IN THE CONSUMER DISPUTES REDRESSAL  COMMISSION, KOLLAM

Dated this the  9^th    Day of  May   2022

  Present: -  Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

Smt.S.Sandhya Rani, Bsc, L.L.B,Member

Sri.Stanly Harold, B.A.LLB, Member

                                                                       CC.199/2017

Smt.Sheela Daniel                    :         Complainant

Prop.M/s.St.Mary’s Bio Mass

Fuels, Vilakkupara P.O

Anchal, Vilakkupara,

Kollam-691312.

[By Adv.K.P.Gopalakrishna Pillai&

Adv.S.Presanna Kumar]

V/s

1.          The Manager                       :         Opposite parties

The SBI General Insurance

                  II nd Floor

Taarra Towers,

TC 9/2596(06)

Vellayambalam-Sasthamangalam Road

Sasthamangalam P.O

                 Trivandrum-695010

2.           Branch Manager

State Bank of India

(Erstwhile State Bank of Travancore)

Anchal Branch, P.B.No.1,

Chelappallil Building

Anchal P.O, Kollam.

[By Adv.S.Dileep Kumar]

FINAL ORDER

E.M.MUHAMMED IBRAHIM , B.A, LL.M, President

                This is a case based on a complaint filed u/s 12 of the Consumer Protection Act 1986.

          The averments in the complaint in short are as follows.

