ORDER
(Per: Mr. D.K. Tyagi, Member):
The complainant has filed this consumer complaint before this Commission under Section 12 read with Section 18 of the Consumer Protection Act, 1986, against the opposite party for compensation of Rs. 26,28,542/- alongwith interest @ 12% per annum from 01.10.2003 on the basis of deficiency in service on the part of the opposite party in repudiating the insurance claim submitted by the complainant and also Rs. 25,000/- as cost of complaint.
2. The complainant has pleaded in the consumer complaint that the complainant is running a factory of M.S. Ingots situated at 15.5 Km. Stone, Roorkee, Dehradun Road, Bhagwanpur, District Haridwar. The complainant had taken 6 policies covering different risks as advised by the officer of the opposite party including a fire policy and paid approximately a sum of Rs. 1,00,000/- as premium. The present case concerns with the fire policy issued to the complainant. The factory of the complainant was commissioned on 09.06.2003. That one of the policy issued to the complainant is fire policy of sponge iron for the period from 16.06.2003 to 15.06.2004 and paid a sum of Rs. 6,650/- as premium, which is the subject matter of the complaint. At the time of insurance, a cover note bearing No. GZB/No.12554 dated 16.06.2003 was issued to the complainant. No copy of the policy was supplied to the complainant, from which the terms and conditions of the policy could be ascertained. After repeated letters, the complainant was issued a copy of the policy schedule only in the month of July, 2004. That on account of heavy rains on 18.06.2003, a portion of the complainant’s factory shed collapsed with the result that the water peeped to the sponge iron, which was stored under the said shed. Hence, the complainant sustained a loss of Rs. 26,28,542/-. As per the record of Central Research Bureau of Roorkee, the rain at Bhagwanpur on 18.06.2003 at 7O’clock was 18cm. and the wind was blowing at a speed of 5.77 meter per second. The complainant had lodged the claim with the opposite party for the loss and the opposite party deputed the surveyor, who had taken necessary photographs from where it was evident that the loss has occurred on account of peeping of the water by collapse of shed wall. The opposite party without any good cause or reason had repudiated the claim of the complainant vide their repudiation letter dated 25.03.2004. The grounds taken by the opposite party in the repudiation letter are entirely incorrect and the reasons given therein are just to avoid the claim of the complainant. Though the opposite party has admitted the loss occurred to the complainant, but a wrong stand was taken that the loss does not fall within the scope of the policy. A wrong stand was taken that the loss occurred merely due to moisture. In fact the loss was on account of the accident and as stated above on account of heavry rains, the water peeped into the sponge iron and under the said circumstances the company was liable to make the payment of the claim amount. Apart from the fact that the above accident does not come in alleged exclusion clause, as has been mentioned by the opposite party, the opposite party has not make the payment, even otherwise uptil now the opposite has not supplied any copy of the policy or any alleged exclusion clause to the complainant. In case the opposite party would have supplied a copy of the policy or would have informed the complainant regarding the alleged exclusion clause, then the complainant would have also got the said risk covered by paying additional premium, which comes to about Rs. 5,000/-. Since, the complainant was new in the business and hence the opposite party palyed fraud with the complainant by not supplying the copy of the policy and also not mentioning to them any exclusion clause or giving them any intimation regarding the said exclusion clause. The said exclusion clause has not been given by the opposite party uptil now. Even otherwise, as stated above the cause of action was not natural as is wrongly been stated in the repudiation letter, but it was on account of accident, which is fully covered. The opposite party has taken a wrong stand that none of the insured perils have taken place. The opposite party has also wrongly stated that the surveyor did not find any evidence other than the heating up, as is alleged whereas the facts are that the surveyor has even taken the photogaphs of falling down of the shed wall, which was on account of heavy rains. This fact was concealed by the insurance company, which is evident even from the photographs taken by the surveyor. Since the claim of the complainant was wrongly repudiated, the complainant issued a letter to the insurance company requesting them to supply a copy of the policy and after issue of the said letter, the opposite party has merely supplied a copy of the policy schedule in the month of July, 2004 to the complainant. That in non-payment of the genuine claim of the complainant, there is definitely deficiency in service of the insurance company and the complainant is entitled to the claim amount.
