1. Heard Mr. Puneet Bajaj, Advocate, for the appellant and Mr. S.M. Tripathi, Advocate, for respondent-1. 2. M/s. Kuntal Ice And Cold Storage (P) Limited (the complainant) has filed above appeal from the order of State Consumer Disputes Redressal Commission, Uttar Pradesh, dated 18.12.2013, passed in CC/140/2011, dismissing the complaint. 3. M/s. Kuntal Ice And Cold Storage (P) Limited (the appellant) filed CC/140/2011, for directing respondent-1/Insurer to pay (i) Rs. 90/- lacs with interest at suitable rate, as the insurance claim, (ii) Rs.10000/- as compensation for harassment, (iii) Rs.3000/- as the cost of litigation; and (iv) any other relief, which is deemed fit and proper, in the facts and circumstances of the case. 4. The facts, as stated in the complaint and emerged from the documents attached with the complaint, are as follows:- (a) M/s. Kuntal Ice And Cold Storage (P) Limited (the Insured) was a private company, registered under the Companies Act, 1956 and engaged in the business of cold storage, situated at: Khasra No.831-832, Turkiya Nahar, Mauja Mangrol Jat, Achnera, Bharatpur Road, Kirawali, Agra, from the year 2009. The storage capacity of cold storage was 9300 matric ton i.e. 186000 bags of potatoes. Storage of potatoes used to be started from the month of February and clearance up to the month of October, of succeeding year. (b) M/s.Chola Mandalam General Insurance Company Ltd. (the respondent) was a Private Insurance Company and engaged in the business of providing different types of insurance services to the general public. The Insured obtained ‘Standard Fire and Special Perils Policy’ No.PSP00083530-000-00, with endorsement of Deterioration of stock clause, for a period of 25.05.2010 to 25.05.2011, for a sum of Rs.3.3/-crores on the stock of potatoes, Rs.28515000/- on Building and Rs.8374000/- on Plant & Machinery. (c) The Insured stored 174064 bags (weight of each bag was 50 kg.) of potatoes in the cold storage up to 22.03.2010. The clearance of the potatoes started from September, 2010 and up to 29.09.2010, total 105811 bags were cleared/taken away from the storage by its owners. It was noticed that in basement, stocks were badly decade and started germination. It is stated that after segregation of good potatoes from that stock, 14853 bags potatoes were sold in the market at the rate of Rs.65/- per bags and 53760 bags potatoes were completely deteriorated and dumped. (d) The Insured through letter dated 16.11.2010, informed the Insured about deterioration of the potatoes. The Insurer appointed R.P. Rathore, Surveyor & Loss Assessor, Agra, for preliminary survey on 16.11.2010 and Ram Mohan Gupta, Surveyor & Loss Assessor, Gwalior as the surveyor on 01.12.2010. The surveyor R.P. Rathore, vide Letter No.RPR/6008/2010-11 dated 18.11.2010, informed that damage to the potatoes were caused due to non-maintenance of requisite temperature. In the same terms, he submitted his Preliminary Survey Report dated 18.12.2010. (e) The surveyor Ram Mohan Gupta submitted Final Survey Report dated 15.12.2010, mentioning therein that seepage of water from basement and its inundation is not an insured peril. Hence the loss caused due to moisture, which got developed during the period of storing was not covered under the policy. He assessed the loss to Rs.11262478/-. Thereafter, the reports and papers were examined by the competent authority, who repudiated the claim vide letter dated 07.01.2011, on the ground that the loss occurred due to seepage, which was not an insured peril. Then this complaint was filed, claiming deficiency in service on the part of the Insurer. 5. The Insurer filed its written reply on 27.05.2013 and contested the complaint. The fact of obtaining ‘Standard Fire and Special Perils Policy’ No.PSP00083530-000-00, with endorsement of Deterioration of stock clause for a period of 25.05.2010 to 25.05.2011 has not been disputed. It has been stated that as soon as the Insurer received information of loss, the Insurer appointed R.P. Rathore, Surveyor & Loss Assessor, Agra, for preliminary survey on 16.11.2010 and Ram Mohan Gupta, Surveyor & Loss Assessor, Gwalior as the surveyor on 01.12.2010. R.P. Rathore, vide Letter No.RPR/6008/2010-11 dated 18.11.2010, informed that damage to the potatoes were caused due to non-maintenance of requisite temperature. In the same terms, he submitted his Preliminary Survey Report dated 18.12.2010. The surveyor Ram Mohan Gupta submitted Final Survey Report dated 15.12.2010, mentioning therein that seepage of water from basement and its inundation is not an insured peril. Hence the loss caused due to moisture, which got developed during the period of storage was not covered under the policy. Thereafter, the reports and papers were examined by the competent authority, who repudiated the claim vide letter dated 07.01.2011, on the ground that the loss occurred due to seepage, which was not an insured peril. There was no deficiency in service on the part of the Insurer. 