement, from wind to storm, had been made by the Complainant after receiving the Indian Meteorological Department Report. The terminology of thunderstorm has been introduced with a view to enhance the status of the claim for coverage under the policy. He further submits that the blowing off the temporary structure itself indicates that it was a tarpaulin structure and its fall may not need a storm as alleged. A mere gust or a wind, which may have been sudden, cannot be taken to be covered under the policy and hence a fall of the said tarpaulin structure on account of a low intensity wind cannot in any way mature into a storm to justify the claim by the Insurer. In short the contention is that in the absence of a storm, there is no insurable claim.

However, while advancing his submissions, Mr. Malhotra, urged that the judgment of the Madras High Court cited by the learned Counsel for the Complainant does not appear to be explaining the law correctly inasmuch as, if such a definition is accepted then there will be a huge flexibility in the meaning of the word storm thereby taking away the real impact of the word as it should be understood under the terms of the policy where it has been placed along with the words, ‘tornado’, ‘hurricane’ and ‘cyclone’. What he intends to argue is that the intensity of the storm is very much essential together with its speed to construe its impact to give rise to a claim under the policy, otherwise the lesser the intensity there appears to be no cause for such a claim. Mr. Malhotra therefore prays that he may be given some more time to study the matter in order meet the ratio of the judgment of the Madras High Court.

It has also been noticed that there are certain guidelines prepared under the National Disaster Management Act by the Authority constituted under it and the Government of India has issued guidelines wherein the word “thunderstorm” has been defined in clause 1.3. The word squall and the other terminologies like dust storm have also been indicated therein with their respective speeds.

Learned Counsel for the Opposite party may examine this issue as well so as to provide an appropriate answer to the contentions raised on behalf of the Complainant.

 Consequently, let the matter be adjourned for 26.10.2023 at 02.00 p.m.”

2.      To clarify the legal submissions that were advanced on the facts of the present case, the matter was again heard on 26.10.2023 when the following order was passed –

“Heard learned counsel for the Insurance company Mr. Yogesh Malhotra who according to the queries raised in the order dated 16.10.2023 proceeded to clarify the same.

He, at the outset, invited the attention of the Court to the judgment of the learned Single Judge of the Madras High Court referred to in the order dated 16.10.2023, to contend that the said judgment has not correctly appreciated the ratio of the judgment in the case of United India Insurance Co. Ltd. Vs. Kiran Combers & Spinners (2007) 1 SCC 368 as well as the judgment in the case of United India Insurance Co. Ltd. Vs. MKJ Corporation (1996) 6 SCC 428. Relying on the judgment in the case of Divisional Controller, KSRTC Vs. Mahadeva Shetty And Anr. (2003) 7 SCC 197 Para-23, he submits that the two decisions referred to above relied on by the learned Single Judge of the Madras High Court do not in any way spell out any ratio decidendi on the issue of hyper-technicality of an insurance claim. He submits that no such conclusion was drawn nor can it be inferred and therefore the observations made by the learned Single Judge regarding the above two decisions are not appropriate and it is almost obiter. He contends that the learned Single Judge admits that the Beaufort scale prescribes the wind speed of a storm, but later on goes on to conclude that since it would be a hyper-technical interpretation, the word storm should be used in a more general term and should not be confined only to the occurrence of wind with a particular speed. Learned counsel submits that this approach of the learned Single Judge is contrary to, and not in consonance either with the ratio of the said judgments or even with the law laid down by the Apex Court as well as other judgments that an insurance contract and its terminology, unless there is ambiguity, should be construed in its true sense as explained. He therefore contends that the learned Single Judge has virtually extended the meaning of the word ‘storm’ which travels outside the scope of the risk covered under the insurance policy which is not permissible in law.

He has then invited the attention of the Bench to the Webster’s Dictionary with regard to the meaning of the word storm, and has produced the print out of ‘The New International Webster’s Comprehensive Dictionary’ to urge that the Beaufort scale is also included within the said definition and therefore reliance placed only on part of the dictionary meaning by the learned Single Judge has led to an incorrect conclusion.

