National Consumer Disputes Redressal
Uttar Bharat Hydropower Private ... vs Oriental Insurance Co. Ltd. & Anr. on 12 December, 2022
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 1643 OF 2018 1. UTTAR BHARAT HYDROPOWER PRIVATE LIMITED (Through its Director Shri Naresh Goel)
A-2/452, Sector-8, Rohini - 110085 New Delhi ...........Complainant(s) Versus 1. ORIENTAL INSURANCE CO. LTD. & ANR. R/o Oriental House, P.B No -7037,
A-25/27, Asif Ali Road, New Delhi - 110002 2. M/S Protocol Insurance Surveyors & Loss Assessors Pvt. Ltd. R/o H-54, Sector-63, Gautam Budh Nagar, Noida - 201301 Utter Pradesh ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT
For the Complainant : For the Complainant : Mr. G. Saikumar, Advocate
Ms. Sowmya Saikumar, Advocate For the Opp.Party : For the Opposite Party : Mr. Vishnu Mehra, Advocate
Dated : 12 Dec 2022 ORDER
1.The present Consumer Complaint has been filed under Section 21(a)(1) of the Consumer Protection Act, 1986 (for short "the Act") by Uttar Bharat Hydro Power Private Limited (hereinafter referred to as the 'Complainant Company;) against Opposite Parties, i.e., Opposite Party No. 1 Oriental Insurance Company Limited (hereinafter referred to as Opposite Party Insurance Company) and Protocol Insurance Surveyors and Loss Assessors Private Limited, Opposite Party No. 2 (hereinafter referred to as Opposite Party Surveyor), alleging unfair and restrictive trade practice being adopted by Opposite Parties.
2. The brief facts of the case are that the Complainant Company is a Generating Company in terms of Electricity Act, 2003 and is engaged in the business of Electric Power Generation from Hydro Plant situated near Tehsil Kapkote, District Bageshwar, Uttrakhand. On 13.10.2011, Complainant Company executed a Power Purchase Agreement (for short "PPA") with the Uttarakhand Power Corporation Limited (hereinafter referred to as 'UPCL') for sale of 10.5 MW power generated at the generating station at Tehsil Kapkote, District Bageshwar in the State of Uttarakhand. Under the PPA the tariff was to be determined by the Uttrakhand Electricity Regulatory Commission (UERC). On 02.04.2014, Complainant took an All Risk Policy bearing Policy No. 530000/11/2015/000003 from the Opposite Party Insurance Company after paying a sum of ₹16,03,878/- towards Policy premium. The Policy was valid from 02.04.2014 till 01.04.2015. The Policy covers two risks, i.e., under Section I : Material Damage and Loss of Profit for business interruption as mentioned in Section II : Business Interruption, of the Policy, which reads as under:
"The insurers agree that if during the period of insurance the business carried on by the insured at all the premises specified & listed in the Schedule is interrupted or interfered with in consequence of loss destruction or damage indemnifiable under Section I, then the Insurers shall indemnify the Insured for the amount of loss as hereinafter defined resulting from such interruption or interference provided that the liability of the Insurers in no case exceeds the total sum insured or such other sum as may hereinafter be substituted therefore by Endorsement signed by or on behalf of the Insurers."
3. The Complainant Company had declared its commercial operation date (hereinafter referred to as COD) on 11.07.2014 and was being paid a tariff of ₹4.57 per unit.
4. Unfortunately on 18.07.2014, the Project of the Complainant got submerged in water due to floods in the State of Uttarakhand and intimation was sent to the Opposite Party Insurance Company on 18.07.2014 itself. The Opposite Party Insurance Company through email dated 18.07.2014 appointed Protocol Insurance Surveyors & Loss Assessors Private Limited as the Surveyor, who submitted a Joint Inspection Report on 23.07.2014 agreeing to the fact that the Project got submerged into water due to continuous rain from 15.07.2014 till 18.07.2014 thereby causing flash flood.
5. The Surveyor submitted Final Survey Report No. 1 dated 29.01.2015, to Insurance Company estimating net liability of the Opposite Party Insurance Company to the tune of ₹1,24,67,438/- towards Material damage.
