State Consumer Disputes Redressal Commission
M/S Swastik Rice Mills vs Universal Sompo General Insurance Co. ... on 2 November, 2017
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.310 of 2016
Date of Institution : 03.10.2016
Order Reserved on : 30.10.2017
Date of Decision : 02.11.2017
M/s Swastik Rice Mills through its partner Sh. Suresh Kumar son of
Sh. Shagan Lal, near Focal Point, Khayali Wala Road, VPO Har
Raipur, Bathinda, Punjab.
....Complainant
Versus
1. Universal Sompo General Insurance Company, SCO 10 & 11,
5th Floor, opposite Maruti Showroom, Feroze Gandhi Market,
Ludhiana, through its Manager.
2. Indian Overseas Bank, Kikkar Bazar, Bathinda 151001 through
its Manager.
Opposite parties
Consumer Complaint U/s 17(1)(a) of the
Consumer Protection Act, 1986 (as
amended up to date).
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Smt. Surinder Pal Kaur, Member.
Present:-
For the complainant : Sh. Nitish Garg, Advocate For opposite parties : Sh. Rajeev Abhi, Advocate ................................................................................................. J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainant has filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against OPs on the averments that it is a partnership concern comprising of partners Suresh Kumar and his wife Smt. Sheeru Rani and it is engaged in the business of selling of paddy mainly procured from government agencies viz Punjab Warehousing Corporation, PUNSUP Markfed. Consumer Complaint No.310 of 2016 2 The business operations are being carried out for earning the livelihood of the family. The complainant-firm was having cash credit limit account with OP no.2-bank for its business operations. OP no.1 deals in General Insurance Business and is the joint venture of Allhabad Bank, Indian Overseas Bank, Karnatka Bank Ltd., Dabar Investments Corporation and Sompo Japan Nipponkoa Insurance. OP no.1 after due verification issued insurance policy bearing no. 2114/541328449/00/000 w.e.f. 15.05.2014 to 14.05.2015 for the sum assured of Rs.1,34,50,000/- for the properties situated at the complainant's location i.e. at its Rice Sheller. The risk description was bifurcated in two heads viz stocks for sum assured of Rs.50,00,000/- and second head covered plant and Machinery for sum insured of Rs.84,50,000/-. OP no.2 is intermediary i.e. Development-cum-Agent of OP no.1, besides stakeholder in OP no.1. The insurance policy was issued after due verification of the stocks by OPs. There was hypothecation agreement of stocks and machinery of complainant/firm with OP no.2. It was further averred that unfortunately on the intervening night of 4 & 5 September 2014, the premises of the complainant/firm situated at Focal Point Khialiwala Road Bathinda, where sortex machineries were installed and bardana were lying caught fire. The rice-sheller premises was locked at the time of incident of fire and only one watchman was staying in the room at that time. Apart from the sortex machines, 5200 bags of Bardana were also gutted in fire. One sortex machine of make Orange was installed in the premises in December 2012 having capacity of 1 ton, purchased for Rs.38,35,000/-, was in Consumer Complaint No.310 of 2016 3 working condition and last working condition was up to 15.05.2014. Another sortex machine make Buhler was purchased on 18.03.2014 for Rs.49,60,000/- by complainant for operation of rice-sheller. The said newly purchased machine was also fully covered in the said insurance policy with plastic/cardboard, jute bag palli and were tied with ropes so as to protect them from moisture, water, heat etc. During the incident of fire, above said both sortex machines lying in the premises were damaged. It was further averred that complainant-firm requested OPs that it wanted to clean the site, as the next season for shelling of rice is to start and in order to save it from losses, it is required to perform it in time bound manner, as committed to the government agencies, otherwise there is a clause of paying hefty fines/penalties by complainant. On 26.09.2014, complainant wrote an email to OPs in this regard. Thereafter, some more information was again sought from complainant-firm by the surveyor and same was responded to on 12.11.2014. On 16.12.2014, the surveyor gave its report. The survey report given by C & L (Surveyor) to USGIC assessed gross loss of Rs.27,75,125/-
