State Consumer Disputes Redressal Commission
Anurag Sugars Ltd vs New India Assurance Co Ltd on 10 December, 2018
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
Consumer Complaint No.CC/13/100
Anuraj Sugars Ltd.
Dadasaheb Borkar Memorial Hospital
A/P Loni Kalbhor
Taluka Haveli, District Pune
Maharashtra 412 201
Through its Managing Director .....Complainant
Versus
New India Assurance Co.Ltd.
572/572, Sadashiv Peth
Shanta Commercial Complex
Laxmi Road, Pune 411 030 .........Opponent
Through its Branch Manager
BEFORE: Usha S.Thakare, Presiding Judicial Member
A.K.Zade, Member
PRESENT:Mr.Uday Warunjikar-Advocate for complainant
Mr.A.S.Vidyarthi-Advocate for opponent
ORDER
Per Hon'ble Smt.Usha S.Thakare, Presiding Judicial Member
1. Complainant has filed this consumer complaint by alleging deficiency in service against the opponent -M/s.New India Assurance Company Ltd. due to repudiation of genuine claim under valid insurance policy.
2. Complainant is a private limited company and functioning under the provisions of Companies Act. The main aim and object of the complainant is to purchase sugarcane from agriculturists and crush the same for producing the sugar. At the same time to produce byproducts like Molasses and baggase etc. Complainant is having factory at Yawat, Taluka Daund, 1 District Pune. Opponent is the insurance company having its regional office and branch office at Pune. Opponent company deals in business of insurance and insures goods after accepting premium from the insured customers. Complainant company sought working capital loan from its bankers-Pune District Co-operative Bank Ltd. Pune. Complainant pledged its manufactured sugar with the said Bank.
3. It is submitted that the complainant has constructed three godowns within the area of its factory for stocking its manufactured sugar. Complainant has also constructed otas for storing excess manufactured sugar. Complainant always stores the manufactured sugar by keeping it in sugar bags. All these bags of sugar are stocked in the godowns layer by layer.
4. In the season 2010-11 the complainant manufactured sugar which was stored in the three godowns and outside constructed otas. The stock of manufactured sugar for the season 2010-11 was pledged with the Pune District Central Co-operative Bank Ltd. and the complainant availed loan against the said sugar stock. The loan was sanctioned by the bank for crushing season 2010-11. The godowns of the complainant are three in numbers and they are numbered as 1, 2 and 3, each having capacity of 1 lakh bags. The sugar bags stored on the open "Kattas" or "Ottas" are properly covered by tarpaulin. Complainant manufactured 2,05,196 quintals sugar bags in the season 2010-11 and the same was stored in the godown nos.1, 2 and 3 and also in open "Kattas" by taking every caution and security. It is pleaded that the complainant insured sugar stored in three godows and on "Kattas" by paying the necessary premium to the opponent/ Insurance company. The company initially paid premium of Rs.1,87,570/- to the Insurance Company. "Fire insurance" was obtained by the complainant company from the opponent /Insurance company.
25. The opponent /Insurance company issued Fire Insurance policy bearing No.15310311100200200003. Said insurance policy was valid for the period 04/01/2011 to 03/01/2012. Initially fire insurance policy was for the value of Rs.60 crores. Complainant paid additional premium and got increased the value of fire insurance policy aggregating to Rs.75 crores. The Insurance company issued additional endorsement document dated 26/03/2011 to the original policy bearing No.15310311100200200003.
6. It is the case of the complainant that on 03/03/2011, at about 12.30 p.m. an accidental fire broke out in godown No.3 of the complainant at factory site, which is situated at Yawat, Taluka Daund, District Pune. The godown people immediately informed to the fire fighters at Kurkumb M.I.D.C. and also to police and Managing Director of the company. The godown people also submitted written report to the Managing Director about the accidental fire broken out in godown No.3. Complainant company informed and intimated about the incident of fire occurred to the opponent/ Insurance company immediately on 04/03/2011. The fire fighter of Kurkumb, MIDC, reached at factory site of complainant and fire was extinguished by them and by the employees of the complainant company. In fire huge quantify of sugar was damaged and was destroyed by burns. As per calculation of the complainant company, total loss sustained by the complainant company was to the tune of Rs.99,99,999/-, which was caused due to fire broke out in godown no.3. The First Information Report was lodged with police at Yawat on 03/03/2011. On the basis of First Information Report, the Assistant Inspector of Yawat Police station visited the spot of the accidental fire incident, which occurred in the factory site of the complainant on 04/03/2011. The Panchanama was prepared in presence of the panchas and at the time of panchanama, the loss was estimated to the tune of Rs.2,07,52,480/-.
