Adv. For the Complainant: -    Sri Debasish Biswal and Others

Adv. For O.P. No. 1            :-   Sri Ashotosh Panigrahi & Pramod Kumar Tripathy

Adv. For O.P.No.2               :- Aswini kumar Tripathy

Date  of filing of the Case  :- 01.02.2021

Date of Order :-    29.09.2023

JUDGMENT

Fact of the case in nutshell :

1. The complainant is the owner of the Siddhi Aqua purified  water plant in the town which has been established in the year 2016/17 for his self employment and livelihood. The said plant has been financed by Allahabad  Bank Bolangir Branch , Bolangir who is Op No.1 in this case and insured its stock and machineries for standard fire and peril insurance policy with universal Sampo  General Insurance co Ltd. 4^th  floor unit 401 Sangam complex -127 pin 40059 Andheri  east Mumbai whose business branch office at BBSR House no 461 2^nd floor GUGNANI heights Gautam Nagar lewis road BBSR 751014

Tie up with Allahabad Bank Bolangir Branch and doing his business who is Op No.2. The policy was valid from 09/08/2019 to 08/08/2020 as per the policy certificate.

In the year 2019 on dt 12/08/2019 and 13/08/2019 entire Bolangir town was stand still due to heavy rain and also flooded with heavy water for which the said industry was water locked due to which the complainant suffered a huge loss to its machineries and raw materials out of that flood.

After the incident the complainant reported the matter to OP No.2 on dated 26^th August 2019 through e-mail after getting the information OP No.2 had sent a team to the plant of the complainant for inspection on dt. 19/08/2019 ( for inspection andsurvey of loss) damaged occurred in the said occurrence. The complainant provide all the necessary documents required bythe OP No.2 to asses the loss. After some days the Op No.2 had sent a e-mail on dt 19/03/2020 that the assessment of loss of stock arrived to an amount of Rs.4,84,640/-

After getting the e-mail from Op No.2 the complainant had sent a e-mail on dt 01/05/2020 regarding the dissatisfactionover the assessment made by Op No.2 and requested OP No.2 for reassessment as the complainantfaced actual loss of Rs.27,00,000/-

The Op No.2 has paida deaf year towards the loss of machinery which is the main item of loss sustained due to the silent character of Op No.2regarding the loss the complainant boundto request the Op No.1 for Rs.20,00,000/- for running the said plant after the protest petition filed by the complainant the Op No.2 not even release a single pie for the settlement of the claim.Hence this case.

2. To substantiate his case the complainant relied on the following document.

1. Xerox copy of insurance policy certificate.
2. Xerox copy of e-mail of correspondents with Op No.2.
3. Xerox copy of e-mail of Op No.2 the complainant of dt 02/12/2020
4. Xerox copy of bank loon sanction paper by Op No.1.
5. The invoice of purchase of machineries (Xerox Copy).

3. Having gone through the complainant and its accompanied documents and on hearing the complainant prima facie it seemed to be a genuine case hence admitted and notice

to the Ops were served and in response they appeared through their councel and filed their written version.

4. To face the charge the rival contention the Op No.2 stated that the complainant is not maintainable and in Para 12 of the w. s submitted that complainant /insured had opted a policy which has a waiting period for STFI perils . that is 15 days from policy inception date as such the complaint levelled against Op No.2 kindly be dismissed.

5. Heard the complainant and perused the material on record with submission and vehement denials of the learned advocated for the Op with arguments.
6. After scrutinize all the papers and evidence carefully this commission feels and prefer to frame the following issue for Just decision of the case as follows.

1. Whether the case is maintainable ?
2. Whether the OPS able to counter the allegation made against them.
3. Whether the complainant entitle to get any compensation? If so what is the quantum of compensation?