and net loss assessed was Rs.18,45,125/-. The surveyor gave observation beyond its domain and has not assessed the loss of second machine, which was also lying in packed state in the insured premises. The surveyor wrongly relied upon the report of M/s Truth Labs Forensic Investigation for ascertaining the nature of accident. Surveyor itself has not given its own report for ascertaining the cause of fire. Report of surveyor is biased and distorted and the surveyor has not considered the full facts. Firstly, the surveyor Consumer Complaint No.310 of 2016 4 visited the site after more than 100 hours, inspite of the fact that surveyor, as per his own report came to know regarding the fire incident on 06.09.2014. Further, the surveyor report has not considered the burnt/melted wires burnt AC/UPS/Switch Starters and heavy wooden/steel plates of electricity box. Burning of all the electric fittings goes to show that it was a case of electric fire and the surveyors have not mentioned even an iota thereof in their reports regarding the electric fittings burnings. The survey report of Cunningham and Lindsey is based upon one report of M/s Truth Labs Forensic Investigators, which as per the IRDA guidelines is not authorized to assess or report the loss for accepting or declining the insurance claims. The said report of M/s Truth Labs Investigators is unilateral document and no communication whatsoever was made by said M/s Truth Lab with the complainant-firm at any point of time. Without considering the material facts, OPs repudiated the claim of the complainant-firm, vide letter dated 23.01.2015. In response to the said repudiation, complainant-firm explained the circumstances, which were not considered by the surveyor in its letters dated 05.04.2015, 21.04.2015 and 23.04.2015. The complainant-firm again approached OPs, vide letter dated 30.4.2015, but of no use. The complainant-firm alleged deficiency in service on the part of OPs. The complainant-firm has, thus, filed the complaint directing OPs to pay total balance loss amount of Rs. 68,22,400/- along with interest @ 18% along with damages to the extent of Rs.10,00,000/- on account of mental agony and sufferings, besides Rs.3,00,000/- as Consumer Complaint No.310 of 2016 5 litigation expenses and Rs.50,000/- incurred by complainant-firm on preparation of map, preparation of account etc.
2. Upon notice, OP no.1 appeared and filed its separate written reply and contested the complaint of the complainant by raising preliminary objections that complaint is not maintainable. The complainant is estopped by its own act and conduct from filing the present complaint. The complainant has suppressed the material facts from the Forum. On merits, it was denied that complainant is a partnership concern and firm is engaged in the business of shelling of paddy mainly procured form government agencies viz Punjab Warehousing Corporation PUNSUP MARKFED etc. It was admitted that complainant obtained insurance policy bearing no. 2114/541328449/00/000 w.e.f. 15.5.2014 to 14.05.2014 for sum assured of Rs.1,34,50,000/- for the properties situated at complainant's location i.e. Rice Sheller. On receipt of intimation of fire, M/s Cunnigham Lindsey International Insurance Surveyor and Loss Assessors Pvt. Ltd and approved IRDA Surveyors and Loss Assessor was appointed as surveyor, vide its letter dated 11.09.2014 and 18.10.2014. The documents sought for in the said letters are material documents, required for processing of the claim. The said surveyor visited the spot personally, inspected the loss, took the photographs and prepared report, final survey report bearing no. 19/101/03179 FSR dated 16.12.2014 and submitted the same to OP no.1. M/s Truth Labs, the Scientific Detectives ,India's first independent Forensic Sciences Laboratory, ISO 9001 certified having its head office at 402 Apurva Towers Road no.2 Banjara Hills Consumer Complaint No.310 of 2016 6 Hyderabad and branch offices at Delhi, Mumbai, Chennai and Banglore was appointed to carry out forensic investigation of incident of fire. On careful understanding of the operations carried out in the affected premises, it was learnt that no chemical substances, volatile and flammable in nature are used in the storage process, which could have caused auto ignition or spontaneous combustion. No natural calamities were reported at the time of incident. A close examination of the electric switch boards/wiring in the affected sorting section did not reveal any evidence of electrical short circuit. There were three distinct locations in three different corners of the affected sorting section, which were affected due to fire. It was a clear case of fire due to extraneously poured ignitable fire accelerants on the stock of Bardana and sortex machines. After receipt of the report of M/s Cunningham Lindsey International Insurance Surveyors and Loss Assessors Pvt. Ltd dated 16.12.2014 and report of M/s Truth Lab dated 02.12.2014, OP no.1 repudiated the claim of the complainant as 'no claim', vide letter dated 23.01.2015 on the ground that claim is declined under general condition no.1 and 8 of the Standard Fire and Special Peril Policy. Rest of the averments were denied by OP no.1 as asserted by complainant and it prayed for dismissal of the complaint.
