The petitioner is the proprietor of a fuel station. At the time of operation of the fuel station, the petitioner had taken a Fire and Special Peril Policy which is produced as Ext.P1 in the writ petition. It is the case of the petitioner that almost immediately after taking the policy on 13.06.2004, the retaining wall of the fuel station that was set up by the petitioner collapsed owing to continuous heavy rain in the locality. The petitioner, therefore, preferred a claim before the respondent Insurance Company. By Ext.P3 order, the claim of the petitioner was rejected by the respondent company. From Ext.P3 order, it is evident that the respondent Insurance Company was of the view that the construction of the retaining wall put up by the petitioner was inherently defective and it was this defective construction that resulted in the collapse of the retaining wall and not any special peril such as heavy rain fall, landslide etc. The respondent company, inter alia, relied on the exclusion clause in Ext.P1 insurance contract which excluded losses owing to defective design or workmanship, or use of defective materials, from the ambit of
