PARESH NATH BAKSI Vs. NATIONAL INSURANCE CO LTD

JUDGEMENT

(1.) The only short point that arises for determination in this appeal is the interpretation of the expression "malicious damage" occurring in a policy of insurance. The appellants-complainants insured their house at D-226 C. I. T. Road, Calcutta-700 010 with the opposite party Insurance Company under a policy against fire and allied risks including riot, strike and malicious damage on payment of due premium. During the risk period the complainants suffered damage to their house during the construction of a new building on the adjacent plot by some promoter. It has been alleged that during the construction mortar and dirty water splashed on the painted wall of the complainants soiling the same as a result of which they suffered loss of Rs.6,000/- which was subsequently enhanced to Rs.7,000/-. The complainants had made a claim to the opposite party Insurance Company who appointed a Surveyor for assessing damages. The Surveyor assessed the damages and made a recommendation for payment of an amount of Rs.2,906/- subject, however, to a decision whether it was a case of malicious damage. The Insurance Company, however, repudiated the claim on the ground that it was not a case of malicious damage and was as such not covered by the insurance policy.

(2.) The appellants accordingly filed a complaint demanding Rs.7,500/-. The case was contested by the Insurance Company. The District Forum after an examination of the terms of the policy upheld the contention of the Insurance Company and dismissed the case. The present appeal is against the said decision.

(3.) Before the Commission the appellants argue that the Forum has misinterpreted the legal position. According to them there was admittedly damage to their wall. This damage was caused by the promoter with the full knowledge that their construction would cause damage to the neighbour's wall. It was an offence of mischief under Sec.425 of the Indian Penal Code. The view of the District Forum is that for being covered by the terms of the policy there must be an element of malice in causing the damage.