6. The Opposite Party Insurance Company accepted the Report of the Surveyor on Material Damage under the Policy and remitted ₹1,19,03,484/- to the Complainant on 05.05.2016, however sought refund of ₹70,388/- as excess payment, which was paid back by the Complainant Company, meaning thereby, the Complainant had received ₹1,18,33,096/- from the Opposite Party Insurance Company.
7. It may be mentioned here that as the Complainant Company had considered the tariff of ₹4.57 per unit to be low, it filed a Petition before Uttarakhand Electricity Regulatory Commission (UERC) seeking determination of specific tariff in accordance with UERC (Tariff and Other Terms for Supply of Electricity from Renewable Energy Sources and none fossil fuels based Co-generating Stations) Regulations, 2013. The said Petition was rejected by UERC vide Order dated 29.05.2015, however, in Appeal before the Appellate Tribunal for Electricity (APTEL), the Appeal was allowed vide Order dated 25.05.2016. The Order dated 25.05.2016 had attained finality since no Appeal has been preferred against the same. Upon revival of the Original Tariff Petition by UERC, UERC vide its Order dated 16.03.2017 determined the final tariff at ₹5.52/kwh (unit) for the entire life of the Project. Consequent to the redetermination of the tariff, the claim for business determination of the Complainant stands revised to ₹9,07,40,624.88/-, the break-up of which is as under:-
Summary of Energy Loss Energy in Kwh Rate per Kwh Revenue in ₹ July 3440255 5.52 18990207.6 August 7803506 5.52 43075353.12 September 4767180 5.52 26314833.6 October 427578 5.52 2360230.56 G. Total 16438519 5.52 90740624.88
8. It was stated by the Complainant Company that the Policy covers two risks, i.e., Material Damage and Section II of the Policy also covers Loss of Profit for business interruption. The Complainant Company sought letter of requirement from the Surveyor with respect to the Loss of Profit claim for business interruption as mentioned in Section II of the Policy, but the Surveyor informed that they had not been appointed till date for Loss of Profit ascertainment by the Opposite party Insurance Company. After some exchange of correspondences, on 05.03.2015, the Complainant Company submitted the final claim form and detailed claim bill for loss of Profit for business interruption of ₹6.70 crores, which was later revised to ₹9,07,40,624.88/- in view of Order dated 16.03.2017 vide which UERC determined the final tariff at ₹5.52/kwh (unit) for the entire life of the Project.
9. It is the case of the Complainant that the Opposite Party Insurance Company wrongfully deducted ₹6,34,342/- and that the only deduction allowed was 5% of the claim amount which had already been deducted by the Surveyor in its calculation of ₹1,24,67,438/-; further, as per Section II of the Policy, the Opposite Party Insurance Company is under the obligation to indemnify the Complainant if the Project was interrupted and / or interfered with consequence of loss, destruction or damage, and since the Liability for loss of Profit arises in case of material damage (which had been accepted by the Opposite Party Insurance Company and paid) thus the Opposite Party Insurance Company is also under the obligation to indemnify in terms of Section-II (Supra). It was also stated that the Surveyor was promptly appointed for Material Damage and inspection was done on 23.07.2014, but the Opposite Party Insurance Company did not appoint Surveyor for the Loss of Profit due to business interruption till June 2015, despite the fact that there was no breach of policy terms and conditions in the Final Report of the Insurance Company; that due to non-processing of the claim for Loss of Profit for Business Interruption, the Complainant issued Legal Notice dated 17.10.2016, however, no reply has been given by the Opposite Parties; that due to non-processing of claim for loss of profit due to business interruption, the Complainant has been declared a Non-Performing Asset by the lenders. Alleging deficiency in service and unfair trade practice on the part of the Opposite Parties, the Complainant Company filed Consumer Complaint No. 2139 of 2016 in December 2016 before this Commission.
