This appeal is directed against the final order dated 07/08/2018 delivered by Ld. D.C.D.R.F, Jalpaiguri in reference to CC/29/2018. The fact of the case in nutshell is that the respondent Mahabir Doctor’s Hub a partnership firm represented by one of his partners Shri. Ravi Sharma who registered a consumer complaint before the Ld. Forum, Jalpaiguri to the score that the said partnership firm was holding an insurance policy under the coverage of standard fire and special perils vide policy no. 0G-18-240404001-00000046 for the period between 30/04/2017 and 29/04/2018 for the AC machine and furniture & fittings installed in the said partnership firm. The said AC machine and other furniture and fittings were damaged due to lightning and rain fall and the fan motor of the centralized AC machine was severely damaged. The claim was placed before the insurer for realization of such damage amount and the insurer has appointed an IRDA surveyor to ascertain the quantum of damage and the cause of such damage. The surveyor report detailed the cause of action of such damage for other reasons and not for any lightning and for the existence of the exclusion clause (vii) of the policy, The Insurance Co. has repudiated the claim.

            Being aggrieved with the said repudiation, the complainant registered the consumer complaint with prayer to get Rs. 43,200/- has damage, Rs. 5,000/- as litigation cost and Rs. 20,000/- as harassment along with interest. After admission of the consumer complaint, the notice was served upon the insurer but the insurer in spite of receiving the notice could not file the W.V within 45 days and for that reason, Ld. Forum has decided the case ex-parte and awarded the compensation in favour of the complainant.

            Being aggrieved with the said order this appeal follows on the ground that Ld. Forum without appreciating the actual facts and circumstances of the case has passed the impugned order which was full of errors and not vested with the law.

            The appeal was registered before this Commission and it was admitted on its own merit and the respondent that is the consumer complainant Mahabir Doctor’s Hub was approached by notice to contest the appeal. Accordingly, the respondent has responsed to the notice and appointed Ld. Advocate to conduct the case of the respondent before this Commission. Accordingly, the appeal was heard in presence of both the parties through their legal representatives.

DECISIONS WITH REASONS

            After hearing both sides it appears to this Commission that the respondent partnership firm was holding a valid insurance policy for the period between 30/04/2017 and 29/04/2018 for the plant and machinery furniture and fixtures AC machine and other items which was installed in the premises of the respondent. According to the case of the complainant, the AC machine was damaged and the vital parts of the said AC machine was seriously affected due to lightning and rain fall on 07/06/2017 whereas the surveyor in his report mentioned that the date and time of incident was on 08/09/2017 at about 3p.m as per report of consumer complainant Ravi Sharma. The said report was placed before the Ld. Forum by the consumer complainant at the time of disposal of the complaint. This survey report was handed over to the complainant/respondent by the insurer along with the repudiation letter dated 24/11/2017. During the course of the hearing the appeal Ld. Advocate of the respondent mentioned before this Commission that as per the survey report the fan PCB and fan Motor of the centralized air condition machine was damaged which was assessed to the tune of Rs. 42, 132/- but the surveyor due to the general exclusion clause no. (vii) of the policy has opined that the cause of damage was other than the lightning as per opinion of the survey engineer who has inspected the said AC machine at the time of assess of loss conducted by the surveyor who is a charter engineer named Soumendra Chakraborty. It is argued on the part of the Ld. Advocate of the respondent that survey report contradicts the date of occurrence of the incident and surveyor report is self-contradictory and it should not be accepted. Rather the surveyor could not pass any opinion satisfactorily about the proximate cause of damage and so surveyor report should not be accepted sacrosanctly. Ld. Advocate of the appellant in his argument mentioned that surveyor Mr. Chakraborty is an engineer who has efficiency and adequate qualification to ascertain the cause of damage of the AC machine and through inspection he could not gather any sign or other materials to hold that the alleged damage took place due to lightning. He further argued that the date of occurrence also differs between the statement of complainant in the consumer complaint and his statement before the surveyor. So, the Ld. Forum had adjudicated the dispute without going through the merit of the case. In support of his argument, He referred a judicial decision reported in 2018(4) CPR 856 (NC) where it was held that insurance co. is not liable to pay the claim amount for the damaged items which was not covered by the policy issued. Ld. Advocate submits that the surveyor’s report vehemently speaks that as per the general exclusion clause (vii) of the policy which says that loss, destruction, damage to any electronic machine, apparatus ficture or fitting arising from or occasioned by overrunning excessive pressure, short circuiting arcing, heavy leakage of electricity from whatever cause (lightning included) provided that this exclusion will apply to the particular electronic machine/apparatus/ficture or fitting, so, affected and not to other machine, apparatus, ficture or fittings which may be destroyed or damaged by fire so setup. Ld. Advocate of the appellant further submits that for this exclusion clause the fan PCV and fan Motor of the AC fitted outside the premises which was damaged in the incident which debars from getting any compensation as per exclusion clause no. (vii) of the policy and for that reason, the insurance co. has rightfully repudiated the claim.

            After hearing both sides this Commission finds that the report of surveyor is not conclusive one and fully reliance upon the report should not be adhere to as because the surveyor could not ascertain the actual and the proximate cause of such damage. Mere absence of fire marking in the body of fan PCV or fan Motor was not well enough to hold that the alleged damage took place due to other than the cause of lightning. The assessor has assessed the loss to the tune of Rs. 42,132/-. Actually, the complainant also suffered this type of loss after deduction of the salvage value. So, our opinion, such amount of Rs. 42,132/- should be compensated to the insured by virtue of the alleged policy of standard fire and special perils.

            On the other hand, the insurance co. has relied upon the report of the assessor who was holding a license under IRDA and insurance co. has no fault to place reliance upon the said report. Therefore, beside the damage amount the insurance co. has no other liability to be casted upon. So, the order of Ld. Forum in this score should be modified. The Ld. Forum has asked the insurance co. to pay Rs. 68,231/- but in our view actually the complainant should get Rs. 42,132/- for damage along with litigation cost of Rs. 2,000/- instead of Rs. 5,000/- Rs. 20,000/- which was imposed upon for the mental pain and agony should not be in vogue. And the order of interest at the rate of 9 per cent per annum from 21/06/2018 should be rescinded. As a result, the appeal succeeds in part.

Hence it is ordered: -

That the appeal be and the same is partially allowed on contest without imposing any cost. The order of Ld. Forum in CC/29/2018 dated 07/08/2018 is modified to the extent that the appellant insurance co. is hereby asked to pay Rs. 42,132/- and litigation cost of Rs. 2,000/- to the respondent Mahabir Doctor’s Hub within 30 days from the date of receiving the copy of order, of this commission failing which the interest at the rate of 8 per cent per annum shall be carried on over the decretal amount.

            Let a copy of this order be supplied to the parties free of cost and the same be handed over the concerned Ld. D.C.D.R.F through e-mail.