3. The opposite party-The Oriental Insurance Co. Ltd. has filed written statement and denied that the complainant had taken 6 policies covering different risks including a fire policy and paid approximately a sum of Rs. 1,00,000/- as premium, but it is admitted that the present case concerns with the fire policy issued to the complainant. It is denied for want of knowledge that factory of the complainant was commissioned on 09.06.2003. Fire policy which was covering risk of stocks of all types of sponge iron and other similar goods and M.S. ingots manufacturing was from 16.06.2003 to 15.06.2004 for a sum of Rs. 50.00 lacs and premium of Rs. 6,750/- was received towards the said coverage. This policy does not cover first 5% of each and every claim subject to minimum of Rs. 10,000/- in respect of each and every loss arising out of lightning, S.T.F.I. and subsidence and landslide including rockslide covered under the policy. This insurance is subject to fire warranties, clauses and inbuilt covers clause attached herewith and exclusions. At the time of insurance, a cover note bearing No. GZB No. 112554 dated 16.06.2003 was issued to the complainant. It is denied that for want of knowledge that on 18.06.2003, a portion of complainant’s factory shed collapsed with the result that water peeped to the sponge which was stored under the said shed. It is only on 01.07.2003 vide complainant’s letter dated 30.06.2003 intimation was given of sponge iron lying in said factory shed catching fire an approximately 80 tons sponge getting burnt costing Rs. 7,05,600/-. It is wrong to allege that as per record of Central Research Bureau, Roorkee the rain at Bhagwanpur on 18.06.2003 at 7 O’clock was 18c.m. and the wind was blowing at a speed of 5.77 meter per second. It is admitted that the complainant has lodged the claim with the opposite party and the opposite party deputed the surveyor, who had taken necessary photographs. It is wrong to allege that the opposite party without any good cause or reason repudiated the claim of complainant vide their repudiation letter dated 25.03.2004. Matter of the fact is that even complainant’s supplier Sakhshi Services Pvt. Ltd. after visiting factory premises vide their letter dated 07.07.2003 have explained the nature of sponge iron. That heap of the sponge stored under factory shed caught moisture due to rainy season and it became reoxidized consequently the material heated up gradually and percentage of Fe(M) changed into Feo. This is the nature of sponge iron that when the material becomes reoxidized the carbon percentage and Fe(M) contained in sponge iron becomes low and in uses of that material there will be very less percentage of yield besides boiling problem. It is wrong to allege that the grounds taken by the opposite party in the repudiation letter are entirely incorrect and the reasons given therein are just to avoid the claim of complainant. The opposite party has taken a correct stand that the loss occurred merely due to moisture, on account of heavy rains water peeped into the sponge iron. It is not admitted that the opposite party has not supplied any copy of policy or any alleged exclusion clause to the complainant. It is wrong to allege that in case the opposite party would have supplied a copy of the policy or would have informed the complainant regarding the alleged exclusion clause then the complainant would have also got the said risk covered by paying additional premium. The complainant is well versed with the insurance company and even knows the premium chargeable so he cannot claim any benefit out of his own folly. It is wrong to state that since complainant was new in the business and hence the opposite party played fraud with the complainant by not supplying the copy of the policy and also not mentioning to them any exclusion clause or giving them any intimation regarding the said exclusion clause. It is wrong to allege that the opposite party has taken a wrong stand that none of the insured perils have taken place. Surveyor did not find any evidence other than the heating up of material. It is wrong to state that since the claim of complainant was wrongly repudiated, the complainant issued a letter to the insurance company requesting them to supply a copy of the policy and even after issue of the said letter the opposite party has merely supplied a copy of the policy schedule in the Month of July, 2004 to the complainant. The said copy is being separately filed which will show that there was no contract of any exclusion. Strict proof is required to prove the facts alleged. It is wrong to allege that in non-payment of the genuine claim of the complainant there is definitely deficiency in service of the insurance company and the complainant is entitled to claim amount. Strict proof is required to prove the facts alleged. In additional pleas, the opposite party has submitted that matter of the fact is that complainant has purchased a Standard Fire and Special Perils policy covering stock of all types of sponge iron and other similar goods used M.S. Ingots M.F. in which loss due to fire is covered, but excluding destruction or damage caused to the property by
- (i) its own fermentation, natural heating or spontaneous combustion
(ii) its undergoing any heating or drying process.