          The complainant is the proprietor of M/s St.Mary’s Bio Mass Fuels, Vilakkupara P.O, Anchal which is engaged  in production  of  Biomass briquettes which is a clean and pollution free fuel and engaged for the sale of the same.  For the said purpose the complainant on 15.02.2010 purchased one Briquetting Press Dia 90 Model with 75 HP main motor, Screw Conveyor, Electrical panel etc. to a total cost of Rs.11,77,000/- which includes CST  Rs.22,000/-, Transport and Erection charges  Rs.35,000/- and Civil and Foundation works Rs.20,000/-.  The complainant has also purchased one tone/Hour Capacity Dryer with Furnace 1 number to a total cost of Rs.5,34,000/- and a Pulveriser machine and a Screw Conveyor 22 Ft.length to  a total cost of Rs.1,68,300/- from M/s Real-Tech Engineering No.172-C, Jayaprakash Nagar, 3^rd Street, Sanganoor Road, Ganapathy P.O, Coimbatore with the help of a term loan facility granted by the 2^nd opposite party.  The complainant was one of the policy holders of the 1^st opposite party bearing No.00000005407524 for the period from 10.09.2016 to 09.09.2017.  Hence the complainant is a consumer of the 1^st opposite party.  The said policy  was arranged by the 2^nd opposite party by debiting Rs.15,307/- in her account towards yearly premium.  Though the vehicles of the complainant are insured with the Oriental Insurance Company , the complainant happened to take the said policy at the instigation and compulsion of Briquetting Press Dia 90 Model with HP main motor etc.  At the time of taking the policy the opposite parties made believe to the complainant that it was a full coverage policy covering the building, plant and machinery and stock of the concern from any kind of loss and damages.  The complainant insured his commercial building in Sy.No.822/1/61/24 at Ayiranalloor village, Kollam for Rs.2,00,000/- , plant and machinery for Rs.24,00,000/- and stocks for Rs.10,00,000/- with the 1^st opposite party against fire and allied perils, ie altogether the total sum insured was at Rs.36,00,000/-.  The policy was taken on 10.09.2016 for 1 year which elapsed at the midnight of 09.09.2017.  The complainant was properly maintaining the plant and machinery with due care and diligence as per the guidelines suggested by the manufacturer/supplier of the machine.  But on 19.06.2017 at about 3 PM while the Briquettes machine was smoothly in operation the said machine was blasted with a heavy noise which leads the full shut down of the machine.  Immediately after such unfortunate event the complainant personally approached the 2^nd opposite party and narrated about the incident and requested him to do the needful to get the insurance claim from the 1^st opposite party since the insurance policy with the 1^st opposite party was arranged through the 2^nd opposite party.  But when there was no positive response from the 2^nd opposite party requesting to send the claim at the earliest along with a copy of policy issued by the 1^st opposite party.  When there was no response from the 2^nd opposite party the complainant given an e-mail intimation on 28.06.2017 to the 1^st opposite party requesting to settle the claim at the earliest with the due intimation that the matter was intimated to the 2^nd opposite party as already on 21.06.2017.  As per the request of the complainant the  technical staffs of Real-Tech Engineering, the manufacturer and supplier of Briquettes Machine, visited the company of the complainant on 01.07.2017 and inspected the Briquettes machine and certified that there is 90% damage to the said machine and also reported that they need to take the machinery back to Coimbatore for the maintenance since it is a major work and it will take around 35 days for completely re running.  One Mr.P.T.R.Babu, the surveyor/loss assessor visited the company of the complainant on 04.07.2017 and inspected, evaluated and assessed damages photos of the Briquettes machine and taken statements of the complainant, taken many of the blasted machine and also collected the copy of the documents of the machine and submitted a report before the 1^st opposite party.  On 07.07.2017 the complainant forwarded a claim form duly filled up and narrating the true incident to the 1^st opposite party as claim No.392149  by claiming Rs.11,70,000/- as compensation towards loss and damages to the plant and machinery.  The estimated quotation given by the manufacturer cum supplier of the machine for re conditioning the machine is Rs.8,75,796/-.  The other connected expenses will comes to Rs.50,000/. After 07.07.2017 there was no response from the 1^st opposite party the complainant sent several reminders to the opposite party to settle the claim at the earliest and at last on 25.08.2017 the 1^st opposite party sent an e-mail rejecting the claim of the complainant starting that the cause for the reported loss ie, breakdown does not fall under the Business Package Policy and at last the 1^st opposite party issued a letter dated 31.08.2017 affirming that the cause of loss is purely break down in  nature  and not covered under Fire and Allied perils section of the Business Package Insurance issued to the complainant and held by the complainant which is deficiency in service and also a gross violation of the contractual obligation by the 1^st opposite party towards the complainant.  The surveyor appointed in this matter is a person appointed arbitrarily by the 1^st opposite party and the complainant apprehending that the said surveyor filed a false report to help the 1^st opposite party and that is why the 1^st opposite party has not supplied with a copy of the surveyor’s report to complainant for his perusal and that also a deficiency in service on the part of the 1^st opposite party.  The insured Briquettes machine was timely maintaining by the complainant till the date of fire.  The said Briquettes machine was in a very good condition and also about 10 workers were working in the said industry till the date of the disaster.  The blasting caused to the machine was happened not due to any careless act of the complainant in maintaining the machine.  The technical staff of the manufacturer of  machine after inspecting the machine certified that there is 90% damages to the machine.  That means actually there is a total loss to the machine and as per terms of the contract of insurance the 1^st opposite party is legally bound to pay the claim for the replacement of machine.  Even then the complainant only claimed Rs.11,70,000/- for the reconditioning the machine as suggested by the manufacturer and the supplier of the machine.  The complainant supplied with all documents required by the 1^st opposite party in time.  The surveyor and loss assessor of the 1^st opposite party visited the building and assessed the loss and submitted a report before the 1^st opposite party and the manufacturer cum supplier of the machine given the estimated expenditure required for the re-conditioning of the machine to the surveyor and loss assessor of the 1^st opposite party.  On  20.07.2017 the complainant sent the damages Briquettes machine to Coimbatore for repair and reconditioning as per the advice of the surveyor.  The manufacturer cum supplier has not been started the process of the re-conditioning of the machine till now  solely for the reason that the 1^st opposite party has not settled the claim.  The repudiation of claim put forwarded by the complainant is per se illegal, arbitrary, deficiency in service, unfair trade practice and also gross violation of the terms of contract from the part of the 1^st opposite party and hence the 1^st opposite party is legally liable to pay  Rs.8,75,796/- to the complainant towards the service charge for the re-conditioning of the machine and also Rs.50000/- towards other connected expenses ie, a total amount of Rs.9,25,796/-.  Due to the deficiency in service and the illegal act of the 1^st opposite party there was no operation in the proprietary concern of the complainant from 19.06.2017 3 pm and thereby the complainant incurred a loss of Rs.4,01,940/- for the last 90 days in the case of payment of wages to 10 workers, ie Rs.4466/- per day to the said 10 workers for the last 90 days, electricity minimum guarantee charge Rs.22,200/- ie, Rs.7400/- per month for the last 3 months and also a profit of Rs.75000/- that is an average profit of Rs.25000/- per month for the last 3 months and the 1^st opposite party is liable to compensate due to the deficiency in service and illegal acts of the 1^st opposite party.

