Sri Subhra Sankar Bhatta, Judicial Member

This appeal under Section 15 of the Consumer Protection Act, 1986 has been preferred at the behest of the 1) The Divisional Manager, The New India Assurance Company Limited, Chinsurah Divisional Office and 2) The Sr. Branch Manager, The New India Assurance Company Limited , Serampore Branch Office who were respectively the Opposite Party Nos 1 & 2 before the Ld. District Consumer Disputes Redressal Commission, Hooghly at Chinsurah (herein after referred to “District Commission” for short) assailing the impugned judgment and order dated 20.09.2017 passed by the District Commission in connection with Consumer Complaint Case No. CC/113/2015 whereby the District Commission was pleased to allow the complaint case on contest and pass the following directions:

“Ordered

 That the Complaint case no. 113/2015 be and the same is allowed on contest.  The OP Nos. 1 & 2 are directed to pay Rs.3,00,000/- to the Complainant regarding loss sustained by him due to fire.  The OP Nos. 1 & 2 are also directed to pay Rs.50,000/- to the Complainants towards mental pain and agony and further directed to pay Rs.10,000/- towards litigation cost.

The OP Nos. 1 & 2 are directed to comply the above orders within 30 days from the date of this order i.d. 18% p.a. interest would be accrued on the amount of Rs.3,00,000/- till full realization is made.

Let a copy of this order be made over to the Parties free of cost.”

The fact of the case, in a nutshell, is that the Complainant used to run a business of Muri Production in the name and style of MEGHNAD MURI SUPPLIER. The Complainant obtained a policy from the New India Assurance Company Limited being policy no 51250111130100000759 covering the period from 01.03.2014 to 28.02.2015.  It has been categorically contended that on 10.04.2014 at about 11.05p.m. an incident of fire took place in the Complainant`s business premises.  As a consequence of which the brick build    go down with asbestos shed measuring about 40” X30” containing huge quantity of rice, salt, husk and wood dust used as fuel along with husking machine with accessories were completely damaged due to such fire.  The Complainant informed the incident to Jangipara Police Station, Tarakeswar Fire Station, State Bank of India (Haripal Branch) and the Insurer (OP) for taking necessary action.  The Officer-in Charge of Tarakeswar Fire Station came to the place of occurrence and took necessary action for extinguishing the fire occurred in the business premises of the Complainant.  The Officer-in-Charge of Tarakeswar Fire Station submitted the information as to the origin and cause of such fire to the Presidency Magistrate, Chinsurah, Hooghly on 11.04.2014.  The Complainant also deposited Rs.5938/- on 10.04.2014 for extinguishing the said fire as per direction of the Divisional Officer (F-Division), West Bengal Fire and Emergency Services.   It has been alleged that the Opposite Parties without holding any enquiry, survey and without considering the Fire Brigade report dated 11.04.2014 rejected the claim of the Complainant as “No Claim”. It has been also alleged that the OPs are fully liable for negligence and deficiency in service for not considering the claim of the Complainant.  The Complainant sent a letter to the OP on 20.11.2014 through their Advocate by registered post with A/D with the prayer for considering the claim of the Complainant for the loss of movable and immovable property caused due to such fire but the OPs did not pay any heed to it.  Under such compelling circumstances the Complainant filed the petition of complaint for getting redressal and reliefs.

On the contrary OP No. 1 the New India Assurance Company Limited contested the complaint case by filing written version wherein they denied all the material allegations brought against them in the body of the complaint petition.  It has been contended that the Complainant had no cause of action to institute the complaint case against the OPs; that the complaint petition is not maintainable both in law and facts; that the complaint petition is hopelessly barred by the law of limitation.  It is the specific case of the defence that an incident of fire took place on 10.04.2014 at the back side of the insured premises and the said incident was intimated to the OP/Appellant.  The Insurance Company deputed a Surveyor to assess the loss.  Accordingly, the Surveyor conducted the survey and assessed the loss and also submitted survey report on 11.09.2014.  On receipt of the survey report the OPs/Appellants repudiated the claim of the Complainant/Respondent by issuing repudiation letter on 08.10.2014 with the conclusion “No Claim”.  It is the categorical case of the defence that the Appointed Surveyor inspected the affected unit in question very carefully and snapped photographs from different angles also recorded the speech of the insured and ultimately observed that at the back side of the Main Factory a separate shed made of bamboo structure with asbestos roofing was used for keeping the fuel and the front and left side were completely open and one side of the said bamboo structure was covered with extended boundary wall wherefrom the said fire was mainly generated. It has been also contended that the report of the Surveyor goes to establish that there was no provision of electricity and as such question of electric short circuit does not arise at all.  According to the defence there might be a chance of sabotage. It has been unequivocally contended that the Complainant failed to substantiate the claim and as such OP/Insurance Company was compelled to repudiate the claim.  It has been also contended that there was no negligence or deficiency of service from the end of the OP/Insurance Company. After scrutinising the relevant documents and reports the Insurance Company came to the final decision that as there was no chance of fire from machinery due to short circuit or any type of electrical fault question of damage or loss due to such fire does not stand at all. Moreover, fire brigade authority did not confirm the cause of alleged fire. It has been specifically contended that the actual place of the incident is situated in a separate place and there were lapses on the part of the Complainant to protect the property. The activity of the Complainant tantamounts to violation of the policy condition and on such ground the Complainant is not entitled to get any compensation. The Opposite Party/The New India Assurance Company Limited prayed for outright dismissal of the complaint case with cost.