- burning of property insured by order of any public authority.
As per surveyor report the loss occurred due to moisture from the shed of insured’s place due to rainy seasons getting into the sponge iron which resulted in oxidation of sponge iron and it got heated up. If the sponge iron was kept under a proper place there would not have any moisture in it and this shows the improper storing of sponge iron during rainy season as it got heated up naturally on coming in contact with nature’s moisture. It is evident from the letter of Sakhshi Services Pvt. Ltd., New Delhi dated 07.07.2003 given to surveyor by the complainant, the supplier of sponge iron who visited the spot after loss which states, “But the heap of sponge iron stored under your factory shed caught moisture due to rainy season and it became reoxidized consequently the material became heated up gradually and the percentage of Fe(M) changed into FeO. This is the nature of sponge iron that when the material becomes reoxidized the carbon percentage and Fe(M) contained in sponge iron becomes low and in uses of that material there is very less percentage of yield besides boiling problem. That a letter dated 30.06.2003 was received in the office of opposite party at Muzaffar Nagar informing that our sponge which was lying in our factory shed caught fire and approximately 80 tons sponge got burnt costing Rs. 7,05,600/-. This letter does not state on which date and time the loss occurred. During the course of survey one more letter which bears date of 29.06.2003 and which is certified on 03.07.2003 was given to surveyor which is a version of Works Manager, Sh. Ramesh Harnal that ………………he saw smoke arising from the sponge iron…………spoiled the sponge iron. The complainant has himself admitted in claim petition that he was new in the business and without knowing the nature of the goods, stocks were piled up in his factory and by not appointing any knowledgeable person to hold, command and run the factory, he started the venture and this was the cause of loss. That it has been admitted by the complainant that business under the name and style of Uttaranchal Steels Pvt. Ltd. was run for manufacturing of ingots, thus, it was a commercial activity which was being carried out by the complainant, does not fall within the definition of “consumer” and, therefore, is not entitled to invoke the jurisdiction of this Commission for redressal of their grievances. The surveyor Sh. Sanjay Dwivedi after his visit to the spot issued letter which was received by complainant’s representative on 03.07.2003. Then another letter was issued by Sh. Sanjay Dwivedi on 02.08.2003 and 27.08.2003 asking complainant to provide him with the documents asked for. In letter dated 14.10.2003, he has given even reference of letter of Sakhshi Service Pvt. Ltd. and in letter dated 02.01.2004 and 23.02.2004, he again asked for providing him the documents asked therein and then he wrote that he is submitting his report and on 23.02.2004 he submitted his survey report and, thus, it is clear that it was complainant’s representatives who were making surveyor to hold the report unnecessarily on frivolous grounds and causing unnecessary delay. Due to the reasons above stated the complainant’s complaint is liable to be rejected with costs.
4. The complainant has filed an affidavit of Sh. Vinod Kumar, Director of the complainant-M/s Uttaranchal Steels Pvt. Ltd. (paper Nos. 36 to 50). The opposite party has filed affidavit of Sh. S.P. Singh, Senior Divisional Manager, Oriental Insurance Co. Ltd. (paper No. 58 to 67) and affidavit of Sh. Sanjay Dwivedi, Surveyor and Loss Assessor alongwith final survey and assessment report (paper Nos. 69 to 76) with all annexures (paper Nos. 77 to 142) and coloured photographs of factory etc. (paper Nos. 143 to 155) and letters of correspondence and repudiation letter etc. (paper Nos. 156 to 159). The complainant has also filed an affidavit of Sh. Vinod Kumar Jain (paper Nos. 161 to 168).
