Complainant M/s.Kumar Iron and Scrap Company, VPO, Thariyal, through its MD/Partner/Prop. Sham Lal, vide the present complaint filed U/S 12 of the Consumer Protection Act, 1986 (hereinafter for short The Act) for issuance of the necessary directions to the opposite parties to pay Rs.19,25,000/- of insured building and stock in hands as policy claim with interest @ 18% per annum till realization. Opposite parties be further directed to pay Rs.20,000/- as compensation for repair of the damaged wall and Rs.20,000/- as costs of litigation expenses  alongwith Rs.10,000/- for damages, in the interest of justice.

2.          The case of the complainant in brief is that he is running a business of Iron and Scrap in the name and style of M/s.Kumar Iron and Scrap Company, Pathankot. The building/godown of the abovesaid business and the stock in hand for trade was insured with the opposite party no.1 vide policy no.401501/46/15/7500000192, which was effective from dated 27.1.2016 to 26.1.2017 vide paying the amount of Rs.2240/- and another policy no.401501/11/15/ 3100000362 in the name of P.H.COOp. B. PTK M/s.Kumar Iron and Scrap Company, Pathankot and paid premium of Rs.20,925/- and having net premium of Rs.14,124/-. The sum insured of description of property i.e. the godown/building was amounting to Rs.12,00,000/- and the stock in hand was insured with the amount of Rs.1,12,00,000/-. He has next pleaded that on 27.7.2016, water inundation loss was occurred in his factory premises due to heavy rains flood occurred and the outer wall of the building/godown was fell down and due to this reason, the rainy water of flood was entered into the godown and hit the stock lying in the premises where the new material was

 Stocked. Almost new items like Girders, Channels, Angles Plates and other material items lying in the open godown rusted with the flood water and all the new items converted into scrap and heavy financial loss was caused to him. On the same day, he informed to the opposite party no.1 through its proprietor namely Ankush Mahajan and informed the situations regarding the damages occurred due to flood and also requested for the appointment of Surveyor and the opposite party no.1 appointed the surveyor namely Rajesh Gupta i.e. opposite party no.4 for the survey of the premises/building and stock in hand which was damaged due to flood and assessment of the loss caused to him. The opposite party no.4 visited the spot and prepared his report. Again on 1.8.2016 he sent a letter to the opposite party no.1 for sending the surveyor for verification visiting the spot and assessing the loss. On 3.8.2016, opposite party no.4 visited the spot and assessed the loss and after that on 6.8.2016 and requested to submit the required documents. As per the request letter dated 6.08.2016, he filed the reply with all the details and the required documents as mentioned in the abovesaid letter. On 26.8.2016, opposite party no.4 filed opinion on his reply and demanded the remarks with that letter within 7 days from the date of receipt of letter dated 26.8.2016. In reply of letter of opposite party no.4, he submitted his remarks on 13.9.2016, but till date no response was given by any of opposite party and no claim was settled till today. According to him, the details of loss of material including GI Sheets plates, Nut Bolts, Rolley, Angles Channels and motors and pipes were as given Rs.19,25,000/- because the main cost of the items were different and after the damage the cost value of material is such like scrap i.e. Rs.25 per KG  to Rs.30 per KG, which was a great loss to him. He approached to the opposite party no.1 many times to fill the claim form and requested for given policy claim but all in vain. Thus, there is deficiency in service on the part of the opposite parties. Hence this complaint.

3.         Upon notice, the opposite parties no.1 to 3 insurer appeared through their counsel and filed their written version taking the preliminary objections that the complainant has no cause of action and locus standi to file the present complaint; there is no deficiency in service on the part of the insurance company and the complainant firm does not fall within the definition of consumer as is doing work for commercial purpose and as such the complaint is liable to be dismissed. On merits, it was submitted that actually the complainant is intentionally making demand of huge claim with malafide intention and to get false claim. Rajesh Gupta Surveyor duly submitted his detailed report and submitted the report after verifying each and every fact. The loss as per his report is of  Rs.1,35,520/- and the liability if any of the insurance company is only as per Survey report. The surveyor also sent letters dated 6.8.2016 and 26.8.2016 to the complainant in which he clearly stated that there is open shed where the stock is lying and the stock is open to all kind of weather. Due to this, also the stock of iron lying in open came in contact with water. So after considering all the facts the detailed report has been submitted by the surveyor. All other averments made in the complaint have been vehemently denied and lastly prayed that the complaint may be dismissed with costs.