After considering the pleadings of the respective parties to the complaint case and having considered the evidence (both oral and documentary) on record Ld. Commission below was pleased to allow the complaint case on contest against Opposite Party Nos. 1 and 2.

Feeling aggrieved and dissatisfied with the above judgment and order of the District Commission the Opposite Parties as Appellants have preferred the present appeal on various grounds as highlighted in the memorandum of appeal. It has been contended that the Ld. Forum below passed the impugned order simply basing on assumption and presumption; that the Ld. District Commission erred both in law and facts while arriving at the final decision; that the Ld. District Commission totally failed to exercise its jurisdiction vested by law and acted with material irregularity and illegality; that the Ld. District Commission passed the impugned order without proper application of judicial mind; that the Ld. District Commission did not consider the terms and conditions of the policy and also failed to appreciate the fact that only the superstructure of the factory premises of the Respondent/Complainant was insured. Ld. District Commission further failed to appreciate that no separate bamboo structure with asbestos sheet was covered within the insurance policy; that the Ld. District Commission failed to appreciate the definition of superstructure of a building or part of a building; that the Ld. District Commission ought to have held that the temporary structure of bamboos with asbestos does not fall within the scope and meaning of the definition superstructure of a building; that the Ld. District Commission ought to have held that the incident of fire took place at the back side of the main factory shed which was a separate shed and the said bamboo structure was not covered under the policy in question; that the Ld. District Commission failed to appreciate that the fire was mainly generated from a separate section which was not insured and the said separate section had no provision of electricity and as such there was no chance of short circuit; that the Ld. District Commission failed to consider that the claim of the Respondent/Complainant was rightly repudiated by the Appellant/Insurance Company; that the Ld. District Commission further failed to hold that there was no deficiency in service or unfair trade practices from the end of the Appellant/Insurance Company. On all such grounds the Appellants/Insurance Company have prayed for allowing the present appeal after setting aside the impugned judgment and order.

POINTS FOR DETERMINATION:

I) Whether the Ld. Commission below was justified in passing the impugned judgment and order.

II) Whether the Ld. Commission below has committed any irregularity or illegality in passing the impugned judgment and order.

III) Whether the impugned judgment and order deserve interference of this Appellate Commission.

IV) Whether the impugned judgment and order can be sustained in the eye of law.

DECISIONS WITH REASONS

All the above points are taken up together for the brevity of discussion and in order to avoid unnecessary repetitions. Moreover, all the above points are interrelated with each other.

Ld. Counsel appearing for the Appellants/Insurance Company has drawn our attention to the observations and conclusion of the appointed surveyor and vehemently argued that the superstructure of the factory premises of the Respondent/Complainant was only insured as embodied in the terms and conditions of the policy in question. He has also submitted that no separate bamboo structure with asbestos shed was covered within the purview of the insurance policy and the stock which was kept in the said separate shed was not insured with the Appellant/Insurance Company. According to the Ld. Counsel Superstructure is a building or part of a building built above the foundation but it does not include the temporary structure and as such the claim of the Respondent/complainant is not at all tenable in the eye of law. It has been also submitted that the surveyor’s report has evidentiary value and cannot be discarded unless it is contradicted or rebutted by credible evidence to the contrary.

