Judgment:
Ashok Bhan, J., President
Appellant Insurance Company which was the Opposite Party No.1 before the State Commission has filed this Appeal against the judgment and order dated 08.01.07 passed by the State Consumer Disputes Redressal Commission, Orissa (in short, the State Commission) in Complaint No. 197/02 wherein the State Commission allowing the complaint has directed the Appellant Insurance Company to pay a sum of Rs.4,00,000/- to the Respondent/Complainant along with interest @ 6% p.a. from 01.01.03 till the date of payment. Rs.5,000/- were awarded towards costs.
FACTS:-
Complainant/Respondent herein was granted the mining lease for an area covering 59.12 acres for fire clay in village Patharpur by the Collector, Cuttack. Respondent took the loan from the State Bank of India, Cuttack Industrial Estate Branch (Opposite Party No.2 before the State Commission) for excavating the minerals from the earth and hypothecated the stock of raw materials and minerals with the Bank. The Bank obtained Fire and Special Perils Policy (Material Damage) bearing No.1155040000043 for the sum of Rs.15,00,000/- from the Appellant covering the risks of storm, cyclone, typhoon, tempest, hurricane, tornado, flood and inundation to the stock lying in open with the Respondent. The policy was valid from 28.01.01 to 27.01.02.
In the month of July, 2001 (wrongly typed in paragraph 6 of the complaint as July, 2000) due to incessant rains and excessive floods, the area of Banki Sub-Division of the Cuttack was totally submerged under the flood water as a result of which the Respondents mine site was badly affected and the developed area entirely collapsed. The huge quantity of stocked minerals was washed out in the flood water. Upon receiving the intimation, Appellant appointed the Surveyor, S.K. Panda to conduct the survey and assess the loss. Surveyor submitted his report on 15.01.02 stating that the mining area was like a mountain and question of in flow of flood water into it did not arise. Surveyor rejected the claim of the Respondent to be œNo claim?. Appellant on the basis of the report of the Surveyor, repudiated the claim vide letter dated 06.05.02. Complainant, being aggrieved, filed the complaint before the State Commission.
Appellant, on being served, put in appearance and filed its written statement resisting the complaint on the grounds; that the loss occurred due to flood in July, 2001 was not covered under the policy inasmuch as the policy was valid for the period from 28.01.01 to 27.1.02; that according to the Surveyor, the mining area was like a mountain and question of in flow of flood water into it did not arise; that the Appellant was justified in repudiating the claim and there was no deficiency in service on its part.
State Commission, relying upon the report of the G. Rout, Geologist and the news published in the Express News Service, came to the conclusion that on account of heavy flood water from river Mahanadi, the fire clay stock in the mines of the Respondent was washed away. State Commission allowed the complaint and directed the Appellant Insurance Company to pay a sum of Rs.4,00,000/- to the Respondent/Complainant along with interest @ 6% p.a. from 01.01.03 till the date of payment. Rs.5,000/- were awarded towards costs.
State Commission in its order observed as under:-
œThe policy in question was for a period of twelve months commencing from 28.01.01 to 27.01.02. The mention of July, 2000 in paragraph 6 of the complaint is obviously a typographical error. It is and should be July, 2001 as asserted by the complainant in his rejoinder.
The Opposite Party No.1 in his reply to the rejoinder has stated that the above certificate or report of the Geologist was not produced along with the claim and it cannot be accepted because there was no mention of the date on which he visited the site and as such it is a manufactured document. On perusal of the report of the Geologist we are of the view that it cannot be easily brushed aside. He has mentioned his registration number as RQP/BBS/018/99/A, dt. 8.10.99. Though he has mentioned it as certificate it is in the form of report. He has stated that fire clay can easily be removed without blasting and drilling. That there was heavy flood in the river Mahanadi which affected the complainants mine site cannot be doubted and due to heavy rush of flood water the stocks must have been washed away. The Insurance policy covers stock in open. One of the clauses of the insurance policy says that any loss or damage after expiry of twelve months from happening of the loss or damage cannot be entertained. The loss/damage have occurred in July, 2001 and the complainant lodged the claim with the Opposite Party No.1 within time.
