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Dhampur Sugar Mills Ltd., Through its vice President & Director Sh. J.P. Sharma, Uttar Pradesh v/s National Insurance Co. Ltd., Chairman & Managing Director & Others

    Consumer Case No. 74 of 2010

    Decided On, 07 October 2021

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. C. VISWANATH
    By, PRESIDING MEMBER

    For the Complainant: Parsenjit Keswani, Advocate. For the Opposite Parties: Yogesh Malhotra, Advocate.



Judgment Text

1. The case of the Complainant is that it is a Company registered under the Companies Act, 1956 and involved in sugarcane processing. The Opposite Party is public sector Insurance Company involved in Non-Life Insurance business in India. On 17.02.2006 the Complainant placed an order from M/s Cheema Boiler Ltd, Chandigarh for the design and supply of bagasse fired boiler (120 THP x 32kg.per cm square) for an amount of Rs.7.59 crores. The landed cost of the boiler was Rs.9.81 crore. On 16.05.2006 the Complainant placed an order from M/s. Thermax Limited, Delhi for the supply of an ESP (Electronic Precipitator) being an integral part of the boiler. After erection of the boiler, inspection and testing was done by the Directorate of Boilers on 13.11.2006. On 21.11.2006 approval for commercial use of the boiler along with Registration no.-UP6279 was granted in terms of Section-9 of the Indian Boiler Act, 1923 under form 5, Regulation 381(c) of the Indian Boiler Regulations, 1950. On 6.12.2006 the Opposite Parties deputed Surveyor for inspection of the boiler. The Surveyor submitted a report dated 7.12.2006. Thereafter, the Opposite Parties issued Boiler and Pressure Plant Insurance Policy, vide Policy No.462000/44/06/5100000091, for Rs.16,37,81,178/- for the period 12.12.2006 to 11.12.2007. On 16.12.2006 the boiler was commissioned for commercial production. On 18.12.2006 an explosion took place in the ESP and a portion of the ESP collapsed and the boiler refractory also collapsed. Intimation regarding explosion was given to the Opposite Parties, vide letter dated 18.12.2006, with the request to depute a Surveyor. The Complainant filed claim of Rs.2,99,63,483/-. The Opposite Parties deputed M/s Puri Crawford & Associates India Pvt. Ltd as Surveyor to assess the loss. Surveyor informed the Complainant, vide letter dated 20.08.2008 that the loss had been assessed at Rs.1,90,00,082/-. Inspite of several reminders the Opposite Parties did not settle the claim. A Complaint was also made to the Insurance Regulatory Development Authority (IRDA). On 29.12.2009 IRDA, vide letter dated 07.01.2010, forwarded the Complaint to the Opposite Parties with a direction to settle the Insurance Claim within 15 days. Despite the direction of IRDA, the claim of the Complainant had not been settled. Aggrieved by this the Complainant filed a Complaint before this Commission with prayer as follows-

"(a) Direct the Opposite Party to settle the claim of the complainant and pay an amount of Rs.1,90,00,082/- being the loss quantified by the independent surveyors appointed by the respondent insurance company, along with interest @ 18% per annum.

b) Pass such other orders as may be deemed fit, proper and necessary."

2. The Complaint was resisted by the Opposite Parties by filing Written Statement. It was stated that the Complaint was not maintainable as the Complainant had purchased the insured boiler for commercial purpose. The Complainant was, therefore, was not a Consumer. It was contested by the Opposite Parties that the Policy is an operational policy wherein losses are indemnified by the Insurance Company, if the loss occurs in the course of ordinary working. It was submitted that the accident took place during tests on "No Load" basis on the ESP Unit. The explosion took place on 18.12.2008 when the machinery and the system were not in the course of ordinary working. The Opposite Parties are, thus, not liable to indemnify the loss.

3. Heard the Learned Counsels for the Parties and carefully perused the record. The Learned Counsel for the Complainant submitted that the Opposite Parties appointed a Surveyor, who submitted the report on 27.8.2008, after expiry of one and a half years. He further submitted that the Complainant filed a claim of Rs.2,99,63,4873/-. However, the Surveyor assessed the loss at Rs.1,90,00,082/- and the Complainant agreed to receive the said amount as full and final settlement of the Claim. Despite numerous communications by the Complainant between 2008 to 2009, including a Complaint to the Insurance Regulatory Development Authority (IRDA) its Claim was not settled and the Complainant was compelled to file the instant Complaint in April, 2010. It was further submitted that during the pendency of the Complaint, the Opposite Parties issued a communication dated 29.10.2010 repudiating the claim of the Complainant on the ground that the plant was not operational as tests were being conducted and the Policy was an operational policy and losses are indemnified only after successful commissioning. Further there was breach of Condition No. 6 of the Policy as there was misrepresentation that ESP was not an integral part of the boiler and was a necessary accessory for pollution control and to declare ESP as a boiler component was incorrect. As per Condition No. 6 of the Policy the claim was not payable. It was also submitted that the first ground for repudiation was baseless as the Opposite Parties having issued the Boiler and Pressure Plant Insurance Policy, that too after conducting a Pre-Insurance Survey, cannot turn around and say that the said Policy was not appropriate as the unit was not commissioned on full load basis. It was further submitted that there was no breach of Condition No. 6 of the Policy for the reasons that the Policy was issued knowing full well that ESP was also included while calculating the Premium. He submitted that the Terms and Conditions placed on record were never furnished to the Complainant at the time of taking the policy or anytime thereafter. It was also submitted that Claim of the Complainant was fully covered and there was gross deficiency in service and unfair trade practice on the part of the Opposite Parties in not settling Insurance Claim of the Complainant.

