J. Bag, Ld. Member:
The facts of the present complaint, briefly stated, are as follows:
The Complainant purchased a comprehensive insurance policy being Industrial All Risks Insurance Policy No. 102000 /11 /08 /34 00000020 from the OP Insurance Company by paying a premium of Rs. 14,48,603/- in advance. The policy, which was valid from 11.04.2008 to (Midnight ) 10. 04 2009 covered the Plant and Machineries against probable insured perils such as fire, machinery breakdown, accidental damage etc. During the subsistence of the insurance policy on 23.06.2008 at about 2.20 P.M the Panel Crucible Coil of the Furnace Melting Shop at the Complainants plant i.e. Furnace No. 4 at Kalinganagar Industrial Complex, Orissa, got punctured and as a result the molten metal came out and damaged cables , sensors, switches etc. The insurance company being duly informed of the damage appointed M/s Purokayastha and Associates as Surveyor, who visited the plant on 29. 06. 2008 and conducted survey on 30.06.2008 . They collected a written statement from one Mr. S.S. Dash an employee of the insured. The damaged machine was thereafter sent for repairing to M/s Electrotherm (India ) Ltd., at Palodia, District, Gandhinagar, on 12.07.2008 through Associated Road Carriers Ltd vide consignment No.156589. The manufacturer after having carried out necessary repair raised a bill amounting to Rs.56,32,123/-. Entry Tax of Rs.1,14,203/- being added to freight for transportation of Rs.78,050/- and other charges , total claim stood at Rs. 61,13,611/- which was spent by the insured. The bills were paid by the Complainant through cheques .The claim form along with the claim bill of Rs.61,13, 611/- was filed on 30.10.2008 by the Complainant for payment by the OP insurance company . The OP insurance company by their letter dated 6th March, 2009 stated that a sum of Rs.2,44,477/- only being the gross assessed loss according to the Surveyor and the said amount having fallen below excess of Rs. 5 lakh as provided under the policy the claim could not be entertained . The basis of repudiation of the major part of the claim is alleged to be the failure of the surveyor to draw independent inference because of his ignorance and / or other reasons. The Complainant made several representations before the OP for reexamination of the case which the latter declined. In the circumstances the Complainant has preferred this complaint praying for directions upon the OP to pay a compensation sum of Rs. 61,13,611/- with interest @ 12 % p.a. on the said sum with effect from 23. 06.2008 till the date of its realization and also to pay an additional sum of Rs.1,00,000/- as compensation for the harassment caused by the OP to the Complainant , apart from another sum of Rs.50,000/- as legal cost incidental to the instant litigation.
The OP insurance company has filed a written version saying, inter alia, that the Surveyors report is based on inspection of the plant of the Complainant and on the basis of the Surveyors report, the claim of the Complainant has been repudiated. It has also been contended that before filing the complaint the report of the Surveyor was not challenged, nor was there any demand for appointment of another (Second) Surveyor.
Ld. Advocate appearing for the OP submitted that the Surveyors report which is a credible piece of evidence, as held by Honble National Consumer Disputes Redressal Commission in National Insurance Company Ltd. Vs. Sri Chakrabhati Enterprises 2012 (1) CPR 124 (NC), constituted the ground for repudiation of the claim . Decision of Honble National Commission as reported in 2012 (2) CPR 127 (NC) emphasizing the evidentiary value of Surveyors report was also relied upon. It was argued that the damaged Cradle Assembly is shown to have been sent for repair but it is not clear whether the cradle assembly was for repair or buyback as the nature of damage is not authenticated in any manner. The said cradle assembly does not figure in the log sheet and the statement denies the existence of service report. Nowhere any reasons of not showing the damaged cradle to the surveyor or insurer is written. Further, the cradle assembly having a short life, the same might have been damaged earlier and kept as it is. The Surveyors assessment of loss came to Rs.2,44,477/-only which is below excess of Rs.5 lakh as provided under the policy. The Surveyors report has been challenged by the Complainant either. Hence, the complaint should be dismissed.
Ld. Advocate appearing for the Complainant submitted that they purchased the insurance policy for a premium of Rs.14,48,603/- being an Industrial All Risk Insurance Policy covering the entire plants and machineries. During the subsistence of the policy , the panel crucible coil (D 2) of one of the electric furnaces got punctured owing to fire hazard and in the process the furnace was damaged . The damaged machine was sent for repairing to the manufacturer M/s Electrotherm India Ltd. who after repairing the machine raised a bill of Rs.56,32,123/-. Other charges including freight for transportation , entry tax , refractory material, cost of liquid metal , etc made the total expenditure Rs.61,13,611/- . The claim amount was accordingly submitted to the Insurance Company. It was Rs. 2,44,477/- only that the Surveyor assessed as loss. The surveyors statement that cradle assembly which is a separate part was not damaged is baseless and motivated and the surveyors conception that cradle assembly was a new addition and cradle is not crucible is all together wrong. National Test House, Govt of India, Ministry of Consumer Affairs , Food and Public Distribution, Department of Consumer Affairs opined that the coil cradle assembly is described in different terms and names viz induction furnace crucible assemble, coil cradle assembly, induction furnace coreless, crucible etc. These terms or names are used by different designers , manufacturers , or even by end users is basically the same item, which is core less type induction furnace.
