Sri Shyamal Gupta, Member
This is a case u/s 13 of the Consumer Protection Act, 1986 for an award of Rs. 65,40,440/- towards settlement of Complainant’s insurance claim together with some other relief as mentioned in the petition of complaint.
The case of the Complainant, in a nutshell, is that, due to heavy rainfall during the period 31-07-2015 and 02-08-2015, Plant & machinery of the Complainant suffered severe damage. On the basis of intimation being given by the Complainant, the OP deputed a Surveyor on 04-08-2015. Subsequently, the said Surveyor and other experts being deputed by the OP inspected the damaged site on several occasions. The Complainant also appointed one Surveyor to assess the loss and on the basis of its recommendation, the Complainant claimed Rs. 65,40,440/-. After sitting tight over its claim for long, the OP ultimately offered to settle its claim by paying a paltry sum of Rs. 2,03,226/- which was not acceptable to the Complainant; hence, the complaint case.
On notice, the OP appeared before this Commission to defend its case through its Ld. Advocate. By submitting WV, the OP stated that on being informed about the alleged peril, it rushed its Surveyor to assess the loss and accordingly, due inspection was carried out by the said Surveyor. In course of joint inspection, necessary reports were prepared by the Surveyor. Allegedly, at times the Complainant signed the same and on some occasions, it refused to put its signature on the notes being prepared by the Surveyor. Ultimately, on the basis of the recommendation of the Surveyor, the Complainant was offered a sum of Rs. 2,03,226/- towards full and final settlement of its claim. However, the Complainant did not agree to such proposal and initiated the complaint case on its own volition.
Both sides filed Affidavit-of-Evidence in support of their respective contentions and also submitted replies to the series of questionnaire being put forth by the other side.
Points for consideration
- Whether the complaint case is maintainable in its present form and prayer?
- Whether there is any deficiency in service on the part of the OP?
- Whether the Complainant deserves any relief?
Decision with reasons
Point No. 1:
Sec. 17 of the Consumer Protection Act, 1986 enumerates that State Commission shall have jurisdiction to entertain complaints where the value of the goods or services and compensation, if any, claimed exceeds Rs. 20,00,000/- but does not exceed Rs. 1,00,00,000/-.
On a plain reading of the aforesaid Section, we find that, for the purpose of determination of pecuniary jurisdiction, we have to consider the value of service plus compensation being claimed by the Complainant. Although the sum insured of the subject policy is much higher, it appears, the same has got no relevance here. Thus, we find that the instant complaint case is maintainable here.
Point Nos. 2&3:
Both these points are taken up together for the sake of convenience of discussion.
On due consideration of the prolonged submission of the parties and material on record, the following important aspects emerge:
First, deviating from his own findings, as noted in the Joint Inspection Report dated 09-08-2015, the Surveyor being deputed by the OP, Sri Dilip Kumar Saha refused to accept that the height of water logging inside the factory premises was 2’-3”.
Second, it appears from the Joint Inspection Report dated 09-08-2015 that the Complainant handed over one list containing details of machineries allegedly got damaged due to inundation to the Surveyor on that day. However, as it appears, the Surveyor did not take any photograph of the same. Had the Surveyor shown due alacrity in this regard, it could easily be ascertained whether the disputed machineries contained any mark of water inundation or not.
Third, although the OP, the Surveyor and Sri A.K. Roy, Consultant Engineer (Elec.) harped on the need for Insulation test through a suitable technical team, for the reasons best known to the Surveyor, while visiting the site on 04-08-2015, he did not spell out his mind about such requirement. Thus, it appears to be an after-thought/ploy on the part of the Surveyor to deny the Complainant of its legitimate due.
Fourth, according to the Joint Inspection Report dated 05-01-2016, power-pack accessories of the Furnace in question with a 10 HP Motor was lying at a height of approx. 2.5’ from base level. However, the Mechanical Engineer, Sri Anandamoy Das stated in his report dated 15-02-2016 that power pack was placed at a much higher level. So, he ruled out the probability of damage of the power pack due to water accumulation. Given that the Surveyor visited the spot on 04-08-2015, when the height of accumulated water was found at 2’3”, it was but natural that during the period 31-07-2015 and 02-08-2015, the water level reached much higher height. Accordingly, the possibility of damage to the HP Motor and power pack could not be logically ruled out.