7. It is further submitted that on the basis of intimation of accidental fire, the opponent/Insurance Company deputed its own surveyor 3 Mr.A.P.Fadake, who visited the factory of the complainant on 05/03/2011. He too visited the site of accidental fire in godown No.3. The Surveyor submitted his preliminary survey report No.127/2010/11/P dated 07/03/2011 and valued the amount of loss to the tune of Rs.1,65,00,000/-. The surveyor of the opponent/ Insurance company reserved its final report. As per demand, complainant company provided requisite documents and information to the surveyor from time to time. Complainant company submitted its claim of insurance to the opponent Insurance company vide outward no.ASL/A/C/21/2011-12 dated 05/04/2011. After getting the number of documents from complainant company, the surveyor submitted his Final Survey Report No.026/2011-12 dated 24/05/2011 to the opponent/Insurance Company. The surveyor opined that the claim of the complainant is not admissible because as per his opinion the incident of fire in the case of complainant company is of 'SPONTANEOUS COMBUSTION".
8. According to the opinion of the surveyor of opponent /Insurance company, this type fire is excluded from coverage allowed to the complainant company under the fire insurance policy issued by the opponent/Insurance Company and, therefore, claim of the complainant company is not admissible.
9. It is pleaded that report of the surveyor is one sided and does not have legal base. Complainant company obtained the fire insurance from the opponent/ Insurance company. The term 'SPONTANEOUS COMBUSTION" cannot be termed differently from term 'fire'. The claim is repudiated which is a gross illegality. There is a deficiency in service rendered by the opponent/ Insurance company. By letter dated 03/08/2011, opponent/ Insurance company informed the complainant about repudiation of claim. The complainant company issued legal notices to the opponent/ Insurance company on 16/08/2011 and 15/09/2011. In spite of the notices, 4 opponent/ Insurance company repudiated the claim. By alleging gross deficiency in service and illegality, the complainant company has filed consumer complaint. The complainant company has requested to declare opponent/ Insurance company as guilty of deficiency in service and has requested to direct the opponent/ Insurance company to pay the claim of complainant quantified at Rs.99,99,999/- along with interest. The complainant company has claimed any other relief which is deemed fit and proper.
10. The opponent/Insurance company has resisted the claim by filing written statement and has denied all adverse allegations. It is specifically denied that the opponent is guilty of deficiency in service. It is submitted that the complaint does not disclose any cause of action, it is not maintainable and liable to be dismissed with costs. The complainant is not entitled to file the present complaint as this is not the proper Forum to seek relief claimed in the complaint. The proper remedy is to file regular civil suit, where there will be an elaborate trial. The matter in hand requires elaborate trial with examination of several witnesses as the complicated questions of law and facts are involved. The complaint of the complainant is barred by way of waiver as one of the conditions of the insurance policy in question which forms a part of complainant's insurance policy, inter alia provides for disclaimer and waiver. The said condition is reproduced as under:-
"In no case whatsoever shall the company be liable for any loss or damage after the expiry of 12 months from the happening of the loss or damage unless the claim is the subject of pending action or arbitration. It being expressly agreed and declared that if the company shall disclaim any liability for any claim here under and such claim shall not within 12 calendar months from the date of the disclaimer have been made the subject matter of a suit in a court of law then the claim for all 5 purposes be deemed to have been abandoned and shall not thereafter be recoverable hereunder."