To support this, Mr. Malhotra has also cited New Webster’s Dictionary and Thesaurus to substantiate the same and urges that even Webster’s dictionary does not exclude the Beaufort scale which is the standard scale accepted globally.

He has then invited the attention of the Court to certain material of the Standard Operational Procedure for Aviation Meteorology and Cyclone Warning in India by the India Meteorological Department, Ministry of Earth Sciences, Government of India. He submits that this literature also relies on the Beaufort scales and therefore the government departments also continue to recognize the said scales for the purpose of measuring speed and classifying natural phenomena of winds. He has then urged that the standard operating procedure for weather forecasting and warning services by the same department has issued certain forms where also reliance is placed on the Beaufort scales for reporting. The contention is that this is accepted as a standard form of reporting. This is supported by the definition contained in the Encyclopaedia Britannica wherein the word ‘storm’ has been defined as a generic term ranging from showers and snowstorms to thunderstorms and mentions it as a meteorological terminology restricted to a strong low pressure centre with strong winds, ranging from 103 to 117 kmph.

He has then proceeded to place the guidelines prepared for action by the National Disaster Management Authority, Government of India to urge that the definitions contained therein in clause 1.3 read with the Mitigation Measures as indicated in clause 4.3 thereof indicate that there is a distinction between a storm, a thunderstorm and the degree of thunderstorm being moderate or severe with different speed of winds. He has also urged that the word squall has been defined as a sudden increase of wind speed of at least 16 knots rising to 22 knots i.e. 29 kmph to 49 kmph.

 In such circumstances, even if the structure fell down on the dome on account of a squall, yet the same would not be covered within the definition of storm.

With all these submissions, learned counsel submits that he will proceed further to conclude his arguments.

Let the matter come up on 03.11.2023 at 2.00 p.m.”

3.      With the aforesaid progress of the case, Mr. Yogesh Malhotra concluded his arguments by contending that the Insurance Clauses in a Contract of Insurance must be given the utmost importance and it is not open to an adjudicatory Forum to either add or delete the substitute words of Contract.  The judgments relied upon by him are –

“i.        Export Credit Guarantee Corporation of India Ltd.  Vs. Garg Sons International reported as (2014) 1 SCC 686;

ii.         Suraj Mal Ram Niwas Oil Private Limited  Vs. UOI reported as (2010) 10 SCC 567;

 iii.       United India Insurance Co. Ltd. Vs. Harchand Rai reported as  (2004) 8 SCC 644;

 iv.       Vikram Greentech India Ltd. Vs. New India Assurance Co. Ltd. (2009) 5 SCC 599;

 v.        Oriental Insurance Co. Ltd.  Vs. Sony Cherian reported as (1999) 6 SCC 451;

 vi.       General Assurance Society Ltd.  Vs. Chandmull Jain reported as AIR 1966 SC 1644;

vii.       National Insurance Company Limited  Vs. Chief Electoral Officer & Ors. (2023) ^6 SCC 441;

 viii.     Alka shukla  Vs. Life Insurance Corporation of India reported as (2019) 6 SCC 64.

4.      He then urged that apart from the arguments that have been advanced on the earlier dates and today, he relies on the judgment of the Apex Court in “Khatema Fibres Ltd. vs New India Assurance Company Ltd. on 28 September, 2021, (Livelaw SC 512)” to urge that the Report of the Surveyor has to be ordinarily accepted in as much as the Apex Court has ruled that the Insurance Act, 1938 plays an important role for the Surveyor causing an obligation on him to comply with the code of conduct and hence, unless there is any such allegation of whimsical approach or arbitrariness  in the discretion exercised by the Insurer to accept or reject the report of the Surveyor, there cannot be an established case of deficiency in service.  Mr. Malhotra therefore submits that even otherwise a Surveyor’s report unless it suffers from any arbitrariness or perversity, a forensic examination need not be undertaken as held by the Apex Court in the above noted case.