5. The complainant has filed written synopsis (paper Nos. 184 to 186) and the opposite party has filed written arguments (paper Nos. 213 to 220) on record.
6. We have heard learned counsel for the parties and also gone through the affidavits filed in evidence and the documents as well as written arguments by both the parties.
7. Learned counsel for the complainant has submitted through written arguments that the complainant is running a factory of M.S. Ingots at Roorkee-Dehradun Road, Bhagwanpur, Haridwar and had taken six policies covering different risks. The present case pertains to the fire policy issued by the opposite party. One of the policies issued to the complainant is fire policy of sponge iron for the period from 16.06.2003 to 15.06.2004. The opposite party has issued a cover note and no copy of the policy was supplied to the complainant and after issuing several letters, the opposite party supplied the copy of the policy to the complainant. Learned counsel has argued that on account of heavy rains on 18.06.2003, a portion of the shed of the factory of the complainant collapsed, with the result that the water peeped to the sponge iron, which was stored under the said shed and the complainant sustained a loss of Rs. 26,28,542/-. As per the record of the Central Research Bureau, Roorkee, rain at Bhagwanpur on 18.06.2003 at about 7 O’clock was 18c.m. and the wind was blowing at a speed of 5.77 meter per second. The complainant had lodged the claim with the opposite party and the opposite party repudiated the same vide letter dated 25.03.2004. The claim was repudiated on the ground that the loss does not fall under the policy. Learned counsel has also argued that the opposite party has denied that the complainant’s factory shed collapsed and has stated that no water peeped into the sponge iron and they have also denied the factum of speed of wind blowing on the date of incident and also pleaded that the heap of the sponge stored under the factory shed caught moisture due to rainy season and has stated in para 14 of the written statement that it is not admitted that the loss occurred on account of the accident. The opposite party has appointed the surveyor and on page 17 of the survey report, the basis of assessment of loss has been given and the surveyor has assessed the net loss to the tune of Rs. 13,48,353/-. Learned counsel argued that the contention of the opposite party that the loss in question is not covered under the policy, is incorrect. It is submitted that the policy in question is an exhaustive standard fire and special perils policy. As per the policy, losses arising out lightning, STFI (Storms Temlest Flood Inundation), Subsidence and landslide are also covered besides others. The opposite party has also filed the photographs, showing the damaged sponge iron. He also argued that no exclusion clause of the policy, was ever brought to the knowledge of the complainant.
8. Learned counsel for the opposite party has submitted in written arguments that the complainant being new in the business, never knew that sponge iron stored under factory shed caught moisture due to rainy season and it became re-oxidized consequently the material became heat up gradually and the percentage of Fe(M) changed into FeO so no one else is responsible for the loss, but complainant himself. No information of incident of 18.06.2003 has been given to the opposite party and the same information reached in the office of the insurance company on 01.07.2003, which is highly belated and complainant is not entitled to be indemnified. As per para 8 of the consumer complaint, on 18.06.2003, a portion of complainant’s factory shed collapsed with the result that water peeped to the sponge iron, which was stored under the said shed, whereas according to paper No. 134 of opposite party’s evidence, wherein Works Manager Sh. Ramesh Harnal has written “Today on 29th June, 2003 at about 11:00 a.m., I was standing on a furnace platform. Suddenly I saw the smoke rising upon the sponge iron, I immediately called the labours and got the sponge iron spreaded and shifted to the safe place” and on the same day intimation was given to S.O., Bhagwanpur Police Station, as shown in paper No. 136 of opposite party’s evidence. Intimation to Fire Brigade, Roorkee was given on the same day as shown in paper No. 138 of opposite party’s evidence. This shows that the opposite party from whom indemnification is being sought was informed very late vide letter dated 30.06.2003, which was received in the office of opposite party on 01.07.2003 and only thereafter surveyor was appointed on 02.07.2003, who conducted the survey on 03.07.2003 and on various dates thereafter and surveyor also wrote several letters demanding papers/documents, but the complainant did not co-operate him. It was delayed intimation sent to insurance company-opposite party. This is violation of the policy conditions. The complainant has stated in his consumer complaint that the portion of the factory shed has collapsed on account of heavy rains on 18.06.2003 and also stated in the consumer complaint that the surveyor has taken photographs of falling down of shed wall, but no date of collapse of shed wall has been mentioned in the complaint nor anywhere else in the affidavit or in any letter. Learned counsel has argued that the complainant was doing business under the name and style of Uttaranchal Steels Pvt. Ltd. for manufacturing of Ingots, which is a commercial activity. Therefore, it is not in the jurisdiction of the Consumer Forum. The complainant has not come with clean hands before this Commission. There is no deficiency in service on the part of the opposite party.