          In response to the summons the 1^st opposite party entered appearance and filed a detailed version resisting the complaint.  The 2^nd opposite party remained exparte.  The main contentions raised in the written version filed by the 1^st opposite party are as follows.  The complaint is not maintainable either in law or on facts.  However the 1^st opposite party would admit that it has issued a Business Package Insurance Policy to the complainant for her Bio Mass Briquettes Manufacturing Unit covering the risk of Fire and Allied Perils, for a period covering from 10.09.2016 to 09.09.2017 for a sum of Rs.24,00,000/- subject to the terms and conditions and the exclusion clause mentioned in the policy.  That the coverage given in the policy is strictly in accordance with the nature of coverage, limitation and exclusions given under the policy condition, which forms the integral part of the policy clauses and wordings issued to the complainant.  The complainant had reported a claim before the opposite party through e-mail on 28.06.2017 stating that the Bio Mass Briquettes machine got damaged on 19.06.2017 while it was in operation.  The complainant in the meantime informed the matter to the manufacturer and supplier of the machine  M/s Real-Tech Engineering, Coimbatore for inspecting the damaged machine and to submit a quotation for repairing the damaged machine.  The manufacturer along with the technical staff of the company have visited the complainant’s unit on 01.07.2017, where the damaged machine was installed and examined the damages sustained to the machine in detail.  As per the information furnished by the complainant to M/s Real Tech Engineering the briquette machine was blasted with heavy noise on 19.06.2017, while the machine was working.  They have submitted an estimate for an amount of Rs.8,75,796/- for repairing cost of machine.  The opposite party on intimation of the claim from the complainant had deputed an independent insurance surveyor and loss assessor Mr.PTR Babu for inspecting the damaged machine and to assess the cause of damage and extent of damages sustained to the insured machine.  The surveyor visited the unit of the complainant on 04.07.2017 and thoroughly examined the damaged machine.  As per the information furnished by the complainant to the surveyor, the Briquette machine was broken with a big sound.  The surveyor also understood that the technical staff of M/s Real Tech Engineering, Coimbatore had already inspected the machine on 01.07.2017 and they have issued an estimate for an amount of Rs.8,75,000/- for repairing the damaged machine.  The surveyor thereafter made detailed discussion with Mr.Saravanan, the proprietor of M/s Real Tech Engineering, Coimbatore and requested them to submit a detailed estimate of repairs, bifurcating the spare parts cost with GST, labour charges with GST, service charge and transporting charges etc.  The supplier of the machine M/s Real-Tech Engineering thereafter sent a detailed estimate through e-mail to the surveyor on 24.07.2017.  As per the initial inspection report dated 03.07.2017 submitted by M/s Real-Tech Engineering, the complainant purchased the machine in the year 2010 and according to the finding of the technical experts of the company they found that the incident happened due to loosen of any of the main bolt of the machine.  It has further came to the knowledge of the surveyor that M/s Real-Tech Engineering had issued another inspection report dated 10.07.2017 to the complainant with their additional finding that:-

1. Either the blast is due to loosen of any main bolt of the machine which can lead to high friction among the parts, this increased friction will lead to fire and blasting.
2. If there is any blockage in oil circulation there is a chance for the moving parts to get more friction which can cause fire and blasting of machinery.

