National Consumer Disputes Redressal
M/S. Grasim Industries Ltd. vs New India Assurance Co. Ltd. on 19 January, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 250 OF 2002 1. M/S. GRASIM INDUSTRIES LTD. CHEMICAL DIVISION NAGDA M.P. ...........Complainant(s) Versus 1. NEW INDIA ASSURANCE CO. LTD. TIED UNIT - 121 200 22 MITTAL CHAMBERS IIND FLOOR NARIMAN POINT MUMBAI - 400 021 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON'BLE DR. S.M. KANTIKAR, MEMBER
For the Complainant : Mr. M.N. Krishnamani, Sr. Advocate
With Mr. Soumyajit Pani, Advocate For the Opp.Party : Mr. Kishore Rawat, Advocate
Dated : 19 Jan 2016 ORDER
JUSTICE J.M. MALIK, PRESIDING MEMBER
1. The major portion of the claim made by the complainant already stands settled through a full and final settlement discharge voucher, executed between the parties. The only controversy which survives between the parties is that, whether, the cable box was not an integral part of Rectiformer No.4 and whether, the claim in respect of Rectiformer No.4 would fall within the Exclusion Clause 'g' of the Policies in question.
2. M/s. Grasim Industries Ltd., the complainant, is a company which has its registered office at Birlagram, Nagda, M.P. It is a well-diversified and flagship company of the Aditya Birla Group. Its main products are cement, Viscose Staple Fibre (VSF), sponge iron, chemicals and textiles. The complainant commissioned a most sophisticated caustic soda plant at Birlagram in the year 1972 which can produce caustic soda in India, with a capacity of 1,60,600 tons per annum.
3. The complainant, for valuable consideration, renewed its Fire Policy 'C' for a period of 12 months from 01.04.1992 to 31.03.1993 for an initial sum of Rs.104,43,52,000/- only, from M/s. New India Assurance Co. Ltd., the OP, in respect of its property, as described below :-
"On building, machinery, accessories, spare parts, tools, electrical equipments including furniture, fixtures and fittings, stock-in-process, property of the insured, their own, or in trust, in deposit or on commission for which they may be responsible in the event of loss or damage by perils insured whilst stored and / or lying and / or erected in various blocks in the compound of insured's old plant and new plant and declared for insurance at Rs.104,43,52,000/- as per block-wise specification to be attached hereto which shall be taken and read as forming part of this policy and declared as under :-
1. On Old plant - Rs. 59,78,95,000/-
2. On New Plant - Rs. 44,64,57,000/-".
4. The complainant paid a sum of Rs.18,18,913/- towards premium amount, for the said policy, also referred to as 'Material Damage Policy'.
5. The complainant also renewed Fire Loss of Profit Policy for the period for the initially sum insured, in the sum of Rs.320,43,00,000/- only with the following description :-
"On Gross Profit & Specified Standing Charges of the Insured's Mills (Mill No. 1 & 2) including caustic code plant, carbondi-sulphide sulphuric acid plant, all situated at Birlagram, Nagda, Pulp & Grasilence Division comprising of pulp plant, Grasilene Fibre Plant, Sodium Sulphate plant, carbondi-sulphide plant, sodium chlorate plant / powder (boilers) plants, all situated at Kumarapatnam, District Dharwar, Karnataka State, Pulp paper & Staple Fibre Division, comprising of pulp, paper and staple fibre plant, situated at Birlakootam, Mavoor, Kerala State, following fire, lightning therein, after included in Policy 'C' Fire at therein various premises".
6. The complainant paid a sum of Rs.53,79,231/- only, to the OP, towards the premium amount, of the said policy, referred to as "Loss of Profit Policy".
7. Unfortunately, a devastating fire took place on 21.01.1993. The complainant suffered a loss in the sum of Rs.10.10 crores under the Material Damage Policy and Rs.9.94 crores under the Loss of Profit Policy. The OP has already paid the complainant, a sum of Rs.9,27,99,581/- only, towards the Material Damage claim and a sum of Rs.8,94,53,687/- only towards the Loss of Profit claim.