Ld. Counsel for the Appellant/Insurance Company has advanced a marathon argument on the next point regarding ascertainment of loss to the tune of Rs. 3,00,000/- without having any cogent documents. It has been submitted that the Respondent/Complainant could not give any cogent and satisfactory explanation as to how the loss of damage was assessed. It has been also submitted that the Respondent/complainant is not entitled to get any relief as sought for on such ground. In support of the above contention Ld. Counsel has cited the following decisions reported in:

a) 2023 Live Law (SC) 87 Civil Appeal no. 6391 of 2021, February 07, 2023 (ITC LIMITED—versus—AASHNA ROY) relevant paras 13, 14, 15 and 16.

b) CDJ 2013 (Cons.) Case no. 236 NCDRC First Appeal no. 139 of 2008 (All India Institute of Medical Sciences—versus—Swarn Bedi) relevant para 8.

c) CDJ 2014 (Cons.) Case no. 123 NCDRC Revision Petition no. 3869 of 2008 (Life Insurance Corporation of India Branch Manager Through Assistant Secretary—versus—N. Sanker Reddy).

d) CDJ 2014 SC 857 Civil Appeal no. 8072-8073 of 2009 (General Motors India Private Limited—versus—Ashok Ramnik Lal Tolat and Anr.) relevant para 20.

e) CDJ 2015 (Cons.) case no. 049 NCDRC Revision Petition no. 4008 of 2014 (Delhi Development Authority Bikassadan, Ina, New Delhi—versus—RK Bhilwaria) relevant para 6.

f) CDJ 2013 (Cons.) case no. 184 NCDRC First Appeal no. 673 of 2007 (M/s. Krishna Enterprises through its Proprietor—versus—M/s. Bajaj Allianz General Insurance Company Limited and Ors.) relevant para 12.

To refute the above submission, Ld. Counsel appearing for the Respondent/Complainant has strenuously argued that without holding proper enquiry and survey of the spot and without considering the fire brigade report dated 11.04.2014 the Appellant/Insurance Company rejected the claim of the Respondent/Complainant whimsically. The report of the surveyor is baseless, illegal and without any cogent evidence. It has been submitted that the calculation of loss as assessed by the surveyor is devoid of any reason. According to the Ld. Counsel the policy in question has the bounden duty to protect the interest of the Respondent/Complainant from fire. It has been further submitted that the policy in question was for Rs. 9,00,000/- but the Complainant sought for claim due to such loss by fire for Rs. 3,50,000/-. Ld. Counsel has candidly submitted that the Ld. District Commission after considering the pleadings of the respective parties, evidence on record arrived at the conclusion and pass the impugned judgment and order in favour of the Respondent/Complainant. Drawing my attention to the written version submitted by the Appellant/Insurance Company before the District Commission Ld. Counsel has urged that there is no whisper within the four corners of the written version as to how and which manner the Complainant assessed the loss due to such fire. It is completely a new plea taken by the Appellant/Insurance Company in the present appeal in order to deprive the Respondent/Complainant from his legitimate insurance claim. Such plea of the Appellant/Insurance Company cannot be and should not be considered at the stage. He has further submitted that the Appellant/Insurance Company is totally estopped from agitating such new plea in the present appeal. Drawing my attention to the terms and conditions of the insurance policy in question and the surveyor’s report Ld. Counsel has boldly urged that the said temporary structure in question is certainly a part and parcel of the entire building. The said structure is situated within the boundary wall of the M/s. Meghnad Muri Factory. It cannot be separated from the original building. The Insurance Policy also clearly establishes that the entire building with superstructure is covered and insured. He has prayed for outright dismissal of the appeal with compensatory cost. In support of the above contention Ld. Counsel appearing for the Respondent/Complainant has cited the following decisions of the Hon’ble Court:

a) AIR 1970 Calcutta 539 (Gowardhandas Rathi, Appellant—versus—Corporation of Calcutta and Anr.)

b) AIR 1965 Supreme Court page 1752 (Karpagathachi and Ors.—versus—Nagarathigathachi) relevant para 4.

c) AIR 1965 Supreme Court 1755 (The Union of India, Appellant—versus—Mahadeolal Prabhu Dayal, Respondent)

d) AIR 1965 Supreme Court page 1325 (Chittoori Subbanna, Appellant—versus—Kudappa Subbanna and Ors., Respondent)

Admittedly, Respondent/Complainant has a business of Muri production under the name and style of M/s. Meghnad Muri Supplier. It is also an admitted fact that the Respondent/complainant being the sole proprietor of the said business obtained a policy from the Appellant/Insurance Company being policy no. 51250111130100000759 covering the period from 01.03.2014 to 28.02.2015. Undisputedly, an incident of fire broke out inside the premises of the Respondents/Complainants Muri factory on 10.04.2014. Respondent/Complainant duly intimated the said incident to the Appellant/Insurance Company, Police Station and also to the local Administration including Fire Brigade. There is no doubt that the fire brigade attended the call and extinguished the fire on that relevant date of happening the incident. There is no doubt that at the instance of the Appellant/Insurance Company one surveyor was deputed to assess the loss in order to settle the claim as raised by the Respondent/Complainant. After conducting the survey the surveyor placed his report on 11.09.2014 and assessed the loss towards damage incurred by the Respondent/Complainant. On receiving such report from the surveyor the Appellant/Insurance Company repudiated the claim of the Respondent/Complainant by their letter dated 08.10.2014 on the grounds mentioned therein.

