Sri S.K.Sahoo,President.

            This is a complaint filed by the complainant U/s. 35 of C.P.Act 2019.

2.       The case of the complainant  that he is the Managing partner of Durga Cold Storage situated at Talataila, P.O-Kuio of Angul District. Both the complainant and the opp.party are carrying their business in Angul District. The complainant insured his machinery and stock with the opp.party who issued policy No.2601014416 P118418588(MBD) and policy No.2601014416 P118417860(DOS) respectively on 31.03.2017 on payment of required premium. The sum assured value was Rs.1,50,00,000.00 (Rupees One Crore and Fifty Lakh)only for machinery breakdown and Rs.2,00,00,000.00 (Rupees Two Crore) only for loss of stocks. Both the policy were valid till 30.03.2018. The photocopy of policy of the machinery is Annexure A and for  stock Annexure B. Accident occurred in the cold storage of the complainant on 04.08.2017 at about 07.15P.M. as a result of which the valve gates were burst and the system suddenly failed. At the time of accident there was stock of 52856 bags of potatoes in the cold storage cost of which was Rs.2,60,051.52. Due to such accident there was rise in the temperature for which the potatoes were rotten . On 04.08.2017 the said fact was informed to the company who had supplied the machinery for necessary repairing. Annexure-C is the photocopy of said letter. On 07.08.2018 the complainant informed the opp.party regarding the accident as 05.08.2017 and 06.08.2017 were holidays and the office of opp. Party was closed. Annexure-D is the photocopy of said letter. As per the direction of the opp.party surveyor S.K.Das and associates asked the complainant  to submit the  claim form along with  documents. Annexure-E is the  photo copy of  the  letter issued by Mr. Das. After getting such letter the complainant submitted his reply on 19.08.2017  and Annexure-F is  photo copy of  the said letter. The  complainant submitted his claim form along with all other documents to  opp.party and the surveyor on 21.08.2017. Annexure-G is the photo copy of  the said letter. The surveyor  started conducting  the  survey. On 27.02.2018 the complainant intimated the  opp.party regarding the  completion of the repairing work of the  machinery. Annexure-H is the photo copy of  the said letter. On 27.02.2018 the complainant  also sent  a letter to the  surveyor along with the  final claim bill of  loss of  stock, claim bill for machinery parts and labour charges for repairing and  the  service report of  the machinery company. Annexure-I is the photo copy of  the said letter. On 14.06.2018 the surveyor  sent  an Email to the  complainant, asking  him to  submit  some  fresh  documents  and  clarification regarding the  accident and  stock. Annexure- J is the  photo copy of  the  said  letter.  On 20.06.2018 the  complainant  sent  all the required documents to the surveyor   with  his  clarification and  Annexure-K is the  photo copy of the said  letter. Again on 27.06.2018 the surveyor  sent  an Email  to the  complainant, asking him  for  fresh clarification  regarding the accident and stock. The   photo copy of the said letter of the surveyor is Annexure-L. On 04.08.2018 the  complainant  submitted  the  documents  and fresh  clarification to the  surveyor  and  Annexure-M is the   photo copy of the  said  letter. Again the  surveyor  sent  an Email  to the  complainant, asking him  to  submit  the  original  bill books and damaged parts of the  plant. Accordingly the  complainant  submitted  the  original bill books and damaged parts to the surveyor along with his letter  dtd.25.09.2018. Annexure-N is the photo copy of the said letter of the complainant. On 16.11.2018  the  complainant  sent  a letter to the  opp.party, requesting him to  provide  the  copy of  the surveyor’s report and Annexure-O is the photo copy of the said letter. The opp.party supplied the  surveyor’s report to the  complainant  on 12.11.2018, from which the  complainant came to know  that  Mr.S.K.Das, the surveyor  has  assessed the claim Rs.26,64,128.00. Annexure-P  is  the  photo copy of the  said letter.

          The  complainant  was  surprised about  such arbitrary survey report. The surveyor  failed to analyse the  technical  aspects of the  accident and  loss of the  stock by verifying the  documents. On 20.12.2018  the  complainant  sent an elaborate  objection to the opp.party against the  surveyor’s report, in which  he has  pointed  out  the  errors committed by the  surveyor in  assessing the loss and  appreciating the  claim. Annexure-Q is  the photo copy of the  said letter. On 19.01.2019  the  complainant  sent his objection letter to the surveyor with a  request  for  return of  the  original bill book and  salvage items. Annexure-R  is  the  photo copy of the  said letter. On 04.02.2019 the  complainant requested  the  Chairman of Institute Of  Surveyor’s  and Loss Assessor, Odisha Chapter to conduct  independent  survey of his claim and  Annexure-S is  the  photo copy of the  said letter of the request. Thereafter on 08.02.2019  the  complainant  requested  the  opp.party and  asked him  to  wait  for  independent  survey report before taking  any final decision on his  claim  and  Annexure-T  is  the   photo copy of the  said letter of request. On 02.07.2019 the opp.party hastily repudiated  the claim of the  complainant  under  both the  policies  as  “Not Admissible”.  The opp.party denied  to  accept the loss  of  machinery in accident  under MBD policy  and also  denied  to accept  loss  of  stock due to  rise  in temperature  in cold  storage after the accident. Annexure-U is  the   photo copy of the  said repudiation  letter of the  opp.parties. The  complainant  submitted his  objection  vide  letter dtd.12.09.2019  in which  he has challenged  the correctness  of the  survey report prepared  without  proper  inspection,  verification and  examination  of  machinery and  stocks and without  waiting  for  independent  survey report. Annexure-V  is  the  photo copy of the  said letter.