8. The OP-Insurance Co., vide its letter dated 11.04.2000, informed the complainant, as under :-
"Re : Fire Material Damage / Fire Loss of Profit Claim - Fire incident on 21.01.1993 - Damage to Rectiformer / other equipments - Old Cell House.
This has reference to our various ongoing discussions / meetings, we have had with your office regarding the balance payment to be made for the captioned claim.
To recapitulate, as on date, a total amount of Rs.9.09 crores has been paid as "On Account" payments relating to Material Damage loss and an amount of Rs.8.80 crores paid as "On Account" relating to Fire LOP, i.e., a total of Rs.17.89 crores have been paid till date.
The balance amount payable under both Material Damage/FLOP is now a matter under review and we have noted that your office is expecting the balance payment totalling Rs.2.15 crores. The issue which has been referred to an independent Overseas Technical Expert Company at your request is to resolve whether loss relating to Rectiformer No.4 is admissible.
From our side, we are maintain a loss provision of Rs.2.15 crores and would like to inform you that we are expecting the final opinion of overseas expert firm
very shortly.
This is the present status of the captioned claim".
9. The present dispute swirls around the dispute about the non-payment of the remaining claim, in the sum of Rs.1.81 crores, i.e., Rs.82.00 lakhs under the Material Damage Policy and Rs.99.00 lakhs under the Loss of Profit policy. The said claim was repudiated vide repudiation letter dated 10.07.2000, which is reproduced here, as under:
"Re: Damage to Rectifier and other equipment associated with the old Cell House due to fire on 21.01.1993-Claims under Fire & Fire CL Policies.
As agreed earlier, we had referred the above claims to Swiss Reinsurance Company seeking their view on the following issues :-
Whether, the cable box mounted on the Rectifier No.4 would be construed as an integral part of the Rectifier and
Whether, the Rectifier No.4 would be governed by the Policy Exclusion 'g' even if it is conceded that the loss due to an electrical phenomenon had originated only in the cable box.
Swiss Re have opined that as per the Property Law Principle, the cable box will have to be necessarily regarded as an integral part of the Rectiformer. Since the cable box and the Rectiformer are closely related to each other in both functionality and locality, the loss on both the Rectiformer and the cable box would not be recoverable under the Policy.
Under these circumstances, we are unable to consider your representation, any further".
The relevant Exclusion Clause 'g' of the Material Damage Policy, is reproduced here, as under :-
"Exclusions :
This insurance does not cover :-
(g) Loss of or damage to any electrical machine, apparatus, fixture or fitting (including electric fans, electric household or domestic appliances, wireless sets, television sets and radios) or to any portion of the electrical installation, arising from or occasioned by over running, excessive pressure, short-circuiting, arcing, self-heating or leakage of electricity from whatever cause (lightning included) provided that this exemption shall apply only to the particular electrical, machine apparatus, fixtures, fittings or portion of the electrical installation so affected and not to other machines, apparatus, fixture, fittings or portion of the electrical installation which may be destroyed or damaged by fire, so set up".
10. Further, the OP informed the complainant, vide its letter dated 31.03.2001, as under :-
"Re : Damage by fire in Unit No.1 on 21.01.1993.
The balance amount payable in respect of the captioned claim is as under :-
Claim amount payable
(In Rs.)
On
account payment
made
Balance payable
(In Rs.)
Material Damage claim
9,27,99,581/-
9,09,00,000/-
18,99,581
Consequential Loss claim
8,94,53,687/-
8,80,00,000/-
14,53,687/-
TOTAL
33,53,268/-
Please note that the premium payable on reinstatement of the aforesaid claim amount will be deducted from the claim amount (if any).
Sd/-
Sr. Divisional Manager".
11. As a matter of fact, the claim was fully and finally settled by the OP, in respect of Policy No.121200/11/92/04052 (Material Damage Policy), vide its letter dated 04.05.2001. The relevant portion of the said letter runs as follows :-
"5. We enclose our cheque No.002227 dated 30.04.2001 drawn on Central Bank for Rs.18,99,581/- in full and final settlement of the claim, under above policy".
