JUDGEMENT

          Complainant by filing this complaint has submitted that complainant purchased one Standard Fire & Special Perils Policy for a total sum assured of Rs.2,10,00,000/- and paid premium of Rs.72,963/- being policy No.311500/11/2011/584 valid for the period from 11.12.2010 to midnight of 10.12.2011 and the said policy covered the risk of materials, stocks, building and plant & machinery of the complainant.

          Fact remains that on and from 07.01.2011 at the whole part of Kolkata including its suburban areas torrential rain continued for next 2-3 days and for which the entire factory area was water logged due to heavy rain water and the height of the water level rose above the height of the floor level of the said factory building and with a view to creating additional precaution of the stocks stored in the godown/factory building from the said effect of water logging or inundation due to heavy rain, complainant out of his own volition had built guard walls around the factory.

          But the heavy rainfall during those 2/3 days particularly on 07.08.2011 and 08.08.2011, caused tremendous water logging on the entire surrounding area covering road, field etc and level of the accumulated water rose to a height well above the floor level of the said factory building wherein the stocks were stored right from the floor level but the water level outside the said godown/factory building ultimately did not corss the height of the said guard-walls.  But for the heavy pressure of the logged water level upon the guard-walls for continuous 2/3 days caused seepage/leakage in the said guard-walls from various places and gradually water started entering into the said godown/factory building which damaged the material stored in the godown/factory building of the complainant.

          Complainant informed the op vide email on 08.08.2011 about the said loss which amounting to Rs.15,00,000/- due to inundation and ultimately lodged his claim.  Subsequently as per instruction of the op a duly licensed surveyor was appointed and the said surveyor completed the survey and finally submitted the survey report on 24.07.2012 to the op, assessing the net loss to the extent of Rs.5,30,455/- after deducting the salvage amount of Rs.2,45,000/-.  But op ultimately repudiated the claim of the complainant on 26.09.2012 with some vexatious reason that the loss occurred due to seepage of water and not inundation and which is not covered under the purview of the said policy and so such repudiation is baseless and against the findings of the survey report and being aggrieved complainant sent a letter addressed to the Deputy General Manager with copy to the Divisional Manager of the op on 01.10.2012 which was duly received by them and complainant requested them to reconsider the matter, but op did not pay the same and did not pay any heed to that and ultimately on 01.04.2013 complainant sent a final reminder to the op mentioning that legal action would be taken against them and fact remains complainant has been harassed by the op for wrongful repudiation, the complainant has prayed for redressal.

          On the other hand op by filing written version has submitted that as per terms and conditions of the policy due to storm, cyclone, typhone, tempest, hurricane, tornado, flood and inundation if any loss, destruction or damage directly is caused, are covered by the policy.

          But it is specifically mentioned that as per statement of the complainant in paragraph-5 of the complaint, op submits that logged water around the factory entered into the factory after 2/3 days of heavy rain and damaged his material.  But complainant in the meantime did not take any such step to prevent any loss by shifting the material to any other safe places.  So, negligence on the part of the complainant is well proved.  Further it is submitted that as per the present terms of the policy, the insurer shall have to take all sorts of precautionary measure of the insured materials from its end and even if there is any chance of damage or loss that is called accidental risk.

          But in this case complainant did not comply it and did not try to remove it to a safe place when rain was continued.  Further it is alleged that as per complaint rain started from 07.08.2011 to 08.08.2011 but water entered into the factory after 2/3 days from the date of rain.  But complainant informed the matter to the op on 18.08.2011 about their loss which was against the total concept of the policy.  But fact remains that op on receipt of the information from the op on 18.08.2011 appointed an individual surveryor with request to ascertain the reason of loss suffered by the insured due to heavy rain which took place on 07.08.2011 and 08.08.2011 and surveyor visited the factory on 20.08.2011 and after that enquired to ascertain the amount of loss and completed his survey and surveyor finally reported on 24.07.2012 to the op and duty of the surveyor  was just to ascertain the reason of loss and to ascertain the loss suffered by the insured.  But surveyor has no authority to pass any remarks in respect of acceptance or repudiation of claim of the insured and the said right vested upon the insurer who has granted policy to the insured and it is further submitted by the op that on perusal of the surveyor report submitted by the surveyor, op came to a conclusion and opined that the loss suffered by the insured not for inundation but due to seepage/leakage which the complainant admitted in different stages in his complaint and which is not accepted by the op and for that reason op repudiated the claim.