5.      Ld. Counsel for the Complainant in Rejoinder submitted that the insistence by the Insurance Company in construing the word ‘storm’ confined to the Beaufort Scale is misplaced, in as much as, the terms of the Policy do not specify the Beaufort Scale to be adopted for gauging the velocity of the storm.  He submits that a velocity of 80 kms of the storm on the date of incident in the present case remains undisputed and therefore the interpretation of the word (storm) occurring in the Policy instead of being confined to the Beaufort Scale should be read to include ‘any storm which falls within the definition of a cyclonic or thunder storm or even a squall where the speed of the wind is such that it causes an effective damage that is witnessed in a storm. The submission is that even if the speed of the wind is lesser than that under the Beaufort Scale, the same cannot be excluded and indemnification cannot be denied by applying the contra proferentem rule. For this reliance is placed by him on the judgment of the Apex Court in the case of “Haris Marine Products  Vs. Export Credit Guarantee Corporation (ECGC) Limited, Civil Appeal No. 4139 of 2020 decided on April 25, 2022 (2022 SCC OnLine SC 509 and page 1132)”.  He has also relied on the judgment in the case of “M/s. Mehta Jewellers  Vs. National Insurance Company Ltd., Civil Appeal No. 6178 of 2023” to urge that the expression of the word ‘storm’ used in the Policy in the absence of any specification of speed under the Beaufort Scale cannot be pressed to deny the claim and that would amount to defining a term which only suits the Insurance Company, but which should be interpreted in the case of this nature to lean in favour of the Insured.  His contention is that the word ‘storm’ needs to be construed so as to include wind of a lesser speed than in comparison to the Beaufort Scale.  Consequently, if the word ‘storm’ can be interpreted as suggested then the claim deserves to be allowed and the repudiation deserves invalidation.

6.      Repeating his submissions, Mr. Malhotra again urged that there is no ambiguity in the term ‘storm’ and therefore the applicability of the contra proferentem rule or the judgment relied by the Ld. Counsel for the Complainant would not apply on the facts of the present case.  He reiterates that the word ‘storm’ is to be understood in the light of the other terminologies of Tornado, Hurricane, Cyclone, Typhoon, etc. used in the Policy where also the velocity of the winds as defined by the Disaster Management Body of the Government of India based on the Beaufort Scale also indicates that the same scale should be applied to understand the speed of winds in a storm as included in the Policy. Consequently, since the falling of the Tarpaulin structure is not on account of a storm as defined and understood under the risks covered in the Policy, the claim is not acceptable.

7.      Having considered the submissions and the respective arguments on record as well as evidence which has been adduced, the argument gets confined and focused on the issue as to whether the nature of the wind that led to the happening was such that it could be classified and accepted as a storm, and accordingly treat the loss to be covered under the Policy.

8.      The evidence and documents which have been placed on record indicate that the word ‘storm’ is a noun and is neither an adjective or a verb where the ambiguity per se can be comprehended. It is a contest by the Insurance Company to define it as a wind with particular speed that is being rebutted by the Complainant.

9.      The admitted position is that as per the Weather Report from the Meteorological Department, the speed of the wind at the time of occurrence was 80 kms/hour.  The Weather Report also indicates the same to be a storm/thunderstorm.  Ld. Counsel for the Insurance Company strictly applying the Beaufort Scale contends that this word ‘storm’ occurring in the Policy does not take within its fold a wind with a speed and velocity of 80 kms/hour. to qualify as a ‘storm’.  Thus this is not a dispute regarding the generic meaning of the word ‘storm’ but it is a contest based on scientific measures adopted to define the word ‘storm’.

