Date of Filing 14.11.2022

                                                                                                                                         Date of Disposal: 30.01.2024

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

BEFORE TMT. Dr.S.M. LATHA MAHESWARI, MA. ML, Ph.D (Law),                                         …….PRESIDENT

               THIRU.P.VINODH KUMAR, B.Sc., BL.,                                                                              ……MEMBER-I

               THIRU.P.MURUGAN, M.Com, ICWA (Inter), BL.,                                                        …….MEMBER-II

CC.No.183/2022

THIS TUESDAY, THE 30^th DAY OF JANUARY 2024

Metecno (India) Private Limited,

138/30, 2^nd Floor,

Florida Towers,

Nelson Manickam Road,

Chennai 600 029, Tamil Nadu, India.                                                    ......Complainant.

                                                                              //Vs//

Oriental Insurance Company Limited,

Rep. by its Managing Director,

Divisional Office, 2^nd Floor,

SBI (ADB) Upstairs,

 173, J.N.Road, Thiruvallur 602 001,

Tamil Nadu, India.                                                                                   ….opposite party.

Counsel for the complainant                : M/s.Anirudh Krishnan, Advocate.

Counsel for the opposite party            :  M/s.Nageswaran & Narichania, Advocates.

This complaint coming before us on various dates and finally on 23.01.2024 in the presence of M/s.Anirudh Krishnan, counsel for the complainant and M/s.Nageswaran & Narichania, counsels for the opposite party and upon perusing the documents and evidences of both sides this Commission delivered the following:

ORDER

PRONOUNCED BY Tmt.Dr.S.M. LATHA MAHESWARI, PRESIDENT

1. This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite party with regard to repudiation of Insurance Claim along with a prayer to direct opposite party to process the Fire Insurance claim of the complainant amounting to Rs.4,04,49,695/- along with interest at the rate of 24% per annum from 07.06.2019  and to pay a sum of Rs.50,00,000/- towards compensation and to pay the cost of complaint.

Summary of facts culminating into complaint:-

2. Complainant was a leading producer of Insulated Sandwich Panels providing solutions for any building with walls and roof requiring insulation. The turnover of the complainant was Rs.150 to 200 crores per annum.  Complainant was issued an insurance policy for Standard Fire and Special Perils on 03.04.2019 covering complainant’s premises situated at E-11, SIPCOT Industrial Area, NH-4, Sriperumbudur, Mambakkam, B.O, Kancheepuram District Tamil Nadu for the period of 03.04.2019 to 02.04.2020. The opposite party before entering into the insurance agreement with the complainant sent its Site inspection Officers to the insured premises who visited and conducted an extensive survey of the insured premises.  Only on the basis of such survey after being satisfied with the fire safety protocols at the insured premises the Policy Agreement was entered into between the Insurer and the Insured. On 22.05.2019 at about 9:20am the complainant’s employees realized that a fire had broken out in the storage shed of the insured premises. The fire rescue and safety trucks reached the insured premises at around 10:15am and the fire was considerably doused and controlled around 12:30pm.  On account of the fire, the entire storage shed, Fabrication Yard, Manual Cutting Area and the Containers, and the materials and technologies kept inside them were completely damaged.  The complainant speculates that the cause of fire was due to short circuit in the foam cutting machine contained in the manual cutting area adjacent to the storage Shed. Complainant also filed a Police complaint before the Inspector of Police, Sriperumbudur which led to the Registration of FIR No.312/2019. Both the Fire Department and the Police came to the conclusion that the fire was accidentally caused. Complainant also promptly intimated to the opposite party at about 10:07 am on 22.05.2019 about the occurrence of fire and the resultant loss at the insured premises.  On the same day the opposite party appointed one Mr.V.K.Devakumar as surveyor and entrusted upon him the task of surveying the insured premises.  On 07.06.2019 complainant lodged a claim under the said policy with the opposite party for an amount of Rs.4,04,95,695/- on account of the damage caused. Surveyor commenced his survey on 23.05.2019.  The surveyor carried out his survey by making 7 visits to the insured property on 23.05.2019, 24.05.2019, 04.06.2019, 07.06.2019 and 18.06.2019. The surveyor conducted the survey with a premeditated intention to deny the claim of the complainant at the behest of opposite party. After conducting of significant investigation he issued a preliminary assessment on 01.07.2019 stating that the likely damages payable would be approximately Rs.1.5 crores.  Subsequently Surveyor carried out the 2^nd leg of his investigation on 10 further dates but did not carry out a transparent analysis of the complainant’s claim. The Surveyor issued a final survey report to the opposite party on 27.03.2021 after a period of two years.  No cogent reason for such delay was given by the surveyor in the Survey Report. Then on 18.11.2021 without offering any explanation for such huge delay in processing its claim the opposite party issued the Repudiation letter repudiating the claim of the complainant. Further an incomplete copy of the Survey Report was supplied to the complainant along with repudiation letter.  The survey report was supplied without any of its annexures.  Thus the supplied copy of the document was incomplete in material particulars and in gross breach of opposite party under Regulation 15(5)(i) of the Insurance Regulatory and Development Authority of India (Protection of Policy Holders Interests) Regulation 2017. Only on 29.09.2022 the opposite party supplied a complete copy of the Survey Report to the complainant.  However, the opposite party refused to provide the complete copies of any Provisional/Interim Survey Report issued by the Surveyor in relation to the said claim and all correspondences exchanged between the opposite party and the Surveyor in relation to the complainant’s claim etc.  Perusal of the repudiation letter reveals that the claim of the complainant has been rejected by the opposite party based on Clause 8 of the Policy conditions which allegedly dealt with claims arising out of fraudulent means or devices used by the insured. Repudiation was ex-facie baseless and cannot be sustained due the fact that the said “Clause 8” did not form a part of the insurance agreement entered into between the complainant and the opposite party dated 03.04.2019. Thus aggrieved by the act of the opposite party the present complaint was filed to direct them to process the Fire Insurance claim of the complainant amounting to Rs.4,04,49,695/- along with interest at the rate of 24% per annum from 07.06.2019  and to pay a sum of Rs.50,00,000/- towards compensation along with cost.

