This appeal is directed against the Final Order dated 20.01.2021 in CC No 7 of 2017delivered by Ld. D.C.D.R.F., Alipurduar. The fact of the case in nutshell is that the respondent Mohua Mitra have a Mineral Grinding factory at Ethelbari under P.S Falakata to manufacture Limestone, Dolomite, Powder etc. and to run the business smoothly she adopted an insurance policy valued Rs. 20,00,000/- for the purpose of Fire Insurance including storm and earthquake for the stock of limestone etc for the period between 28.03.2014 and 27.03.2015. On 11.05.2014 at about 9:00 PM due to a severe storm and rain damaged the roof of the factory structure and the rain water entered into the factory and caused damage to the powder of the limestone which was stored packing with bags inside the factory. The above incident was intimated to the O.P/Insurance Company and accordingly the surveyor of the company came to the spot and surveyed the matter and collected samples for lab testing. The total loss was estimated by the Complainant/Respondent to the tune of Rs. 10,76,500/- after recovery of some salvage materials and on the direction of the O.P/Insurance Company the relevant documents were produced with the claim application. The O.P/Insurance Company on the basis of Survey Report on 18.05.2015 has repudiated the claim of the Respondent/Complainant and for that reason the instant Consumer Complaint got register on 16.05.2017. The said Consumer Complaint was admitted in due course and notice was sent to the O.P/Insurance Company who has contested the case by filing the W.V and disputed the contents of the Consumer Complaint and stated that as soon the incident was intimated to them the Surveyor was appointed to ascertain the exact cause of incident and assessment of actual loss. Mr. Subrata Sanyal the surveyor having license under IRDA scheme in his report observed that the reportedly affected loss in the stock of the insured was not the resultant of the storm and thus the admissible claim of the present terms and conditions of the policy was not established and for that reason the claim was repudiated on 18.05.2015. According to the O.P due to time barred Consumer Complaint and having reasonable cause of repudiation on the part of the Insurance Company, the instant Consumer Complaint was liable to be dismissed. Ld. Forum after recording the evidences and after hearing the arguments has delivered the order against which the appeal followed on the ground that the order of the Ld. Forum suffers from irregularities having full of errors and liable to be set aside. The respondent M. Mitra has recorded the presence after receiving of appeal and contested the case through Ld. Advocate A. Saha. The appellant has conducted the hearing through Ld. Advocate Mr. P. Nath. Appeal was heard in presence of Ld. Advocate of both sides.