3. OP no.2 appeared and filed its separate written reply and contested the complaint of the complainant by raising preliminary objections that complaint is not legally maintainable. The complainant has no cause of action or locus standi to file the present complaint. The complainant has not approached this Forum with Consumer Complaint No.310 of 2016 7 clean hands and has concealed the material facts. On merits, it was averred that OP no.1 is engaged in the general insurance business and OP no.2 only arranges insurance of its customers with OP no.1. The complainant is having cash credit account with OP no.2 bank and complainant-firm got insured its stock, machinery etc with OP no.1. OP no.1 is the insurer and complainant is thus consumer of OP no.1. OP no.2 paid the premium of insurance to OP no.1 insurance company by debiting the account of complainant/firm. There is an insurance contract between the parties. Any deficiency in service or unfair trade practice was denied by OP no.2. Rest of the averments were denied by OP no.2 and it prayed for dismissal of the complaint.
4. The complainant tendered in evidence his affidavit Ex.CW-1/A along with copies of documents Ex.C-1 to Ex.C-20 and closed evidence. As against it; OPs tendered in evidence affidavit of Naveen Kumar Senior Executive Claims Ex.OP-A, affidavit of Chetam Kumar Ex-Director M/s Truth Labs Delhi Ex.OP-B, affidavit of Bhupinder Singh Loss Adjustor employed with M/s Proclaim Insurance Surveyors and Loss Assessors Pvt. Ltd Ex.OP-C along with copies of documents Ex.OP-1 to Ex.OP-15 and closed the evidence.
5. We have heard learned counsel for the parties at considerable length and have also examined the record of the case. It is an admitted fact that complainant is a partnership concern consisting of its partners Suresh Kumar and his wife Sheeru Rani. It has been dealing in shelling paddy procured from government agencies viz Punjab Warehousing Corporation PUNSUP MARKFED etc. It has Consumer Complaint No.310 of 2016 8 cash credit limit account with OP no.2 for its business operations. After due verification, OP no.1 issued insurance policy bearing no. 2114/541328449/00/000 w.e.f. 15.05.2014 to 14.05.2015 for sum assured of Rs.1,34,50000/- for his above rice sheller. The risk description was divided in two branches, one for stock for assured amount of Rs.50,00,000/- and second branch for insuring plant and machinery (sortex machines) for sum insured of Rs.84,50,000/-. OP no.2 acted as intermediary. Copy of the insurance policy obtained by complainant from OPs is Ex.C-1/1 on the record. Fire took place at the rice-sheller of the complainant on the intervening night of 4th and 5th September 2014 at Focal Point Khialiwala Road VPO Harriapur Bathinda, where sortex machineries were installed, lying and Bardana were also caught fire and this fact is not disputed one. The rice sheller premises was locked at the time of incident of fire and only one watchman was there. Two sortex machines were installed/lying in the premises, were engulfed in the fire besides 5200 bags of Bardana, which were also gutted by fire, as per the case of the complainant. One sortex machine of make Orange was installed in the premises in December 2012 having capacity of 1 ton purchased for Rs.38,35,000/- which was in working condition and another sortex machine make Buhler was purchased on 18.03.2014 for Rs.49,60,000/-, which was also covered under the above policy with plastic/cardboard, jute bag palli and they were tied with ropes so as to protect them from moisture, water, heat etc. The complainant purchased sortex machine of make Orange for Rs. 38,35,000/-, vide bill Ex.C-2 on the record. Ex.C-3 is bill of Rs.49,60,000/- for Consumer Complaint No.310 of 2016 9 purchase of Sorter Machine Make Buhler by complainant. The complainant's case, as pleaded and adduced in evidence, is that the sortex machines were damaged beyond repair and certificate of Engineer Sunil Sharma of AAR Pneumatic to this effect are Ex.C-4 and C-5 on the record. Suresh Kumar partner of the complainant- firm in his