10. During the pendency of the CC No. 2139 / 2016, the Surveyor, vide its Final Report No. 2 dated 22.11.2017 assessed the Loss at ₹75,39,510/- under Loss of Profit whereas as per revised tariff, the loss was ₹9,07,40,624.88/-. However, the copy of the Final Survey Report No.2 dated 22.11.2017 was supplied to the Complainant only on 27.02.2018. Consequently, the Complainant Company sought permission to withdraw the Consumer Complaint No. 2139 of 2016 with liberty to file another Consumer Complaint on the same cause of action, which was granted by this Commission vide Order dated 27.02.2018, which is reproduced as under:-
"Learned counsel for the Complainant states that he has received final survey report alongwith annexures and in view of final survey report, certain new facts are to be mentioned in the complaint. Therefore, complainant seeks to withdraw this complaint with liberty to file fresh complaint on the same cause of action. Liberty granted. Complaint is dismissed as withdrawn."
11. After the revised claim for Determination of Loss of Business, the Complainant Company has filed the present Consumer Complaint seeking following reliefs:-
"(i) Hold that the Opposite parties have derogated from their obligations under the Policy and as such have been guilty of deficiency in service and are also blameworthy for unfair and restricted trade practices; and
(ii) Direct the opposite party No. 1 to pay ₹9,07,40,624.88/- (Rupees nine crores seven lakhs forty thousand six hundred twenty four and eighty eight paisa only) towards the claims of the Complainant for loss of profit due to business interruption under the Policy; and
(iii) Direct the Opposite Party No.1 to pay ₹6,34,342/- (Rupees six lakhs thirty four thousand three hundred and forty two only), which was illegally deducted from the claim of the Complainant towards material damage under the policy;
(iv) Direct the Opposite party No.1 to pay ₹50,78,829/- (Rupees fifty lakhs seventy eight thousand eight hundred and twenty nine only) towards interest calculated @ 24% towards interest for delay in processing the claim for material damage payable to the Complainant calculated from July 18, 2014 till the date of payment in May, 2016
(v) Direct the Opposite party No.1 to pay ₹3,74,002/- (Rupees three lakh seventy four thousand and two only) towards interest calculated @ 24% from July 18, 2014 on the amount of ₹6,34,343/- (Rupees six lakhs thirty four thousand three hundred and forty two only) illegally deducted by the Opposite party No.1; and
(vi) Direct the Opposite party No.1 to pay ₹5,51,42,521/- (Rupees five crores fifty one lakhs forty two thousand five hundred and twenty one only) as interest payable at a rate of 24% per anuum from March 5, 2015 on the claim of the Complainant for loss of profit due to business interruption till the date of realization (i.e up to 39.06.2018); and
(vii) Direct the Opposite Party No. 1 & 2 to pay ₹1,00,00,000/- towards loss suffered due to declaration of the Complainant as a NPA due to the non-processing of the claim for loss of profit due to business interruption; and
(viii) Direct the Opposite party No.1 and 2 pay ₹1,00,00,000/- (Rupees one crore only) towards loss suffered due to declaration of the Complainant as a NPA due to the non-processing of the claim for loss of profit due to business interruption; and
(ix) Interest pendent lite; and
(x) Costs; and
(xi) Pass any further order(s) as this Hon'ble Commission may deem fit and proper in the facts and circumstances of the instant complaint in the interest of justice, fair play and equity."
12. Upon notice, the Opposite Party Insurance Company filed its Written submissions, inter alia, denying the contents of the Complaint and raising the Preliminary Objection that the Complainant has breached Condition No. 5 of the Insurance Policy which requires the Insured to notify the Insurance Company within 15 days after the occurrence of loss or damage, however in the present case, the Complainant informed about the Business Interruption Loss after about 6 months from the date of occurrence of loss; that on 18.07.2014, the Complainant had informed only about the Material Damage; Reliance was placed on Judgment passed by the Hon'ble Supreme Court in the case of 'Sonell Clocks and Gifts Ltd vs. New India Assurance Co. Ltd. (2018) 10 SCALE 24'; that since the Complainant did not inform about the claim for loss of business, the insurance company lost the opportunity to specifically look into the matter and lost the chance to recommend appropriate loss minimization steps; that the Complainant Company has failed to establish that it is eligible for Deemed Generation; that the Surveyor submitted the Final Survey Report No.2 dated 22.11.2017, assessing the net loss at ₹75,39,510/- without prejudice and subject to the terms and conditions of the Policy. The Opposite Party Insurance Company categorically denied the contentions as raised in the Complaint.