Upon perusal of the complaint and after hearing of the pleadings of both parties the following issues are framed for adjudication:
1. Is the complaint case maintainable?
2. Is there any deficiency on the part of the service provider insurance company?
3. Is the Complainant entitled to get relief as prayed for?
All the issues are taken together for consideration :
The Complainant having taken a comprehensive insurance policy being Industrial All Risks Insurance Policy covering Plant and Machineries against probable insured perils and having been denied the benefit of the said insurance policy lodged a compliant with the grievance that in spite of damages caused to their Plant and Machineries during the validity period of the Insurance, the claim of Rs.61,13,611/- has been repudiated mainly on the basis of the surveyors report which is not at all reliable . The Complaint is maintainable under the provisions of the Consumer Protection Act 1986 since a relationship between the insurance company being the service provider and the Complainant being a consumer/purchaser of Insurance Service is already established the purchaser of insurance service is already established .
The OP Insurance Company repudiated the complaint relying upon the report of the Surveyor who disagreed with the contention of the Complainant that crucible and cradle assembly are one and the same item. In fact the entire dispute revolves round the question if the crucible and cradle are separate items or not. In their letter dated 14th June 2010 the insurance company conveyed the views of the surveyor Sri P. Purkayastha of M/s. Purkayastha and Associates as follows:
1. A damaged cradle assembly has been sent for repairs. Whether it is repair or buy back is not clear as nature of damage is not authenticated anywhere.
2. The mention of cradle assembly does not figure in log sheet. The statement denies the existence of service report.
3. The cradle assembly has a short life. It can not be denied that the same was not damaged earlier and was kept as it is.
4. No where any reason of not showing the damaged cradle to surveyor or insurer is written.
The OP insurance company did neither entertain the claim of the Complainant nor agreed to reopen the case of the Complainant in deviation of their decision conveyed vide their letter dated 6th March 2009 . Hence, the charge of deficiency in service on the part of the OP Insurance Company.
The Complainant in their affidavit on evidence submitted that the manufacturer /repairer certified that the coil cradle assembly (induction furnace ) was repaired and there was no buy back. It has also been contended that a plant which is covered under a comprehensive Industrial All Risks Insurance Policy from its inception since 2007 has no reason to keep a damaged item which is insured without raising a claim. Further, it has been mentioned that the entire damaged coil cradle assembly was before the surveyor who took photograph of the same but was naïve enough not to identify the coil cradle assembly which suffered the major part of the damages. It was contended that the terms crucible ,coil cradle assembly and cradle assembly have the same meaning as certified by the Manufacturer i.e. M/s Electrotherm vide their certificate dated 06.12.08 . The certificate issued by Additional Chief Engineer (Project) of M/s R. Singh and Associates (P) Ltd. bears testimony to the same view that the said different terms have one meaning .
The OP insurance company in their evidence on affidavit denied and disputed that the Complainant company had obtained opinion of National Test House. It has also been held that the report of the surveyor was not challenged by the Complainant before lodging this present complaint. There being no evidence in respect of their deficiency in service the complaint is liable to be dismissed.
The fact goes that immediately after reporting of the accident at the Steel Melt Shop of the Complainant on 23.06.2008 , the surveyor visited the plant of the Complainant and got a written statement from one Mr. S.S. Dash . The statement included that the detailed damage profile will be authenticated by M/s Electrotherm apart from the damages observed by them. M/s. Electrotherm being the manufacturer and repairer of the damaged item for which claim has been raised is no doubt competent enough for certification about the fact that crucible and cradle assembly are one and the same item. The certificate of the National Test House in this regard is quite convincing. Surveyors observation that crucible and cradle assembly are separate items does not stand substantiated in so far as, while he has furnished a drawing of crucible in his report, no such drawing of cradle or definition thereof as a separate item has been provided. His conjectures about the damaged Cradle Assembly appear to be subverted by the evidence produced by the Complainant.
Admittedly, there was an accidental damage caused to the Crucible D2 of Furnace No. 4 which was caused by leaked out water from copper coil which touched the molten material being tapped causing severe explosion. The gross loss as cost of rectification of crucible and associated furnace has been assessed by the surveyor at Rs.2,44,477/-. What the Surveyor did in regard to the assessment of loss is as per the items listed in the statement of the insured provided by one of their Executives, namely, S.S. Dash . In the statement itself it was written down that the detailed damage profile will be authenticated by M/s Electrotherm, being the manufacturer of the crucible. The surveyor did not make any assessment of the damages detected by the manufacturer and taken for repair.
Further, the fact remains that the surveyors report was not communicated to the Complainant in normal course. The Complainant exercising their right to information got a copy of the survey report. Hence, the question of challenging surveyors report or asking for appointment of second surveyor does not figure as an important contention.
Going by the material facts and evidence on record we are of the considered view that the OP Insurance Company failed to discharge their responsibility in providing such Insurance service as was excepted form them for consideration. The Complainant has proved their case that the crucible and the cradle assembly are no different items and the expenditures incurred in repairing the damaged crucible / cradle assembly can not be refused to be paid by the OP Insurance Company.
Hence,
                                           Ordered
that the complaint be and the same is allowed on contest . OP is, accordingly, directed to pay the claimed sum of Rs. 61,13,611/- together with interest @ 6% p.a. from 23.06.2008 till its realization.
The OP is also directed to pay a sum of Rs.10,000/- as compensation for mental harassment and a litigation cost of Rs. 5,000/- . All the amounts as ordered shall be paid by the OP/ Insurance Company within a period of 45 days from of the date of this order failing which the Complainant will be at liberty to put the decree in execution and interest @ 9% shall be payable on the decreed amount till realization in full.