      The  independent  surveyor  submitted  his report on 01.03.2020 and assessed  Rs.46,648.00  for  loss  towards  machinery and  Rs.49,47,508.00 for  loss  of the  stock. Annexure-W is  the   photo copy of the   independent  surveyor’s report. On 24.08.2020 the  complainant  requested the opp.party to settle  his  claim  in view of the report submitted by the  independent surveyor. The opp.party did not submit any reply. Hence this  case for  illegal repudiation of  the  genuine claim of the  complainant. The  complainant  sustained  financial loss along with physical  and  mental  agony, due to the  negligent and arbitrary action of the  opp.parties.

3.       In pursuance of  notice the  sole opp.party entered  his appearance  through his deemed advocate and submitted his written statement. The case of the opp.party is that the  complaint  filed by the  complainant is not maintainable  either is  law or in facts. There is  no cause of action to file this  complaint against the opp.parties. The complaint petition is barred by law of limitation. The  contents of paragraph-2 & 3  of the  complaint petition is admitted to be correct. Admittedly  the  incident  took place  on 04.08.2017. Sri S.K.Das and associates was appointed as surveyor  by the opp.party to assess the  loss. Paragraph-7,9,10 to 15 &18 of the  complaint  petition are correct and  admitted. There is  no provision for  deputation of  Independent Surveyor without the  knowledge and consent of the opp.parties. The  complainant  has not   intimated and  discussed about the  deputation  of the  independent surveyor  to assess the loss. The  said  act of the  complainant is illegal. As per the  provisions of the  Insurance Act on the recommendation of the surveyor and considering his report with the  documents available, the opp.party repudiated the claim of the complainant. Admittedly the  complainant had  taken two numbers of policies on 31.03.2017 and insured the machinery break down and for the loss of the  stock .The complainant reported the loss of machinery and stocks due to an accident on 04.08.2017 and lodged a claim with the opp.party. After receiving the information from the complainant Sri S.K.Das and associates were deputed to conduct the survey. Accordingly Sri Das conducted survey and submitted his report dtd.12.11.2018. Basing on such report the opp.party repudiated the claim of the complainant rightly. There is  no deficiency in service on the part of the opp.party.

4.       The  complainant  is  admittedly  the managing partner of Durga Cold Storage. It is also admitted that the complainant had  insured  his machinery and stocks with opp.party vide policy No No.2601014416 P118418588(MBD) and policy No.2601014416 P118417860(DOS) dtd.31.03.2017 .It is also clear   from the  documents  filed  by the complainant  that  the  sum assured  was Rs.1,50,00,000.00 for machinery break down and Rs.2,00,00,000.00 for loss of stocks. The policies  obtained by the complainant were  effective from 31.03.2017 to 30.03.2018. Annexure-A & B are the photo copies of the  said policies. It is also admitted that  there  was  an accident  in the  cold storage of the  complainant  on 04.08.2017. It is  further admitted  that Mr. S.K.Das and associates  conducted survey and submitted his report on 12.11.2018 vide Annexure-P. The  complainant  has challenged  the said  surveyor’s  report, on the  ground  that  it is  not  correct and Mr. Das has  not  properly assessed the  loss of the  stocks  and damage of  machinery. The opp.party in  his  written statement submitted  that without   their  knowledge the  complainant  submitted a request to the Institute of  Surveyor’s and Loss Assessors, Odisha Chatter  to conduct  an independent survey of  his  claim. In the  complaint petition at paragraph-19  the  complainant  has mentioned  that he has  intimated  the opp.party about his  request  for  appointment of  an independent survey and Annexure-S  is  the   photo copy of the said letter. On perusal  Annexure-S it is  clear  that the  complainant has  intimated  about  his  request  for survey  by  an independent  surveyor  to the opp.party. The opp.party has personally received the said letter. Again the  complainant has submitted a letter to the  opp.party on 08.02.2019, in which  he has objected the surveyor’s report  prepared by  Mr.S.K.Das and asked to wait  till the report is submitted by the Institute  of  Surveyor and Loss Assessor, Odisha Chatter. So the  plea  of  the opp.party that  he is  not aware of  the request of the  complainant  for  survey by an  independent surveyor is  not  reliable and trust worthy. The complainant  has raised  serious objection on  the  survey report prepared by  Mr. Das and associates. The  complainant had  also requested the  opp.party to wait for  the  independent survey. Admittedly the opp.party  repudiated  the claim of the  complainant by his letter dtd.02.07.2019. The Indian Institute of Insurance Surveyor’s  & Loss Assessors is  established U/s. 25 of the Companies Act,1956 on 4^th October 2005. The surveyor and loss assessors are experts  in many fields. In addition  to  a thorough knowledge of  technical  and insurance  and  of the area in which they work, they can advise both the  insurance company and the  policy holder on repair and replacement technics. After discussion with the  policy holder  the  surveyor  and  the  loss  assessors, report to the  insurance  company enables  the  company to process the claim without  delay. Admittedly in the case in hand the complainant is not satisfied with the surveyor’s report appointed by the opp.parties and  requested to  the  Institute of Surveyors and Loss Assessors  who submitted his  report  vide Annexure-W. The  institution which  has conduct  survey on the request of the  complainant has been established U/s.25 of the Companies Act, 1956 on 4^th October, 2005. It is  an independent body and expert for  assessing the  loss  of  stocks and machinery  by visiting  the  spot and examining the   documents. On perusal of Annexure-W it  transpires  that the Chairman of the establishment has submitted the report on 01.03.2020. Survey  was conducted on 12.02.2019. It  is  also clear from the report that the loss assessor and the surveyor  has examined a lot of documents  including the  survey  report prepared by Mr. S.K.Das and  associates dtd. 12.11.2018 and found  as follows:-

• During his visit Mr. Das observed that technicians of Frick India Ltd. were  attending the leakage of ammonia from receiver, low pressure liquid chamber, liquid ammonia pump etc.

• The surveyor had recorded the temperature of the cold chambers.

• The surveyor  had advised the insured to release the stock after sorting out the damages and to submit the statement time to time.

• The surveyor had sent one mail/letter on 17-08-2017 to submit the  documents and had sought other information. Subsequently on 21-08-2017 he had asked for some more information and documents.

• The insured had informed the surveyor to inspect the cold storage during and after repairing of the plant which was carried on after disposal was completed but the  surveyor didn't visit the plant after his  first visit on 09-08-2017. (Letter of the insured dated-21-08-2017  & 27-02-2018).

• The surveyor has not taken any statement on occurrence of loss from the plant in- charges and other employees during his survey.  This could have given a real first hand information from eye witness who were present during the mishap.

• The surveyor has not taken any statement from the technicians of Frick India Ltd. who were attending the repair on 09-08-2017. He has also not sought any statement  from them about probable cause  of breakdown of plant/valve system.

• There is no joint inspection record of the surveyor and technicians.

          Due to  the  defects committed by  the surveyor Mr.S.K.Das and associates  during survey as pointed out no reliance can placed on such report submitted by him. On the other hand the report submitted by the Chairman of Indian Institute of Insurance Surveyors & Loss Assessors dtd.01.03.2020 is reliable and  trust worthy. It is also an independent body who is  not  associated with  or influenced by the  complainant or  the opp.party. Hence the  claim of the  complainant for the loss of stock  and repairing of machinery is legal and correct. There is  also no  bar  in law for assessment of loss of  stock and  machinery  repairing on the  request of  an insured when the assessment made by the surveyor appointed by the insurer is not based on reasoning. Complainant successfully proved his  case for the  claim.   There is  deficiency in service by the opp.party and the repudiation is illegal. Repudiation of the  claim of the  complainant is also a deficiency in service. The complainant  has sustained mental agony due to the illegal conduct of the opp.party.

6.       Hence order :-

: O R D E R :

          The case be and the same is allowed in part on contest against the opp.party. The opp.party is  directed  to pay an amount of Rs.46,648.00 (Rupees Forty-six Thousand six Hundred forty-eight) only against loss of machinery and Rs.49,47,508.00 (Rupees Forty-nine Lakh forty-seven Thousand five Hundred eight) only against  loss of stock along with interest @ 7% per annum from the  September-2021 till actual payment  is made. The opp.party is further directed to pay an amount of Rs.50,000.00 (Rupees Fifty Thousand) only to the  complainant for mental agony and harassment along with Rs.5000.00 (Rupees Five Thousand) only towards litigation cost.  The aforesaid amount is to be paid within one month from the date of receipt  of  this order, failing  which he is liable to pay all the  dues  along with   penal interest @9% p.a  until it is  paid.