affidavit Ex.CW-1/A stated that intimation was given to insurer about this loss to the rice sheller immediately in the morning and M/s Cunningham & Lindsey Surveyors were deputed for assessing the loss as surveyor by OP no.1. He has not visited prior to 08.09.2014 on the spot. The surveyor visited the spot and sent letter dated 11.09.2014 Ex.C-6 to complainant demanding certain documents from the complainant. The complainant replied vide letters Ex.C-7 and Ex.C-8 on the record. The complainant wanted to clean the site for next shelling season and wrote to OPs. Email sent by complainant to OPs in this regard is Ex.C-9 dated 30.04.2015. The surveyor assessed loss of Rs.27,75,125/- and net loss assessed as Rs.18,45,125/- and report of surveyor is Ex.C-12 on the record. The complainant's case as unfolded in the pleadings and stated in affidavit of Suresh Kumar is that OPs declined the insurance claim of the complainant on the unilateral document of M/s Truth Labs Forensic Investigation without considering the evidence of complainant on the record.
5. The complainant laid emphasis on this point that surveyor has not assessed the loss of second machine, which was lying in packed state in the insured premises. The surveyor wrongly relied upon report of M/s Truth Labs Forensic Investigator in ascertaining the Consumer Complaint No.310 of 2016 10 nature of accident. The report of surveyor has been challenged as biased by complainant because surveyor visited the spot quite late. The surveyor has not considered the burnt/melted wires, brunt AC/UPS/Switch and heavy wooden/steel plates of electricity box on the spot. Burning of all the electric fittings showed that it was a case of electric fire and the surveyor has not mentioned about it, which is malafide act on its part. Report of surveyor is totally based on the report of M/s Truth Lab Investigator, which is a unilateral document. The repudiation of claim was conveyed, vide letter dated 23.01.2015 by OPs to complainant, vide Ex.C-13 dated 23.01.2015 on the record. The complainant also challenged the report of M/s Truth Lab Investigator as malafide and erroneous in this complaint. The complainant wrote representations to OPs against the repudiation of claim, vide documents Ex.C-15 to Ex.C-20 on the record. The forceful submission of counsel for the complainant is that OP no.1 has wrongfully repudiated the claim of the complainant by relying upon the report of the surveyor, which is further based on report of M/s Truth Labs Investigators being a unilateral document. The surveyor has not considered the other aspects of the matter like burnt /melted wires, burnt AC/UPS/Switch Starters and heavy wooden/steel plates of electricity box. The counsel for complainant relied upon law laid down by our State Commission in "M/s Goel Trading Corporation versus M/s Oriental Insurance Company Limited and another," reported in 1998(1) CPC 192 to the effect that insurer should be discouraged from appointing successor surveyors. Second surveyor cannot be appointed without any solid Consumer Complaint No.310 of 2016 11 ground. Similarly, reliance is placed by complainant upon law laid down by our own State Commission in "National Processors versus National Insurance Company" reported in 1999(1) CPJ 73 that practice of appointing successive surveyors should be deprecated. Reference is made by counsel for complainant to law laid down by National Commission in case "United India Insurance Co. Ltd versus M/s Jain Irrigation System Ltd" reported in 2015(4) CPJ 707, wherein damage was caused to machinery during the transportation and repudiation of the claim was not justified. Reference is also made by complainant to law laid down in "Harsolia Motors versus National Insurance Company Limited," reported in 2005(1) CPJ 27 by National Commission that insurance policy is availed for indemnifying the loss, which may be suffered by the assured. On the basis of above authorities and above-referred evidence on the record, the submission of complainant is that OPs wrongfully repudiated the claim of the complainant.