Appellant, being aggrieved, has filed the present appeal.
We have heard the Ld. Counsel for the parties at length.
Ld. Counsel appearing for the Appellant contends that the State Commission has erred in not accepting the report of the Surveyor which was an important piece of evidence, on the ground that it was submitted by an Automobile Engineer; that the State Commission has not pointed out any discrepancy or incorrectness in the survey report while rejecting the same; that the State Commission has erred in recording the finding that the Geologist (G.Rout) had actually inspected the site which fact is not supported anywhere in his certificate; that the Respondent during the course of proceedings before the State Commission for the first time has brought to the notice of the Appellant about the certificate issued by the Geologist, G. Rout; that the certificate issued by the Geologist, G. Rout, does not bear any date; that the monthly returns submitted by the Respondent to the State Mining Department were only showing the availability of stock and not the quantification of the loss of the material/minerals suffered by the Respondent; that the State Commission has wrongly placed reliance upon the monthly returns filed by the Respondent while awarding the compensation.
As against this, Ld. Counsel appearing for the Respondent supports the order passed by the State Commission.
Respondent was granted mining lease for fire clay by the Collector, Cuttack. Respondent took the loan from the State Bank of India for excavating the minerals from the earth and hypothecated the stock of raw materials with the Bank. Bank in turn obtained the policy from the Appellant to insure the stock lying in open with the Respondent. There were incessant rains and heavy floods in the area of Banki Sub-Division of Cuttack during the month of July, 2001 as a result of which Respondent suffered a huge loss. Claim lodged by the Respondent was repudiated by the Appellant on the basis of the report of the Surveyor. Repudiation of the claim by the Appellant on the ground that the stock was not damaged due to flood water as the mining area was like a mountain and flood water could not stay and damage the stock cannot be accepted. Admittedly, there were heavy rains and floods in the month of July, 2001 in the area where the mines of the Respondent were located. This fact is corroborated with the report of the Geologist, G. Rout and the news published in the Express News Service, the relevant portion of which reads as under:-
œ Reports reaching here said that over a lakh population of Banki were affected in the floods¦¦.Besides, Similipur, Subarnapur, Billipada, Anuari, Pathapur gram panchayats which are still narooned are facing acute drinking water crises as all the tubewells have become defunct.?
Respondent had taken the policy in the sum of Rs.15 lakh to insure the stock lying in open. Risk covered under the policy was for the loss caused due to storm, cyclone, typhoon, tempest, hurricane, tornado, flood and inundation. Stocks lying in the open were damaged due to excessive rains. State Commission has rightly concluded that the insured stock was damaged due to excessive rains which caused flood.
Pursuant to the directions issued by the State Commission, Respondent produced the monthly returns and statement of stock and book debit on record. In the monthly return dated 1.6.01 filed by the Respondent with the Senior Mining Officer, the closing balance stock at mine site was mentioned as 2988.535 mtrs. In the statement of stock and book debit filed by the Respondent with the State Bank of India as on 31.5.01, stock available in the mine site was 2978.480 mtrs. and the value of the stock was Rs.4,05,550.50. In the statement of stocks and book debit as on 30.6.01, opening stock was mentioned as 2978.480 mtrs. and value of the stock was Rs.4,05,550.50. State Commission replying upon the monthly returns and the statement of stocks and book debit furnished by the Respondent to the State Bank of India, assessed the loss to the tune of Rs.4,00,000/- and accordingly awarded the same amount to the Respondent. We do not find any infirmity in the order passed by the State Commission.
For the reasons stated above, we do not find any merit in the appeal and dismiss the same with no order as to costs.
Vide order dated 16.4.07, we had directed the Appellant Insurance Company to deposit the entire awarded amount with the State Commission and liberty was granted to the Respondent to withdraw the same on furnishing bank guarantee. State Commission is directed to release the amount to the Respondent along with accrued interest if not already withdrawn.
Registry is directed to refund the sum of Rs.35,000/- deposited by the Appellant as statutory deposit along with accrued interest.