The surveyor during the time of his inspection found that the machine was in a dismantled condition, the piston, piston pin, bearing etc., are found in damaged condition.  The side plates and the real plates of the body was found cracked and bend.  There was no signs of lubrication found in the machinery.  As per the inspection made by the surveyor, the proximate cause of damage is the friction to the moving parts of the machine due to lack of lub, oil, which leads to the breakage or loosening of the main bolts which loosened the piston and hit the body plates causing damage to it.  According to the surveyor there is neither fire nor blasting developed in the machinery, as the machinery is not coming under the category of boilers, pressure vessels etc.  According to the surveyor the damage occurred due to over running of the machinery without proper lubrication and the apparent cause of the damage is due to mechanical breakdown of the machine only.  The above finding of the surveyor on his inspection is further corroborated by the inspection reports submitted by the suppliers of the machine, who had conducted detailed examination of the machine through the technical staff of the suppliers.  The machine was installed in the year 2010 and the damage is occurred in the year 2017 and accordingly the surveyor has considered 25% depreciation for the metal parts of the machine and 50% depreciation for the bearing of the machine.  The surveyor had considered Rs.67850/- towards labour charges for repairing the machine and accordingly assessed the net loss to a sum of Rs.387100/-.  The surveyor on the basis of the inspection findings regarding the cause of damages sustained to the machine come to a definite conclusion that the policy issued by the insurer is a “Business Package Policy” covering Fire and Allied Perils and the nature of risk covered under the Fire and Allied Perils described in the policy shall not cover the actual cause of damage sustained to the machinery.  The damages to the machinery were occurred due to friction by lack of lub, oil in the machine, which has been confirmed by the supplier of the machine as well after their inspection.  According to the surveyor the actual cause of damage is coming under mechanical breakdown only due to the aforementioned reason, but the complainant has not opted to insure the machine for the risk under machinery breakdown coverage.  The surveyor further observed that the damages sustained to the machine is on account of wear and tear damages while the machinery in operation, which is not even covered under the machinery breakdown policy.  Though the surveyor has assessed the damages sustained to the machine to the tune of Rs.387100/- by considering the depreciation clause of the policy, he has come to a definite conclusion that the actual damages caused to the machinery of the complainant is not on account of an insured peril under business package policy covering Fire and Allied Perils mentioned in the policy issued to the complainant.  The opposite party is no way responsible to indemnify the loss sustained to the complainant which is an excluded cover under the policy issued by the opposite party.  The opposite party took a decision to repudiate the claim of the complainant, on the basis of the finding of the surveyor appointed by the opposite party and as well as by considering the opinion of the authorized supplier of the insured machine about the cause of damage sustained to the machine.  The liability of the opposite party to indemnify the complainant is strictly in accordance with the terms and conditions of the policy.  The opposite party had repudiated the claim of the complainant after due application of the mind on the basis of the terms and conditions of the insurance policy and based on the report submitted by a competent insurance surveyor and loss assessor.  So there is no  justification in attributing any deficiency in service against the opposite party in repudiating the claim.  The complainant has not even considered the depreciation clause under the policy considering the age of the machine, even though the claim is not payable under the policy terms and conditions.  The complainant in this case has no manner of right to raise a consumer dispute against the opposite party in the subject matter of the claim and the complaint is liable to be dismissed with compensatory cost of the opposite party.  The claim advanced by the complainant due to the alleged consequential loss suffered to the complainant as a result of non operation of the machinery is not admissible under the policy as per special exclusion clause 7 of the policy condition.  The compensation claimed by the complainant in the complaint is without any basis and the same is lacking legal and factual bearings.  The quantum of compensation claimed in the complaint is only on speculations and surmises.

     In view of the above pleadings the points that arise for consider are:-

1. Whether  the damage caused to the machinery is due to any fire or any of the insured perils covered under Ext.D1 policy?
2. Whether there is any deficiency in service or any unfair trade practice on the part of the 1^st opposite party?
3. Whether the complainant is entitled to get the reliefs sought for?
4. Reliefs and costs.

Evidence on the side of the complainant consists of the oral evidence of PW1&2 and got marked Ext.P1 to P13 documents.  The 1^st opposite party has examined one witness DW1 and got marked Ext.D1 series, D2 to D4 documents.  Though the case was posted for filing notes of argument and hearing on several occasion, the learned counsel appearing for both sides have neither filed any notes of argument nor argued on the merit of the case.  However after taking the case for order the learned counsel for the 1^st opposite party files notes of argument on 18.04.22.