6. The version unfolded by OPs in their written statement, as well as, in the evidence brought on record is that complainant has violated condition no.1 and 8 of Standard Fire and Special Perils Policy Ex.C-1 that policy shall be voidable in the event of mis- representation, mis-description or non-disclosure of any material particular, in case of any fraudulent declaration or false declaration, the policy is liable to be repudiated. The counsel for OPs submitted that on receipt of intimation of the loss, the insurer appointed M/s Cunnigham Lindesey International Insurance Surveyor and Loss Assessors Pvt. Ltd to assess the loss. The surveyor requisitioned Consumer Complaint No.310 of 2016 12 certain documents from the complainant, vide letters dated 11.09.2014 and 18.10.2014, which are Ex.OP-2 and OP-3 on the record. OPs tendered in evidence affidavit of Naveen Kumar Senior Executive Claims Universal Sompo General Insurance Co. Ltd Ex.OP-A on the record. This witness has testified that the surveyor visited the spot and took the photographs and documents and prepared his immediate loss advice dated 17.09.2014 and final survey report bearing no. 19/101/03179/FSR dated 16.12.2014. Report of the surveyor is based on independent observation only. Even report of M/s Truth Labs, the Scientific Detective (an affiliate of Truth Lab Inc. USA and Truth Foundation India) was obtained in this regard. Its detective visited the spot and carried out forensic investigation of incident of fire, which allegedly occurred at complainant's rice sheller. The forensic team consisted of the experts, who visited the spot. The said team collected the samples as below:-
i) Sample 1:- Burnt debries of Bardana collected from the area near the western wall.
ii) Sample 2:- Burnt debris collected from the uninstalled machine in the northeastern corner.
iii) Sample 3:- Burnt remains of a tube light fixed above the shutter gate in the northeastern corner.
iv) Sample 4:- Burnt debris collected from installed rice colour sortex machine in the cabin.
v) Sample 5:- Burnt wire collected from the installed rice colour sortex machine in the cabin.Consumer Complaint No.310 of 2016 13
vi) Sample 6:- Burnt wire supplying electricity to a tube light fitted outside the northern wall above the shutter gate in northeastern corner.
The samples were analyzed at Lucid Laboratories Pvt. Ltd. Hyderabad and details of the labs report are as under :-
GC-MS analysis of the three burnt debris samples, collected from the various parts of affected premises, was conducted at Lucid Laboratories Pvt. Ltd, Hyderabad an NABL accredited chemical analysis laboratory, which revealed as under :-
Sample 1:- Presence of Hydrocarbons of the range C-14 to C-17 Octadecane, 1-(ethanyloxy), Diethyl Phthalate, 1,2-B enzenedicarboxylic acid, butyl octyl ester etc. was detected.
Sample 2:-Presence of 1,2-Benzenedicarboxylic acid, butyl octyl ester, dibutyl phthalate, diisooctyl easter and 1,2- Benzenedicarboxylic acid was detected.
Sample 4:- Presence of hydrocarbons of the range C-15 to C-19 ethyl iso-allocholate and dibutyl phthalate was detected. Report is based on the conclusions as under :-
a) Loss is not on account of any chemical or mechanical failures.
b) Loss is not on account of electrical short circuit. Consumer Complaint No.310 of 2016 14
c) Loss is on account of extraneously poured ignitable fire accelerants on the stock of Bardana stored along the western wall, rice sortex machine installed in the cabin and thus deliberately setting them on fire in the process of stage managing an incident of fire and
d) Taking into consideration, the means, motive and opportunity to cause such a deliberate fire, the possibility of the owner being responsible for its ignition, initiation and spread cannot be ruled out.