4.     Notice issued to the opposite party no.4 had not been received back. Case called several times but none had come present on its behalf, therefore, it was proceeded against exparte vide order dated 6.2.2017.

5.          Counsel for the complainant tendered into evidence affidavit of Sham Lal son of Baldev Raj complainant Ex.C-I along with the other documents exhibited as Ex.C2 to Ex C31 and closed the evidence.

6.       On the other hand, counsel for the opposite parties no.1 to 3 tendered into evidence affidavit of Janak Raj, Asstt. Manager Ex.OP1 to 3/1, alongwith other documents Ex.OP-1 to 3/2 to Ex.OP-1 to 3/8 and closed the evidence.

7.      We have carefully examined all the documents/evidence produced on record and have also judiciously considered and perused the arguments duly put forth by the learned counsels along with the incidental scope of adverse inference for of some documents that have been somehow ignored to be produced by the contesting litigants. We observe that the prime dispute prompted at non-settlement/repudiation of the complainant’s insurance claim for an amount of Rs.19.25 Lac pertaining to the loss caused incurred to the insured Building and to the trade-stocks lying therein and also those stocked in the open yard, on account of the floods resulting from the incessant rains. The OP insurers have admitted repudiation on the strength of the exclusion clause as appearing in the related policy duly ousting the STFI (Storm, Tempest, Floods and Inundations) for Location & Occupancy at No 1 i.e., the open yard with stacked-up fresh trade-stocks of iron/steel formulation/material for construction and other purposes. 

8.       However, the complainant has asserted that there was damage/loss and value-dilution to the stocks stacked at places other than the Site excluded for STFI purpose and also to the insured buildings and others totaling to Rs.19.50 Lac but as assessed at Rs.1,35,520/- by the OP insurer’s Surveyor and that too lying in a repudiated stage. Here, the complainant has produced evidentiary documents Ex.C1 to Ex.31 to prove complaint-contented allegations but has ignored to contest/counter the Surveyor’s Reported Assessment through some other expert valuation of the reported loss.

9.       On the other hand, the OP insurers have duly deposed vide affidavit (Ex.OP1to3/1) the contents of its written reply that the impugned claim was repudiated/closed on account of the STFI exclusion clause but ignoring the stocks stacked at other places and also the loss caused to the insured buildings etc and have also produced their documents supporting the impugned repudiation exhibited as: Ex1to3/2 to Ex.OP1to3/8 but at the same time duly ratifying the Surveyor Assessed Loss @ Rs.1,35,520/-. Somehow, we find that the Surveyor’s loss assessment has neither been contested nor rebutted vide separately assessed expert report and thus it need to be taken up as final assessment. However, we find that the resultant non-settlement/repudiation has neither been necessary nor fair measured against the fact that the stocks stacked at places carrying STFI clause and others cannot be minutely segregated in the absence of any marked separation and as such the instant repudiation amounts to deficiency in service on the part of the OP insurers and that rakes them up to an adverse statutory award under the applicable Act.

10.     In the light of the all above, we partly allow the present claim and thus ORDER the titled OP insurers to pay Rs.1,35,520/- (the surveyor assessed) besides Rs.10,000/- as cost and compensation (for having caused delay and harassment) to the complainant within 30 days of the receipt of the copy of these orders otherwise the awarded amount shall carry interest @ 9% PA from the date of filing of this complaint till actually paid.

11.     Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.

                                                                                 (Naveen Puri)

                                                                                      President   

Announced:                                                              (Jagdeep Kaur)

June 27, 2018                                                                   Member

*MK*