Point No.1

The following are the admitted rather undisputed facts in this case.  The complainant is the proprietor of M/s.St.Mary’s Bio Mass Fuels, Vilakkupara, Anchal.  The complainant has purchased machineries and equipments worth Rs.7,02,300/- from different agencies by availing loan facility from the 2^nd opposite party.  The above business concern was insured with the 1^st opposite party who issued insurance policy bearing No.00000005407524 for the period from 10.09.2016 to the midnight of 09.09.2017.  it is also an undisputed fact that the insurance policy was arranged by the 2^nd opposite party by debiting Rs.15,307/- from the account of the complainant towards yearly premium.  The policy certificate has been issued by the 1^st opposite party to the 2^nd opposite party bank and the same has been kept by the 2^nd opposite party.  It is the further case of the complainant that at the time of taking the policy the opposite parties made the complainant to believe that it was a full coverage policy covering the building, plant and machinery and stock of the concern from any kind of loss and damages.  It is also an undisputed fact that the complainant has insured his commercial building in Sy.No.822/1/61/24 at Ayiranalloor Village, Kollam for Rs.24,00,000/- and stocks for Rs.10,00,000/- with the 1^st opposite party against fire and allied perils.  The total sum insured was to the tune of Rs.36,00,000/-.  According to the complainant she had been properly maintaining the plant and machinery with due care and diligence as per the guidelines suggested by the manufacturer/supplier of the machine.  But on 09.06.2017 at about 3 pm while the Briquettes machine was smoothly in operation the said machine was blasted with a heavy noise which leads the full shutdown of the machine. Immediately after the unfortunate event the complainant personally approached the 2^nd opposite party and narrated the incident and requested him to do the needful to get the insurance claim from the 1^st opposite party since the insurance policy with the 1^st opposite party was arranged through the 2^nd opposite party.  But there was no positive response from the 2^nd opposite party.  The complainant issued Ext.P3 letter dated 21.06.2017 to the Chief Manager of the 2^nd opposite party requesting to send the claim form at the earliest along with a copy of policy issued by the 1^st opposite party.  But there was no response from the 2^nd opposite party.  Hence on 28.06.2017 the complainant issued Ext.P4 e-mil intimation to the 1^st opposite party requesting to settle the claim at the earliest.  It was also intimated to the 1^st opposite party that the matter was already intimated to the 2^nd opposite party as early on 21.06.2017.

It is also an admitted fact that on the request of the complainant the technical staff of Real-Tech Engineering who are the manufacturer and supplier of Briquettes machine visited the company of the complainant on 01.07.2017 and inspected the Briquettes machine and certified that there is 90% damage to the said machine and also reported that they need to take the machinery back to Coimbatore for the maintenance since it was major work and it will take around 35 days for completely re-running.  It is also an undisputed fact that Mr.P.T.R Babu the surveyor/loss assessor  deputed by the 1^st opposite party visited the company of the complainant on 04.07.2017 and inspected, evaluated and assessed damages of the Briquettes machine and taken statement of the complainant, taken many photos of the damaged  Briquettes machine and taken statements of the complainant, taken many of the blasted machine and also collected the copy of the documents of the machine and submitted a report before the 1^st opposite party.  According to the complainant on 07.07.2017 the complainant forwarded the original of Ext.P6 claim form duly filled up and narrating the true incident to the 1^st opposite party as claim No.392149  by claiming Rs.11,70,000/- as compensation towards loss and damages to the plant and machinery.  Ext.P8 quotation dated 24.07.2017 given by the manufacturer cum supplier of the machine for re conditioning the machine is Rs.8,75,796/-.  The other connected expenses will comes to Rs.50,000/-.  However thereafter there was no response from the 1^st opposite party.  The complainant sent several reminders to 1^st opposite party to settled Ext.P6 claim at the earliest.  At last on 25.08.2017 the 1^st opposite party sent an e-mail rejecting the claim of the complainant starting that the cause for the reported loss ie, breakdown does not fall under the Business Package Policy and at last the 1^st opposite party issued a letter dated 31.08.2017 affirming that the cause of loss is purely break down is not covered under Fire and Allied perils section of the Business Package Insurance issued to the complainant and held by the complainant which is deficiency in service and also a gross violation of the contractual obligation by the 1^st opposite party towards the complainant.