7. The insurance claim of the complainant was rejected by OPs on the ground that he was unable to produce 5200 bags of Bardana, which were reportedly damaged by fire and stated to have been disposed off without any intimation to OP no.1 before inspection of the spot by the surveyors. The cause of alleged fire could not be established by the complainant. Forensic investigation as carried out by M/s Truth Labs had ruled out electrical short circuit and other accidental mechanical or chemical source of the fire. There were three distinct locations of fire in three different corners of the affected sorting section i.e. reported stock of bardana, uninstalled sortex machine and sortex machine installed inside 9 feet high cabin without any evidence of radiation or conduction of heat and fire. The spot of fires was not linear and was rather scattered one. With these reasons, there is no medium or flammable material justifying that the fire transmitted from one location to the other. OPs, thus repudiated the claim of the complainant on the above premises. OPs mainly relied upon the report of the surveyor Ex.OP-4 coupled with the Consumer Complaint No.310 of 2016 15 report of M/s Truth Labs Forensic Investigation. Ex.OP-5 in repudiating insurance claim. Ex.OP-6 and other documents Ex.OP-7 to Ex.OP-15 are on the record in these regard.
8. From careful analysis of above referred evidence on the record and hearing respective submissions of counsel for the parties, we find no force in the submission of counsel for the complainant that report submitted by Truth Lab, vide Ex.OP-5 and OP-6 is without any consequence. The forensic team of M/s Truth Labs visited the spot of fire and Suresh Kumar partner of the complainant was present, when it inspected the premises and hence it cannot be said to be a one sided spot inspection by it. There is no motive for above Forensic Lab to give biased report in this case. This is important piece of evidence on the record. It has instantiated on the record that the loss is not due to short-circuit after examining the entire forensic evidence on the spot and by taking samples thereof. The lab report found that stock of Bardana (Gunny Bags), which was destroyed in the fire incident contained about 5200 pieces. It was found that a large stock of Bardana containing about 30000 pieces was kept near the northern wall of the sorting section, which was unaffected due to fire. An electrical cable was found running at a height of about 9-10 ft along the western wall, just above the area, where the stock of Bardana had reportedly burnt during the fire incident. The electric cable was got removed for examination. It was examined that its outer insulation had totally burnt exposing the wires in the area corresponding to the stock of burnt Bardana. Electrical cable was observed. The insulation of the portion of the cable running along Consumer Complaint No.310 of 2016 16 the northern western corner of the sorting section was found to have melted due to external heat effect, but not burnt from inside and uninstalled second sortex machine was found burnt and damaged due to fire, which lay in the northern corner of the sorting section. The electrical wire, which was reportedly connecting a tube light fixed outside the northern wall at roof level about the shutter gate was found lying on the floor with its insulation intact. There was a single-phase electric supply to all the electrical points as well as the sortex machine installed in the sorting section, which was affected due to fire. Three-phase power supply is used for the machinery installed in the husk removing section, which was not affected due to fire. Even forensic team examined the security guard deployed in the rice sheller. The security guard stated that it had rained heavily on the night of 4th September and in the morning of 5th September 2014 and he remained in his room on the spot and did not notice any fire in the sorting room in the night. In the morning of 5th September 2014 at about 9.30, when the maid came for cleaning the premises, Mr. Sanu (security guard) opened the shutter gate of the sorting section only. He saw very smoke and felt the smell of burning wires. He went inside the big hall and noticed that stock of Bardana stacked along with western wall was burning. He heard crackers like sound coming out from the cabin in the southeastern corner of the hall, where a sortex machine was installed. He opened the locked gate of the cabin and noticed that the outer plastic cover of the AC was molten. He also noticed flames around the rice colour sortex machine and heard cracker like sound coming out of the electrical Consumer Complaint No.310 of 2016 17 connections of the machine. GC-MS analysis of the three debris samples, collected from the various parts of affected premises was conducted at Lucid Laboratories Pvt. Ltd Hyderabad, an NABL accredited chemical analysis laboratory which revealed as under :-
Sample 1:- Presence of hydrocarbons of the range C-14 to C-
17 , Octadecane, 1-(ethanyloxy), Diethyl Phathalate, 1,2--Benzenedicarboxylic acide, butyl octyl ester etc was detected.
Sample 2:- Presence of 1,2-Benzenedicarboxylic acid, butyl octyl ester, dibutyl phthalate, diisooctyl ester and 1,2 Benzenedicarboxylic acid was detected.
