9911796707
TMI Blog2023 (5) TMI 752X X X X Extracts X X X X X X X X Extracts X X X X ..... has allowed the complaint filed by the complainant (respondent herein), and directed the appellant to pay a sum of Rs. 202.216 lakhs to the complainant along with interest @ 9% per annum from six months from the date of lodgment of the claim till the date on which the said payment is made. 2. The respondent-complainant, running a Resort at Village Shikharkpur, P.S. Rajarhat, District 24- Paraganas, (South) of West Bengal had obtained two insurance policies from the appellant-Insurance Company, one being Policy No. 100900/11 / 08/3300000420 for the period from 16th September, 2008 to 15th September, 2009 in respect of the buildings of the said Resort with plant and machineries accessories and furniture etc. and the other being Policy No. 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... firing and throwing bombs at the football match venue, and upon being chased by the crowd, took shelter in Vedic Resorts and Hotels Pvt. Ltd. of the respondent complainant. Since the said Gaffar Molla and his associates were given shelter in the said Vedic Resort, the crowd chased them and damaged the insured property of the respondent-complainant. During the course of investigation, the police conducted a search of Vedic village on 24th August, 2009 and found that there were pipe guns, live bombs in gunny bags and explosive substances found and recovered from the housing material-cum-electrical store room situated within the compound of the Vedic village of the respondent. 6. On the surveyor being appointed, as per the Final Survey Repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m, the loss suffered by the respondent was an outcome of the malicious act on the part of the management of Vedic village, which fell within the exclusions provided under Clause V(d) of the Insurance Policy. He further submitted that the words "or any omission or any kind or any person" occurring in Clause V(d) of the Policy would cover the damage to the property caused on account of omission of the management of the respondent-complainant to abide by the law, and the respondent had engaged Gaffar Molla and his associates for carrying out illegal activities and terrorising the people having their lands adjacent to the resort, to extend the area of his resort. He also submitted that the Survey Report of the Surveyor opining that the loss had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in any malicious act was not covered. It further states that if the Insurance company alleges that the loss/damage was not caused by any malicious act, the burden of proving the contrary would be upon the insured. In the instant case, the appellant-Insurance company had repudiated the claim of the respondent taking recourse to the said Clause V(d) of the subject policy on the ground that the loss caused to the respondent was an outcome of the malicious act/acts on the part of the respondent Vedic Village management and it fell within the exclusions provided under Clause V(d) of the Insurance Policy. For the purpose of coming to the said conclusion, the appellant- Insurance Company in its letter dated 02/05/2011 while repudiating the claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a policy, it would be for the insurer to show that the case falls within the purview of such clause. In case of ambiguity, the contract of insurance has to be construed in favour of the insured. 15. Beneficial reference of the decision in National Insurance Company Limited vs. Ishar Das Madan Lal [(2007) 4 SCC 105] be made in this regard, in which it has been held that: - "8. However, there may be an express clause excluding the applicability of insurance cover. Wherever such exclusionary clause is contained in a policy, it would be for the insurer to show that the case falls within the purview thereof. In a case of ambiguity, it is trite, the contract of insurance shall be construed in favour of the insured. " 16. The Constitution Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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