9. From the perusal of the evidence, it is admitted to the parties that the Standard Fire and Special Perils policy was taken by the complainant on 16.06.2003, it was covering risks of six policies of all types of sponge iron and other similar goods and M.S. Ingots manufacturing, which was valid from 16.06.2003 to 15.06.2004 for the some insured of Rs. 50.00 lacs and premium of Rs. 6,750/- received by the opposite party-insurance company towards the said coverage. It is evident from the policy schedule (paper No. 81) that this fire policy does not cover 5% of each and every claim subject to Rs. 10,000/- in respect of each and every loss arising out of lightning, S.T.F.I. and subsidence and landslide including rockslide covered under the policy (not applicable to Dwelling). This insurance was subject to fire warranties, clauses and inbuilt covers clause and exclusions. In the written statement, the opposite party has categorically stated that the policy was issued to the complainant shortly after 17.06.2003, date of preparation of policy. In the written statement, the opposite party has also mentioned that the complainant had informed about the incident to the opposite party vide letter dated 30.06.2003, which was received in the office of opposite party on 01.07.2003 vide letter dated 30.06.2003 and in accordance with the instructions received from the Oriental Insurance Co. Ltd., Regional Office, Ghaziabad on 02.07.2003 surveyor and loss assessor visited the insurance office on 03.07.2003 and visited the site. There is no letter of intimation dated 18.06.2003 or any other date before 30.06.2003 by the complainant to the opposite party. We have gone through the final survey and assessment report dated 25.02.2004 given by surveyor and loss assessor and also letter of Sakshi Services Pvt. Ltd., who supplied the material to the complainant. The complainant’s supplier Sakshi Services Pvt. Ltd. after visiting factory premises vide their letter dated 07.07.2003 have explained the nature of sponge iron, that heap of sponge iron stored under factory shed caught moisture due to rainy season and it became re-oxidized consequently the material heat up gradually and percentage of Fe(M) changed into Fe(O). This is the nature of sponge iron that when the material becomes re-oxidized the carbon percentage and Fe(M) contained in sponge iron becomes low and in uses of that material there will be very less percentage of yield besides boiling problem. The supplier Sakshi Services Pvt. Ltd. has also mentioned in the letter dated 07.07.2003 that as the said supplied material by their principle companies were initially in good quality, and heat up after that due to moisture in rainy season. Sakshi Services Pvt. Ltd. suggest the complainant to spread the stored material immediately and do not use water for prevention of fire caught in the heap of material. The complainant had informed the S.O., Police Station, Bhagwanpur on 29.06.2003 in which he has mentioned that sponge iron, which was lying in factory shed caught fire and damaged. Similarly, the complainant informed the fire brigade vide letter dated 29.06.2003 (paper No. 138) that the sponge iron, which was lying in the factory shed caught fire suddenly and thereafter on 30.06.2003 the complainant/director of Uttranchal Steels Pvt. Ltd. informed the opposite party that sponge iron, which was lying in the factory shed caught fire and approximately 80 tones sponge got burnt costing Rs. 7,05,600/- and the complainant also requested that the loss may be ascertained by arranging surveyor. This is evident from these