Sample 4 Presence of hydrocarbons of the range C15 to C19 ethyl iso allocholate and dibutyl phthalate was detected.
The forensic team of Truth Lab, thus, found that the presence of hydrocarbons in the range of C15 to C19 was found in the samples. Hence, the presence of hydrocarbons conforming to the characteristic ignitable fire accelerants in the areas widely separated from each other clearly indicate an extraneously induced fire using flammable substances such as kerosene or diesel oil. In the absence of hydrocarbons in the sample of burnt debris collected from the uninstalled sortex machine, which could be on account of the fact that it was lying in a packed condition and as such the accelerants could not have come in contact with the machine. The forensic lab Consumer Complaint No.310 of 2016 18 found in its report that loss was not on account of any chemical or mechanical failures, not on account of electrical short circuit. Loss was on account of extraneously poured ignitable fire accelerants on the stock of Bardana stored along with western wall. It found that it was deliberate ignition of fire, we cannot brush aside the report of lab, which has been relied upon by OPs in this case correctly. The Forensic Science Lab went deep into the matter and found it to be an engineered fire and not an accidental case. The National Commission has held in "Nikon Systems (P) Ltd versus National Insurance Company Ltd", reported in 1(2011) CPJ 222 that insurance company can appoint another surveyor. If insurance company is not satisfied with the survey report, it is entitled to reject the same and appoint another surveyor for fresh estimation of the loss. National Commission has held in "Gajanand Elastic Industries versus New India Assurance Co. Ltd", reported in 1 (2012) CPJ 451 (NC) that claim repudiated on the ground that fire was not accidental due to short circuit but was 'man-made'. The fire occurred selectively in a scattered manner and not in a linear fashion. The rice factory was closed on the date of fire and was not in operation and chowkidar noticed fire in the morning and these circumstances rule out the possibility of short circuit in this case. National Commission has held in "Star Chemicos versus Oriental Insurance Co. Ltd.", reported in IV (2007) CPJ 49 (NC) that insured factory closed at the time of fire - no production activity - electrical equipment found closed - material kept in premises tightly packed- cause of fire as short circuit unbelievable - repudiation Consumer Complaint No.310 of 2016 19 justified. National Commission has also held in "Karnavati Vinners Pvt. Ltd versus New India Assurance Co. Ltd &Ors"
reported in IV(2012) CPJ 269 (NC) that State Commission correctly appreciated the report of science laboratory. Similarly, National Commission has prominently held in "Ambuja Ginning Pressing & Oil Co. (P) Ltd versus Oriental Insurance Company Ltd", reported in II(2007) CPJ 42 (NC) that result of analysis by Lab that petroleum hydrocarbon was detected in Exhibits and hence claim was correctly rejected. National Commission also held in "Munshi Ram versus New India Assurance Company Ltd and Another"
reported in 1(2010) CPJ 228 (NC) that no effort was made by chowkidar to douse the fire by sprinkling water/cover it with sand. Story was held to be concocted. Insurance Company justified to take report of lab. Appointment of second surveyor as held by National Commission in "Nikon Systems (P) Ltd versus National Insurance Co. Ltd" reported in 1 (2011) CPJ 222 (NC).
9. In view of our above discussion, we rely upon the report of Truth Lab Ex.OP-6 and hold that the complainant has failed to establish it on the record that cause of fire was short circuit and not manmade. There is overwhelming evidence led by OPs consisting of Truth Lab report, which preponderates over the evidence of the complainant. Consequently, we find it to be a case of violation of condition no.1 and 8 of Standard Fire and Special Perils Policy Ex.OP-1 rendering the contract of insurance as voidable at the option of the OP no.1. OPs are, thus, justified in repudiating the contract of insurance for the reasons recorded above. Consumer Complaint No.310 of 2016 20
10. In the light of our above discussion, the complaint filed by complainant is hereby dismissed.
11. Arguments in this complaint were heard on 30.10.2017 and the order was reserved. Certified copies of the order be communicated to the parties under rules.
12. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER November 2, 2017 (ravi)