13. Mr. G. Saikumar, learned Counsel appearing on behalf of the Complainant Company vehemently argued that the Opposite Party Insurance Company wrongfully deducted ₹6,34,342/- from claim made by the Complainant since as per Final Survey Report No. 1 (Material Damage) the Assessed Loss was ₹1,31,23,619/- and after deducting Policy Excess of ₹6,56,181/-, the net liability of Insurance Company was ₹1,24,67,438/- but the Complainant Company has received only a sum of ₹1,18,33,096/- against net loss of ₹1,24,67,438/- meaning thereby that the Insurance Company has wrongly deducted a sum of ₹6,34,342/-. It was further submitted that there has been an inordinate delay in deciding the claim of the Complainant and only ₹75,39,510/- claim amount has been assessed by the Opposite Party Insurance Company against the claimed amount of ₹9,07,40,624.88/-; that the Complainant had informed the Opposite Party Insurance Company on 18.07.2014, the day on which the Project got submerged; It was submitted that the Opposite Party Insurance Company is bound to indemnify for the Loss of Business on account of loss due to destruction or Material Damage in view of Section- II of the Policy and the liability for Loss of Business would arise only if claim for Material Damage was accepted, which was accepted by the Opposite Party Insurance Company. That initial tariff being paid by the Complainant was ₹4.57 per unit which was later enhanced to ₹5.52 per unit; that the calculation done by the Surveyor was not as per the Policy and the Surveyor has wrongly rejected the Deemed Generation which is payable as per Regulation 47 of UERC Regulations and reliance was placed on the Order dated 8.06.2016 passed by the UERC, whereby UERC held that the Deemed Generation is admissible to the Complainant Company. It was further submitted that out of 77 days of business interruption, 42 days were wrongly not considered when activity of Adit plugging was done from 16.08.2014 till 26.09.2014. The damage to Adit was due to the floods and not due to design and workmanship. It was further submitted that the Complainant Company had started its commercial operation on 11.07.2014 meaning thereby that the Plant was fully operational on 11.07.2014 and there was no defect in the Adit Plugging w.e.f. 11.07.2014 till the date of Flood, i.e., 18.07.2014, and therefore, the period during which the damage in Adit was being repaired, cannot be excluded and accordingly, loss of production/Business Interruption for 42 days should also be considered while calculating the Loss of Profit and the Surveyor has erred in calculating the Claim after considering the Business Interruption as 35 days and not 77 days. It was further submitted that in the Final Survey Report No. 2 (Loss of Profit) dated 27.02.2018, at Para 17(e) it is mentioned that 'We have not considered the unit rate of ₹5.52/- as claimed in revised bill as the revised bill generation payment from UPCL is not provided to us." In this regard, it was submitted that the Opposite Party Insurance Company had provided the copy of the Final Survey Report dated 22.11.2017 only on 27.02.2018 and vide letter dated 26.03.2018 and they have already handed over all the invoices and proof of receipt of payment correlating to receiving tariff at ₹5.52/- per unit which are annexed with the present Consumer Complaint. It was further argued that the Complainant is entitled to loss of profit calculated at ₹5.52 per unit for 10.5MW and not ₹4.07 for 7MW as has been considered in the Final Survey Report 27.02.2018 and the Surveyor has wrongly assessed the claim and there is deficiency in service on the part of the Opposite Parties. It was prayed that the Consumer Complaint be allowed in terms of the Prayer Clause of the Complaint.
