KUNDAN KUMAR KUMAI

This is an appeal u/s 15 of the Consumer Protection Act, 1986, preferred against the order/judgement dated 20/04/2023, passed by the Ld. DCDRF, Malda, in CC/88/2016.

The Appellant’s case in brief is that, the Respondent/Complainant, is a proprietary firm engaged in manufacturing of kurkuri, papad, etc. The Respondent/Complainant had purchased an Insurance Policy, bearing no.031400111P106775280, for the period from 11/09/2015 to 10/09/2016, from the Appellant/Insurance Company. During the continuance of the said Policy, there was heavy rainfall from 20/09/2015 to 30/09/2015, as a result of which all the materials stocked in the godown, became submerged under the water, causing loss, amounting to Rs.5,00,000/-. After recovery from illness, the Respondent/Complainant inspected the godown and found that the goods had been damaged. Thereafter, the Respondent/Complainant, intimated the Appellant/Insurance Co., on 02/11/2015. After receiving the information, the Appellant/Insurance Co., appointed a Surveyor, for assessment of loss sustained by the Respondent/Complainant, who submitted the Report and the Appellant/Insurance Co., repudiated the claim on the ground, that the damage of the stock was due to damp and moisture, which was not covered under the Insurance Policy. Finding no alternative, the Respondent/Complainant, lodged a claim, before the Ld. DCDRF, Malda, with necessary prayers. 

Initially, the case was decided ex-parte and the case had been dismissed ex-parte. Thereafter, on appeal being filed, being no. A/104/2019, this Commission remanded the case, for a fresh trial after obtaining written version, from the Appellant/Insurance Co.

Thereafter, the Appellant/Insurance Co. filed a written version, wherein it was stated, that on receipt of the Claim application dated 02/11/2015, a Surveyor had been appointed, but the Respondent/Complainant did not cooperate with him. Again, another Surveyor viz. Tapodhan Roy, had been appointed, who inspected the PO on 10/11/2015 and opined that the complaint was not a genuine one, vide Survey Report dated 11/01/2016. It was further stated that the damage of material was due to damp and moisture, which was not covered under the Insurance Policy, and also the Accounts Book had not been supplied to him.

After going through the materials and evidence on record, the Ld. DCDRF, Malda passed the impugned order directing the Appellant/Insurance Co., to pay Rs.6,00,000/- (Rupees six lakhs) only, as damage, compensation and litigation cost, within 6 months from the date of the order, failing which interest @ 6% PA, would be attracted.

Being aggrieved by the impugned order the Appellant, preferred this instant appeal, on the ground, that the Ld. DCDRF, Malda, erred in law and facts, while passing the impugned order.

Decisions with Reasons

Ld. Advocate for the Appellants, at the time of final hearing, had submitted that the impugned order, was not passed on merit, as only the weather condition was considered, following the judgement passed by the Ld. Predecessor Bench. The case from the Appellate Forum, had been remanded with the direction to pass a judgement considering the merit of the case, but the same was not done. That apart, the Respondent/Complainant, had intimated about the alleged incident of flood, after 38 days, on 02/11/2015, which was a violation of the Insurance Policy. Moreover, the factory was situated just opposite to the house of the proprietor. Furthermore, the loss was caused due to seepage of rain and not due to any inundation of flood water, which was not covered under the Insurance Policy. He therefore prayed, for setting aside the impugned order.

Ld. Advocate for the Respondent, on the other hand, had countered the above argument, by submitting that due to heavy rainfall from 20/09/2015 to 30/09/2015, which was established by the Meteorological Reports, resulting in the damage of the products, stocked in the godown, causing a loss of Rs.5,00,000/- (Rupees five lakhs) only. It was further submitted that the repudiation of the claim was unjustified and the impugned order had been rightly and justly passed, which needed to be upheld. He had relied in the judgements passed by the Hon’ble Supreme Court, in United India Insurance Co. Ltd. Vs. M/S. Kiran Combers & Spinners and Gurmel Singh Vs. Branch Manager, National Insurance Co. Ltd.