11. The claim of the complainant was repudiated on 01/08/2011. The consumer complaint is filed in the year 2013, which falls beyond the period of 12 calendar months and, hence, consumer complaint is not maintainable. Apart from that complainant is seeking an amount of claim quantified at Rs.99,99,999/- along with interest. The amount of claim would exceed Rs.1 crore (Rupees one crore) and therefore, this Commission has no jurisdiction to entertain the complaint. The complaint is liable to be dismissed on the ground that services of the opponent are hired for 'commercial purpose'. Complainant is not 'consumer' and therefore consumer complaint is not tenable. The complaint is bad for non-joinder of necessary parties i.e. 'PDCC Bank Ltd.' which are the hypothecating banker named in the policy.
12. It is admitted that the complainant obtained Fire Policy for a sum of Rs.60 crores towards coverage of stock of sugar in Godown No.1, 2 and 3 and stock of sugar on open katta in factory compound. The proposal dated 31/12/2010 was duly filled in by the Chief Accountant of complainant. The opponent on receipt of the proposal form issued the complainant a Fire Insurance Policy, which was as per request of the complainant. The said policy was effective from 04/01/2011 to 03/01/2012. The said insurance policy was issued to the complainant along with printed terms and conditions. There is a valid and binding contract between the complainant and opponent. It is pertinent to note that the peril for spontaneous combustion was never covered under the said policy. During the policy period complainant requested for additional endorsements in the policy for addition of location and increase in the sum insured. The insured lodged a claim on account of purported loss of Rs.1,07,53,934/- by filing a claim form. The initial loss estimate was around Rs.71 lakhs which was subsequently enhanced to Rs.7 crores.
613. The opponent appointed M/s.A.P.Phadke -Surveyor and Loss Assessor to verity and assess the loss reported by the complainant. When surveyor visited the complainant's premises, he was informed that Mr.Gaikwad, the Godown Keeper noticed smoke and informed the higher authorities. It was also stated that the stock of sugar started melting. The police panchanama reveals that there were semi burnt bags of sugar at the effected premises. The bags were lying scattered and accumulated sugar syrup was seen which had flow out of the godown. The surveyor found that the bags stored in the godown contained sugar, contained patches/spots of burn marks and these do not appear to be fire marks. These marks were not there uniformly on all the bags. The surveyor found that in case of fire, the marks of burning would be on continuous length/breadth and the height of the stock. It is evident that these were not marks of fire. The surveyor thereafter carried out in depth survey and inspection of records provided by the complainant. From Final Survey Report it is evident that the said incidence in question is of spontaneous combustion and the insured does not have add on cover for the same. The surveyor categorically confirmed that the "claim is not admissible". The survey report was submitted by stating that the insurers should take a suitable decision in the matter about the admissibility. The surveyor assessed the loss to the tune of Rs.42,69,775/-. In Final report after considering various factors and documents provided by the complainant and after due application of mind, came to conclusion that the loss to stock of sugar and gunny bags occurred due to peril spontaneous combustion which is not covered under the policy and opponent proceeded to repudiate the claim vide their letter dated 01/08/2011. The opponent submitted that complaint is liable to be dismissed with costs.
14. Considering the submissions made before us, considering the record and keeping in view the scope of the complaint, following points arise for our determination and our findings thereon are noted for the reasons given 7 below:-
Sr.No. Points Finding
(i) Whether consumer complaint is : Yes.
within limitation?
(ii) Whether this Commission has : Yes.
pecuniary jurisdiction to
entertain the consumer
complaint?
(iii) Whether consumer complaint is : Yes.
maintainable?
(iv) Whether opponent is guilty of : Yes.
deficiency in service?
(v) Whether complainant is entitled : Yes.
for claim under the policy?
(vi) What order? : As per final
order.
15. To substantiate the claim under consumer complaint, Mr.Manik Rajaram Borkar, Managing Director of the present complainant has filed affidavit of evidence. The complainant has relied on several documents which are filed at Exhibit A to Exhibit R.
16. To give counter blow, Mr.Jawahar Tonk, Regional Manager has led his evidence by filing affidavit of evidence. The opponent has also relied on affidavit of surveyor M/s.A.P.Phadke. The opponent has mainly relied on the proposal form, terms and conditions of the policy and survey report.