          But the complainant by false repudiation made allegations before the op though op discharged their services promptly, so there was no deficiency and for which the claim should be dismissed.

                                                Decision with reasons

Practically in this case we heard the argument of the Ld. Lawyers and also considered the entire complaint but it is fact that insurance contract cannot be termed as commercial activity and complainant being a factory or company is well within its right to file, maintain and prosecute complaint against insurance company.  So, apparently in view of the settled proposition of law and also relying upon the verdict of National Commission as reported in IV (2012) CPJ 625 NC we are confirmed that the present complaint is maintainable though complainant is a company or factory.

          Fact remains that in this case main dispute is regarding the word “inundation” because if it is found that the factory was inundated due to heavy rain fall in that case the policy covers the risk.  Complainant has tried to convince that his entire factory was water logged by rain water and it was inundated.  So, the stock was damaged due to water logging that is due to inundation.

          Whereas op has tried to convince that there is no evidence to prove by the complainant in the complaint that rain water entered into the godown due to heavy rain.  But complainant in his complaint has specifically mentioned that for seepage/leakage in the various places accordingly water started entering into the said godown and factory building which damaged the material in the said factory building of the complainant.  So, it is clear that no rain water entered into the godown due to heavy rain fall and complainant has admitted that there is godown for stocking the finished goods and godown is also walled up by walls and another factor is that when complainant found that water is leaking through the wall then it was the duty of the complainant to save his stock but complainant did not any take such step to protect his articles from the rainy day. 

          There was every chance to protect the stock by shifting the same to someother places, but complainant did not do that and complainant is silent in respect of that.  Fact remains that op placed some questionnaire to the complainant in writing on 06.11.2013, complainant received it.  But fact remains that complainant has not answered those questions specifically though answer was submitted by the complainant on 25.11.2013 and after considering the questionnaire made by the op and answer made by the complainant it is clear that complainant has tried to avoid to give any answer of the question specifically and we have considered the answers wherefrom we have found that answers against questionnaire are all baseless and having no foundation and considering that fact it is clear that complainant did not try to give proper answer of the questionnaire whether he took any step for sending the articles during rain when rain water was leaking through boundary wall.

          So, it is clear that reply of the complainant against questionnaire is all evasive.  It is no answer that means question as made by the op is not well answered which reflects that complainant was at fault and complainant did not take any step to remove the articles from water seepage or leakage and another factor is that it is the duty of the complainant to save the same in any case of such incident.  But in this case complainant was sitting idle and another factor is that when it was leaking and seepaging it was not reported to the op only on the ground in the meantime the complainant took some time anyhow to manage the claim against damage and that is reflected in this complaint.

          Fact remains that the godown must be of such a nature which may keep the finished goods specially the godown must not be such of a nature that due to rain stocked materials shall be damaged automatically.  So, considering all the above facts and materials we have gathered that complainant did not take any such step to shift the articles during any rainy days and practically outside water did not enter into the factory compound but due to seepage and leakage such sort of damage could not be caused as there was every scope on the part of the complainant to save those articles.  But he did not do it.  At the same time op has submitted that there is no report that entire factory was water logged due to heavy rain and factory was water logged 3 or 4 days.  But it is mere assertion.  For the sake of the argument if it is accepted that the complainant has tried to show that the water was logged till 19.08.2011 whereas complainant reported the matter to the insurance company on 18.08.2011 and inspection was held on 20.08.2011. 

          Another factor is that the surveyor has opined that the leakage water did not cross the guard walls of entire of the premises.  Further he has opined that since the height of the guard wall on the west and the entrance stair cases in 3 places facing east is more than the height of the logged water and logged water did not cross the wall height.  Fact remains that complainant reported the matter at belated stage and further the Bilkanda no.1 Gram Panchayat did not issue any such certificate that the said factory was completely water logged and rain water entered crossing the guard walls not only that from the report it is clear that no rain water or leakage water entered into the factory premises crossing the guard wall because height of the guard wall is higher than the accumulated water.

