Per Shri P.N. Kashalkar, Hon’ble Presiding Judicial Member

          Being aggrieved by the judgement and award passed by District Consumer Forum Kolhapur in consumer complaint No.397/2002 dated 06/01/2009, whereby, while allowing the complaint, the Forum below directed the O.P./Insurance Company to pay to the complainant/Society a sum of `2,18,519/- with interest @ 9% p.a. from 15/01/2002 and to pay cost of `1,000/-, org. O.P./Insurance Company has filed this appeal taking strong exception to the order passed by the Forum below.

          The facts to the extent material may be stated as under :-

          Respondent is a Society registered under the Maharashtra Co-op. Societies Act.  It is at Village Nandani, Tal. Shirol, Dist. Kolhapur.  It is having cold storage and godown in Gat No.611.  It pleaded in the consumer complaint that in Gat No.611 they were keeping fruits and other vegetables meant for export.  Hence, every year they insured godown and contents therein to safeguard their interest.  For the purpose of export, they are required to purchase packing material of highest quality and for that purpose they had taken loan from the District Central Co-op. Bank and loan taken for the packing material is not disbursed till insurance policy is purchased.  Hence, for the year 05/03/2001 to 04/03/2002 they had taken insurance policy for building godown, cold storage machinery besides, packing material, etc. for total amount of `91,72,000/- and purchased the policy by paying requisite premium.  According to the complainant on 26/08/2001 at about 11.00 a.m. there was fire by short-circuit and in the said fire, all the packing material was burnt to ashes.  They sustained damage of `2,90,376/-.  They lodged claim with the Insurance Company.  Their claim was repudiated by the Insurance Company.  Hence, they filed consumer complaint for recovery of amount of `2,90,376/- plus interest @ 18% p.a.  They also claimed `9,500/- as expenses for calling Fire Extinguishers.  They also claimed `15,000/- for mental harassment and `50,000/- for not sanctioning claim within limitation besides, they sought cost of the legal proceeding too.

          O.P. filed written version and contested the complaint.  According to the O.P. in the policy issued for Gat No.611 of Nandani, they had simply covered damage to the cold storage building, cold storage machinery, grapes fruits, vegetables and plastic crates, etc.  But the building in which they had kept packing material was not covered under the policy.  They specifically pleaded that they had not given insurance cover for the packing material as alleged by the complainant and therefore, claim in respect of packing material was not tenable in law and they had rightly repudiated the claim.  They pleaded that they had appointed Surveyor to assess the damage caused by the fire which broke out because of short-circuit.  Surveyor simply recommended amount of `40,143/- towards net loss under the policy.  They, therefore, pleaded that complaint should be dismissed with cost. 

          Learned District Consumer Forum considering the affidavits and documents placed on record held that policy also covered packing material and as per Police Panchanama, packing material worth `1,76,000/- was gutted in fire.  Surveyor also shows cost of packing material to that effect.  According to the Forum below, complainant/Society had taken loan from the District Central Co-op. Bank for packing material and as per loan agreement, Society had taken insurance cover from the Insurance Company which covered the building, cold storage machinery and fruits, grapes, etc. found in Gat No.611.  So, Forum below held that even packing material was also covered and therefore, Forum below allowed the complaint and directed the Insurance Company to pay `2,18,519/- to the complainant besides cost of `1,000/-.  Aggrieved by the said award, Insurance Company has preferred this appeal.

          We heard Mr.A.S. Vidyarthi, Advocate for the appellant and Mrs.Archana Pise, Advocate proxy for Mr.A.J. Chougule, Advocate for the respondent.

          We specifically perused the policy issued in favour of complainant by the appellant/Insurance Company.  Location of the building covered under the policy was Gat No.611 at Nandani, Tal. Shirol, Dist. Kolhapur and details of property insured mentioned building, cold storage machinery, grapes fruits, vegetables and plastic crates.  Risk covered was in respect of building, cold storage machinery, fruits and vegetables, plastic crates and nothing more.  We are finding that in the policy packing material is not mentioned and the Forum below has specifically awarded `1,78,376/- as damage for packing material gutted in the fire and Forum below relied upon the Police Panchanama to arrive at this conclusion.  Police Panchanama cannot be relied upon to hold that there was damage of `1,78,376/- to the respondent/Society because packing material was gutted in fire. 

          That apart, if we see the policy carefully, it is specifically mentioned that policy covered cold storage machinery, fruits, grapes and vegetables and building.  Policy does not cover in any manner packing material which was kept in the godown.  The word ‘godown’ is also not mentioned.  So, we have to confine ourselves to examine the liability of the appellant/Insurance Company under the policy issued as ‘Standard Fire and Special Perils Policy’ in respect of building, cold storage machinery, grapes, fruits, vegetable and plastic crates which was situated in Gat No.611.  When word ‘building’ is mentioned, it necessarily covered the building where the cold storage machinery, grapes, fruits, vegetable and plastic crates are stored.  Building does not include godown, if it was intention of the parties to cover building as well as godown, then same would have been specifically mentioned in the policy itself.  Policy simply stipulates that property insured therein is the building in Gat No.611, grapes, fruits, vegetables and plastic crates, which does not include specifically the packing material and it is for this reason, we are finding that the Learned Forum below clearly erred in law in holding that the policy also covered damage occasioned due to fire to the packing material.  Packing material is one thing and plastic crates are different.  Plastic crate does not mean or include packing material used by the complainant/Society for putting packing on the plastic crates after they are filled with the grapes, vegetables or other fruits.  When the policy is silent about packing material, loss caused to the respondent/Society on account of fire to the packing material must be held to be not included and not covered under the policy.  As such, as per Survey Report, only claim payable under the policy to the respondent/Society was `40,143.25 as has been recommended by the Surveyor appointed by the Insurance Company.  Surveyor has categorically mentioned that the packing material was not included under the policy and therefore, net amount payable was `40,143.29.  We are of the view that the award should have been passed restricting to an amount of `40,143.29 as recommended by the Surveyor because packing material was not at all covered under the policy purchased by the respondent/Society.  In the circumstances, we are inclined to allow this appeal partly to reduce the claim awardable to the respondent/Society from `2,18,519/- to `40,143.29.  To this extent, appeal will have to be allowed.  Hence, we pass the following order :-

                   -: ORDER :-

1.       Appeal is partly allowed.

2.       Insurance Company shall pay “`40,143.29” in place of “`2,18,519/-” as awarded by the District Consumer Forum to the respondent/org. complainant.  Rest of the order stands confirmed.

3.       Parties are left to bear their own costs so far this appeal is concerned.

4.       Copies of the order be furnished to the parties.