17. The complainant company is registered under the Companies Act 1956. The company is dealing with the manufacture of sugar and byproducts like Molasses and baggase etc. The main aim and object of the complainant is to purchase sugarcane from agriculturists and crush the same for producing the sugar. The factory of Complainant is at Yawat, Taluka 8 Daund, District Pune. The complainant keeps stock of its manufactured sugar in three godowns within the area of the factory. In the year 2010-2011 the complainant manufactured sugar and the stock of manufactured sugar was pledged with the Pune District Central Co-operative Bank Ltd. The loan was availed against the stock of sugar. At the relevant time, stock of sugar was stored in godown nos.1, 2 and 3 and otas by taking proper care and caution. The accidental fire took place on 03/03/2011 at about 12.30 pm at Godown no.3 of complainant's factory. These facts are not challenged.
18. It is admitted that the complainant obtained Fire Insurance Policy bearing no.15310311100200200003, which was valid for the period 04/01/2011 to 03/01/2012. Initially, value of fire insurance policy was Rs.60 crores. Subsequently, Complainant paid additional premium and got increased the value of fire insurance policy aggregating to Rs.75 crores. Endorsement to that effect was made. Policy at 'Exhibit C' and additional cover are not at dispute. The claim of the complainant is repudiated mainly on the ground that fire was occurred in Godown no.3 due to spontaneous combustion. Peril 'spontaneous combustion' is not covered under the terms and conditions of the policy issued to the complainant.
19. It is urged on behalf of the opponent that the repudiation letter is based on the survey report. The repudiation letter is just legal and correct. Repudiation cannot be said to be deficiency in service and the consumer complaint is liable to be dismissed with costs. By keeping in mind, the allegations raised in the consumer complaint, claim of the complainant, admitted facts and nature of the policy, let us proceed to appreciate the evidence on record to decide the points for determination.
19. Point no.1-Limitation:-
It is the stand of the opponent in written statement that consumer 9 complaint is barred by limitation in view of terms and conditions of policy. The complaint is filed as per provisions of Consumer Protection Act, 1986. The limitation will govern as per section 24-A of Consumer Protection Act, 1986. The accidental fire was occurred in Godown no.3 of complainant's factory at Yawat on 03/03/2011. The claim was lodged under policy to the opponent on 05/04/2011. The surveyor submitted his Final report on 24/05/2011. The claim of the complainant was repudiated by the opponent - Insurance company on 03/08/2011. The consumer complaint is filed with two years from the date of repudiation of the claim. Consumer complaint is filed within two years from the date of repudiation of the claim. As such, consumer complaint is within limitation. As such, we answer point no.1 for determination in affirmative.
20. Point no.2-Pecuniary Jurisdiction:-
Learned counsel Mr.Vidyarthi for the opponent harped upon the fact that consumer complaint is barred by pecuniary jurisdiction. This Commission cannot entertain the consumer complaint where claim of the complainant is more than Rs.1 crore. Learned counsel Mr.Vidyarthi has drawn our attention to prayer clauses from the complaint, which reads as under:-
"(A) Be pleased to hold and declare that the services of the opponent were deficient and as a result of the same be pleased to quash and set aside the letter of repudiation dated 03/08/2011 and be pleased to direct the opponent to pay the claim of the complainant quantified at Rs.99,99,999/- along with such interest as this Hon'ble Commission may deem fit and proper.
(B) Be pleased to award such compensation as this Hon'ble Commission may deem fit and proper in favour of the present complainant herein.
(C) Be pleased to award such costs towards the present 10 proceedings as this Hon'ble State Commission may deem fit and proper.
(D) Any other suitable and equitable relief may kindly be granted in favour of complainant."
21. Learned counsel Mr.Warunjikar for the complainant vehemently urged that the claim of the present complainant is of Rs.99,99,999/- along with interest as this Commission may deem fit and proper. It is well within the pecuniary jurisdiction. Interest claimed is future interest which cannot be considered for the purpose of jurisdiction.