The crux of the defence put forth by the opposite party:-

3. The opposite party filed version disputing the complaint allegations that the complainant had not filed any documents to prove that the person who has signed and verified the complaint was a competent to represent the complainant. The District Commission shall have jurisdiction to entertain complaints where the value of the goods or services paid as consideration does not exceed one crore rupees and therefore as per the enactment this Commission does not have the jurisdiction to entertain the complaint and hence the complaint has to be rejected for want of proper presentation and is liable to be dismissed. The business of the complainant was a commercial act under trade and commerce and the conduct of their business activity was to generate profit. Hence it was submitted that they do not come under the definition of the word ‘consumer’ in as much as they availed services provided by the opposite party for commercial purpose. A corporate entity carrying on business with the capital contributed by its shareholders being one of the factors for business of construction cannot be construed as on in self employment for the purpose of earning its livelihood. Therefore it was prayed that the complainant be directed to avail remedy, if any, under any other law governing contracts. The policy is strictly governed by various terms and conditions forming part of the policy.  Therefore various question of law and facts were to be gone into based upon oral and documentary evidence to be let in by the contesting parties in the absence of which, the adjudication of the dispute would be incomplete.  Elaborate trial by means of production of documents, their reception and admission as well as proof of contents should be gone into, which process could be well administered only in the Civil court and not by means of a summary disposal of this complaint which may result in great prejudice to the opposite party and hence it was prayed that the complainant be directed to agitate their remedy, if any before a civil court having both territorial and pecuniary jurisdiction. Complainant has failed and neglected to implead the Bankers and the complaint was therefore bad for non-joinder of the necessary party viz State Bank of India. The complaint reflects that the policy was issued for the period 2017 and the present complaint was filed in the year 2022.  Thus it is clear that the complaint was barred by limitation. The complainant lodged a claim under the policy bearing No.414600/11/2020/7 for a loss suffered by them due an alleged fire accident on 22.05.2019.  Immediately an independent IRDA approved and licensed surveyor was appointed to conduct a detailed survey pertaining to the claim of the complainant.  The surveyor after a detailed survey filed his report and concluded that the claim was not payable as the proximate cause for fire was not an accident and the claim was not covered under the policy.  Further the Surveyor found that the complainant had fire safety audit certificate for finished goods area, pentane storage and min building which covers administration building and production hall including rooms attached to the side of the production hall and the complainant did not have fire safety audit for all the area claimed to be destroyed in fire mainly external storage near canteen.  Thus it is clear violation of statutory compliance when they are expected to comply with fire safety regulations.  The act of the complainant is a clear breach of contract of utmost good faith wherein the parties to the contract should adhere to the various statutory rules, confirm their strict compliance and adherence. Entire claim was not payable as the claim was fraudulent and not a peril covered under the policy. Opposite party based on the survey report concluded that the claim was not covered under the policy due to the act of the insured and invoked General Condition No.8 ‘if any claim be in any respect fraudulent, or if any false declaration be made or used in support thereof or if any fraudulent means or devices are used by the insured or any one act on his behalf to obtain any benefit under the policy or if the loss or damage be occasioned by the wilful act or with the connivance of the insured, all benefits under the policy shall be forfeited’ and thus declined the claim.  