letters of the complainant that he had never informed the insurance company on 18.06.2003 or before 29.06.2003/30.06.2003. No immediate intimation was given to the opposite party. Letter of the supplier of sponge iron Sakshi Service Pvt. Ltd. dated 07.07.2003 is the evidence to show that there was no such fire rather it is the characteristic of sponge iron that when the sponge iron stored under the factory shed caught moisture due to rainy season and it becomes re-oxidized. Consequently the material became heat up gradually and the percentage of Fe(M) changed into Fe(O). There is no mention of date when the incident, i.e. burning of sponge iron took place. It is also evident that no fire took place on 18.06.2003 rather due to moisture in the air in the rainy season heap of sponge iron stored in the shed of factory caught moisture and slowly-slowly this material Fe(M) after re-oxidization changed into Fe(O). There is no evidence of falling down of any shed wall of the factory and it is not possible that a newly constructed factory structure may fall down within no time of commencement of this factory, due to rains. According to the surveyor’s report, there was no evidence of any incidence and there was no sign of fire due to any independent incidence and the loss was not due to any accidental fire. Surveyor has recorded the statement of insured Works Manager Sh. Ramesh Harnal, who has deposed that he was standing on the furnace platform on 29.06.2003 at about 11:00 a.m. Suddenly he saw smoke arising out of sponge iron. He immediately called the labours and got the sponge iron spreaded and shifted to the safer place, i.e. away from the burning/hot sponge iron. Statement of Works Manager indicates that the sponge iron stored in the shed of factory caught moisture and heated up on 29.06.2003 only. There is no evidence on record to show that any incident by accidental fire took place on 18.06.2003 or before 29.06.2003. In this way, the complainant has not come before this Commission with clean hands. As there was no accidental fire, therefore, neither any report was lodged in the Police Station against anybody, nor fire brigade was called to extinguish the said fire. Fire brigade was not required as there was no actual fire. The surveyor after inspection has discussed the matter in his report that he had explained to insured that self-combustion/self-heating is not covered peril under the terms and conditions of insurance policy. There is no report of meteorological department to show that on 18.06.2003 or of any day before 29.06.2003 high velocity winds blew which damaged a portion of wall of factory and there is no evidence on record to show that due to high wind the water entered the premises and it got into sponge iron. Therefore, in absence of any proof of loss due to any insured peril, the complainant has failed to prove its case against the insurance company-opposite party.
10. Learned counsel for the opposite party has submitted before this Commission that the complainant was running business under the name and style of Uttaranchal Steels Pvt. Ltd. for manufacturing of Ingots, thus, it was a commercial activity which was being carried out by the complainant, therefore, the complainant does not fall within the definition of “consumer”. The Consumer Protection Act, 1986 defines “consumer” under Section 2(1)(d)(i), which reads as under:-
"consumer" means any person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose”.
11. Learned counsel for the opposite party-insurance company has cited following decisions in support of his contention:-