12. In reply to the above said letter, the complainant expressed its protest to the OP, vide its letter dated 30.05.2001, as under :-
"Re : Claim in respect of Fire in Chemical Division on 21.01.1993.
We acknowledge with thanks receipt of payment of Rs.33,53,268/- released by you along with Loss voucher which has already been sent to you duly signed from our end. However, we would like to convey our protest for the same.
As per our claim, total amount receivable comes to Rs.2.15
crores against which you have paid us the above amount of Rs.0.34 crores only, summarised position of claim payable is as under :-
Rs. In Crores
Particulars
Fire Claim
LOP claim
Total
Total claim amount as per our calculation
10.10
9.94
20.04
Less:
Adhoc payment received
-9.09
-8.80
-17.89
Balance claim receivable before your last payment
1.01
1.14
2.15
Less : Payment received on 26.04.2001 & 30.04.2011
-0.19
-0.15
-0.34
Balance still to be received
0.82
0.99
1.81
In view of the above, you are requested to please make necessary differential payment of Rs.1.81 crores at the earliest. Please also provide us details on the basis of which the part payment of Rs.034 crores made by you.
Sd/-
For Grasim Industries Ltd.
P.K. Gokhroo, Asst. Vice President".
13. Vide letter dated 03.06.2002, the OP repudiated the claim as under :-
"Re : Fire and Loss of Profit Claim in respect of fire Occurred on 21.01.1993 at our Caustic Soda Plant.
This refers to your letter dated 17.05.2002 addressed to Chairman-cum-Managing Director Sh. R. Beri, on the above subject.
During earlier discussions, it has been explained that cable box was part of rectiformer and cannot be considered as separate equipment though it would have been acquired separately. Our stand on the matter has been made abundantly clear and we have no doubt as the interpretation of the exclusion provided under the policy.
We would like to inform you that the matter has been again reviewed and it is realised that the company's earlier decision was based on a careful examination of all the facts / documents and terms and conditions of the Fire Policy.
We hope you would appreciate our position. We once again regret for being unable to reconsider the matter and accede to your request.
Sd/-
(K. Bakhru)
General Manager
The New India Assurance Co. Ltd.".
14. The complainant raised the following questions :-
"Whether, the cable box mounted on the Rectifier No.4 would be construed as an integral part of the Rectifier; and
Whether, the Rectifier No.4 would be governed by the Policy Exclusion 'g' even if it is conceded that the loss due to an electrical phenomenon had originated only in the cable box.
15. It is contended that the cable box will have to be necessarily regarded as an integral part of the Rectiformer because the cable box and the rectiformer are closely related to each-other in both functionality and locality. The said repudiation has been called into question. It is further contended that the fire occurred on 21.01.1993 around 2.00AM. All the four rectiformers and their exact control systems and other equipments were totally damaged resulting in the above said loss. The exact cause of loss of fire could not be determined. The rectiformer can be run without a cable box and is not an integral part of the rectiformer. The cable box is a device or an accessory used for terminating cables. Rectiformer needs power source and the same is fulfilled through cable. Cable duly terminated in a cable box, extend the electrical connections from this cable box to the terminals of transformer in transformer terminal box. The probable cause of fire and as opined by the Surveyor and Expert appointed by the OP, was that the cable box / cable ceiling box, is an independent apparatus used with the Rectiformer as an attachment / accessory/fixture and not an integral part of the rectiformer / transformer. The Rectiformer is derived from the combination of rectifier and transformer.
16. The complainant had submitted Expert written opinion dated 18.02.1997, from Corporate Claims International Ltd., a well-recognised organisation of Accountants for business interruption and commercial loss assessment based at London, U.K. through their Managing Director, Mr. Adrian A. Maurice, which runs as follows :-
"..... I think it is important that the wording of the
exclusion is also considered fully. The exclusion specifies the fact that, and I paraphrase, the loss of or damage to electrical machines, etc., or to any portion of the electrical installation machine so affected, and not to other machines, .... fittings or portion of the electrical installation which may be damaged by fire. Therefore, even if the cable box were to be considered to be part of the Rectiformer installation, it is quite clear that it is a separate portion, or part of the installation in which case the exclusion would apply only to the cable box and not to the body of the transformer. The wording has been expanded so that there is a clear intent to only exclude from the cover only the part of the electrical plant that is damaged by the short circuit, arcing, etc., that caused the fire and not to apply across the whole installation. In addition to the above, it would be inappropriate for any claim for business interruption or consequential loss to be limited on account of part of the material damage being uninsured. So long as the material proviso has been satisfied, i.e., that there has been an insured material loss, then the full loss of profit should be indemnified, subject to the adequacy of the consequential loss policy".