The insurer relied upon the findings of the surveyor that the fire emanated at the complainant premises was not accidental and also not due to electrical short circuit.  The surveyor concluded that the insured themselves caused the fire.  Based on the survey report and the policy condition the claim of the complainant was repudiated. The hypothetical loss as assessed in the survey report was Rs.1,84,60,684/-, since the claim was not payable the assessment was held to be procedural by the surveyor. There was breach of Insurance Regulatory and Development Authority of India (Protection of Policy Holder’s Interest) Regulation, 2017. Section 15 deals with claim procedure in respect of a General Insurance Policy. 15, 5(i) states that ‘the surveyor shall subject to sub-regulation 4 above submit his final report to the insurer within thirty days of appointment.  A copy of the surveyor’s report shall be furnished by the insurer to the insured/claimant, if he so desires……’ Therefore it is the discretion of the insurer to share the survey report.  In the present case the insurer gave a copy of the entire survey report.  It is a settled Principle that repudiation of an insurance claim cannot be construed as a deficiency in service. The complainant was put to strict proof as regards the time when fire originated and the other measures allegedly mentioned including the case of fire. It was submitted that the complainant did not submit all the documents and was blaming the surveyor for the alleged delay. An insurer was guided by the findings of the surveyor as per section 64 UM of the Insurance Act and that based on the observations of the surveyor the claim was scrutinized and evaluated by the insurer before taking a decision on merits. A mere perusal of the survey report would prove that the surveyor’s findings are based on clear and categorical evidence and supported by documents and videos. The surveyor has clearly explained and highlighted the intentional inaction on part of the complainant in not using the hydrants to put out the fire.  This was also proved by the videos that the surveyor was relying upon in his report. At various pages the surveyor has explained about the time when fire started and why the exact time was not clearly informed by the complainant.  The findings of the surveyor were based on his investigation with the employees of the complainant and hence the suspicion that the fire started much earlier has not been rebutted by any acceptable evidence from the complainant. The cause of action was not a valid and sustainable cause of action and thus they sought for the dismissal of the complaint.

4. On the side of complainant proof affidavit was filed and documents marked as Ex.A1 to Ex A21 were submitted. On the side of opposite party proof affidavit was filed and documents marked as Ex.B1 & Ex.B2 were submitted.

Points for consideration:-

1)    Whether the repudiation of Insurance Claim by the opposite party placing reliance upon the conclusions arrived by the Surveyor appointed by them amounts to deficiency in service on the part of opposite party and if so, whether the same has been successfully proved by the complainant?

2)    To what relief the complainant is entitled to?

Point No.1:-

The following documents were filed on the side of complainant in support of their contentions;

1)    Copy of Map of the Pentane Circulation System of the Insured Premises submitted to and verified by the District collector was marked as Ex.A1;

2)    Policy for Standard Fire and Special Perils extend to the complainant by the opposite party dated 03.04.2019 was marked as Ex.A2;

3)    Report of the Fire and Rescue Service, Sriperumbudur in respect to the incident dated 22.05.2019  was marked as Ex.A3;

4)    Copy of FIR No.312/2019 dated 22.05.2019 was marked as Ex.A4

5)    Copy of the News paper Reports dated 23.05.2019 was marked as Ex.A5;

6)    Claim Form submitted by the complainant to the opposite party dated 07.06.2019 was marked as Ex.A6

7)    Initial Loss Report by the Surveyor dated 01.07.2019 was marked as Ex.A7;

8)    Collated copies of invoices submitted by the complainant to the insurer dated 07.07.2019 was marked as Ex.A8;

9)    Balance sheet of the complainant as on 31.03.2019 was marked as Ex.A9;

10)           Complainant’s point-wise Reply to the Surveyor dated 19.11.2019 was marked as Ex.A10;