14. Per Contra, Mr. Vishnu Mehra, learned Counsel appearing on behalf of the Opposite Parties argued that the Complainant Company had only initiated claim for Material Damage on 18.07.2014, whereas claim for Business Loss was initiated on 30.12.2014, thus due to delay, the Opposite Parties were deprived of any opportunity to look into the claim of loss of business; that there was delay in submitting the Final Survey Report dated 22.11.2017 since the tariff rate of the Complainant had been revised and the Surveyor sought proof of payment received and payment for Deemed Generation Invoices which the Surveyor did not receive thus the Report was made on the basis of material available on record. It was further submitted that the Complainant Company failed to establish its claim for Deemed Generation on account of Voltage Fluctuation and Grid Failure and non-availability of grid. It was also submitted that period of 42 days out of total 77 days worked out towards period of interruption has been excluded since loss suffered on Adit which is caused due to design defect and workmanship, which fell under the Exclusion Clause under Section-I of the Policy and the period of 42 days has to be adjusted towards time period lost on account of Repairs of damage due to design defect, in Adit. The Surveyor has assessed the Business Interruption loss at tariff rate of ₹4.07/- as the Complainant Company failed to provide proof of payment received from UPCL at the revised rate of ₹5.52/-. It was submitted that there was no deficiency in service on the part of the Opposite Parties and it was prayed that the Consumer Complaint be dismissed.
15. I have heard Mr. G. Saikumar, learned Counsel appearing on behalf of the Complainant, Mr. Vishnu Mehra, learned Counsel appearing on behalf of the Opposite Parties, perused the material available on record and have given a thoughtful consideration to the various pleas raised by the Parties.
16. As far as Preliminary Objection regarding due to delayed intimation of the claim under Loss of Profit (hereinafter referred to as LOP) under Section II of the Policy, the Opposite Party were deprived of any opportunity to look into the claim of Loss of Business, is concerned, from the perusal of the record it is crystal clear that the intimation regarding Flood was given to the Opposite Party Insurance Company on the date of Flood, i.e., 18.07.2014 itself. The Opposite Party Insurance Company appointed Surveyor on 18.07.2014 to assess the Material Damage. LOP is the consequential damage to Material Damage and the LOP under Section II of the Policy was payable only if loss destruction or Damage is indemnifiable under Section I of the Policy. The Opposite Party Insurance Company should also appoint Surveyor to assess the Loss of Profit at the time of appointing the Surveyor to assess the Material Damage on 18.07.2014. Rather, on coming to know that the Surveyor has not been appointed by the Insurance Company to assess the LOP till 29.12.2014, despite asking for Letter of Requirement with respect to the LOP by the Complainant vide Emails dated 23.12.2014 and 29.12.2014, it was provided only on 24.11.2015, which itself speaks the conduct of the Opposite Parties that how much they were serious to assess the loss under LOP. Secondly, the LOP is an intangible loss and its assessment is based on the account books and generation parameters. It was the duty of the Opposite Party Insurance Company to inspect the account books and calculate generation parameters at any time, so the plea of the Opposite Party that they were deprived of any opportunity to look into the Claim of Loss of Profit (LOP), does not hold any water. Reliance placed by the Opposite Party Insurance Company on the Judgment passed by the Hon'ble Supreme Court in the case of 'Sonell Clocks and Gifts Ltd vs. New India Assurance Co. Ltd.' (supra), does not help it since the facts in both the cases are different.
17. Undisputedly, the Opposite Party Insurance Company has settled the Claim under Material Damage which fall under Section I of the Policy, and paid a sum of ₹1,18,33,096/- to the Complainant Company. As per Final Survey Report No. 1 dated 29.10.2015 (Material Damage), the Surveyor has Assessed the Loss at ₹1,31,23,619/- and after deducting Policy Excess of ₹6,56,181/-, the Net Loss was assessed at ₹1,24,67,438/- but the Opposite Party Insurance Company has paid a sum of ₹1,18,33,096/- against the Assessed Net Loss of ₹1,24,67,438/- meaning thereby the Insurance Company has wrongly deducted a sum of ₹6,34,342/-. Therefore, the Opposite Party Insurance Company is directed to pay a sum of ₹6,34,342/- to the Complainant Company within six weeks from today.