17. Again, Insurance Surveys International Ltd., a U.K. based leading independent specialist organisation, well-established for professional risk inspection and technical consultancy services world-wide, through their Director, Mr. GWG Morfey, a well-known name in the world as an expert of power utilities, gave its opinion dated 23.02.1997, as under :-
"..... any faults originating within the cable boxes would normally be considered as a fitting/fixture fault and not as a direct interpretation of the particular "Exclusions" wording of the Grasim Industries Fire Policy. However, we are of the opinion that this can be interpreted that only the cable box would be excluded in the event of the cable box being the proximate cause of the fire".
18. The Bureau of Indian Standards had referred the matter to the Chairman of the Transformer Section Committee for his opinion, who, vide opinion dated 30.05.1998, clearly opined, as under :-
".... The cable sealing boxes are not an integral part of the transformer and are generally bolted to the main tank. They are designed to accommodate all the cable joint fittings or sealing ends required
by the cable supplier.
In case of oil filled cable boxes, the oil of the cable boxes is separated from the oil in the main transformer tank through a barrier. The cable box can therefore be treated as an accessory".
19. Correspondence went on between the parties but the needful could not be done. Consequently, this complaint has been filed before this Commission on 08.07.2002, with the following prayers :-
"a) to pay to the complainant a sum of Rs.2,50,02,299/- inclusive of interest @ 18% p.a., from the date of the loss, till the date of the institution of the instant complaint, under Material Damage Policy; and
b) to pay to the complainant the sum of Rs.2,90,94,451/- inclusive of interest @ 18% p.a., from the date of the loss till the date of the institution of the instant complaint under Loss of Profit Policy; and
c) to pay interest pendent lite and future interest @18% p.a., and
d) compensation of Rs.25.00 lakhs for causing undue harassment to the complainant ; and
e) cost; and
f) such other and further relief / orders as deemed fit by this Hon'ble Commission in the facts and circumstances of the case may also be granted".
DEFENCE :
20. The OP has listed the following defences. It is contended that the matter was settled fully and finally and the unconditional discharge vouchers have been annexed as Annexures R1 to R4. It is contended that no cause of action survives. It is further contended that as per the Exclusion Clause 'g', the claim is not payable. The report of the Joint Surveyors and Experts clearly points out that the cable box was an integral part of the Rectiformer No.4 and, therefore, the claim in respect of the Rectiformer No.4 was not payable. The OP had appointed M/s. Mehta & Padamsey Pvt. Ltd., as Surveyors and M/s. Chempro Inspections Pvt. Ltd., as Joint Surveyors. Mr. Saumil D. Mehtra, Director of M/s. Mehta & Padamsey Pvt. Ltd., and Mr. K. Satpaul of M/s. Chempro Inspections Pvt. Ltd., conducted the survey and inspection. They are experienced and technically qualified surveyors. They submitted their 1st, 2nd and 3rd interim survey reports, marked as Annexures R5 to R7 and Final Survey Report, marked as Annexure R8. As per their reports, the payments were made from time to time. In the final survey report, the surveyors categorically mentioned that cable box where the electrical fault is assumed to have caused the fire is an integral part of the transformer and, therefore, Exclusion clause 'g' of the policy would apply to the transformer No.4, including cable box. The Surveyors also took opinion of M/s. J.S. Prakash Rao Associates, Consulting Engineers. It gave its opinion dated 17.07.1994, marked as Annexure R-9, as follows :-
"9. The Transformer consists of active parts (windings and magnetic circuits), with terminals for HT and LT connections, OLTC, conservator, thermometers etc. The normal fittings form part and parcel of the transformer as without these parts, the transformer is not complete and cannot be taken into service. In fact as per ISS, the supplier has to specify the type of terminations and fittings provided in his tender to offer a complete unit in toto and not a bare chasis with everything else as optional. For clearance and maintenance purposes, the HT terminals were brought out through a disconnecting chamber to a cable sealing box for connecting to the incoming HT cable. The cable sealing box and disconnecting chamber cannot be treated as accessories as without such a cable box the termination of cable is not possible. If bare HT connections were to be given, then the HT bushing would be used to connect the HT leads. The demarcation line is the point of terminations from where the external HT and LT connections are taken out. In the present case, the HT cable was being connected, the leads were brought through a disconnecting chamber and a cable sealing box which form an integral part of the transformer. The OLTC chamber, fixed to the main tank with flanged connection forms part and parcel of the main transformer unit".