11)           Final Report of the Police in FIR No.312/2019 dated 20.11.2019 was marked as Ex.A11;

12)           Photographs of the storage shed of the insured premises before fire accident was marked as Ex.A12;

13)           Final Survey Report submitted by the Surveyor to the opposite party dated 27.03.2021 was marked as Ex.A13;

14)           Letter sent by the Surveyor to the opposite party justifying the additional fee of Rs.7,00,000/- was marked as Ex.A14;

15)           Repudiation letter issued by the opposite party to the complainant dated 18.11.2021 was marked as Ex.A15;

16)           Letter sent by the complainant to the Grievance Cell of opposite party protesting the repudiation of the claim of the complainant dated 28.03.2022 was marked as Ex.A16;

17)           Legal notice sent by the complainant to the opposite party dated 22.08.2022 was marked as Ex.A17;

18)           Annexures to the Survey Report supplied to the complainant to the opposite party dated 29.09.2022 was marked as Ex.A18;

19)           Site plan of the insured Premises submitted by the complainant to the Inspector of Factories was marked as Ex.A19;

20)           Collated communication between the complainant and the Insurer was marked as Ex.A20;

21)           Videos of the fire accident taken by the employees of the complainant and submitted to the Surveyor was marked as Ex.A21;

The following documents were filed on the side of opposite party in support of their defence;

1)    Policy terms and conditions was marked as Ex.B1;

2)    Copy of IRDA (Protection of Policy Holder’s Interest) Regulations, 2018 Reply notice issued by the 1^st opposite party was marked as Ex.B2;

5. Heard elaborately the arguments advanced by the learned counsels appearing for both the parties.

6. The crux of the oral arguments adduced by the learned counsel appearing for the complainant is on 2 scores, the first alleged deficiency is that there was an enormous delay in processing the claim and the other allegation is that the Surveyor’s Report did not unveil the truth and was biased and hence the repudiation based on the said report was not proper.  Reliance on the judgment passed by the Hon’ble National Consumer Disputes Redressal Commission, Chennai in the case of Sky Gems Vs National Insurance Company Limited was referred to enunciate that the delay caused deliberately is highly untenable which resulted in the complainant suffer due to lack of funds.   It was also submitted that they were not provided the complete copy of the Surveyor’s Report inspite of continuous requisition by them. The learned counsel submitted placing reliance on the initial report dated 01.07.2019 that the surveyor earlier had the intention to provide the true cause of fire and the total assessment on damages, however, in the final report had completely overturned and commented that it was a manmade fire and hence not entitled to any claim amount. He also placed reliance on the recent decision of Supreme Court of India in National Insurance Company Limited Vs Harsolia Motors in reply to the defence of opposite party that the Consumer Complaint was very well maintainable before this Commission. Thus disputing the veracity of the Surveyor report based on which the repudiation was made by the opposite party he sought for the complaint to be allowed as prayed for.

7. On the other hand, it was submitted by the learned counsel appearing for the insurance company that the complaint itself is not maintainable before this Commission as the complainant was carrying on commercial activities and could not be brought within the definition of consumer under the exclusion clause of “livelihood”.  It is further submitted by him that the complaint before this Commission could not be tried as it involves complicated facts and requires elaborate evidence.  On merits though admitted the delay caused by the Surveyor in submitting the report it is defended by him that the delay was caused due to the non cooperation of the complainant, health factor of the Surveyor and a death in Surveyor’s family.  Supporting the Surveyor’s report it is his submission that the Surveyor had rightly found out that the claim was a bogus one and that the complainant did not take adequate safety measures to prevent the same in causing damages.  Thus he sought for the complaint to be dismissed on the ground of maintainability and also on merits.

8. Though voluminous documentary evidence was produced by the complainant in support of his allegations this is a simple case of repudiation of insurance claim by the opposite party for the damages caused to the complainant by the fire accident that occurred in their premises on 22.05.2019.  It is found from the documents that the complainant’s company was engaged in manufacturing Insulated Sandwich Panels and provides solutions for any building with walls and a roof requiring insulation. The insurance policy with the opposite party for the relevant period was not disputed by either of parties.  The only dispute raised in the Consumer complaint is the repudiation of insurance claim  vide letter dated 18.11.2021 by the opposite party consequent to the final report submitted by the Surveyor who was appointed by the opposite party to survey and assess the damages.