Decision with reasons

Admitted position is that the respondent M. Mitra for the purpose of her business and to protect the stored raw materials purchased an insurance policy from the Appellant/Insurance Company by paying the premium. Due to heavy storm the roof of her factory was collapsed and huge rain water was entered there on causing severe damage to the raw materials and products stored in the factory as claimed by the Complainant. And for that reason to get compensation she pursued a claim petition before the Insurance Authority and Insurance Company deputed IRDA license holder Assessor Mr. Subrata Sanyal and on the basis of the Assessor’s report the insurance company had repudiated the claim. Now, the question is whether such repudiation on the part of the insurance company was acceptable or not and according to the decision of the Ld. Forum the observations of the Assessor was full of self-contradictory who has totally dependent upon the amended chemical composition of the Government. Now, the question is whether the observation of the Assessor should be treated as full and final or the matter to be considered in the context of the fact and circumstances of the case. During the course of hearing of the appeal Ld. Advocate of the appellant submits before the Bench that the Assessor appointed in this case a Charter Engineer having decree of B.E, MBA etc. And he has competency enough and he has correctly assessed the cause of damage of the store materials of the Complainant/Respondent. Ld. Advocate argued that during post loss survey, it was found that there was high rate (around with 40%) of physical coagulation (calcite). Such high level of coagulation within a short interval is not possible and which was duly confirmed by the surveyor and also it was detected that the Calcium portion of such store material was reduced due to storm coupled with rain water, then there was a chance of reduction of weight. But after post incident the said bags was weighted and did not confirm any reduction of net weight and for that reason it could be easily ascertained that reduction of Calcium was not held by any sudden storm or rainfall but it was rather a gradual deterioration over a period of time through formation of coagulation due to sub-standard packaging with second hand bags. It was further argued that the total coagulation of the store materials was around 40% that was happened in the stock which was stored for a long period due to keep in sub-standard packaging HDPE second hand bags causing high rate of physical coagulation of calcium power. Due to such negligence on the part of the insured she has violated the conditions of insurance policy and for that reason insurance company has rightly repudiate the claim. Ld. Advocate of the appellant in support of his argument relied upon the judicial decisions of Hon’ble Supreme Court in NIC Vs. Hareshwar Enterprise Ltd. in Civil Appeal No 7033 of 2009. He further argued that the surveyor Mr. Sanyal has touched every aspect during ascertainment of the cause of damage of the store materials and other relevant facts and for that reason the evidence of Mr. Sanyal was very much essential in this case and was very much needed and for that reason Ld. Forum has allowed the Complainant to call the Assessor as witness in this case. The Complainant also filed petition before the Ld. Forum for calling the Assessor Mr. Sanyal as witness in this case. But subsequently Ld. Forum has closed the chapter of calling the Assessor as witness of this case and without recording his evidence the Final Order of Ld. Forum appears to be unjustified and inappropriate as in the observation there is no light to reveal the actual truth behind the cause of damage of the store materials of the Complainant. Ld. Advocate of the appellant countered this argument strenuously and mentioned that many attempts were taken to call the witness but the Assessor intentionally avoided the Court procedure and did not come to adduce evidence and for that reason Ld. Forum was compelled to close the evidence and heard the argument. Ld. Advocate during the course of argument mentions that respondent of this case is the producer of Calcite who have entered into an agreement with Mr. Rudra and Co. & Pvt. Ltd. to supply calcite as per prevalent Government of West Bengal specifications and guidelines and according to Government guidelines the Calcite of the Calcium was to be between 35% and 40% and liming materials minimal acceptable limit was up to 10% and the stored calcites and ground agriculture limestone was damaged due to the rain water during the serious storm and wind which completely destroyed factories roof. For such rain water the powder was fully drained out from the calcite which was kept in HDPE bag in a protected manner. In support of his argument the relevant guidelines and circulations of Government is produced on the part of the respondent. After going through all the necessary documents connected with this case and after appreciating the valuable argument canvassed before this Bench through their Legal Counsels this Bench observed that the Insurance Company’s case completely based upon the report of the surveyor while the Surveyor Report appears to be self-contradictory and the said report should not be treated as sacrosanct unless he is thoroughly examined while a bonafide insured who purchased the insurance policy only to protect the interest of her store materials from the perils like natural calamity should not be unprotected. On the other hand in this case it is detected that the Complainant/Respondent did not submit any papers for estimation of loss before the Ld. Forum to justify the claim of Rs. 10,76,500/- as he preferred in her claim to the Insurance Company. Ld. Forum has awarded the same quantum of damage claimed by the insured while no cogent evidence is tendered before the Ld. Forum and Ld. Forum has not observed in the Judgement that the claim amount was perfect and justified. On the other hand, the Assessor at the time of inspection in the spot found in Stack No. 1 of the store house maintained by the Complainant out of total 5,672 bags, affected bags was 5,672, in Stack No. 2 out of 332 bags only 98 bags was affected and in Stack No. 3 out of 2,448 bags only 544 bags was affected in the said incident as because the said affected bags came in direct contact with water and for that reason coagulation of the powder by that time has started with effect. So, in order to, justify the matter very carefully the evidence of the Assessor is very much essential in this case and in absence of recording evidence of the Assessor Ld. Forum had no occasion to come in a logical conclusion to adjudicate the dispute in a proper manner and for that reason the order passed by Ld. Forum appears to be incorrect and inappropriate to the context of the fact and circumstances of the case. So, the appeal should be allowed and the order of Ld. Forum should be set aside with a specific direction to call the Assessor Mr. S. Sanyal as witness in this case and after recording the evidence and cross-examination Ld. Forum after hearing both sides shall pass an appropriate order.

Hence, it’s ordered

That the appeal be and the same is allowed on contest without any cost. The Final Order of Ld. D.C.D.R.F, Alipuduar dated 20.01.2021 in CC No 7 of 2017 is set aside. The D.C.D.R.F., Alipurduar is hereby requested to reopen the case for recording evidence of Assessor Mr. S. Sanyal and cross-examination through interrogatories should be provided to the challenging party and thereafter the Ld. Advocate should hear the arguments afresh and pass a Final Order.

Let a copy of this order be supplied to the parties free of cost with a direction to appear before the Ld. Forum on 14.01.2022 for fixing the Schedule for recording evidence of Mr. S. Sanyal, the Assessor.

Let the order be communicated to the Ld. D.C.D.R.F, Alipurduar for doing the needful.