Jagannath Bag, Member - (1.) THE present Complainant is a registered Limited Company engaged in manufacturing and selling of Sodium Silicate Solutions. The Complainant obtained one Standard Fire and Special Perils Policy for a sum of Rs. 1,25,00,000 (One crore and twenty five lakh) only covering the risk of stock of raw materials and stock -in -process i.e., finished and semi -finished products and packing materials. The Policy, bearing No. 510603/11/08/00000007 was valid from 6.4.2008 to 5.4.2009. The entire stock -in -trade of the Complainant firm was hypothecated to the SBI, Commercial Branch, Salt Lake, Kolkata. On 15.8.2008, at about 10.30 a.m., 'due to inundation of rain water following continuous rain, the complete eastern wall of the warehouse had collapsed and fallen together with a very large number of bags of Soda Ash and CRS in the pond within the factory compound'. As a result, the stocks of Soda Ash and CRS (Crushed Refined Soda) were badly affected causing loss to the extent of Rs. 42,00,000 (Forty two lakh) only. OP No. 1, being the Insurance Company, was informed of the incident immediately with a request to depute a Surveyor for survey and assessment of loss. The Insurance Company engaged M/s. N.T. Kothari to survey and assess the loss. On 15.8.2008 itself, the said Surveyor visited the affected place, but nothing was heard from them. Thereafter, Mr. A. Partranabish, appointed by OP No. 1 Insurance Company, who visited the factory on 22.8.2008, carried out inspection and submitted his report on 23.8.2008 to the Insurance Company. Then, M/s. M.N. Zutshi was appointed to conduct the final survey. But, in spite of appointment of three Surveyors, the Insurance Company did not settle the claim of the Complainant, though, among other documents, the copies of Stock Statements for June and July 2008 as submitted to the Bank and the Auditor's Report showing Balance Sheet and Profit and Loss Account had been filed. The OP No. 1 having requested vide their letter dated 7.1.2009 to furnish a copy of the weather/rainfall report of the Regional Meterological Centre, Alipore, pertaining to Madhyamgram/Barasat Area for the period from 13.8.2008 to 15.8.2008, the same was obtained and filed. But, no action still being taken to settle the claim even upon having received the report of M/s. M.N. Zutshi assessing the loss to the extent of Rs. 39,53,047, the Complainant filed a case under No. CC/23/2009 before this Commission which was contested by the OP. During pendency of the said complaint case, the Insurance Company repudiated the claim of the Complainant, this Commission not having decided the case on merit gave the Complainant liberty to challenge the repudiation order in appropriate Forum with direction upon the OP to pay a sum of Rs. 10,000 to the Complainant on the ground of deficiency in service in delaying the settlement of the claim. The present complaint case is directed against the repudiation letter dated 13.11.2009. It has been averred, inter alia, that the letter of repudiation is illegal insofar as the OP No. 1 ignored the final survey report dated 3.12.2009 submitted by Mr. M.N. Zutshi. The Complainant has prayed for an order for payment of Rs. 42,00,000 by OP No. 1 on account of total loss of the insured goods and also for payment of Rs. 50,000 as compensation towards harassment and monetary loss in the business with interest @ 10% from the date of lodging the claim.
(2.) THE complaint is contested by the OP No. 1 by filing a written version. It has been stated in their written version that a case under No. CC/23 of 2009 was filed by the Complainant which was contested by the OPs with preliminary objection under M.A. No. 218 of 2009 and the said complaint was disposed of by this Commission by an order dated 5.1.2010 directing the OP Insurance Company to pay compensation of Rs. 10,000 to the Complainant on the ground of deficiency in service in delaying the settlement of the claim. The said sum of Rs. 10,000 has been received by the Complainant and no appeal against the order has been filed. The present complaint is liable to be dismissed. The Complainant has submitted evidence on affidavit and questions being raised by OP Insurance Company, replies have been furnished. Affidavit of Mr. Hasmukh D. Parakh of M/s. M.T. Kothari and Company and affidavit of Mr. Sukhendu Dutta, Senior Partner, M/s. N.T. Kothari and Company have been perused. Affidavit of evidence of Mr. Subrata Biswas on behalf of the Insurance Company, affidavit of Mr. Dilip Kumar Saha Chartered Accountant, Surveyor and Loss Assessor, questionnaire filed by the Complainant and replies to such questionnaire have been filed. BNAs have been filed by the Complainant as well as by the OP No. 1.
(3.) LEARNED Advocate appearing for the Complainant submitted that the OP No. 1, was informed of the loss of the insured stock, etc. caused by inundation and/or subsidence immediately after the collapse of the eastern wall of the warehouse and in spite of several surveyors being engaged by the OP No. 1, they delayed in settlement and lastly repudiated the claim on the ground that the loss and damages allegedly suffered by the insured did not come within the purview of the insured perils under the policy. It was clearly stated in the final report of Mr. M.N. Zutshi that the overflow from the pond inundated the entire area up to the Boiler Shed. No. 2, i.e., past the open gate of the warehouse on the south. The water of the pond entered the warehouse through the open gate, flowed down the passage and aided by the slight incline/slope of the floor accumulated all along the east wall, soaked and seeped through the rows beyond from three sides and the bags stacked several high slid, unbalanced and toppled against the east wall enmasse that gave way under the sudden impact load and collapsed into the pond together with the bags. The total loss estimated by the said Surveyor was Rs. 25,68,588. In spite of the report of the said Surveyor, the OP No. 1, instead of accepting the report, sought for the opinion of Mr. Dilip Kumar Saha being the Surveyor/Investigator and on the basis of their opinion, the claim of the Complainant was repudiated.;