6. State Commission, after hearing the parties, by impugned judgment dated 18.12.2013, held that according to the complainant the damages was caused due to heavy rain and inundation. Dictionary meaning of word ‘inundation’ is submersion. The Insured has not filed any evidence to prove inundation. Seepage means flow or leak slowly through or into something soak. The Insured did not give any information to District Horticulture Officer and the owners of the potatoes according to the provisions of U.P. Regulation of Cold Storage Act, 1976 before disposal of the damaged potatoes. The Insured was doing in commercial activities and was not a consumer under Consumer Protection Act, 1986. On these findings, the complaint was dismissed. Hence this appeal has been filed. 7. We have considered the arguments of the counsel for the parties and examined the record. This Commission in Harsolia Motors Vs. National Insurance Company Ltd., I (2005) CPJ 27 (NC), held that contract of insurance is a contract of indemnity and not for earning profit. As such, even if the Insured is involved in commercial activities, he was a consumer and the complaint is maintainable. Finding of State Commission in this respect is illegal. 8. The Insured in the Claim Form mentioned the probable cause of loss as “Due to water logging and seepage” and date of loss has been mentioned as “18th October, 2010”. In paragraph-6 of the complaint, the Insured stated that the cold storage situated at the place, where water was flowing all the time from canal and convection from boundary wall to the cold storage. The Insured did not take the plea nor filed any evidence to prove flood or inundation. In the grounds of appeal, the Insured has stated that seepage was the result of inundation and inundation means accumulation of water. Supreme Court in Polymat India Pvt. Ltd. Vs. national Insurance Company Ltd., (1999) 6 SCC 451 and Oriental Insurance Company Vs. Sony Cheriyan, (1999) 6 SCC 451, held that terms and conditions of insurance policy ought to be strictly construed. 9. Clause-VI of Standard Fire and Special Perils Policy is quoted below:- VI. Storm, Cyclone, Typhoon, Tempest, Hurricane, Tornado, Flood and Inundation Loss, destruction or damage directly caused by Storm, Cyclone, Typhoon, Tempest, Hurricane, Tornado, Flood and Inundation excluding those resulting, Volcanic eruption or other convulsions of nature. 10. A bare reading of above insured peril shows that loss, directly caused by inundation was liable to be indemnified. In the present case, according to the Insured, loss was caused due to seepage as there was continuous water flow of canal by the side of boundary wall to the cold storage, which is not a direct cause of inundation. Inundation mean “covered with flood water”. As such repudiation letter dated 07.01.2011 and the order of State Commission dated 18.12.2013 do not suffer from any illegality. 11. The date of loss has been shown as 18th October, 2010 in the claim form. In paragraph-9 of the complaint, the Insured has stated that 16.11.2010, he had thrown 50000 bags of potatoes. There is nothing on record to prove that the Insured informed the Insurer about the loss prior to 16.11.2010. Under Clause-6 (i) of General Terms and Conditions of Standard Fire and Special Perils Policy, the Insured is required to give notice of loss to the Insurer forthwith. The Insurer has been deprived to verify the damaged potatoes as it is only after disposing of all the potatoes from the cold storage, information was given to the Insurer and the claim was put up before it on 16.11.2010. In view of the aforesaid discussions, we do not find ground to interfere with the order of State Commission. The appeal has no merit and is liable to be dismissed ORDER In view of the aforesaid discussions, the appeal is dismissed. |