9. On careful analysis of the entire evidences submitted by both parties this Commission holds that deficiency in service was made out by the complainant on the part of opposite party in repudiating the claims based on the Surveyor’s report for the following reasonings;

a) The primary defence taken by the opposite party is that the complaint itself is not maintainable before this Commission.  However, we are of the view that due to the settled law by Apex Court that for insurance claims even the commercial entities could file a consumer complaint based on the legal principle that insurance is taken not for earning any profit but to only indemnity the loss.  We find our view supported by the decision rendered by the Supreme Court of India in National Insurance Company Limited Vs Harsolia Motors dated 13.04.2023 wherein it has been clearly held that consumer complaint by commercial enterprises is maintainable.

b) Another defence raised by the opposite party is that the complainant having come up with complicated facts the consumer complaint as filed before this Commission is not maintainable as the procedure followed by Consumer Commission is of summary in procedure. In the present case as we have already pointed out that though the documents are voluminous it is a simple case of repudiation of insurance claim. The complainant had come up with an issue that its genuine insurance claim was rejected by the opposite party based on the Surveyor’s Report. In such scenario we are of the opinion that no complicated facts are involved in the present case except to scrutinize the validity of surveyor’s report.  Further, when the application was taken up by the complainant to examine the Surveyor who filed the report it was stoutly objected by the opposite party and this Commission also rejected the application holding that examination of surveyor was not possible in a summary procedure which was confirmed by the Appellate Authority.  In the order passed by the Appellate Authority it was clearly provided that it was for the insurance company to prove the veracity or genuineness of the Surveyor’s Report and hence the burden was upon them.  Therefore, the present complaint involves a simple issue as to whether the repudiation of insurance claim based on the Surveyor’s Report was justified or not and whether the Surveyor’s conclusions proved to be justified or not by the insurance company.  Thus the complaint as filed before this Commission is very well maintainable and could be tried in a summary manner. Our view was further supported by a recent judgment in an order passed by the National Consumer Disputes Redressal Commission in M/s.HCC-CPPL JV vs ICICI Lombard General Insurance Company Limited dated 03.05.2023 wherein it has been held as follows;

“13.The next objection raised by the opposite party-Insurance Company that the complainant is required to be relegated to the Civil Court to decide the complicated questions of law involved in the present case, is rejected in view of the law laid down by the Hon’ble Supreme Court in the case of Dr.J.J.Merchant and Ors Vs Shrinath Chaturvedi, IV (2002) SLT 714=2002(6) SCC 635, wherein it has been held that the procedure prescribed under the Act for disposal of the complaint is adequate to decide cases involving complicated questions of law and the facts.”

c) With regard to the allegations as to delay caused in filing the Surveyor’s Report the same was not disputed by the opposite party.  However, certain reasons were cited by the opposite party for the delay.  It is found that the first day of investigation as per the complainant was carried on 25.09.2019 but the final report was filed on 27.03.2021, though an interim report was filed on 01.07.2019. The repudiation letter was passed only on 18.11.2021 more than two and half years from the date of incident.  As per the IRDA Regulations, 2017 under the caption Claim procedure in respect of General Insurance Policy it is provided that after submitting the interim report within 15 days from the date of first visit, Surveyor shall submit his final report within 30 days of his appointment.  With respect to claims made by commercial and large risks the Surveyor has to submit the final report within 90 days from the date of his appointment.  However, in the present case the Surveyor had submitted his report only on 27.03.2021 though his appointment was made on 22.05.2019 and the first investigation done on 23.05.2019. Though non cooperation on the side of complainant was cited as a reason there was no written communication by the Surveyor or the Insurer seeking for any information from the insured as per clause 15(4) of the said Regulation which resulted in delay on the part of complainant.  Further no affidavit was filed by the Surveyor that the delay had occurred due to a death in his family or due to his health condition.  Therefore mere bald statement by opposite party as reasons for the delay could not be accepted.

d) It is also disputed that in the complaint filed before this Commission it was signed by the Authorized signatory on behalf of company who was not an authorized person and hence complaint was not maintainable.  However, we could see that it is the same person who had in all documents signed as the Authorized Signatory of the company.  Authorization is an internal act of the company which could not be disputed unless it causes some prejudice to the opposite party. Further above all the Authorized Signatory was found to be the Managing Director of the complainant’s company who was fully authorized to sign on behalf of company.