21. The Experts of both the parties met on 31.08.1994. The experts of the insured were of the opinion that the fire originated from the cable box. Mr. Paranjpe, explained his views as follows :-
a) The compound in the cable box had been filled in right from the inception i.e. 1972.
b)There was a possibility of slow oxidation of the aluminium conductor in the cable box over the period of use.
c) This oxidation would result in localised over-heating at the CUPRO ALUMINIUM joint of the particular phase of the cable and the copper conductor through the bushing into the disconnection chamber.
d) This heating would cause localised melting of the compound as well as transfer of heat into disconnection chamber through the copper conductor in the bushing. Continued heating could result in failure of the Gasket between the cable box and the disconnection chamber allowing oil to enter the cable box and come in contact with the CUPRO ALUMINIUM joint where the overheating was taking place. There would be air available due to the compound flowing out and this would cause the oil to catch fire. Further fire would continue because of the continuous flow of the oil from the disconnection chamber as well as subsequent failure of the gasket between the disconnection chambers and the main tank".
22. Mr. Paranjpe further explained that whilst in the BHEL, transformer No.4, the cable box was mounted on the transformer, is aware of the several large Transformers where the cable box is mounted away from the transformer and the connections are done by bushbars. Mr. Prakash Rao, as an alternate, concurred regarding the legal heating of the CUPRO Aluminium joint due to bi-metallic and thermos-electric action. The heat transferred to the oil in the disconnecting chamber along the connected rod of the thorough bushing and resultant effect of oil getting hotter and hotter caused the gasket of the disconnecting chamber to fail. Thereafter, the hot oil came out in drops with vapour in initial stages and finally caught fire due to lower flash point temperature of oil compared to that of compounds. Mr. Prakash Rao also clarified that protection against this sequence could not and would not normally be provided for. The Minutes of the Meeting have been placed on record as Annexure R-10.
23. The matter was also referred to M/s. Swiss Re Insurance Co., vide letter dated 24.02.2000, which has been placed on record as Annexure R-11. The said company gave their opinion vide letter dated 06.06.2000 and the copy of the same has been placed on record as Annexure R-12. They were of the opinion that the cable box is an integral part of the Rectiformer because they are closely related to each-other functionally and as per location-wise The cable box was bolted to Rectiformer indicating a more permanent nature of the annexation and the loss of Rectiformer and the cable box would be excluded under Clause 'g' of the Insurance policy.
24. Moreover, the following documents clearly go to show that the cable box is an integral part of the Rectiformer :-
The invoice of the Rectiformer where it is shown as one unit. A copy of the same supplied by the insured to the answering respondent is filed and annexed herewith as ANNEXURE
'R-13'.
The order of Heavy Electricals India Ltd. dated 22.6.1979 which gives the detail of the order. Reference may be made to Annexure II which deals with the schedule of equipment to be supplied by Heavy Electricals India Ltd. wherefrom it is clear that the cable box is an integral part of the Rectiformer set. A copy of the said order dated 22.6.1979 is filed and annexed herewith as ANNEXURE 'R-14'.