10.    For this, written submissions together with judgments have also been pressed into service. The Surveyor’s Report needs to be mentioned at this juncture.  While referring to the cause in Para 5 of the Interim Survey Report, the cause shown is reportedly due to storm/winds accompanied by rains.  The said Report also refers to the Weather Report received from the Regional Meteorological Centre.  The Surveyor states that while on his visit to the Meteorological Office, one Mr. S.S. Samant, showed the Surveyor a graph of the wind speed recorded for 11.6.2008 which could not be provided but was being shown as a matter of courtesy.  In Para 6.11 of the said Interim Survey Report, it is stated that the graph showed a sudden and very short spike of the wind speed around the time of damage reported by the Insured and, as per the said Weather Report, the maximum wind gust was recorded at 80 kms/hour.  The Surveyor again relying on the Beaufort Scale described the same as a gust of wind, but in Para 7.04 it is categorically stated that the portion of the tarpaulin shed was blown off by a sudden gust of wind possibly because it was not adequately tied down.  The company which had erected the sheds, has attributed wind pressure/storm having caused the damage.  The claim was repudiated only on the ground of applying the Beaufort Scale .

11.    Applying the standards of strict construction of Insurance Contracts, the Policy in question only states that the word ‘storm’ and nowhere specifies the applicability of a particular scientific scale of measuring the speed of winds to define a ‘storm’.  Then an argument has been pressed into service by the Ld. Counsel for the Insurance Company to urge that the strict construction would also include the understanding of the word ‘storm’ in comparison to the words- Hurricane, Tornado, etc. used in the Policy which are violent forms of wind and such a storm ordinarily has to be treated to be possessed of winds equal to the velocity as per the scientific scale relied upon by the Insurance Company.

12.    The terms of the Policy to my reading nowhere indicate that the intention of the Insurance Company is to construe the speed of wind to be more than 89 kms/hr. to treat it as a storm.  This aspect therefore becomes the bone of contention which needs to be resolved through this verdict.

13.    The Weather Report that was recorded by the Observatory at Santacruz on 11.6.2008 indicates the use of the word ‘thunderstorm with rain at 1300 hrs and then again at 1650 hrs and then again at 2305 hrs on the same day.  This speed of 80 kms was registered at 1443 hrs. IST.  It was also noted that a squally wind prevailed between 1443 to 1445 hrs IST.  A Squall as is evident from the definitions placed on record is also sudden short rise of a very high speed wind.

14.    The definition of a ‘storm’ was reasonably contested in another case – “CC No. 3719 of 2017- Green Land Fruits & Vegetables (P) Ltd.  Vs. Cholamandalam MS General Insurance Company Ltd. & Anr. Decided on 30.10.2023” where the following observations were made-

       “22. The word storm occurring in the policy therefore has to be understood as something violent as the terminology has been               mentioned alongwith the word hurricane, tornado, tempest and typhoon. The word storm therefore if read together with the other               terminologies mentioned above, has necessarily to be understood as something violent, and keeping in view the Beaufort Scale               referred to above, the meteorographic table clearly demonstrates that a storm has to be understood as a wind that matches a               speed of 89 to 100 kilometers per hour. There are however a few divergent views on the subject. The World Meteorological               Organization, Geneva, Switzerland has published some norms and the Indian Meteorological Department has described                      “thunderstorm” which has a wind velocity a little lesser than as per the Beaufort Scale. Then there are decisions, one from               this Commission in the case of Shree Ganesh Metal Industries versus Oriental Insurance Co. 2015 SCC Online NCDRC 3093               where a borderline case of a storm with a lesser wind velocity was found to be sufficient as covered under the risk enabling               indemnification for the insured under the policy. The other decision is of a learned single judge of the Madras High Court in the               case of M/s OPG Energy (P) Limited versus The New India Assurance Co. Ltd. & Anr. reported in 2018 SCC Online Mad Page 16.”

The claim in the said complaint was however rejected because Weather Reports indicated normal winds ranging from 5 miles/hr. to 15 miles/hr. with no other collateral damage and hence the same was not found to be acceptable.