PW1 Sheela Daniel is the owner and Proprietor of St.Mary’s Bio Mass Fuels, Vilakkupara P.O, Anchal and PW2 is none other than her husband.  It is true that PW1 has filed proof affidavit in tune with her complaint.  But during cross examination that  she made an attempt to repair the machine by the manufacturer namely M/s Real-Tech Engineering,  that the manufacturer along with technician came over  on her institution on 01.07.2017 and inspected the damaged machinery and prepared Ext.D2 report.  Later DW1(Surveyor) by name Mr.P.T.R Babu deputed by the Insurance Company also came and inspected the damaged machine.  PW1 has also not ruled out the suggestion made by the learned counsel for the  opposite party that  Xo]n-Sp-¯-¯n   \n¶mWv   sajo³   »mÌv   sNbvX-sX¶v  sajo³ ]cn-tim-[n¨ sSIv\o-j-y³kv Ah-cpsS ]cn-tim-[\m dnt¸mÀ«n ]d-ªn-«n-ÃtÃm ? Sn dnt¸mÀ«v In«m-¯-Xp-sIm­v F\n-¡-dn-bn-Ã.  She has also not denied the further suggestion that _m¦v 1þmw FXnÀI-£n-bn \n¶pw FSp-¯n-cp¶ t]mfnkn hy-h-Ø-IÄ {]Imcw sajn-s\dn break down aqe-ap-­m-Ip¶ »mÌnwKv UmtaPv t]mfnkn hy-hØ {]Imcw cover sN¿p¶ risk Aà F¶p-]-d-bp-¶p.? AXn-s\-¸än policy terms hmbn-¡msX Adn-bn-Ã.  Full coverage DÅ-Xm-sW¶v  _m¦v ]d-ª-Xp-sIm­v IqSp-X-sem¶pw tNmZn-¨-dn-ªn-Ã.   In  view of the above admission it is crystal clear that the complainant has filed the present complaint even without understanding the policy condition.

The main contention of the opposite party is that the damages of the machinery was occurred due to friction by lack of lub,  oil in the machine, which has been confirmed by the supplier of the machine as well after their inspection.  According to DW1 surveyor the actual cause of damage is coming under mechanical breakdown only due to the aforementioned reason, but the complainant has not opted to insure the machine for the risk under machinery breakdown coverage.  DW1 has further observed that the damages sustained to the machine is on account of wear and tear damages while the machinery in operation, which is not even covered under the machinery breakdown policy.  Though DW1 surveyor has assessed the damages sustained to the machine to the tune of Rs.387100/- by considering the depreciation clause of the policy, he has come to a definite conclusion that the actual damages caused to the machinery of the complainant is not on account of an insured peril under business package policy covering Fire and Allied Perils mentioned in the policy issued to the complainant.  Therefore the opposite party is no way responsible to indemnify the loss sustained to the complainant which is an excluded cover under the policy issued by the opposite party.  Hence the opposite party has repudiated the claim.

 Now the question to be considered is whether the repudiation of the claim by the 1^st opposite party insurance company as per Ext.D5 repudiation letter is in accordance with the terms of policy conditions.  Ext.P2 is the photo copy of the policy details proved by the opposite party.  The 1^st page is a covering letter and the 2^nd page is policy schedule which would indicate that the sum assured for the fire and allied peril is Rz.36,00,000/- out of which cover to the plant and machinery is Rs.2400000/-.  Page No.10&11 related to the conditions out of which condition No.1 of fire and allied perils is that the company will indemnify the insured in respect of loss or damage to the building wherein the business of the insured is carried on and/or contents therein as specified in the schedule due to (i) Fire, (ii)Lightening(iii)Explosion/implosion.

The learned counsel for the opposite party has argued that the complainant has not adduced any independent acceptable evidence to prove his contention regarding the cause of damage suffered to the machinery.  However it is brought out in evidence that the machine was examined by the technical staff of the manufacturer at the request of the complainant.  That the technicians of the manufacturing company visited on 01.07.2017 and examined the machine in detail and prepared Est.D2 inspection  report dated 03.07.2017.  The cause of  damage suffered to the machinery was specifically stated in Ext.D2 report.   Accordingly the incident happened due to loosen  of any of the main bold of the machine while it was working.  It is clear from Ext.D2 report that the damage caused to the machinery is due to the mechanical defect and not due to any insured perils covered by Ext.D1 policy.

Ext.D3 is yet another inspection report dated 10.07.17  of  M/s Real-Tech Engineering, Coimbatore.  On going through the above report it is clear that the proximate cause of damage is either the blast is due to loosen of any main bolt of the machine which can lead to high friction among the parts, this increased friction will lead to fire and blasting, or if there is any blockage in oil circulation there is a chance for the moving parts to get more friction which can cause fire and blasting of machinery.  In view of the above reports it is crystal clear that the proximate cause of damage suffered to the machine is due to mechanical breakdown of the machinery and not due to any insured perils under Ext.D1 series policy.  The complainant has not seriously disputed the observation made by the person who inspected the machine and issued Ext.D2&D3 report regarding the proximate cause of damage.   

Ext.D4 is the survey report  dated 24.07.2017 of DW1 Surveyor who is  a mechanical engineer by profession.   The evidence of  DW1 would show that  he very well knows the operation of the machinery and he is having experience in inspecting the above type of machine.  That after complying all the procedure/formalities he prepared Ext.D4 report wherein he has stated that the damage has been caused due to mechanical breakdown.  DW1 has further deposed that as Ext.D1 series  policy the damage caused due to mechanical breakdown  is not an insured risk.

According to PW1&2 they have produced Ext.D2&D3 report prepared by the Real Tech Engineering  before  the Insurance Company.  That they have carried out maintenance work as per the terms of the warranty conditions issued by the company and submit records relating to maintenance work.  But no such record has been produced so as to rule out the  findings recorded in Ext.D2&D4 report that the machinery has damaged due to proper lubrication and apparent cause of damage is only due to mechanical breakdown of the machine.  The above findings stated in Ext.D2 to D4 report are probabilised by the admission of PW2 who is none other than the husband of PW1.  We shall quote the relevant portion of PW2 regarding the proximate cause of the damage.  sajo\v D­mb UmtaPv  Xo]n-Sp¯w aqe-ap-­mb UmtaPv Aà F¶pw Cu sajo-\nsâ {^n£³ aqew t_mÄ«v eqkmbn Xo]n-Sp¯w D­m-b-Xm-sW¶pw ]d-bp¶p? c­v coXn-bn Xo]n-Sp¯w D­m-Imw.  sajo-\nsâ t_mÄ«v eqkmbmÂXo]n-Sp¯w D­m-Imw.  Hmbn eo¡m-bm {^n£³ D­m-Imw, At¶cw Xo]n-Sp¯w D­m-Imw. It is brought out during re examination that PW2 is having sufficient knowledge regarding working of the machine and he obtained that knowledge from the manufacturing company of the machine itself.  The above evidence of PW2 would not rule out the proximate cause of incident suggested by the 1^st opposite party.    The learned counsel for the opposite party by relying on the dictum laid down in 2000(10) SCC (United India Insurance Company Ltd. Vs. Roshan Land Oil Mills and another)  has argued that the survey report which is reviewed to be made under Section 64 UM(2) of the  Insurance Act 1938 is an important document and its non consideration results in serious mis carriage of the justice and vitiate the judgment rendered by the court. In view of the oral evidence of DW1 and also in view of the dictum laid down in the above decision of the Hon’ble Supreme Court this Commission would not find any reason to reject Ext.D4 surveyor’s  report  which would probabilise the contention of the opposite party that the real cause of damage suffered to the machine is due to none of the insured perils covered under the policy and that the policy taken for the machinery would not cover the risk of mechanical breakdown for which separate machinery break down policy coverage ought to have been obtained by the 2^nd opposite party Bank at the time of taking the policy.

On evaluating the entire materials available on record it is clear that the claim put forward by the complainant has been repudiated by the opposite party for valid reasons on the basis of Ext.D2 to D4 report.  Since the actual cause  of damage is excluded  from the coverage under the policy the claim was repudiated by the opposite party as per the terms and conditions of the policy and therefore there is no deficiency in service or any unfair trade practice on the part of the 1^st opposite party.  It is further to be pointed out that the complainant has leveled several allegations against the 2^nd Opposite Party Bank for not taking the policy having coverage  for mechanical breakdown of the policy.  According to the complainant the 2^nd Opposite Party Bank  made the complainant to believe that the policy taken by the Bank is having vide coverage including mechanical breakdown.  But actually the terms and conditions of D1 policy would not cover the mechanical breakdown of the machine.  In fact the 2^nd opposite party bank failed to take policy with vide coverage having  mechanical breakdown by paying additional premium.  However relief  No(A) to (D) sought for in the complaint is against 1^st opposite party and none of the reliefs sought against the 2^nd opposite party Bank.  As we have already found that there is no deficiency in service or unfair trade practice on the part of the 1^st opposite party Insurance Company we find no merit in the complaint and the same is only  to be dismissed.  The points answered accordingly.

In the result complaint stands dismissed.  Parties are directed to suffer their respective costs.

Dictated to the Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Commission this the  9^th  day of  May    2022.

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

Stanly Harold:Sd/-

Forwarded/by Order

Senior Superintendent

INDEX  

Witnesses Examined for the Complainant:-

PW1    :           Sheela Daniel

PW2    :           Daniel

Documents marked for the  complainant

Ext P1:  Photocopy of quotation dated 15.02.2010 issued by Real-Tech Engineering,Coimbatore.

Ext P2: Photo copy of insurance policy bearing No.0000000005407524 dated 21.12.2016 issued by SBI General Insurance.

Ext.P3: Copy of letter dated 21.6.2017 issued by the complainant to the Chief Manager, SbI Anchal Branch.

Ext.P4:  e-mail copy of the letter dated 28.06.2017 issued by the complainant to the concerned authority of SBI General Insurance.

Ext.P5 :e-mail copy of the letter dated 30.06.2017 issued by the complainant to the 1^st opposite party.

Ext.P6 :Photocopy of the claim form dated 07.07.2017 sent by the complainant to the 1^st opposite party.

Ext.P7 :e-mail copy of the letter dated 03.07.2017  issued by the 1^st opposite party to the complainant.

Ext.P8 : Photocopy of quotation dated 24.07.2017 issued by Real Tech Engineering, Coimbatore.

Ext.P9 : e-mail copy of the letter dated 08.07.2017 issued by the complainant to the 1^st opposite party.

Ext.P10:Copy of declaration dated 20.07.2017 from complainant to M/s Real Tech Engineering Company, Coimbatore.

Ext.P11: Letter dated 31.07.2017 from the complainant to the opposite parties.

Ext.P12: e-mail communication dated 06.08.2017 from the complainant to SBI General Insurance.

Ext.P13: Claim intimation letter from SBI General Insurance to St.Mary’s Bio Fuels.

Witnesses Examined for the opposite party:-

DW1               :           P.T.R.Babu

Documents marked for the opposite party:-

Ext.D1 series   : Copy of policy details from SBI General Insurance.

Ext.D2            :   Copy of inspection statement of Proprietor M/s Real Tech Engineering, Coimbatore dated 03.07.2017.

Ext.D3            :Copy of inspection statement of partner M/s Real Tech Engineering, Coimbatore dated 10.07.2017.

Ext.D4            :Copy of survey report of  Mr.P.T.R Babu dated 24.07.2017.

Ext.D5            :Copy of claim repudiation letter dated 31.08.2017.

E.M.Muhammed Ibrahim:Sd/-

           S.Sandhya Rani:Sd/-

         Stanly Harold:Sd/-

         Forwarded/by Order

        Senior Superintendent