e) According to the opposite party, clause 8 of the insurance terms and conditions was relied upon for repudiating the claim.  However, it is the case of the complainant that in the initial policy given to them there was no such terms and conditions and they were not provided with such policy.  Hence the burden shifts upon the opposite party to prove that the complainant was provided with the policy consisting of the entire terms and conditions which burden was not discharged successfully by opposite party. Our view supported by a recent judgment in an order passed by the Supreme Court of India in M/S Texco Marketing Pvt. Ltd. vs Tata AIG General Insurance Company Ltd on 9 November, 2022 wherein it has been held as follows;

8.       In this regard, It has also been held in the judgment passed  by the Hon’ble Supreme Court of India in the matter of Texco Marketing Pvt Ltd Vs Tata AIG General Insurance Co. Ltd & others - (2023) I SCC 428 that the Insurance Company cannot rely upon the terms and conditions  if the same had not been supplied to the insured.

9.       The following observations of the Hon’ble NCDRC in the matter of M/S. Anjaneya Jewellery vs New India Assurance Co. Ltd. & 2 Ors. Passed on 14 February, 2023 in CC/1094/2018 are also relevant:-    

“Applying the Principles laid down by the Hon’ble Supreme Court referred to above, to the facts of the present case, we find that there is no material on Record to establish that the Opposite Party Insurance Company had given the Terms and Conditions of the Special Package Insurance Policy or at any point of time or ever informed the Complainant about the same. Thus, the Exclusion Clause on the basis of which the Opposite Party Insurance Company had repudiated the Insurance Claim of the Complainant, cannot be sustained as the Opposite Party Insurance Company could not rely upon the same. The Repudiation letter is, therefore, set aside. There had been Deficient in Service by the Opposite Party Insurance Company in repudiating the genuine claim of the Complainant.”

Therefore in the absence of evidence by the insurance company providing the terms and conditions to the complainant, any exclusion clause upon which the company bases its repudiation could not be upheld.

f) For the complainant’s allegation that they were not supplied with the entire Surveyor Report it was defended by the opposite party that it is the discretion of the insurer citing the clause 15(5) of the IRDA (Production of Policy Holder’s Interest) Regulations, 2017.  However, when the repudiation is based on the Surveyor’s Report, according to the Principles of natural justice the complainant/insured is entitled to know the reason for repudiation and hence entitled for the entire survey report at the first instance along with the repudiation letter.

g) The initial Surveyor’s Report dated 01.07.2019 provided that the claim falls within the scope of the insurance policy and only the assessment of loss and cause of loss requires to be investigated.  The Surveyor also assessed the sum payable would be approximately 1.5 crores.  However, later on the Surveyor had come to a conclusion that the claim itself is not possible as it was a bogus claim citing the reason that it was a fraudulent claim.  Various other reasons were also cited for holding that the cause of loss does not come under the insured perils.  When such contrary views are expressed by the surveyor that too after a period of 2 years it creates doubt over the mind of this Commission as to whether the Surveyor acted impartial.  He also claims an additional remuneration of Rs.7, 00,000/- stating that “Please Pay the full additional fee of Rs.7L without qualms.  It’s a small amount compared to the loss claimed.” This statement by the Surveyor causes further doubt upon him as to whether he acted based on the principle of natural justice. Therefore when such contrary decisions were taken by the Surveyor, it becomes imminent upon the opposite party to prove the truthfulness of the survey report to the satisfaction of this Commission which the opposite party failed to do so.    

h) The opposite party also took a defence that the Bank was not made a party to the proceedings and the same makes the complaint bad for non joinder of necessary party.   However, in the present case even as per the statement cited that the materials which suffered damages are all capital goods amounting to the value of Rs.4,04,95,695/- and does not belong to Bank and hence this Commission is of the view that the Bank is not a necessary party to the proceedings. Further, there is no allegation of deficiency in service against the Bank.

i) When the opposite party alleged that based on the videos provided by the surveyor that the complainant’s inaction in not using hydrants resulted in the fire and consequent loss, they ought to have produced the video clippings in proof of the same to substantiate the said reasonings. That too when it is submitted by complainant that only after satisfying the safety measures in the complainant’s premises the insurance policy itself was issued, the opposite party cannot now dispute the safety measures.

j) When the opposite party alleges that the claim was a fraudulent one and the alleged accident itself was a manmade fire, they cannot contend contrarily that due to the inadequate safety measures by the complainant such a huge damages had been caused as both pleas are contrary to each other.

k) It is argued by the opposite party that repudiation of a claim cannot be construed as deficiency in service.  However, when the repudiation of the claim was based on the findings in the survey report and when the survey report is disputed by the insured and when the same is not substantiated by the insurer, the repudiation of claim based on such unproved Survey report it comes very well within the ambit of deficiency in service and unfair trade practice.