Issue No .1

            Regarding the maintainability of the case here this commission prefer to quote the definition of  service under Sec 2 sub section.(42) of C.P Act 2019. “ service” means service of any description which is made available to potential users and includes but not limited to the provisions of facilities in connection with  Banking , financing Insurance , Transport , processing supply of electrical or other energy telcom  boarding or lodging or both , housing construction , entertainment , amusement or the purveying of news or other information but does not includes the rendering of any service free of charge or under a contract of personal service, and deficiency defines in sec 2 sub sec 11 of C.P. Act 2019 as “ deficiency” means any fault imperfection , short comings or in adequacy  in the quality , nature and  manner of performance which is required to be maintained by or under any law for the time being in force has been under taken to be performed by a person in pursuance of a contract or otherwise in relation to any service and includes.

1. Any act of negligence or omission or commission by such person which cause loss or injury to the consumer and
2. Deliberate  withholding of event information by such person to the  consumer.

From the above it is clear that the present case comes with in theJurisdiction of this commission hence the case is maintainable issue no 1 answer accordingly.

Issue No.2

After gone through the evidence on record and perusal of the documents this commission observes that the allegation made by the complainant the insurance policy is a standard fire and peril policy which is admitted by the Ops, the coverage period of the policy was from 09/08/2019 to 08/08/2020 is also not disputed , the premium money paid for SFSP and peril is also admitted it is also admitted that the OP No.2  tie up with OP No.1 regarding insurance while advancing loan to the complainant . But to counter its case the OP No.2 unable to prove the date of 15 days which is the grace period from the date of perception of policy is just to debarred the complainant, no documents has been filed by the Op No.2 to support his claim according to insurance policy guided by IRDA only 15 days grace period is maintainable while there is a new policy begins with the insurance company but not in a renewal of policy such a

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grace period is maintained  In renewal of policy the insurance coverage starts from the date of payment of the premium  . No document has been filed by the Op No.2 that in case of renewal of policy that  15 days  from the policy inception date where any loss or damage due to SFSP peril is excluded for 15 days from policy inception date. Which is not reasonable to repudiate the claim.

The Hon’ble  Apex court in judgement in the case of Dharmendra  Goel  V. oriental insurance co Ltd iii (2008) CPJ 63 (SC)held as under.

“Insurance company  being in a dominant position often acts in an unreasonable manner and after having accepted the value of a particular insured good service disowns that very figure on one pretent or other when they are called upon to pay compensation this “take it or leave it” attitude is clearly unwanted not only as being bad in law but ethically indefensible . It is generally seen that the insurance companies are only interested in earnings the premiums  and find ways and means to decline claims . The case in hand is a policy of standard fire and peril policy where the insurer bound to pay the compensation as because the occurrence of the  event is uncertain as the contract of insurance is a contract of indemnity.

Secondly in this case the correspondence in e-mail by the complainant and the surveyor shows that Op no.2 appointed one surveyor for assessment of loss but could not file the surveyor’s report which reveals from the e-mail dated may 1 / 2020 where the complainant protested for the loss assessment by the surveyor up to a tune of Rs.4,86,640/- where the actual loss was more than 27,00,000/- there is not a single word stated in its W.S. by the Op No.2 regarding the appointment of surveyor rather states that there was no flood. If there was no flood why the Op No.2 appoint the  MEHTA & PADAMASETY, New Delhi as surveyor for  assessment the loss . as such the OP No 2 suppress the material fact which shows the mala fide intention of  Op no.2

It should be borne in mind that good record is good defence. In united India Insurance co L:td. And others Vrs  Roshal lal oil mills Ltd. And another reported in 2000(10) SCC-19

“ It was held that report of the surveyor is an important documents and it should be considered before arriving at a Judgement”. In this case the e-mail letter dated 19/05/2020 reflected that  “ we have assessed the loss only for loss of stock ( Machineries not considered) and arrived at the amount of not adjusted loss of rounded Rs.4.84,640/-  It clearly shows that the assessment only for stock and not for machineries. But the complainant claim for both stock and the machineries which are out of order. The policy also covers both stock and machinery  , as such the protest petition filed by the complainant before Op No.2 is genuine.