Fifth, it appears from the Joint Inspection Report dated 05-01-2016 that the Complainant showed damaged (1) 16 core 1 sqmm. cable – 50 mtrs. approx. (2) 2.5 sqmm. cable – 80 mtrs. approx (3) 1.5 sqmm. cable – 60 mtrs. approx. (4) 1 sqmm. cable – 50 mtrs. approx. (5) 4 core 4 sqmm. cable – 70 mtrs. approx. (6) 4W ED Solenoid Valve – 9 pcs. (7) 63 Amp. 3 Pole MCB – 3 pcs. (8) 32 Amp. 3 Pole MCB – 2 pcs. (9) 20 Amp. 3 Pole MCB – 3 pcs. (10) Limit switch, Model – NLLA – 15 pcs. (11) 35 sqmm. Copper Wire – 15 mtrs. approx. to the Surveyor. However, Sri A. K. Roy, Consultant Engineer reported in his report that the Complainant 2.5 sqmm./1.5 sqmm./35 sqmm. Copper cable could not be shown at its terminals as changed. Significantly, no joint inspection report was prepared by Sri Roy after conducting spot survey of the site. Therefore, the veracity of such findings could not be independently verified.
Sixth, it appears from the survey report that the Surveyor deducted a sum of Rs. 1,56,079/- on account of under insurance. However, the methodology as used by the Surveyor is found to be very much arbitrary. The policy terms and conditions do not specify the methodology to be followed in this regard. As we know, with the passage of time, the value of plant & machinery gets depreciated. Therefore, the rationale of taking the value of plant & machinery as per the value being mentioned in the Balance Sheet as on 31-03-2015 is highly questionable.
Seventh, it is observed from the survey report that the Surveyor allowed Rs. 3,07,224/- towards the cost of Conveyor Roller belt on the basis of a quotation purported to have been issued by M/s Shree Technology as against the claim of the Complainant for a sum of Rs. 6,64,424/-. Such price difference does raise eyebrows. In absence of due clarity pertaining to the specification of the damaged conveyor roller belt vis-à-vis the one being quoted by the above firm, we cannot endorse the decision of the Surveyor. Same is the case in respect of electric items and other electrical materials. As we find, the Surveyor allowed only a sum of Rs. 38,677/- as against Complainant’s claim for a sum of Rs. 22,37,837/-. This issue ought to be discussed in detail by the Surveyor to shrug off any dispute.
Eight, it appears from the survey report that the Surveyor did not allow a single penny in respect of Complainant’s claim towards Furnace for a sum of Rs. 13,44,000/-. In this regard, as noted hereinabove, the power pack accessory of the said furnace with a 10 HP motor atop was lying at a height of approx. 2.5’ from the base level. While the Surveyor himself noted in the joint inspection report dated 09-08-2015 that inside the plant, height of accumulated rain water was 2’3” (approx.), the possibility that water level reached much higher height during the period from 31-07-2015 to 02-08-2015 was quite natural. In view of this, the claim of the Complainant towards the damage being allegedly caused the furnace could not be turned down straightway.
Thus, we cannot accept the assessment being made by the Surveyor, Sri Dilip Kumar Saha. At the same time, taking into consideration the fact that the findings of the Surveyor, Sri Saha cannot be set aside completely, in our considered opinion, ends of justice would be met if the subject claim is settled on non-standard basis.
Hence,
O R D E R E D
The case stands allowed on contest against the OP with a cost of Rs. 25,000/-. The OP shall settle the instant claim by paying 75% of the claim amount, i.e., Rs. 49,05,330/- along with simple interest @ 6% p.a. over the sum of Rs. 49,05,330/- w.e.f. 06-06-2016 till full and final payment is made. In case of non-compliance of this order within 40 days hence, the Complainant shall be at liberty to execute this order in accordance with law.