To start with, this case has a checkered history, in the sense, that initially the case pending before the Ld. DCDRF, Malda had been disposed on 25/11/2019. The same was appealed before this Predecessor Commission, vide order dated 07/02/2022, had directed the Ld. DCDRF, Malda, to re-hear the case, by allowing the present Appellants, to file written version and to write a fresh judgement, considering the merits of the case. Thereafter, the Ld. DCDRF, Malda passed this impugned order dated 20/04/2023 resulting in the instant appeal. Considering this and without prolonging the delay, the instant appeal is being disposed of on full merits.

The claim in the instant case incurred for the damages, caused due to incessant and heavy rainfall from the period 19/09/2015 till 30/09/2015. The weather reports from the Meteorological Department clearly established the rainfall, during the above period. Therefore, the above stands established. Now, the only point of contention is whether the rainfall was heavy enough to cause such damages. The Surveyor’s Report dated 18/04/2024, had cited one of the grounds of repudiation, as there was no inundation of the factory and the stocks had been damaged due to damp and moisture, which was not covered under the insured perils. Clause VI of the Standard Fire & Special Perils Policy (Material Damage) lays down “storm, cyclone, typhoon, tempest, hurricane, tornedo, flood or inundation; loss, destruction or damage directly caused by storm, cyclone, typhoon, tempest, hurricane, tornedo, flood or inundation excluding those resulting from earthquake, volcanic eruptions or other convulsions of nature.” The above also does not exclude the damage of stocks, by damp or moisture from incessant rainfall. Even the exclusion Clauses, Clause A 1 – 14, there is no whisper, that the damage of stocks, caused by such moisture, was excluded from claims. As already pointed out, continuous rainfall occurred during the period, mentioned above and it is quite likely that the flood like situation had been formed causing seepage of the water, collected outside, resulting in the damage to the stocks, inside the factory. It is admitted by the Surveyor that the damage had been caused in its Report, but no inundation as such could be found. Moreover, the date of inspection in the Report is also not mentioned and the Report dated 11/01/2016, had been prepared long time after the occurrence.

There is no doubt that the delay had been caused in informing the Appellant/Insurance Co., by the Respondent/Complainant and the ground of delay had been attributed to the illness of the Respondent/Complainant, but merely on the ground of delay, the repudiation of the claim, cannot be done by the Appellant/Insurance Co.

Another point that has been raised, that the Respondent/Complainant during the time of inspection had not been able to produce the Book of Accounts and Stock Book, but had merely produced the road Challans of a) Tulsi Packaging Paper 450 kgs. Dated 09/08/2015 for Rs. 1,39,200/- (Rupees one lakh thirty-nine thousand two hundred) only, b) Naman Trading Co. of supply of raw papad dated 12/09/2015 for Rs.3,32,000/- (Rupees Three Lakhs Thirty-two thousand) only, c) Tulsi Packaging of 290 kgs. Packaging paper dated 15/09 for Rs. 1,39,200/- (Rupees one lakh thirty-nine thousand two hundred) only. But when the road Challans had been produced the surveyor, had nothing to be suspicious, about the veracity, regarding the quantity of stocks, lying in the factory, at that material point of time.

Therefore, from the above discussions, it becomes clear that the damages had occurred to the stocks, lying in the factory due to rainfall, uninterruptedly during the period, from 20/09/2015 to 30/09/2015 and there being nothing in the Clause VI or in the exclusion Clause A, which negates the claims, on the ground of damage by rainfall. The only discordant note, is that there was delay in intimating the incidence to the Insurance Company, but for such aberrations, the repudiation of the claim is unjustified and the claim needs to be settled on non-standard basis @ 75% of the claimed amount of Rs.5,00,000/- (Rupees five lakhs) only, which is Rs.3,75,000/- (Rupees three lakhs seventy-five thousand) only. The appeal therefore succeeds in part as the entitlement of the Respondent/Complainant is revised to Rs.3,75,000/- (Rupees three lakhs seventy-five thousand) only.

It is therefore,

                                                                           ORDERED

That the instant appeal be and the same is allowed in part, on contest, but without cost.

The impugned order is hereby set aside.

The Appellants are jointly and severally, directed to comply with the direction, mentioned in the body of the judgement, within 45 days, from the date of receipt of this order, failing which interest @ 9% PA, would be attracted.

Copy of the order be sent to the parties, free of cost.

Copy of the order be sent to the Ld. DCDRF, Malda, for necessary information.

Statutory deposits, be returned from whom received.

Jt. Registrar, Siliguri Circuit Bench of WBSCDRC, to do the needful.