4. The Learned Counsel for the Opposite Parties submitted that the Consumer Protection Act, 1986 specifically excludes any service for commercial purposes and this has been made explicit by successive legislations so that the statutory provisions which are meant for the common man are not misused and abused by corporates or companies for whom the Consumer Protection Act, 1986 was not contemplated. Accordingly, the parties in the present Complaint being engaged in commercial activities, dispute inter-se, if any has to be adjudicated beyond the domain and purview of the Consumer Protection Act, 1986. On this ground, the Complaint was not maintainable. He also submitted that the incident having occurred on 18.12.2008 was at a time when the machinery and the system were not in the course of ordinary working. The complete commissioning of the ESP, including testing on full load was not complete on the date of the loss. The claim was, therefore, beyond the purview of the Insurance Policy. In order to cover the risk of erection and testing prior to full load operational functioning, the Complainant should have taken an EAR Policy which it did not take. He submitted that ESP was not an integral part of the boiler and pressure plant for which the subject policy was issued. Accordingly, the General Condition No. 6 of the policy clearly gets attracted and repudiation of the Claim is justified.

5. Opposite Parties have raised the issue of maintainability of the Complaint. Regarding maintainability of the Complaint, it has been held by this Commission in Harsolia Motors v. National Insurance Co. Ltd. I, (2005) CPJ 27 (NC) decided on 03.12.2004 that since an Insurance Policy is taken for reimbursement or for indemnity of the loss which may be suffered on account of insured perils, the services of the insurer cannot be said to have been hired or availed for a commercial purpose. This Commission does possess the requisite jurisdiction to entertain a Consumer Complaint wherever a defect or deficiency in the services rendered by an insurer is made out. In view of the above, the Complaint is held maintainable.

6. On merits, Surveyor alongwith letter dated 20.08.2008 provided the claim note department report which shows that the risk was covered under the Policy. Also, Pre-Acceptance inspection of Boiler done by Shri Rajeev Saxena on 06.12.2006 for detailed examination of each Boiler requiring coverage, vide letter dated 07.12.2006, clearly laid down the description list for Policy coverage which included ESP for said boiler and in his note he wrote as follows" Note: Erection & commissioning of DM plant & ESP got arranged by Thermax Ltd.". The above Note shows that plant was pre surveyed for Boiler as well as ESP which cannot be denied by the Opposite Parties. From the Surveyor Report dated 27.08.2008 it is also found that the ESP was covered under the Policy. Relevant observation made by surveyor reads as follows: -

"The actual supply cost at site of ESP and assistance for erection & commissioning was obtained from the Insured and compared with Sum Insured taken. The Insured was found fully covered in respect of ESP and Erection & Commissioning expenses."

7. Report submitted by a Surveyor is an important piece of evidence and it has to be given due weight, though it is not sacrosanct and can be ignored, provided there is cogent evidence otherwise. In the present case, the Opposite Party did not lead any evidence disproving the report submitted by the Surveyor of the Insurance Company. In the absence of any evidence to the contrary, the report submitted by the Surveyor of the Insurance Company is to be accepted.

8. That apart, proposal form also shows that ESP for 120 TPH bagasse fire Boiler was covered under the Policy. From the aforementioned documents, it is found that that ESP was an integral part of the Boiler and pressure plant. Regarding Commissioning of the ESP for Boiler Complainant placed reliance on the Certificate issued by the Thermax which reads as "This is to certify that the ESP after 120 THP Bagasse Fired Boiler (Cheema make) at DSM Sugar Ltd, Rajpura, UP was commissioned on 16.12.2006." Regarding commissioning of ESP, Surveyor's Report reads as follows "The Boiler was erected by 6 December 2006 and first light up was on 8 December 2006. The ESP was scheduled to be commissioned on 18 December 2006 prior to which the said explosion took place." It is, therefore, clear that the view taken by the Insurance Company that the ESP was not commissioned is not correct and contrary to the record. That apart, the Policy included perils and risk associated with the Boiler and Pressure Plant. The Opposite Parties took the objection that the Policy was an operational Policy wherein losses were covered if the loss occurs in the course of ordinary working. In this regard, Complainant had taken the stand that the Opposite Part

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ies did not supply the terms and conditions of the Policy. In the repudiation letter Opposite Parties have relied only on Condition No.6 of the Policy. Even in the written statement the Opposite Parties have relied on Condition No.6 of the Policy. Opposite parties did not file any evidence to rebut the allegation of not supplying the terms and condition along with exclusion clause. After taking premium and issuing the Policy, the Insurance Company cannot back out from the Contractual obligation of Insurance. In view of the above discussion, I hold that the Insurance Company failed to fulfil its duty of honouring the claim of the Complainant. Repudiation of Insurance Claim, thus, amounts to deficiency of service and unfair trade practice. 9. In view of the above, this Complaint is partly allowed. Opposite Parties are directed to pay to the Complainant an amount of Rs.1,90,00,082/- alongwith interest at the rate of 6% per annum from the date of filing of the Complaint till the date of this order. The Opposite Parties shall also pay an amount of Rs.50,000/- as cost of litigation. The order be complied within two months from the date of receipt of certified copy of this order.
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