The Instruction Book No. 11 of Heavy Electricals India Limited also supports the contention of the answering respondent that the cable box is integral part of the Rectiformer. The copy of the said Instructions Book clearly shows that the cable box have been provided on the either side of the transformer one of which is for connecting to the incoming supply terminal and through the other outgoing loads from the regulator transformer are brought out. A copy of the same is filed and annexed herewith as ANNEXURE 'R-15'. (Kindly refer to page 4 of the Instruction Book).
The drawing and the photograph of the Rectiformer which is filed herewith as ANNEXURE 'R-16 Colly' would also clearly show that cable box is bolted to the Rectiformer indicating a permanent nature of annexation.
25. Again, it is well settled that once the claim for material damage under fire policy is not payable, the claim is also not payable for the consequential loss as per provision 2 of the Consequential Loss (Fire) Policy, which reads as under :-
"2. At the time of happening of the Damage there shall be in force a FIRE POLICY covering the interest of the insured in the property at the Premises against such Damage and that payment shall have been made or liability admitted thereunder. However, this Provision shall not apply where payment is not made under FIRE POLICY solely due to operation of a provision in FIRE POLICY excluding liability for losses below a specified amount".
26. Further, the claim against the interest is also not maintainable. The insurance company was always willing to make the payment of balance claim but the insured kept insisting that the claim for Rectiformer No.4 should also be considered. The insured kept prolonging the claim on the ground that the Expert opinion should be taken. This is obvious from the correspondence filed on record as Annexure R-17 (Colly). The major portion of the claim has already been paid on 06.01.1995 and only a small amount was kept pending at the instance of the complainant. All the other allegations have been denied.
SUBMISSIONS AND FINDINGS :
27. We have heard the counsel for the parties. The counsel for the complainant made the following submissions. He has invited our attention towards Diagrams, one filed by the complainant and the other filed by the OP. It was argued that it is apparent that the cable box is not an integral part of Rectiformer. Again, the cable box can be sold separately. However, the Rectiformer cannot work without cable box whereas, converse, is not true. The learned counsel for the complainant also invited our attention towards the Certificate dated 30.05.1998, issued by Bharat Heavy Electricals Limited, Bhopal, wherein the following extract is germane to the present case :-
"The cable sealing boxes are not an integral part of the transformer and are generally bolted to the main tank. They are designed to accommodate all the cable joint fittings or sealing ends required by the cable supplier.
In case of oil filled cable boxes, the oil of the cable boxes is separated from the oil in the main transformer tank through a carrier. The cable box can, therefore, be treated as an accessory".
28. The counsel for the complainant has also referred to the Final Survey Report of the Surveyors - M/s. Mehta & Padamsey Pvt. Ltd, and Chempro Inspections Pvt. Ltd., dated 18.10.1996, marked as Annexure R-8, the relevant portion of which, runs as follows :
"9.0 - LIABILITY FOR TRANSFORMER NO.4 9.1 We are of the opinion that :-
a) The cable box (wherein the electrical fault is assumed to have caused the fire), is an integral part of the transformer and hence
b) Exclusion 'g' would apply to the Transformer No.4 including the cable box.
9.2 xxx 9.3 The consultants appointed by the Insured and by us, have divergent opinions on whether or not, the cable box should be considered as being an integral part of the transformer;
9.4 The matter hence needs to be appropriately considered as per the interpretation of the terms, conditions and exclusions of the policy".
29. The counsel for the complainant vehemently argued that the insurance company is liable for the gross deficiency in service in settling the claim and took more than 9 years from the date of incident till the date of filing the present complaint. The claim of the complainant was withheld on an erroneous stand that the cable boxes are an integral part of the Rectiformer/Transformer and the claim in respect of Rectiformer No.4 is not payable in terms of Exclusion clause 'g' of the policy.
30. The complainant has also cited two authorities reported in (1) B.V. Nagaraju Vs. Oriental Insurance Co. Ltd., (1996) 4 SCC 647, wherein it mentions as under :-
"The National Commission went for the strict construction of the exclusion clause. The reasoning that the extra passengers being carried in the goods vehicle could not have contributed, in any manner, to the occurring of the accident, was barely noticed and rejected sans any plausible account; even when the claim confining the damage to the vehicle only was limited in nature. We, thus, are of the view that in accord with the Skandia case, the aforesaid exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy that is to indemnify the damage caused to the vehicle, which we hereby do".
