These two appeals 300 of 2010 & 301 of 2010 have been filed by the appellant, M/s. Mukesh & Co. Tobacco Products Pvt. Ltd. against the order dated 31.07.2010 of the State Consumer Disputes Redressal Commission, Chhattisgarh, (in short ‘the State Commission’) passed in Complaint Nos.2 & 3 of 2009.
2. Brief facts of the case are that the appellant is an authorised agency of the government to buy Tendu leaves from Chhattisgarh State Small Forest Produce Marketing Society and to sell the same. As per agreement with the government of Chhattisgarh, the appellant was authorised to buy Tendu Patta during the period from 03.04.2008 to 31.03.2009. The appellant, in pursuance of the agreement, used to buy Tendu Patta through primary societies and thereafter to get it dried, processed and then send it to godowns in gunny bags. The appellant fixed a target to buy approximately 1600 standard bags of Tendupatta and based on the cost of Rs.2,378/- per bag, it obtained an insurance cover Policy No.450300/11/08/11/0000053 of Rs.38,04,800/- from the respondent Insurance Company covering the risk of fire, storm, typhoon, flood and inundation and other perils etc. for the period 25/04/2008 to 24/06/2008. As alleged by the complainant, during the period from 10.06.2008 to 12.06.2008, due to heavy rains, storm and typhoon, a good quantity of Tendu leaves at Koylibeda unit No.167 ‘A’ situated at Koylibeda Block, District North Baster, got washed away and also get damaged due to filing of water. The appellant informed the Insurance Company about the incident on 12.06.2008. The Insurance Company appointed a surveyor who assessed the loss to the tune of Rs.7,50,588/- but observed that no peril of the policy was attracted. The claim was repudiated on the basis of the surveyor report. The complainant then filed consumer complaint before the State Commission on 06.03.2009 for the claim of Rs.27,36,000/- with interest @12% pa. and also compensation of Rs.1,00,000/- towards other head and cost of proceedings. The opposite party insurance company while resisting the complaint admitted to have received premium and issuance of the policy. Opposite party /Insurance Company averred that the questioned policy covered risk of Bidi leaves’ stock while kept in open, bundles or in loose stored under shed or open and did not cover risk of Tendu leaves as claimed by the complainant. Insurance Company averred that the fact of heavy rains with storm and typhoon in Koylibeda area continuously for three days, was not certified by Meteorological Department. Opposite party Insurance Company stated to have appointed a surveyor Sudhir Joshi to inspect the site and to assess the loss who accordingly inspected the site, took photographs and submitted his report and assessed loss of Rs.7,50,588/- but he observed that said loss was due to ordinary rains, since Tendu leaves got wet and it was not due to storm-typhoon so did not come within the ambit of insured peril. Opposite party Insurance Company mentioned that on the basis of surveyor’s report, it repudiated the claim of the complainant after thorough study and therefore it did not commit any deficiency in service so the complaint is liable to be dismissed. The complaint filed by the appellant/complainant has been dismissed vide order dated 31.07.2010 of the State Commission.
3. Hence the present appeal.
4. Heard the learned counsel for the parties and perused the record.
5. Learned counsel for the appellant/complainant stated that due to heavy rains there was inundation in the area and some of the Tendu leaves were fled away in the water and some of the bundles of Tendu leaves got damaged as they remained wet under water for more time and could not be dried up. The Insurance was valid for the Tendu leaves kept in the open as well as under the shed or in the godown. The surveyor report clearly establishes the fact that Tendu leaves got damaged and that is why the surveyor has assessed the loss, though, surveyor has not correctly assessed the loss, but it goes on to prove that the loss has occurred due to inundation, which is a peril covered under the policy.
6. It was argued that the contention of the opposite party that the Insurance policy mentions for ‘bidi leaves’ and not the Tendu leaves and as the loss has occurred to Tendu leaves, the loss is not covered under the policy, is not correct and the State Commission has arrived at its finding that the Tendu leaves and bidi leaves are the same and the contention of the opposite party has not been accepted. It was also argued by the learned counsel for the appellant that the main issue to be decided in these revision petitions are that whether the loss is caused due to a peril covered under the policy. Peril of flood and inundation is clearly applicable. Even if ‘heavy rains’ per se is not covered under the policy as peril, heavy rains will definitely cause flooding and inundation and this is what has happened in the present case. Meteorological Department data proves that there was heavy rain from 10.06.2008 to 12.06.2008 and the rains caused inundation. It in turn caused the damage to Tendu leaves. Thus, the loss has been caused by the peril of inundation, which is covered under the policy. The State Commission has erred in not appreciating this process of loss of Tendu leaves.
7. Learned counsel for the appellant states that this Commission has allowed claim of damage of Tendu leaves kept in bags in a godown due to moisture due to heavy rains in the area twelve months back. In this regard learned counsel referred to the following case:-
A.R.Trading Company Vs. Oriental Insurance Company Limited & Ors., 2016 STPL 13331 NC. It has been held that:
'20. We are unable to accept the interpretation/contention of the Surveyor/ Appellant - Insurance Company. In a number of cases under almost identical circumstances where claims had been repudiated under the Fire and Special Perils Policy on the ground that the damage caused to the insured stocks/ premises had been caused because of seepage caused due to heavy rains and not due to inundation, floods etc., we had concluded that the claim was wrongly repudiated since flood/inundation also means outpouring of water. On this analogy loss caused due to moisture content following heavy rains would be covered and the claim should in such circumstances be indemnified. Some specific judgments wherein we had reached the above conclusions include Bajaj Allianz General Insurance Co. Ltd. Vs. Gondamal Hardyal Mal (MANU/CF/0039/2009: IV (2009) CPJ 165 (NC); New India Assurance Co. Ltd. Vs. Dani Mourdhwaj Cold Storage Pvt. Ltd. (RP No. 4113 decided on 10.02.2012); and Oriental Insurance Co. Ltd. Vs. M/s. Sathyarayana Setty & Sons (RP No. 3454 of 2007 decided on 14th March, 2012). In the instant case, since it is not in dispute that the damage was caused by moisture on account of rainfall, we are of the view that it would be logically covered under the policy even though it may not per se have been listed as one the perils of the insurance policy.'
8. On the other hand, learned counsel for the respondent/Insurance Company stated that first of all the Tendu leaves is not covered under the policy and only bidi leaves is covered. There is a difference between the Tendu leaves and bidi leaves. Bidi leaves are prepared after the processing of Tendu leaves. Thus, the process of converting Tendu leaves into bidi leaves is not covered under the policy. The damage of Tendu leaves as described by the complainant only relates to the process of conversion of Tendu leaves into bidi leaves. Thus, prima facie the claim is out of the policy. The State Commission has wrongly decided that the Tendu leaves and bidi leaves are same thing. It was further argued that the wording of the Insurance policy cannot be interpreted by the courts and they have to be taken as written. Hence, bidi leaves in the policy cannot be replaced by Tendu leaves. It was argued by the leaned counsel for the respondent that Meteorological data has been analysed by the State Commission and then the State Commission has reached to the conclusion that there was no heavy rains so as to cause flood or inundation in the area. The surveyor has also taken photographs to reach to the same conclusion. Learned counsel referred to the following observation of the State Commission:-
'10. ……As per the said report during the relevant period 10/6/2008 to 12/6/2008 as per record of Meteorological Department Jagdalpur the wind speed was 2 to 4 km per hour and there were no records about heavy rains causing flood, rather rains as per said report on 10-06-2008 was 30.6 m.m, on 11-06-2008 16.9 m.m and on 12-06-2008 was 18.7 on 13.06.2008 in last 24 hours in the region which indicates rains of much smaller quantity. Such metrological report being from an independent Government agency which maintains proper record of rains and weather, which is also supported with the affidavit dated 08.06.2010 of Investigation Officer Ram Krishna Bhattacharya appointed by O.P. Insurance Company, has to be relied upon. The Surveyor Sudhir Joshi, appointed by the O.P. Insurance Company has produced photographs of the questioned site/Phad, which also indicate that the surroundings in questioned area had slight green grass and Tendu Leaves were lying scattered. Had there been storm/typhoon or flood at the relevant site then as stated by the complainant the questioned Tendu Leaves would have been washed away by water or fled away by wind but that is not the picture appearing in the photographs. Moreover as per photographs there was no water logging/accumulation appearing at the site to indicate signs of flood or inundation.'
9. Learned counsel for the respondent, Insurance Company further stated that the surveyor has clearly mentioned in his report that the damage has occurred due to unseasonal rains and not due to storm. Learned counsel referred to the following observations of the surveyor:-
'During the visit the undersigned carefully watched the forest area however there were no symptoms of storm like uprooting of trees, breaking of tree branches etc. like evidences. From the photographs it may be observed that the forest is not showing any evidence of storm. However, there are symptoms of rains (wet ground). As understood there were unseasonal rains and due to which the leaves under process have been damaged as it appeared.
These losses have happened due to rains and due to cloudy weather which are not insured perils. The insured also could have avoided processing the leaves particularly when monsoon was expected any time.
The statement collected from the local resident/labor (encl'L') also states that there were only incidents of rains during these days and no storms.'
10. The learned counsel for the respondent, Insurance Company stated that the report of the surveyor is an important document to be considered for determining the insurance claim. The report of the surveyor has to be accepted unless there are cogent reasons or doubts to disbelieve the report. Learned counsel for the respondent cited the following judgments in support of his arguments:-
(1) United India Insurance Co. Ltd. & Ors. Vs. Roshan Lal Oil Mills Ltd. & Ors., (2000) 10 SCC 19. It has been held that:-
'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 factors 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.'
(2) Oriental Insurance Co. Ltd. Vs. M/s. Pavan Enterprises & Anr., 2015 SCC online NCDRC 3263. It has been held that:-
'12. I see no reason to discard the report of the Surveyor. He appears to be a guileless witness. No motive was ever attributed to him. There must be some reasonable ground or doubt to reject his report. The report of the surveyor carries infinite significance as was held in 'Roshan Lal Oil Mills Ltd. & Ors.' (2000) 10 Supreme Court Cases 19 and in 'D.N. Badoni Vs. Oriental Insurance Co. Ltd.' I (2012) C.P.J. 272 (NC).'
11. It was further mentioned by the learned counsel that the appellant in the original complaint had referred only loss due to storm and typhoon and torrential rains. However, he has now tried to include peril of inundation by saying the leaves also got damaged due to filling of water. It was argued by the learned counsel that filling of water is not possible in the open ground given the rains data of the Meteorological Department. In the revision petition the matter is to be examined on the basis of the original pleadings made in the complaint case and no new ground can be considered.
12. I have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties and have examined the material on record. Coming to the merit of the case, it is seen from the complaint of the appellant that the complainant has given cause of loss as storm/typhoon along with torrential rains. Inundation or filling of water has not been taken as cause of loss in the complaint. The surveyor has only considered the peril of storm and has not considered the peril of inundation in his report. This also strengthens the argument of the learned counsel for the respondent that in the original complaint, loss was only reported to have been caused by storm, typhoon and torrential rains. Therefore, prima facie no additional cause of loss due to inundation can be considered at the stage of the revision petition. Even the Meteorological data does not prove the scale of flooding in the area as observed by the State Commission.
13. Coming to the question of storm, typhoon with torrential rains the observations of the surveyor when he visited on 13.06.2008 are important as he has clearly stated that there was no sign of storm as he did not see uprooted trees or broken branches in the forest area. The ground was definitely wet, but he has not mentioned that the same was water logged. The copies of photographs submitted by the surveyor have not been filed along with first appeal, however the State Commission has considered these photographs and reached to the conclusion that no peril of the policy is attracted in the present case.
14. Moreover, the State Commission has further examined the basis of the loss as claimed by the complainant and the State Commission has observed the following:-
'7. As per documents available on record there is no authentic evidence e.g. bills, challans, vouchers, stock register, related Govt. Returns or any cogent material to establish as to how much stock of Tendu lea
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ves was purchased and sold by the complainant during the relevant period which is the foremost criteria to assess the correct amount of loss caused to the property.' 15. The surveyor has assessed the loss on the basis of the physical inspection of the stock. However, the Insurance Company in their additional written statement pointed out that the complainant had started its business on estimated target to buy Tendue leaves so at such assessment of estimated target the complainant cannot be said to be a owner of questioned property on the relevant date. Hence, the insurable interest even on the loss estimated by the surveyor is questionable. So, until the loss is corroborated by other documentary evidence like stock register, bills of purchase and sale etc., it is difficult to agree to any loss. 16. On the other hand, if the affidavit of the Sarpanch does not tally with other evidence on record like Meteorological data and therefore, the same cannot be accepted in the present case. The State Commission is justified in not believing the averments made in the affidavit of the Sarpanch. I also do not find any force in the argument of the learned counsel for the complainant that the State Commission has believed the affidavit of Meteorological Department though the same was filed after one year. The Meteorological Department has data of many years in its archives and it can file affidavit on the basis of the data available with them. Hence, no doubt can be raised on the data and affidavit filed by the Meteorological Department. 17. Based on the above discussion, I do not find any merit in the appeals filed by the appellant. Accordingly, FA Nos. 300 of 2010 & FA No.301 of 2010 are dismissed.