22. The complainant has claimed an amount of Rs.99,99,999/- due to wrongful repudiation of claim under the valid insurance policy. It is true that the complainant has requested the amount with interest. However, the interest is not claimed with particular rate. Interest is not claimed from the date of repudiation of claim or from the date of accidental fire. The complainant has not quantified amount of interest. In short, complainant has claimed future interest. It is the discretion of the Commission whether to grant future interest or not. So the claim of the complainant is for Rs.99,99,999/-, which is within the pecuniary jurisdiction of this Commission. The claim of the complainant is less than Rs.1 Crore and more than Rs.20 lakhs. Hence, it is well within the pecuniary jurisdiction of this Commission. As such, we answer point no.2 for determination in affirmative.
23. Point no.3-Maintainability:-
The opponent has challenged maintainability of complaint on several grounds. First ground is non joinder of necessary party. According to opponent, manufactured sugar was hypothecated to 'PDCC Bank Ltd.' and hence 'PDCC Bank Ltd.' is a necessary party.
24. We do not find substance in this objection. The claim of the 11 complainant is based on the insurance policy issued by the opponent. 'PDCC Bank Ltd.' is not a service provider. The executable order can be passed in absence of 'PDCC Bank Ltd.'. It cannot be said to be a necessary party. The complaint is maintainable as 'PDCC Bank Ltd.' is not a necessary party.
25. Another ground which is raised by the opponent to challenge the maintainability of consumer complaint is that complicated questions of law and facts are involved in the case in hand. It is urged on behalf of the opponent that in the case in hand, complicated questions of law and facts are involved. The consumer complaint in hand requires an elaborate trial. The Civil Court is the proper Forum to seek relief claimed by the complainant. The Consumer Fora cannot decide the claim as complicated questions of law and facts are involved, in summary proceeedings.
26. In reply, learned counsel Mr.Warunjikar for the complainant urged that the simple question is involved in the case in hand. It is to be decided whether complainant is entitled for the claim as per insurance policy issued by opponent after accepting huge amount of premium from the complainant? The opponent refused the claim of the complainant on sustaining loss, due to fire and failed to indemnify in spite of valid Insurance Contract. On the basis of available evidence and documents, consumer complaint can be decided when most of the material facts are admitted. We find substance in the arguments advanced on behalf of the complainant.
27. Issuance of fire insurance policy by the opponent in favour of complainant is not disputed. Loss to the complainant due to fire is not challenged. It is evident from the documents on record that accidental fire was taken place in Godown no.3 of complainant's factory at Yawat on 03/03/2011, in which stored sugar was burnt and the complainant sustained loss. The police panchanama, fire report, survey report and other 12 documents show that fire was taken place and the complainant sustained loss. Only thing is to be ascertained whether fire was due to spontaneous combustion.
28. Hon'ble Apex Court while passing judgment in the case of Dr.J.J.Merchant and others v/s. Shreenath Chaturvedi on 12/08/2002 in Appeal (Civil) no.7975/2001 held as under:-
"It was next contended that such complicated questions of facts cannot be decided in summary proceedings. In our view, this submission also requires to be rejected because under the Act, for summary or speedy trial, exhaustive procedure in conformity with the principles of natural justice is provided. Therefore, merely because it is mentioned that Commission or Forum is required to have summary trial would hardly be a ground for directing the consumer to approach the Civil Court. For trial to be just and reasonable long drawn delayed procedure, giving ample opportunity to the litigant to harass the aggrieved other side, is not necessary. It should be kept in mind that legislature has provided alternative, efficacious, simple, inexpensive and speedy remedy to the consumers and that should not be curtailed on such ground. It would also be totally wrong assumption that because summary trial is provided, justice cannot be done when some questions of facts are required to be dealt with or decided. The Act provides sufficient safeguards."
In view of the ruling laid down by the Hon'ble Apex Court, we do not find substance in the objection raised on behalf of the opponent. Hence consumer complaint is maintainable.
29. Next objection raised by the opponent is that the complainant company is running business to manufacture sugar and byproducts of sugar. Insurance policy is obtained for 'commercial purpose'. The services of the 13 opponent are hired for 'commercial purpose'. Therefore, complainant cannot be said to be a 'consumer'. His complaint is not a 'consumer dispute' and it is not maintainable before this Commission. In short, opponent wants to submit that complainant is not a 'consumer' within the meaning of section 2(1)(d) of the Consumer Protection Act, 1986.