In (2), Skandia Insurance Co. Ltd. Vs. Kokilaben Chandravadan & Ors., (1987) 2 SCC 654, it was held as under :-
"... When the option is between opting for a view which will relieve the distress and misery of the victims of accidents or their dependants on the one hand and the equally plausible view which will reduce the profitability of the insurer in regard to the occupational hazard undertaken by him by way of business activity, there is hardly any choice. The Court cannot but opt for the former view. Even if one were to make a strictly doctrinaire approach, the very same conclusion would emerge in obeisance to the doctrine of 'reading down' the exclusion clause in the light of the 'main purpose' of the provision so that the 'exclusion clause' does not cross swords with the 'main purpose' highlighted earlier".
31. Instead of touching the heart of the problem, the counsel for the complainant just skirted it. The above said Certificate, dated 30.05.1998 issued by BHEL, Bhopal was issued by one Sh. C.M. Sharma, General Manager (Transfer). The same stands rebutted by another document with the subject "Damage to Rectifier - Transformer No.4", in Grasim Industries Ltd., Chemical Division, Nagde. Its para No.7 reads as under :-
"7. Mr. Surya Rao clarified that :- a) In the BHEL Transformer, the cable box was part of the supply from BHEL, but in fact, the cable box was subcontracted by BHEL to Oriental Power Cables Ltd., who had shipped in directly to GRASIM.
b) GRASIM has some 130 KV EASUN Transformer and ancillary transformer where the cable box has not been part of the supply of the transformer manufacturer / supplier and that the cable box has been purchased directly by them.
The following persons were present to discuss the above matter in a meeting held on 31st August, 1994 at 11.00 AM in the Conference Room of TIED H.O. at NEW INDIA CENTRE, BOMBAY.
NEW INDIA : A.G.M. Mr. L.R. Rinsshia, Manager, Mr. D.R. Joshi, Manager, Mr. S. Shohani, Manager, Mr. Nagashayana, Dy. Manager, Mr. M.D. Jhala, Dy. Manager, Mr. K. Rajasekharan, Sr. D.M. Mr. Shyam Sunder, A.M. Mr. Vijay Paulson.
GRASIM: Vice President, Mr. S.N. Jajon, General Manager, Mr. Surya Rao, Mr. R.G. Ranade, Mr. G.L. Paranjpe.
SURVEYORS : Mr. Saumil Mehta of "Mehta & Padamsey", Mr. K. Satpaul of "Chempro Inspection", Mr. J.S. Prakash Rao, Consultant".
32. Secondly, the joint report of the Surveyors - M/s. Mehta & Padamsey Pvt. Ltd., and Chempro Inspections Pvt. Ltd., dated 18.10.1996, carries infinite value. No reason has been given that the report of the Surveyors should be discarded. The Surveyors are well-known and reputed ones. The Hon'ble Apex Court in United India Insurance Co. Ltd., & Ors. Vs. Roshan Lal Oil Mills Ltd. & Ors., (2000) 10 SCC 19, the Hon'ble Apex court was pleased to hold :
"7. The appellant had appointed joint surveyors in terms of Section 64-UM(2) of the Insurance Act, 1938.
Their report has been placed on the record in which a detailed account of the factors on the basis of which the joint surveyors had come to the conclusion that there was no loss or damage caused on account of fire, was given and it was on this basis that the claim was not found entertainable. This is an important document which was placed before the Commission, but the Commission, curiously, has not considered the report. Since the claim of the respondent was repudiated by the appellant on the basis of the joint survey report, the Commission was not justified in awarding the insurance amount to the respondent without adverting itself to the contents of the joint survey report, specially the facts enumerated therein. In our opinion, non-consideration of this important document has resulted in serious miscarriage of justice and vitiates the judgment passed by the Commission. The case has, therefore, to be sent back to the Commission, for a fresh hearing".
33. This Commission in D.N.Badoni Vs. Oriental Insurance Co. Ltd, 1 (2012) CPJ 272 (NC), held that "it is a well settled law that a Surveyor's report has significant evidentiary value unless, it is proved otherwise, which the petitioner has failed to do so in the instant case".