In Royal Sundaram Alliance Insurance co. Ltd. V. s. k.  Samata & co pvt Ltd. Rev. petition no 3770 of 2013 against the order dated 05/09/2013 in appeal no 220/2012 of the State commission W.B decided on 22/02/2023 NCDRC Delhi where it is held that”

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1. “Surveyors- surveyors are appointed by the Insurance companies and they work strictly as per the direction given and mandate assigned to there by the insurance companies.

2. Independent mind- surveyor is required to apply its own independent mind for assessing the loss suffered by an insured but in all probabilities it cannot be accepted that the surveyor would take the said action without obtaining instructions in this behalf from the insurance company concerned where there is a conflict arise on between the actual loss and assessment made by the surveyor is more less without taking consideration to the actual loss”.

In New India assurance co Ltd. Vs Pradeep Kumar 2009 7 (SC)787 held that  “ surveyor report is not the last and final word it is not that sacrosanct that it cannot be departed from , it is not conclusive”.

More over Hon’ble SC in Charan Singh vs Hill touch Hospital & ors(2000)7SCC668 also apposite.

“ while quantifying damage consumer Forum are required to make an attempt to serve the ends of Justice so that compensation is awarded in an establish case which not only  serves the purpose of re compensing the individual but which also at the same time aims to bring about a qualitative change in the attitude of the service provider indeed calculation of damages depend on the facts and circumstances of each case No hard and first rule can be laid down for universal application , while awarding compensation a consumer forum has to take in to account all relevant factor and asses compensation on the basis of accepted legal

it find it reasonable fair and proper in fact and circumstances of a given case according to the established. Judicial standards where the claimant is able to establish his charge   . issue no 2 answered accordingly.

Issue No.3

Sequel to the above discussion this commission observes and found that the complainant establish his case and Op no.2   failed to counter the charge levelled against him rather suppress the material  facts as such the complainant deserves the compensation as computed , below.

       This commission does not interfere with the  assessment of stock already assessed by the surveyor to a tune of Rs.4,84,000/- leaving the machineries untouched.

The invoice slip of machineries purchased by the complainant  on the record which shows the complainant in the year dated 24/05/2016 purchased from one sahana Estate main road Mansoorabad   L.B. Nagar  Hydrabad a total cost of Rs.25,00,000/- The incident took place in the year 13/08/2019 as such the machinery runs for 3 years 3 months at the time of incident and as per depreciation value of the machineries @ 5 % for the first year @7% for the 2^nd year and @10% for the 3^rd year it would be Rs.1,25,000 Rs.1,55,000 and Rs.2,50,000 the total depreciation value comes

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to Rs.5,30,000/- less from the actual purchase price comes to Rs.19,70,000/-less the salvage Rs.1,50,000/- of the machineries comes to Rs.18,50,000/- . less excess @ 5% Rs.85,000/- comes to Rs.17,65,000/- some machines are repairable some are not repairable and out dated for  that this commission pleased to fixed and award the quantum  of compensation up to Rs.7,50,000/- for machinery and by adding the stock assessment i.e. Rs.4,84,000/- amount to Rs.12,34,640/- for the actual loss sustained.

In view of the above we find merit in this case and allow the same with following direction

                                                                        ORDER

The OP No.2 is directed to pay a sum of Rs.12,34,640/- @ 9 % interest per annum from the date of incident i.e. 13/08/2019 till the date of order and a sum  of Rs.30,000/- towards mental agony and Rs.5,000/- towards litigation expenses , with in one month from the date of order failing which the entire amount paid by the Op No.2 @12% interest per annum from the date of incident till the date of realization.

                                                                  No award as to cost.

         PRONOUNCED IN THE OPEN COMMISSION TODAY I.E DATED  29^th   DAY OF September’2023