30. It is settled principle of law that contract of insurance is nothing to do with 'commercial purpose'. The complainant did not obtain insurance policy for gaining profit. To gain profit was not the primary aim of complainant while obtaining insurance policy. The contract of insurance is a contract of indemnity and, therefore, there is no question of commercial purpose in obtaining coverage.
31. In the case of Harsolia Motors v/s. National Insurance Co.Ltd. reported in MANU/CF/0083/2004, Hon'ble National Commission while deciding Appeal no.159 of 2004 on 03/12/2004 in para 23 and 24 observed as under:-
"Similarly, a hospital which hires the services of a medical practitioner, it would be a commercial purpose. But, if a person avails of such services for his ailment it would be held to be not a commercial purpose.
Further, from the aforesaid discussion, it is apparent that even taking wide meaning of the words for any commercial purpose it would mean that goods purchased or services hired should be used in any activity directly intended to generate profit. Profit is the main aim of commercial purpose. But, in a case where goods purchased or services hired in an activity which is not directly intended to generate profit, it would not be commercial purpose.
In this view of the matter, a person who takes insurance policy to cover the envisaged risk does not take the policy for 14 commercial purpose. Policy is only for indemnification and actual loss. It is not intended to generate profit."
32. In the case in hand, policy was obtained by the opponent to protect the manufacture/stored sugar lying in the godowns as well as open kattas and otas.
33. In case of M/s.Polyplex Corporation Ltd. v/s. National Insurance Co.Ltd. and others reported in 2017(2)CPR 58 (NC), Hon'ble National Commission held as under:-
"that the insurance policy is availed for indemnifying the loss which the insured may suffer and therefore, the services of the insurer are availed for protection and not for making profit. It is immaterial whether the loss is on account of destruction or damage of a product or it is on account of the insured being deprived of the profit, which it would in the normal course have made, by use of the insured product."
34. It is to be noted here that while deciding case of M/s.Polyplex Corporation Ltd. v/s. National Insurance Co.Ltd. and others reported in 2017(2)CPR 58 (NC), the Hon'ble National Commission has placed reliance on the ruling laid down by the Hon'ble National Commission in the case of Harsolia Motors Vs. National Insurance Co. Ltd. I(2005) CPJ 27 (NC) cited supra. The observation of the Hon'ble National Commission in para 7 is as under:-
"7. The first question which arises for consideration is as to whether the complainant can be said to be a consumer as defined in Section 2(1)(d) of the Consumer Protection Act or not. It has been held by this Commission in Harsolia Motors Vs. National Insurance Co. Ltd. I(2005) CPJ 27 (NC) decided on 03.12.2004 that since an insurance policy is taken for reimbursement or for indemnity for the loss which may suffer on account of 15 insured perils, the services of the insurer cannot be said to have been hired or availed for a commercial purpose and therefore, this Commission does possess the requisite jurisdiction to entertain a consumer complaint wherever a defect or deficiency in the services rendered by an insurer is made out. The learned counsel for the OP states that as far as the loss of profit is concerned, the claim would not be covered by the decision of this Commission in Harsolia Motors (supra). I however, find no merit in this contention. In Harsolia Motors (supra), this Commission upheld the plea that the insurance policy is availed for indemnifying the loss which the insured may suffer and therefore, the services of the insurer are availed for protection and not for making profit. It is immaterial whether the loss is on account of destruction or damage of a product or it is on account of the insured being deprived of the profit, which it would in the normal course have made, by use of the insured product. So long as the reimbursement on account of loss of profit is one of the -5- products of the insurance policy, it remains covered by the decision in Harsolia Motors (supra). Therefore, I find no merit in the contention that the insurance policy to the extent it pertains to reimbursement on account of the loss of profit, cannot be the subject matter of a consumer complaint".
35. In view of above rulings we do not find any substance in the arguments on behalf of the opponent no.1 to challenge the maintainability of complaint. We find no hesitation to hold that consumer complaint is maintainable before this Commission. As a result, we answer point no.3 for determination in affirmative.
36. As to Point no.4 -Deficiency in service:-
The crucial question in the case in hand is whether opponent is guilty of deficiency in service.
37. It is evident from the material available on record that accidental fire was broke down in godown no.3 situated at the factory of complainant company on 03/03/2011. On 03/03/2011 Godown keeper noticed the fire in 16 godown no.3 and it was informed to the Managing Director of the complainant. On the same day Chief Accountant of the present complainant informed the incident of fire to the opponent by letter which is at Exhibit E. It was intimated that 27000 sugar bags were burnt. FIR was lodged with police as per Exhibit F. Police prepared spot panchanama as per Exhibit G on 04/03/2011 in presence of all panchas. The amount of total loss was calculated as Rs.2,07,52,480/-.
38. Opponent was pleased to appoint surveyor who inspected the premises and submitted report dated 07/03/2011 and assessed the loss to the tune of Rs.1,65,00,000/-. Preliminary report is at Exhibit H at page 67 of complaint compilation which is dated 07/03/2011. On 24/05/2011, the surveyor submitted Final Report dated 24/05/2011 which is at Exhibit K page 108 of complaint compilation. The total loss is assessed to the tune of Rs.49,80,817/-. However, surveyor reported that it is an incidence of spontaneous combustion. The insured does not have add on cover for the same. On this ground the claim of the complainant is repudiated on 01/08/2011 by letter which is at Exhibit M of complaint compilation at page no.127.
39. Learned counsel Mr.Warunjikar vehemently urged that the fire which was taken place at godown no.3 at factory of the complainant could not be a fire due to spontaneous combustion. He has submitted that the term 'spontaneous combustion' contemplates that without any intervention or that without any external factor there is fire of sugar stock and gunny bags. The spontaneous combustion contemplates without anybody's any external act fire took place. In other words, spontaneous combustion contemplates automatic fire. In the process of making sugar there are certain chemicals which are used. It is submitted that the item such as sulphur is well known item which cannot generate fire even at normal temperature. However, so far as the sugar which was kept at godown no.3 is concerned, it was sugar 17 which was kept in gunny bags. Therefore, in any case, it was not a material which can attract fire or which can generate fire at room temperature. According to complainant, at no point of time the temperature in the said area was 114 degree centigrade. Therefore, there was no question of melting and even boiling of the sulphur. The defence raised by the opponent is an afterthought and it is raised with a view to defeat the genuine claim of the complainant.
40. We have gone through various documents filed by the complainant with the assistance of both the learned counsel for the parties. Learned counsel for the complainant has drawn our attention to the report of the expert. The complainant had approached Vasant Dada Sugar Institute which is one of the expert in the field of sugar industry. The complainant had filed an application to Vasantdada Sugar Institute at Manjari Bk, Taluka Haveli, District Pune on 30/01/2013 for seeking expert opinion which is at 'Exhibit S'. The expert opinion dated 31/01/2013 is at 'Exhibit T'. The report at 'Exhibit T' which is dated 31/01/2013 is reproduced as under:-
"As per Bureau of Indian Standards specification IS 5982:2003 of Plantation White Sugar the standard limit of sulphur dioxide content in PWS (Plantation white sugar) is 70 mg/kg. But as per analysis record of VSI NABL accredited sugar laboratory the normal range of sulphur dioxide content in PWS is between 5 to 25 mg/kg.
As per VSI record we have not observed any spontaneous combustion of sugar in our member sugar factory. As per VSI record we have not seen spontaneous combustion of sulphur at ambient temperature. Reference in 'Handbook of cane sugar technology' by Hugot E. book, page NO.407 Sulphur Melting Point - 114 degree Centigrade Sulphur Boiling Point - 444 degree Centigrade"18
41. The opponent /Insurance company did not file any other opinion of expert and did not establish that spontaneous combustion is the cause of fire in godown no.3.
42. It appears that the complainant was diligent. Complainant moved an application to Indian Meteorological Department, Pune, on 18/01/2012 seeking record about temperature and humidity during relevant period. Copy of the application is at Exhibit U. In response to the letter, report was submitted by Director (Weather Central) for Deputy Director General of Meteorology (Weather Forecasting) on 25/01/2012, which is at Exhibit V. The Meteorology Department enclosed the values for Maximum and Minimum temperature (degree centigrade) and Humidity (%) at 0830 and 1730 hrs IST, recorded at College of Agricultural Meteorological Observatory, Shivajinagar, Pune along with the chart. The chart shows that on the day of incident i.e. 03/03/2011, maximum temperature was 33.9 degree centigrade and minimum temperature was 15.8 degree centigrade. Nothing is on record to disbelieve this report of Meteorological Department. We find substance in the submission of the complainant that at this temperature and at this humidity, spontaneous combustion in the case of sugar stored is not at all possible.
43. One thing is clear that fire was broke up in godown no.3. The complainant sustained loss. Fire was not taken place in godown No.1 and No.2. Opponent raised the plea of spontaneous combustion at godown but failed to substantiate it. Nothing is on record to hold that loss is outcome of spontaneous combustion. The evidence adduced on behalf of the complainant is sufficient to establish that fire due to spontaneous combustion is not possible. Therefore, there is no question to decide whether peril "spontaneous combustion" is covered under the policy or not. The loss is occurred due to fire and loss due to fire is covered under the policy. The complainant had paid insurance premium and obtained 19 insurance policy, which was in force. The opponent should not have repudiated the claim. The reasons given by the opponent for repudiation appears to be an afterthought and not having any nexus with the actual cause of fire. By applying any yardstick the fire and spontaneous combustion cannot be categorized in one and same heading namely "Fire" and therefore should have granted the claim of complainant. Certainly fire was taken place and caused loss to the complainant. There is no material to support that the fire took place due to spontaneous combustion. The ground raised by the repudiation cannot be accepted. Opponent failed to consider the genuine claim under valid insurance policy without any sufficient and cogent evidence of spontaneous combustion. We find no hesitation to hold that the opponent is guilty of deficiency in service. As a result, we answer point no.4 for determination in affirmative.
44. As to point nos.5 & 6- Entitlement of claim:-
The complainant had obtained Fire Insurance policy bearing No.15310311100200200003. It was valid when the incident was occurred. Initially policy was for Rs.60 crores. Later on value was increased to Rs.75 crores after paying additional premium. The policy with endorsement is at 'Exhibit C'. The policy was obtained for protection of loss of stored sugar. In spite of contract of indemnity, the opponent failed to indemnify the complainant in case of loss. It is already held that the opponent is deficient in rendering services to the complainant. In Survey Report surveyor of the opponent assessed the loss to the tune of Rs.1,65,00,000/-. The police assessed the loss to the tune of Rs.2,07,52,480/- in spot panchanama. The claim of the complainant is within the policy limit. Opponent is liable to pay an amount of Rs.99,99,999/- to the complainant on account of deficiency in service.
With this view we pass following order:-20
ORDER
1. Consumer complaint is partly allowed.
2. It is hereby declared that opponent is guilty of deficiency in service.
Opponent is directed to pay an amount of Rs.99,99,999/- to the complainant towards claim under policy.
3. No order as to costs.
4. Copies of the order be furnished to the parties.
Pronounced on 10th December, 2018.
[Usha S.Thakare] PRESIDING JUDICIAL MEMBER [A.K.Zade] MEMBER Ms 21 STATE CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA, MUMBAI COMPLAINT CASE NO.CC/13/100 ANURAJ SUGAR LTD Vs. NEW INDIA ASSURANCE CO. LTD.
BEFORE:
Usha S.Thakare - Presiding Judicial Member A.K.Zade - Member Dated : 10th December, 2018 ORDER
1. Consumer complaint is partly allowed.
2. It is hereby declared that opponent is guilty of deficiency in service.
Opponent is directed to pay an amount of Rs.99,99,999/- to the complainant towards claim under policy.
3. No order as to costs.
4. Copies of the order be furnished to the parties.
[Usha S.Thakare ] Presiding Judicial Member [A.K.Zade] Member Ms 22