          Further from the report of the surveyor, it is clear that on 09.08.2011 the water level did not cross the guard wall and during the course of investigation on 20.01.2011 surveyor noticed and came to a opinion that “It therefore appeared that the leakage water did not cross the guard wall of the entire premises”.  When complainant has relied upon the report of the surveyor, it is clear that no rain water entered into the godown crossing the godown up to 09.08.2011, though rain started on 07.08.2011.  But in the complaint complainant has tried to show that on completion of rain water up to 08.08.2011 the seepage and leakage started on the guard wall.  But surveyor did not find any such leakage or seepage further there is no such observation of the surveyor that the water entered into the godown due to heavy rain.

          Another factor is that the godown is situated within the Gram Panchayat area and practically complainant got every chance to avoid seepage and leakage but that had not been done by the complainant, complainant got every chance to remove stock in safe places that has not been done and further there is no allegation in the complaint that logged rain water entered into the godown due to heavy rain and further the surveyor did not find the status of the articles stored in the godown to the extent of submergence of goods in the godown and in the godown any accumulation of water was also not found.

          So, relying upon the entire complaint and the surveyor’s report we have gathered that practically surveyor did not find any mark of entering of water into the godown covering the guard walls with heavy height and surveryor found the mark of water level outside the guard wall.  But that never crossed have been noted from entrance of the premises of the gate of the factory.  It indicates that no outside water or rain water entered into the godown but as because the godown was damaged due to seepage and leakage that is the fault of the complainant not to maintain the godown in proper form and when complainant got such scope to save those articles when rain was continued for 2/3 days but that steps had not been taken by the complainant but as per policy it was mandatory for the insured to prove what step has been taken by the insured to save goods from any accident.  But in the complaint, complainant is silent.

          No doubt complainant’s Ld. Lawyer referred one ruling reported in III 2013 CPJ 664 NC and tried to say that no doubt rain water entered into the godown  and it can be treated as inundation which cover risk under the policy and so repudiation is not justified.  But considering that ruling and the fact of that case and the present surveyor’s report including the conduct of the complainant, we find that complainant intentionally did not remove the articles from the godown, inside godown no water entered, but water entered into the godown.  But fact remains that godown articles was damaged, not for water logging but for the fault of the complainant and when the complainant found that water was leaking after 2/3 days of the rain in the mean time complainant had scope to remove the same by shifting the articles but that has not been done.

          Further when the seepage of water started, it may be informed to the op to see the situation and to take opinion of the op but that was not done by the complainant.  But everything was reported after lapse of 11 days and when surveyor went there and found some marks on the outside guard walls and inside walls and the height of the water level on the outside wall.  But in the report of the surveyor, there is no opinion that water entered into the factory but it is specifically mentioned by the surveyor that water never crossed the wall or never entered into the factory compound through main gate also.  So, it is clear that the godown was not damaged for outside boundary water logging and there was every scope on the part of the complainant to save it but that was not done.  So as per terms and conditions of the Policy the complainant did not act and complainant practically for some ill motive or for some other reasons kept silent for 11 days and thereafter he reported about the loss without ascertaining what step has been taken by them to remove it.  So, we are convinced that repudiation made by the op was justified and under any circumstances, complainant cannot say that for inundation damage was caused when that is not reported by the surveyor, then it is clear that complainant used to keep all articles as finished goods as stock in the damaged godown and in the light of the above observation we are convinced that the ruling as placed by the Ld. Lawyer of the complainant is not applicable in this case in view of the above facts because it is already decided by the National Commission that parties cannot go beyond the terms and conditions of the policy and parties must be governed and guided by the terms and conditions and no exception or relaxation can be made on the ground of the equity as it is found that insured is at fault and he did not comply the terms of the policy and in that case invariably repudiation must be made and in this regard we have relied upon the ruling III 2013 (4) CPR 165 NC.

          Thus, the complaint fails.

          Hence, it is

                                                             ORDERED

          That the complaint be and the same is dismissed on contest without any cost against the op.