15.    However, in the instant case, the contest has been taken further.  One of the judgments that have been referred to earlier is the case of “M/s OPG Energy (P) Limited” (supra) by a Learned Single Bench of the Madras High Court that proceeds to adopt a view that a hyper technical interpretation with regard to speed of wind cannot be deployed to deny the claim of a loss in a policy occurring out of such a natural calamity.  In this regard, the definitions have also to be discussed namely that of speed of thunderstorms and Squalls.  The Guidelines issued by the National Disaster Management Authority, 2018, for Prevention and Management of Thunderstorm & Lightning/Squall/Dust/Hailstorm and Strong Winds defines these terminologies as follows –

“1.3     Definitions & Classification of Thunderstorms and associated weather             phenomena

              A.        Thunderstorms:

A thunderstorm is said to have occurred if thunder is heard or lighting is seen. Usually, the thunder can be heard up to a distance of 40 km from the source of origin. Thunderstorms fall in the category of Meso-gamma weather systems with a spatial extent of around 2-20 km and temporal scale of a few hours. Considering their intensity, the thunderstorms in India are categorised as follows:

• Moderate thunderstorm: Loud peals of thunder with associated lightning flashes, moderate to heavy rain spells and maximum wind speed of 29 to 74 kmph.
• Severe thunderstorm: Continuous thunder and occasional hailstorm, and maximum wind speed exceeding 74 kmph.

Thunderstorms occur round the year in different parts of the country. However, their frequency and intensity are maximum during summer months (March to June) as the most important factor for the occurrence of thunderstorms is the intense heating up of the atmosphere at the surface level.

              B.        Squall:

A squall is defined as a sudden increase of wind speed of at least 29 kmph (16 knots) with the speed rising to 40 kmph (22 knots) or more and lasting for at least one minute. It is of two types:

• Moderate squall: If the surface wind speed (in gusts) is up to 74 kmph.
• Severe squall: If the surface wind speed (in gusts) is greater than 74 kmph.

The climatology of the spatial distribution of occurrence of a squall is almost the same as that of thunderstorms. The frequency and intensity of squall are maximum over eastern and northeastern States. Also, its frequency is maximum during the pre-monsoon season with an increasing trend from March to May in different parts of the country. However, there is a secondary maximum in the winter season over northwest India.

       C.        Hailstorm:

India, with about 29 hail days of moderate to severe intensity per year, is among those countries in the world which experience a very high frequency of hail. Hailstorms are mainly observed during the winter and pre-monsoon seasons with virtually no events after the onset of the southwest monsoon.

It appears to be associated with a particular cell of convective cloud rather than storm as a whole. Hail occurs in the mature stage, if at all it occurs. Cells in which hails occur have updrafts of greater than average intensity, exceeding 15 meters per second. It is of three types:

• Slight Hailstorm: If it is sparsely distributed, usually small in size and often mixed with rain.
• Moderate Hailstorm: If it is abundant enough to whiten the ground.
• Strong Hailstorm: If it includes at least a proportion of large stones.

       D.        Dust Storm:

Northwest India experiences convective dust storms, locally called “aandhi”, during the pre-monsoon season with maximum frequency and intensity in May. The frequency of dust storms is maximum over Rajasthan followed by Haryana, Punjab and West Uttar Pradesh. It is of three types:

• Slight dust storm: If the wind speed is up to 41 kmph and visibility is less than 1,000 metres but more than 500 meters.
• Moderate dust storm: If the wind speed is between 42-74 kmph and visibility is between 200 and 500 metres.
• Severe dust storm: If the surface wind speed (in gusts) exceeds 74 kmph and visibility is less than 200 metres.