L) In an order passed by the Supreme Court of India in S.S. Cold storage India Private Limited Vs National Insurance Company Limited in Civil Appeal No.2042/2012 the veracity of Surveyor’s report was discussed and it has been held as follows;

“dispute arises over survey report and loss assessment report and the following judgment was referred by parties

  e. New India Assurance Company Limited vs. Pradeep Kumar5 where it was observed that a surveyor’s report was not the last and final word. Further, it was not that sacrosanct that it could not be departed from, and that though it could be the foundation/basis of the settlement of a claim, it was not binding upon the insurer or the insured.”  

m) The opposite party has placed reliance on the decision rendered by the Supreme Court of India in Civil Appeal No.2014/2011 in State Bank of Travancore Vs Kingston Computers India Private Limited dated 22.02.2011 wherein it has been held that the authorised signatory of the complainant is not a competent authority to file complaint.  But in the present case as the Authorized Signatory being the Director of the company was very well competent to file the complaint and hence the said decision was not applicable to this case.

n) The decision rendered by State Consumer Disputes Redressal Commission was also relied upon by the opposite party to contend that an issue with respect to loss assessment of Rs.91,31,000/- could not be tried before consumer commissions but only before a Civil Court.  However in the present case the quantum of claim was not in dispute but the dispute relates to repudiation of entire claim based on the surveyor report.

o)The other decision rendered by the State Consumer Disputes Reressal Commission in CC.No.170/2016 in M/s.Mahaveer Sales Corporation Vs United India Insurance Company Limited dated 31.10.2022 was relied upon by the opposite party wherein the complaint was dismissed for the reason that the complainant had failed to substantiate a huge claim of Rs.67 lakhs by providing necessary documents.  However in the present case it is the surveyor report relied upon by the opposite party to reject the entire claim of the complainant which necessitated the opposite party to prove the genuineness of the Survey report.  Hence due to different factual propositions the decisions relied upon by the opposite party was not applicable to the present case.

p) It has been alleged by the opposite party that the final loss assessment was not submitted by the complainant.  However in the interim report of the surveyor under Para “d” a clear estimate has been submitted by the complainant/insured providing information with regard to Accessories Materials in stores, Production & Packing Materials in stores and Machinery parts/PUF/Fabrication & Storage Shed totalling an amount of Rs.4,04,95,965/-. The same was reproduced in the report of the Surveyor himself.  Therefore, opposite party could not contend that no final loss assessment was submitted by the complainant.

10) Based on the above reasonings discussed above we are of the view that the repudiation of the insurance claim by the opposite party based on the Survey Report which was not substantiated by the opposite party amounts to deficiency in service and unfair trade practice.  We answer the point accordingly in favour of the complainant and as against the opposite party.

Point No.2:-

11. Though we have held above that the opposite party had committed deficiency in service in repudiating the entire claim of the complainant based on the Surveyor’s Report which was not substantiated before law we are not in a position to quantify the loss and the damages or claim to be paid by the opposite party/insurance company to the complainant as no evidence was discussed before this Commission with respect to the same.  In such facts and circumstances we direct the opposite party to consider the claim of the complainant afresh and to pay the admissible claim amount. We also award a sum of Rs.5,00,000/- towards compensation to be paid to the complainant along with cost of Rs.10,000/- towards litigation expenses to the complainant.

In the result, the complaint is partly allowed and we

a) direct the opposite party to consider the claim of the complainant afresh and to pay the admissible claim amount within two months from the date of receipt of copy of this order;

b) To direct the opposite party to pay a sum of Rs.5,00,000/- (Rupees five lakhs only) towards compensation to the complainant;

c) To direct the opposite party to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards litigation expenses to the complainant.

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this 30^th day of January 2024.

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    MEMBER-II                                    MEMBER-I                                              PRESIDENT

List of document filed by the complainant:-

List of documents filed by the opposite party:-

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MEMBER-II                                         MEMBER-I                                              PRESIDENT