Now, let us consider the repudiation letter dated 08.10.2014. The report of the surveyor dated 11.09.2014 goes to indicate that the surveyor surveyed the premises in question on 11.04.2014 in order to assess the loss sustained by the Respondent/Complainant due to the incident of fire. The said report further goes to establish that loss of damage was assessed by the surveyor with the comment to the effect that “considering the whole situation, circumstantial evidences and available documents, I am in the opinion that the claim is appeared to be tenable subject to policy terms and conditions and permission of liability of the underwriter”. Basing on such report of the surveyor the Appellant/Insurance Company repudiated the claim of the Respondent/Complainant with the following discrepancies:

1) in our view on the basis of surveyor report, photographs with supported documents that the loss happened at the backside of main factory shed and it was a separate shed made of a bamboo structure with asbestos roofing which was not insured with us. Fire mainly generated from this section and the said section has no provision for electricity. So, chance of electrical short circuit is NIL. We also observed that in your Muri factory no provision of electricity. So, there is also no chance of short circuit from the electrical line.

2) we also observed that no machinery was damaged for the incident happened. Surveyor also not got any evidence of affecting the same. But all the machinery was installed in the same room where fire occurred.

3) as per primary intimation sheet signed by you and surveyor, where you clearly mentioned that the said fire not generated originally/directly in your Muri factory.  You also mentioned that you called fire brigade to extinguish the fire.

4) as per fire brigade report submitted by you, we find that they are also not confirmed the cause of fire happened.

5) on the date of loss, also there is no act of God Perils occurred in your factory area as per survey report from where the said fire may have occurred.

Such findings of the Appellant/Insurance Company do not tally with the reports of both the surveyor and fire brigade. Curious enough to note here that the surveyor’s report goes to show that there was no provision of electricity in the factory premises but the electric bills filed by the Respondent/Complainant before the Ld. District Commission goes to prove that there was electric connection in the said factory premises which was issued in operating the machine of firing the Muri. It is an undisputed fact that the surveyor surveyed the spot in question in presence of local witnesses including the Complainant but none had signed in the report as witness. Such aspect creates doubt about the truthfulness of the survey report. The surveyor did not interrogate any officer of the fire brigade. Such lapses speak a lot about the genuineness of the survey report.

Considering all aspects from all angles and keeping in mind the submissions of both sides and regard being had to the cited decisions of the Hon’ble Courts we hold and firmly hold that it will not be just, prudent and wise to consider the surveyor’s report as gospel truth. The assessment of loss as assessed by the surveyor is certainly devoid of any reason. The performance of the surveyor inspires us to hold that the surveyor made table work as per direction of the Appellant/Insurance Company. The loss assessed by the surveyor cannot be and should not be accepted on any score. The argument on the point of ascertainment of loss to the tune of Rs. 3,00,000/- without having any cogent evidence from the end of the Respondent/Complainant cannot be and should not be considered. Such plea was not taken by the Appellant/Insurance Company in their written version filed before the Ld. District Commission.  The Appellants/Insurance Company are totally estopped from raising such new plea at the stage of appeal.

Considering all the above aspects we are compelled to hold that there is no error, irregularity or illegality in the impugned judgment and order passed by the Ld. District Commission, Hooghly at Chinsurah in connection with Consumer Complaint Case no. CC/113/2015.  There was deficiency in service from the end of the Appellants/insurance Company. We do not find much substance in the argument advanced by the Ld. Counsel for the Appellants/Insurance Company. The decisions which have been cited from the end of the Appellants/Insurance Company have no application in the facts and circumstances of the present case.  In fact, the facts and circumstances of the present case and the facts and circumstances of the cited decisions are not alike in nature.

Resultantly, the impugned judgment and order do not deserve interference of the Appellate Commission. The impugned judgment and order require to be sustained.

All the points are thus answered in favour of the Respondent/Complainant and against the Appellants/Insurance Company.

It is, therefore,

O R D E R E D

That the present appeal being no. A/1166/2017 be and the same is dismissed on contest against the Respondent/Complainant but considering the circumstances without any order as to costs.

The impugned judgment and order dated 20.09.2017 passed by the District Commission, Hooghly at Chinsurah in Consumer Complaint Case no. CC/113/2015 are hereby affirmed.

Interim order, if any, stands vacated.

Thus, the Appeal stands disposed of.

Let a copy of this judgment be transmitted to the concerned District Commission forthwith for information and taking necessary action.

Note accordingly.