       E.        Lightning:

Lightning is a high-energy luminous electrical discharge accompanied by thunder. It is of three types:

            1) Thundercloud or Intra-cloud lightning (IC)

            2) Cloud-to-cloud or Inter-cloud lightning (CC)

            3) Cloud-to-ground lightning (CG)

The third type of lightning takes a toll on lives and property, and therefore, is of more concern to us. However, inter-cloud and intra-cloud lightning are also dangerous as they may hit aircrafts. These are also the precursor to cloud-to-ground lightning.

Lightning has a total path length of a few kilometres. Its peak power and total energy are very high, with the peak power discharge in the order of a 100 million watts per meter of the channel and the peak channel temperature approaching 30,000 C. Peak currents in a lighting discharge range up to hundreds of kilo amperes (kA) with its typical value being 40 kA. Predicting the precise time and location of lightning is very difficult. However, a season or a period of lightning occurrence is known for many regions.”

16.    While explaining as to the nature of Structural Mitigation Measures to protect against strong winds, the following instructions have been given in Clause 4.3 of the Guidelines-

          “4.3.    Structural Mitigation Measures

The most effective structural measures against thunderstorms, lightning, squall and strong winds are meant to protect against the strong, high-speed winds and against the electric discharge due to a lightning strike.

              (a)       Protection Against Strong Winds

During cyclonic conditions, strong winds are able to reach velocities of more than 200 km/hr. The cyclonic winds are also associated with pressure differentials that can cause a huge pressure difference between the outside and the inside of a building resulting in a higher net effect of the wind storm. These high-velocity winds can cause severe damage to light structural and non-structural systems such as claddings. Since the arrival of cyclonic storms is accompanied by suitable warnings, it is expected that people will not be found outdoor during a cyclonic storm. People are, therefore, safe against the most harmful effects of the high wind velocity provided they are inside cyclone shelters or other well-constructed buildings.

During strong winds associated with thunderstorms or squalls, the wind velocity is high but it rarely reaches cyclonic levels. Typical wind speeds during thunderstorms are in the range of 50-80 km/hr. During severe thunderstorms, the wind speeds may reach around 100 km/her. The wind velocity is highest in storms that are associated with extensive lightning activities.

Structures do not require any special protection against storms with wind speeds up to 100 km/hr if they are designed and constructed as per approved standards. Buildings that are constructed informally or those which are made using non-engineered materials may not be able to resist the wind forces. These may get damaged even in low wind speed unless special protection mechanisms are adopted. In general, components that provide large areas for the application of wind forces are the first to be damages. They can become loose and pose a threat to humans as flying debris. In buildings that use lightweight sheets for roofing, the panels may collapse on occupants.

Protection against the lightweight panels under such wind speeds can be provided by properly securing them with their supporting frames. The connection has to ensure that shearing or punching is avoided. Also, it has to be ensured that the panels themselves have the requisite strength to withstand the wind force. The supporting frames also need to have adequate strength to safely transfer the forces imposed on them.”

17.    It is also not in dispute that the location of the damaged structure is on the coastal side of the Arabian Sea in Mumbai.  The storm as urged was a ‘thunderstorm’ but not a cyclonic storm’.  Nevertheless the strong winds of 80 km/hr. were accompanied by rains and were described as a thunderstorm in the Weather Report.

18.    Ld. Counsel for the Insurance Company relied on the Standard Operation Procedure for forecasting weather by the Indian Meteorological Department including Cyclone warning. He contends that the Department adopts the Beaufort Scale as a standard scale.  He also submits that the judgment in the case of “M/s OPG Energy (P) Limited” (supra) overlooks the other parts of the definition of the word ‘storm’ as contained in the Dictionaries which were relied on by the Madras High Court.  To that extent Mr. Malhotra is correct that the measurement of wind speed for a storm finds reference to the Beaufort Scale in the Webster’s Dictionary and also in the Encyclopedic Britannica.  The judgment, therefore, had selectively adopted the meanings contained in the Dictionary in Para 14 & 15 as is evident from the same. The said judgment was also subjected to an appeal before the Division Bench in OSA No. 282 & 283 decided on 3.1.2022 but the Division Bench assumed that the severe cyclonic storm was not disputed.  Mr. Malhotra is correct in his submission that the issue was not examined viz a viz argument of the Insurance Company on the Beaufort Scale and rather it was treated to be an admitted position which was not the case.  He is therefore also right in his submission that the ratio of the judgment cannot be construed as an authority on the point of discarding the Beaufort Scale.