18. As far as the claim regarding Loss of Profit for Business Interruption (hereinafter referred to as LOP) as mentioned in Section II of the Policy is concerned, the Surveyor while assessing the loss under LOP, has taken the rate @ ₹4.47/kwh (unit) and not taken the revised rate ₹5.52/kwh (unit), on the ground that the revised bill generation payment from UPCL is not provided to them. From the perusal of record, it is evident that the Final Survey Report II dated 27.11.2017 was provided to the Complainant only on 27.02.2018 during the pendency of CC No. 2139 / 2016 and vide Order dated 27.02.2018, CC No. 2139 / 2016 was dismissed as withdrawn with the liberty to the Complainant file fresh Complaint on the same cause of action. Vide letter dated 26.03.2018, the Complainant had handed over all the invoices and proof of receipt of payment correlating to receiving tariff at ₹5.52/- per Unit to the Surveyor. The copies of the said invoices are also annexed with the present Consumer Complaint. In this backdrop, the Complainant is entitled to settlement of Claim of Loss of Profit by taking the rate of ₹5.52/kwh (Unit).
19. Undisputedly, the Project was having total capacity of 10.5MW, i.e., 3 units of 3.5 MW each and it was commissioned successfully in April 2014 and after testing and corrections all the three units were operational on 11.07.2014, i.e., 7 days before the day of incident, which happened on 18.07.2014. But while Assessing the loss, the Surveyor has taken into consideration only 7MW instead of 10.5MW and has not taken into consideration 3.5MW on the ground that payment proof of Deemed Generation of 3.5 MW is not provided. As per Regulation 47 of the UERC, the Complainant is entitled for Deemed Generation. Regulation 47 of the UERC is reproduced hereunder:-
"47. Deemed Generation (Applicable only in case of small Hydro Generating Plants & Solar PV & Solar Thermal Projects) (1) After the COD of the project, loss of generation at the Station on account of reasons attributed to the following, or any one of the following, shall count towards Deemed Generation:
- Non availability of evacuation system beyond the Interconnection Point; and
- Receipt of backing down instruction from the SLDC.
Provided that the following shall not count towards Deemed Generation:
(i) The loss of generation at the Station on account of aforesaid factor(s) but attributed to the Force Majeure event(s);
(ii) The loss of generation at the Station due to the interruptions/outages attributed to the aforesaid factor(s) during the period in which the total duration of such outages/interruptions, other than that excluded under above, is within the limit of
- 48 hours in a month in case of small hydro project, and
- 60 hours in a month in case of solar PV and Solar Thermal Project.
Provided further that for working out the ceiling of 60 hrs. in a month, the interruptions/outages occurring during 18.00 hours in the evening to 6.00 hours in the morning shall not be counted.
(2) The distribution licensee shall be required to maintain the voltages at the point of interconnection with the project within the limits stipulated hereunder, with reference to declared voltage:
(i) In the case of High Voltage,+6% and -9%; and,
(ii) In the case of Extra High Voltage,+10% and -12.5%.
With effect from 01.04.2013, any loss in generation due to variations in the voltage beyond the limits specified above shall be reckoned as deemed generation provided such loss of generation results in reduction of more than 25% of capacity output.
(3) The period of outage/interruption on account of such factor(s) specified in sub-Regulation 1 and 2 above, shall be reconciled on monthly basis and the loss of generation at the Station towards Deemed Generation after accounting for the events specified under sub-Regulation 1 (i) & (ii) above, shall be computed on following considerations:
(i) The recovery on the above account shall be admissible if the actual energy generated during the year is less than the normative CUF specified in the Regulation for small hydro projects and Solar PV and solar thermal projects (in case of project opting for generic tariff) or the CUF considered for recovery of fixed charges (in case of project specific tariff is applicable) for small hydro projects and solar PV and solar thermal projects. In case the sun of actual energy generated and the deemed generation during the year exceed the CUF at which the recovery of fixed charges has been envisaged, then the deemed generation alongwith the actual energy generated will be allowed only upto the CUF considered.
(ii) The generation loss towards the Deemed Generation in accordance with sub-Regulation (1) above, if any, during the month shall be considered on the pro-rate basis on the number of hours lost based on the actual average generation achieved during that months divided by the total number of hours available during the month reduced by the number of hours outage interruption occurred in the system.