1. Morion Chemicals Ltd. vs. UCO Bank; III (2013) CPJ 261 (NC).
2. J.K. Aggarwal & Anr. vs. Three C Universal Developers Pvt. Ltd.; IV (2011) CPJ 455 (NC).
3. Vijay Kumar vs. Indusind Bank; II (2012) CPJ 181 (NC)
4. Lakshmi Cotsyn Limited vs. Roll Con Engineers; I (2012) CPJ 446 (NC)
5. MCS Computer Services Pvt. Ltd. vs. Allena Auto Industries Pvt. Ltd.; II (2012) CPJ 173 (NC)
6. Laxmi Engineering Works vs. P.S.G. Industrial Institute; II (1995) CPJ 1 (SC)
7. Oriental Bank of Commerce vs. Sushil Gulati; I (2015) CPJ 326 (NC)
8. Chanan Preet Singh vs. United India Insurance Co. Ltd. & Ors.; I (2012) CPJ 341 (NC)
12. In the case of Morion Chemicals Ltd. vs. UCO Bank (supra), the Hon’ble National Commission has held that customer who buys goods for commercial purpose or avails of services attached to goods in nature of warranty cannot be considered to be consumer. In the case of J.K. Aggarwal & Anr. vs. Three C Universal Developers Pvt. Ltd. (supra), the Hon’ble National Commission has held that any person who avails services from a service provider for commercial purpose is not entitled to invoke jurisdiction of Consumer Fora for redressal of his grievance. In the case of Vijay Kumar vs. Indusind Bank (supra), the Hon’ble National Commission has held that disputes between parties relating to commercial purposes are excluded under the Act. In the case of Lakshmi Cotsyn Limited vs. Roll Con Engineers (supra), the Hon’ble National Commission has held that the complainant had purchased machines and equipment for commercial purposes. Complainant does not fall within purview of definition of consumer. In the case of MCS Computer Services Pvt. Ltd. vs. Allena Auto Industries Pvt. Ltd. (supra), the Hon’ble National Commission has held that the consumer does not include person who avails of services for any commercial purposes. In the case of Laxmi Engineering Works vs. P.S.G. Industrial Institute (supra), the Hon’ble Apex Court has held that the complainant is not a consumer as the machinery was purchased for commercial purpose. In the case of Oriental Bank of Commerce vs. Sushil Gulati (supra), the Hon’ble National Commission has held that complainant nowhere mentioned that he was carrying on business by means of self-employment for earning livelihood –Complainant is not consumer. In the case of Chanan Preet Singh vs. United India Insurance Co. Ltd. & Ors. (supra), the Hon’ble National Commission has held that report of surveyor is credible document must be relied upon unless controverted by credible proof of any infirmity in its findings.
13. The abovementioned decisions cited by the learned counsel for the opposite party-insurance company are applicable in the instant case also. The complainant is running factory of M.S. Ingots on large basis for which he imports sponge iron and other material from other places and after manufacturing ingots, items are supplied by the complainant’s factory to other places, thereby earn money. In this way, the complainant does not come within the purview of definition of consumer define under Section 2(1)(d)(i) of Consumer Protection Act, 1986. Manufacturing ingots in the factory is a commercial activity.
14. In the case of V.K. Kariyana Store vs. Oriental Insurance Co. Ltd. & Anr.; III (2014) CPJ 182 (NC), the Hon’ble National Commission has observed that the terms of the policy have to be stricltly construed to determine the extent of liability of the insurer. The terms and conditions written on the policy(s) of contract of insurance are to be seen in strict sense. This Standard Fire and Special Perils policy covers the act standard accidental and physical damage to insured machinery, plant and equipment. This citation is fully applicable in this case also. There is no proof of any accidental fire of burning of sponge iron kept under the factory sheds, rather the sponge iron caught moisture from the atmosphere in the rainy season resulting heating up sponge iron and it becomes re-oxidized consequently the material became heat up gradually and the percentage of Fe(M) changed into Fe(O). Therefore, as there was no accident of fire in the factory premises of the complainant, the complainant has failed to prove its case against the opposite party-insurance company. The complainant was running a factory for manufacturing of M.S. Ingots thereby carrying out commercial activities and this activity of complainant is a commercial activity, therefore, the complainant does not come in the purview of Section 2(1)(d)(i) of the Consumer Protection Act, 1986.
15. For the reasons aforesaid, we are of the view that the complainant has failed to prove its case against the opposite party-insurance company, hence the consumer complaint filed by the complainant is liable to be dismissed.
16. The consumer complaint is dismissed. No order as to costs.
(MRS. VEENA SHARMA) (D.K. TYAGI)