19.    Having said that, the question is as to whether a thunderstorm or a storm with a speed and velocity of winds at 80 kms/hr. could also be treated as a storm without violating the intention of the terms of the Policy.

20.    On the Beaufort Scale, Hurricanes, Typhoons, Cyclones, have been described with usually high speed and a Hurricane is categorized in the said Scale having a speed of 118-133 kms/hr.  A storm has been categorized to have a speed of 89-102 kms/hr. and a violent storm has been categorized to have a speed of 103-117 kms/hr.  The terminology ‘thunderstorm’ does not appear to have been categorized therein. The speed of 80 kms/hr. is categorized as a strong gale having a speed of 75-88 kms/hr.

21.    A comparison of the aforesaid terminologies used as compared to that of the Beaufort Scale indicates that winds accompanied by rains of 80 kms/hr. have been described by the Weather Department as a thunderstorm.  Thus, the incident presently in question whether the winds of 80 kms/hr. accompanied by rains are indicative of high speed winds capable of toppling the tarpaulin structure are in debate.  A strong gust to that extent has also been indicated in the Surveyor’s Report which matches with the Weather Report of the Santacruz Observatory.  The argument of the Insurance Company  to tie down the definition of the word ‘storm’ to a particular speed can be taken to be a hyper technical view.  The judgment in the case of “United India Insurance Co. Ltd. Vs. Kiran Combers & Spinners, (2007) 1 SCC 368” (supra) was considering the contest put forward by the Insurance Company that subsidence which is gradual caving or sinking of an area of land could be or not included within the coverage Clause of typhoon, storm, cyclone, tempest, hurricane, tornado, flood and inundation.  The Apex Court ruled as under –

“8. A perusal of the aforesaid clause would clearly show that there is no exclusion clause for subsidence. Clause 8(b) only talks of typhoon, storm, cyclone, tempest, hurricane, tornado, flood and inundation. None of the events mentioned above includes subsidence. We fail to understand from where the surveyor has brought the expression “subsidence” although clause 8 which specifically talks about exclusions, does not mention anything like subsidence. The policy is covered for flood and inundation for which the claimant is covered by paying extra premium, therefore, now to say that the policy has not covered subsidence, which is not a clause in the present policy cannot be sustained. Therefore, on the basis of this ground, repudiation of the claim of the claimant by the appellant does not appear to be justified. Had this been the clause, that if damage is caused on account of sinking and caving of the building i.e. subsidence then perhaps this would have come to the rescue of the Company but since in the exclusion clause there is no mention of subsidence, therefore, this ground taken by the appellant Company and by the surveyor to defeat the claim, is absolutely unwarranted.”

A perusal thereof would indicate that the argument of the Insurance Company was not accepted and it was held that this was done by the Surveyor only to defeat the claim. 

22.    The second position is in the case of “United India Insurance Co. Ltd. Vs. M.K.J. Corporation, (1996) 6 SCC 428”, where it was held that non-disclosure of such material in order to draw a party into a bargain of insurance is a breach of utmost good faith which is of a continuing nature.  In that case, some addition was made to the Policy Clause which was found to be unacceptable and the Appeal of the Insurance Company was rejected.

23.    Applying the aforesaid principles in the present case, there is no material on record to indicate that the Insurer ever informed the Complainant that a speed of 80 kms/hr. wind would not constitute a storm.  The Insurance Company has nowhere indicated the Beaufort Scale, as mentioned above, in the Policy or the General Terms and Conditions of the Policy as to be applicable for calculating the speed of the wind of a storm.