(iii) The generation loss towards the Deemed Generation (in MVH) in accordance with sub-Regulation (2) above, if any, during the month shall be considered as the summation of the product of number of hours the variations in voltage beyond the specified limit existed and the Generation lost (in MW) due to the variation in voltage beyond the specified limit. The generation lost (in MW) would be the difference between the following:
a) Minimum of the actual generation (in MW) before the variation in voltage occurred and the generation (in MW) achieved after 90 minutes immediately after variation in voltage was restored within the specified limit would be treated as the a actual generation during the period when voltage variations occurred; and
b) The generation achieved during the period when variation in voltages look place.
(4) The distribution licensee shall pay for the saleable deemed generation, on annual basis, for small hydro projects and solar PV and solar thermal projects worded out on the basis of the deemed generation on the above lines, at the generic/project specific tariffs under the provisions of RE Regulations, as amended from time to time by the Commission . The settlement of payment towards deemed generation charges shall be carried out within 3 months of the completion of the financial year.
(5) Any charges paid by the distribution licensee towards deemed generation shall not be allowed as an expense to be pass through in tariffs. The distribution licensee will have to bear such charges.
(6) The deemed generation conditions stipulated above shall be applicable only on those small hydro project and solar PV and solar Thermal projects who have signed a long term PPA with the distribution licensee.
Further, the deemed generation condition shall be applicable only on the small hydro projects and solar PV and solar thermal projects where the evacuation line is connected to 11kv or higher voltage Grid sub-station."
20. Vide Order dated 08.06.2016, Uttrakhand Electricity Regulatory Commission, has also held that the Deemed Generation is admissible to the Complainant Company. As discussed above, the Complainant had already handed over all the invoices and proof of receipt of payment from UPCL to the Surveyor vide letter dated 26.03.2018. In view of above, it is held that the Surveyor erred in not taking into consideration 3.5MW towards Deemed Generation while assessing the Loss under LOP and the Complainant is entitled for total capacity of the power plant, i.e., 10.5MW instead of 7MW while calculating claim for LOP.
21. From the perusal of record, it is evident that the Commercial Operation of the Complainant Company had started on 11.07.2014 and Plant was running well till the date when the flood had occurred, i.e., on 18.07.2014. Thus, the Plant had operated commercially for a period of 7 days before the Flood occurred. It is, therefore, crystal clear that the Adit was not in a damaged condition when the commercial operation had taken place and the flood had occurred. Thus, the Surveyor as also the Opposite Party Insurance Company was not at all justified in excluding the 42 days while calculating the Loss of Profit. In view of above, it is held that the Complainant Company is entitled for Business Interruption Period of 77 days while calculating the Loss of Profit due to Business Interruption.
22. Consequently, the Complainant shall be entitled for LOP to ₹9,07,40,624.88/-, the break-up of which is as under:-
Summary of Energy Loss Energy in Kwh Rate per Kwh Revenue in ₹ July 3440255 5.52 18990207.6 August 7803506 5.52 43075353.12 September 4767180 5.52 26314833.6 October 427578 5.52 2360230.56 G. Total 16438519 5.52 90740624.88
23. For the reasons stated hereinabove, the Consumer Complaint is partly allowed and the Opposite Party Insurance Company is directed to pay a sum of ₹6,34,342/-, wrongly deducted by it towards settlement of Claim under 'Material Damage' and ₹9,07,40,625/- (Rupees Nine Crore Seven Lakhs Forty Thousand and Six Hundred & Twenty Five only) towards Claim for Loss of Profit due to Business Interruption under Section II of the Policy, alongwith interest @12% p.a. w.e.f. 05.03.2015, i.e., the date of filing of Final Claim Form and detailed claim bill for Loss of Profit, till the date of payment, within six weeks from today, failing which the rate of interest shall increase to 15% p.a. Keeping in view the peculiar facts and circumstances of the case, the Opposite Party Insurance Company shall also be liable to pay a sum of ₹50,000/- towards cost of litigation to the Complainant. Pending application, if any, also stands disposed off.
......................J R.K. AGRAWAL PRESIDENT