34. Again, the joint report of Investigations dated 17.03.1993, submitted by Sh. R.G. Ranade and Sh. G.L. Paranjpe, is relevant, which clearly mentions at para 6.2, as under :-
"In our opinion, the noise like explosion can be from short circuit in 22 XV cable of Rectiformer No.4. It is also likely that the cupro-aluminium joint developed a hot spot, causing heating, melting of compound & leakage of compound & oil. This ultimately might have resulted in flash over & fire.
It is, therefore, our considered opinion that fire did not occur within the Rectiformer No.4 by any internal short circuit or arcing but it possibly started from localised heating of cupro-aluminium joint in the cable box compartment. This caused fire on Rectiformer No.4 which subsequently spread to other Rectiformers, connected cables, control room, 22 KV switchgear panels, etc".
35. The complainant has placed reliance on the letter dated 23.02.1997 written by Insurance Surveys International, England, issued by Mr. G.W.G. Morfey, Director. However, the 'but and ben' stand set up by the above said Director does not go to support the case of the complainant. A document must be read holistically. It should not be read in vacua to the benefit of one party and to the detriment of another. It also mentions the following relevant facts :-
"We do not have any direct experience of the interpretation of the particular "Exclusions" wording of the Grasim Industries Fire Policy. However, we are of the opinion that this can be interpreted that only the cable box would be excluded in the event of the cable box being the proximate cause of the fire".
36. The complainant has also placed reliance on the recommendations of the Corporate Claims International Ltd., by Mr. Adrian A. Maurice, dated 18.02.1997. The relevant portion of the recommendations also, run as follows :-
"You will appreciate from our conversation that the advice has been restricted to a theoretical appraisal as circumstances and your instructions preclude a site visit either now or at the time of the loss".
37. The complainant has also placed on record the "Invoice" which mentions the "Supply of high current rectifier (static convertor - Ex. S.H. 0504.00), - High current rectifier system along with associated equipments. Also, the certificate issued by M/s. Heavy Electricals (India) Ltd., dated 22.06.1997, which mentions at Col. 'b', as under :-
"b) Annexure II : Schedule of equipment in the ....
(illegible) by Heavy Electricals (I) Ltd., Bhopal".
38. Further, there is Schedule of equipment to be supplied by Heavy Electricals (I) Ltd., Bhopal, which, at Col. 'h', mentions as under :
"h) Terminal Arrangement :
AC side mounted 22 KV Clase Cable Box.
OC-2 Nos. DC positive cut-bars for connection to purchaser's bushers. Each size 5 in parallel 1" x 12" aluminum flats.
1 No. DC negative terminal for connection to purchaser's bushers on the transformer, size 24 in parallel 3/8" copper flats".
39. Again, Instruction Book No.II of the Heavy Electricals (I) Ltd., on Rectiformers & Control Equipment, marked as Annexure R-15, mentions as under :-
"The cable boxes have been provided on the either side of the transformer, one of which is for connecting to the incoming supply terminals and through the other the outgoing loads form the regulating transformer are brought out. For details refer Rating and Diagrams Plate Drg. No. F. 6128511".
40. The Surveyors, Mehta & Padamsey Pvt. Ltd., vide their report dated 18.10.1996, mention, as under :-
"2.6 The insured stated that the cable box need not be mounted on the transformer itself. It was possible to fix the cable box at a distance from the transformer and to connect it by bus bars to it. The insured stated that they had some other transformer installation where such an arrangement actually exists. Thereby the insured sought to establish that the cable box should be considered as a distinctively separate item.
2.7 We had pointed out that if the cable box had been installed at a distance, the transformer would not have been damaged by a fire at all. We also stated that in our view, the transformer and the cable box (which was mounted on the transformer as per the original design) constituted a single electrical risk and should be treated as such".
41. All these facts sufficiently establish that the cable box forms part of the Rectiformer. We find that the complainant is trying to make in vain, bricks, without straw. It has no bone to pluck with the OP. The Original petition is, therefore, dismissed. No costs.
......................J J.M. MALIK PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER