Complainant is a transportation company, having its warehouse and storing places at different places and in the interest of the business, complainant has godown at Kamarhati Jute Mill Compound, Gate No.2, at 1, Graham Road, Kolkata-700058 and same which is used primarily for the storage of various types of cloth in bales, suiting, shirting and dress materials which are stored for transportation to various destinations through road on the basis of instructions from different consignors and storing for subsequent delivery to the different consignees and to protect the loss of the consignement of the consignor and consignee and for covering the risk of the stocks of the said warehouse and godowns, complainant insured the same through National Insurance Company Ltd. and risk covered was Standard Fire and Special Perils Policy having Policy No.101000/11/10/33000000176 for the stocks stored at godown No.II having sum assured of Rs.6 crores and another Policy No.101000/11/10/33000000148 for the stocks stored at Godown No. KR & KR 1 of Rs.4.5 crores and period of the policy of the same in case of first policy it was from 15.07.2010 to 14.07.2011 and in respect of 2^nd Policy it was from 24.06.2010 to 23.06.2011.

          It is specifically mentioned in the case of the complainant is that due to incessant rainfall and cloudburst in Kolkata and the northern part of the city of Kolkata and entire Kolkata surrounding areas were affected and as a result the areas in and around the godown of the complainant water logging was caused and the godown of the complainant were inundated.  Complainant immediately informed the insurer/op through E-mail and op deputed Sri S.N. Mitra, Chartered Accountant as surveyor who visited the site and submitted preliminary report declining the claim primarily on the ground no inundation in jute mill compound in front road and the surroundings of the godowns and the water logging only inside the complainant low leveled godowns could not way be treated as inundation and the Standard Fire & Special Perils Policy does not cover the loss occurred due to rain, thus, loss for damage to complainant’s cotton bales due to rain was not payable under this Policy.

          Complainant on 26.04.2011 replied to the observations by the surveyor and explained that the floor level of warehouse is lower than that of the front road level by 1.5 ft which was known to the op/insurer from very inception of the policy coverage and after due inspection, survey or cannot go back to this issue which was not raised by his principal at the time of providing insurance coverage.  Complainant also provided news paper cuttings of the day showing that the weather report and other website.  Subsequently surveyor replied to the above letter and agreed to hold further survey and inspection by Sri Arup Kumar Saha and complainant was asked to keep ready certain papers and documents to produce all documents at the time of inspection and the surveyor S.N. Mitra submitted a survey report and repudiated the claim though on the ground there was no inundation and there were broken sky windows through which rain waters came and damaged the bales and further opined that there was no inundation around the jute mill complex, it is only normal rain water flow through the front gate slope down inside the godown area and water was accumulated about 8 inches causing the bales getting damaged and against that complainant submitted such objection and for reconsidering the same but repudiated the claim again on 13.10.2011.  In the above circumstances, complainant was compelled to file this complaint for proper relief challenging the illegal repudiation of the claim and for other relief.

          On the contrary National Insurance Company Ltd. by filing written statement submitted that practically complainant informed op no.1 that 900 bales valued at Rs.1.50 lakhs have been damaged but finally it was submitted that the Claim Form showing the loss of various items valued at Rs.18 lakhs.  But surveyor was appointed who visited the entire godown area and the subsequent events and it was found that there was no inundation of water logging but fact remains that the godown floor level are at lower level from the road side by 1 ft. and 5 inches than the front road level of the jute mill complex and due to rainfall on the afternoon of 21.04.2011 rain water entered inside the low leveled godowns of the complainant.  Further it was fond that the godown, sky windows were broken and rain water entered and surrounding of the godowns were inundated but otherwise were okay and surveyor came to a conclusion due to ground floor level of the said godown being 1 ft. and 5 inches lower than the level of the jute mills complex, road rain water entered through the broken sky windows.  So under any circumstances it must be treated as inundation.  Further it was submitted that there was no question of inspection of the said godown before purchasing the insurance policy.  But it is generally granted on the basis of the declaration of the complainant and surveyor submitted their report after considering all aspects and complainant kept contact with op.  so, as per IRDA Rules and guidelines, the surveyor was appointed and after assessing and examining the paper submitted with the claim Form and surveyor’s report and after proper application of mind, the op authority was satisfied that the claim was not tenable in view of the fact that no inundation was caused on that day but fact remains fault was on the part of the complainant for maintaining such godown whose floor level is lower than the road level of the factory complex and that was not disclosed at the time of opening the policy and practically there was no fault on the part of the Insurance Company and insurance company acted legally and in all respect discharged their duties forthwith and syrveyor’s report was considered and it was repudiated.  So, no negligence and deficiency on the part of the op is proved.

                                                  Decision with reasons

          After hearing the Ld. Lawyers of both the parties and also considering the complaint and the written version including the materials on record and particularly the report of the surveyor, it is found that complainant purchased two policies for covering the risk and the stock of the said godown and no doubt same are valid for the period from 15.07.2010 to 14.07.2011 and 24.06.2010 to 23.06.2011.

          Fact remains that on 21.04.2011 heavy rainfall was caused in northern Kolkata and that was reported by the complainant to the Insurance Company and Insurance Company appointed one surveyor and surveyor visited this spot on the next day on 22.04.2011 when he found that lower of the water on the floor and also physically found that many bales, bundles of clothes were soaked by water and it was observed by the surveyor that the floor level of the godowns at least lower than the front road level of the jute mills complex by 1.5 ft and so due to rainfall in the afternoon on 21.04.2011 rain water entered into the godown and the floor level on the road side of jute mill complex automatically slope down and entered surrounding the godowns as it was on the lower level and surveyor also found that the broken sky windows through which rain water entered that is through broken sky windows inside to the godowns and surveyor came to a conclusion that there was no inundation of water logging but any other places only the rain water which fall that the jute mills complex floor towards lower level godown of the complainant and water accumulated on the lower level godowns area of Balotra Kamarthatty Jute Mill Compound at Kolkata but there was no water logging outside the godowns at Kamarhatty jute mill complex.

          So, surveyor came to a conclusion that further out of 900 bundles only 142 bundles were affected due to water and from other bales, 121 bales were found damaged due to rain water and some are found water soaked and after checking all the bundles it was found that only a portion of the total was water soaked and practically surveyor came to a conclusion that floor level of those godowns were at least lower level by 1.5 ft than the front floor level of Kamarhatty Jute Mill Complex and hence due to rainfall in the afternoon on 21.04.2011, rain water  slope down automatically downwards entered surroundings the low level godowns through front gate and water also entered into the said godowns from several broken sky windows.

          So, it was the opinion of the surveyor that no water logging was caused inside the godowns KR to Kr etc. or surrounding the Kamarhatty Jute Mill Compound or inside the Kamarhatty Jute Mill Compound and ultimately came to a conclusion that there was no inundation in Kamarhatty Jute Mill Compound.  But the water which was shifted inside the godown only on the ground that godown is situated at a lower level than the road level of the jute mill complex by 1.5 ft and that cannot be treated as inundation and for which the complainant is not entitled to any level or claim under AOG Perils of the Policy as the damage was caused due to rain water but not for inundation.

          Ld. Lawyer for the complainant submitted that it was within the knowledge of the op that the godown is situated at lower level of 1.5 ft. than that of the road level of the Kamarhatty Jute Mill Compound from very inception.  But Ld. Lawyer for the op submitted that at the time of taking of any policy no inspection is made by the Insurance Company.  But Insurance policy is granted on the basis of the declaration of the complainant.  But complainant never disclosed in the application proposal Form for opening the policy that the said godown is situated at its lower level than that of the road level of the Jute Mill Complex.  But it is mandatory provision that godown must be in such a place that it can be saved from any water logging and if any water accumulates surrounding the godown the godown must be saved and it is known to all that at every place godown is situated at the higher level of 3 ft from the ground level.  But fact remains that the complainant himself kept the articles in that godown knowing fully well that said godown shall be affected due to heavy rain fall and it is also known to the complainant always that it is the duty of the insured to save the articles from any damage.  But at that time complainant did not take any step to remove those articles when complainant found that water is coming towards the low level godown of the complainant and it has become a practice of the insured to get such compensation in such a fashion in so many cases without taking any precautionary step to save goods and it is one of the examples.

          Against that Ld. Lawyer for the complainant submitted during heavy rainfall it is not possible for anyone to save the godown from such flow of water which was accumulated surrounding the godown.  But it is mandatory as per provision of the Insurance policy that it is the duty of the insured to save his property from any prospective damages and fact remains that after proper consideration of the surveyor’s report it is fond that surveyor acted very fairly, he considered the entire fact and also the fact of existence of the godown at lower level by 1.5 ft than that of the level of the entire Kamarhatty Jute Mill Compound and another factor is that due to heavy rainfall no water was accumulated in the Kamarhatty Jute Mill Complex and height of the water at the Kamarhatty Jute Mill Compound particularly surrounding the godown was only 8 inches.  Then there was every scope to remove the articles at the relevant time by the complainant.  But complainant did not take any step to save those articles knowing fully well that his godown is lower level than that of the road level of the Karmahatty Jute Mill Complex and it is also fact that op/Insurance Company as per IRDA guidelines relied upon the exhaustive report of the surveyor and all the materials and ultimately came to a conclusion that the damage was caused for complainant’s callous activities as business man to protect his own articles in the safe godown when it was known to the complainant that godown affected due to heavy rainfall and for existence of godown at 1.5 ft lower level than the Jute Mill Complex road level.

          Fact remains repudiation was made by the op after considering the terms and conditions of the policy and also report of the surveyor and applied their judicial mind and other aspects and ultimately came to a conclusion that the said damages was caused due to rainfall not for inundation and as per clause of the said policy due to rainfall no compensation shall be granted if inundation is not proved.  In this regard we have relied upon a ruling reported in 1997 CPR 22 (NC) and also in 1997 I CPR 40 it is found that the decision of the repudiation of claim by the Insurance Company in good faith based on material collected person to enquiries made is no deficiency in service on the part of the Insurance Company and it is settled position of law that if insurer repudiates a claim in good faith after due application of judicious mind all matter consisting the claim.  But the act of the insurer cannot be challenged or question as an act of deficiency of service and if there is no deficiency in service from the end of the op, in the matter of repudiation of the claim of a complainant, the complaint of the complainant cannot be considered by the Forum.  Relying upon the above ruling and principal of law as laid down and also considering the present conduct of the op in determining the claim of the complainant and the repudiation as made by the op is found based on materials collected person to enquiries made is no deficiency in service on the part of the Insurance Company made by the surveyor and at the same time surveyor’s report is found justified having no error in his observation and decision.  So, in the above observation we are convinced to hold that repudiation made by the op cannot be treated as deficiency in service when the repudiation was in good faith based on material collected on enquiries made is no deficiency in service on the part of the Insurance Company made by the surveyor and surveyor’s report is also based on perfect materials.

          In the result, the complaint of the complainant is in question cannot be considered in any act of deficiency of service on the part of the op or any negligence on the part of the op.  In the light of the above findings we are inclined to hold that complainant is not entitled to get any relief when complainant has failed to prove any sort of negligence and deficient manner of service on the part of the op and further complainant has failed to prove that repudiation was anyway illegal.

          Thus, the complaint fails.

          Hence, it is                       

                                                      ORDERED

That the complaint be and the same is dismissed on contest against the ops with cost of Rs.10,000/- and complainant shall have to deposit the same failing which op shall have the liberty to execute the order.