24.    In the background aforesaid, the damage caused and suffered on account of the fall of the tarpaulin structure by a strong gust of wind, which has been described in the Weather Report as a thunderstorm with a speed of 80 kms/hr., cannot be reasonably diluted to dissolve the impact of the fall of the tarpaulin structure on the dome of the building.  The strict applicability of the Beaufort Scale even if assumed to be a parameter, the weather conditions as reported clearly amount to a natural calamity that stands included within the fold of the word ‘storm’ occurring in the risk Policy.

25.    Mr. Malhotra made an ultimate attempt to contend that the Policy does not envisage all forms of winds, rains and natural calamities and it is structured for storms and hurricanes as understood by the Beaufort Scale.  The argument that the word ‘storm’ should be read in conformity with hurricane, tornado and typhoons, stands explained by itself that under the Beaufort  Scale all these terminologies have been gauged to be possessed of different strength and velocity of wind.  The first description occurring in the Policy is that of a storm and seems to be graduating higher in scale with other terminologies mentioned therein. Thus, to compare the speed of a thunderstorm or any other form or phenomenon with the other terms referred to therein would not be justified.  What has to be assessed is to whether the speed of 80 kms/hr. can also be reasonably presumed to be sufficient to constitute a storm capable of dislodging the structure which was a natural calamity.  The Surveyor has also noted that the gust of wind was sufficient to blow off the tarpaulin shed.  Mr. Malhotra urged that the tarpaulin shed could have been dislodged even by a high wind and therefore the speed of wind becomes relevant according to the Beaufort Scale. He submits that the falling of the structure by a high speed wind of a storm of more than 89 kms/hr. would only make the Insurance Company liable and not otherwise.

26.    It is in the aforesaid context that one has to adopt a reasonable approach and in the opinion of this Commission a storm with a wind speed of 80 kms/hr. would reasonably stand included under the policy risk in the light of the other definitions that have been referred to including the Weather Report itself.  Applying the contra proferentem rule even if there is an ambiguity in understanding the meaning of the word ‘storm’, the same has been clarified hereinabove and therefore the same should be read in favour of the Insured as it does not violate any terms of the Policy or any law declared in this respect.

27.    Consequently, for all the reasons stated hereinabove, the contention raised on behalf of the Insurance Company deserves to be rejected and the repudiation deserves to be held as unjustified.  There is therefore a clear deficiency in service as the Insurance Company has erroneously declined to indemnify a valid claim.

28.    The claim therefore deserves to be allowed.  The loss claimed by the Insured was to the tune of Rs. 4,22,63,500/- which was revised later to the extent of Rs. 3,09,39,319/-.  The valuation and assessment of loss made by the Insurance Company is to the tune of Rs. 2,33,75,229/-.

29.    The calculation made by the Surveyor has kept in mind the claims as well as the deductions while calculating the reinstatement coupled with the remarks that the provisional loss was Rs. 2,33,75,229/- and a depreciated value basis would be Rs. 1,76,11,358/-.  However, the said calculation was dependent on the actual costs incurred.

30.    The Complainant  has  relied  on  its  own calculations claiming Rs. 3.10 crores together with Rs. 3,50,000/- as additional expenses.

31.    The Complainant has nowhere argued or pointed out in the present complaint as to how the Surveyor’s calculations suffered from any incorrect methodology adopted and as such keeping in view the analysis made by the Surveyor the claim Petition is allowed directing payment of Rs. 1,76,11,358/- keeping in view the deductions on depreciation.  As no further data has been pointed out with regard to the actual costs incurred, the claim Petition is allowed with a direction with the aforesaid amount to be paid together with 9% p.a. interest from the date of loss till the date of actual payment within a period of 03 months and in default, the rate of interest shall enhance to 12% p.a.   With the aforesaid directions, the claim Petition is partly allowed.