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M/s. S.R. Pharmaceuticals Through Its Partner Shri Jatinder Kumar v/s HDFC Ergo General Insurance Co. Ltd., New Delhi & Another

    First Appeal No. 613 of 2013

    Decided On, 10 March 2022

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. C. VISWANATH
    By, PRESIDING MEMBER & THE HONOURABLE MR. JUSTICE RAM SURAT RAM MAURYA
    By, MEMBER

    For the Appellant: Bhaskar Tiwari, Ramakant Shukla, Advocates. For the Respondents: Yogesh Malhotra, Sushant Kishore, Advocates.



Judgment Text

1. The present Appeal is filed against the order dated 17.07.2013 passed by State Consumer Disputes Redressal Commission Haryana (in short 'State Commission') in Consumer Complaint No.01/2013 whereby the Consumer Complaint filed by the Complainant/Appellant was dismissed.

2. The Appeal has been filed with a delay of 1 day. The Appellant has not filed an application for condonation of delay. However, in the interest of justice, delay is condoned.

3. Case of the Complainant/Appellant is that they obtained Standard Fire & Special Perils Policy No.FMD0006080000100 from the Opposite Party/Respondent Insurance Company, valid from 26.04.2010 to 25.04.2011, for sum insured Rs.1,25,00,000/-. The Complainant firm was situated at 106, Vikas Nagar, Gali No.2, Phoosgarh Road, near Sector-6, Karnal. During the validity of the Policy, the firm shifted to the new address at 172-B, Sector-3, HSIDC, Industrial Area, Karnal. The Opposite Party was duly informed by the Complainant about the change of address. The Insurance Company made an endorsement on the Policy to that effect. In the intervening night of 24/25.06.2010, the roof of the godown collapsed due to thunder storm and heavy rain and rain water entered into the godown causing damage to the medicines stocked in the godown. The Complainant informed the Opposite Party about the incident and lodged a claim of Rs.60,06,974.13. The Opposite Party deputed M/s Protocol Surveyors & Engineers Pvt. Ltd. for Survey and assessment of loss, who assessed the loss at Rs.50,17,580.53. The Surveyor observed that on the intervening night of 24/25.06.2010 wind speed was 8 km per hour in Karnal, which could not be termed as storm and could not lead to collapse of the roof of the building. The loss suffered by the Complainant was not covered under the Policy. On the basis of the Survey Report, the Opposite Party repudiated the claim of the Complainant, vide letter dated 10.09.2011. Alleging deficiency in service on the part of the Opposite Party, the Complainant filed a Consumer Complaint before the State Commission with the following prayer: -

"i) Direct the respondents No.1 and 2 to disburse the amount of Rs.56,93,886.78 towards the loss alongwith interest @ 12% p.a. from the d ate of loss till the date of actual disbursement.

ii) Grant exemplary damages of Rs.1,00,000/- on account of deficient services and unfair trade practices.

iii) Grant litigation expenses to the extent of Rs.88,000/-.

iv) Pass any other orders/directions deemed appropriate in the facts and circumstances of the case."

4. The Complaint was resisted by the Opposite Party by filing the written statement primarily on the ground that the issue involved complicated questions of facts and law, which required voluminous evidence. It was also stated that as the Complainant is doing the business of pharmaceuticals it was not a "Consumer" under the Consumer Protection Act, 1986.

5. On merit, it was stated that after verifying the documents supplied by the Complainant, the Surveyor assessed the loss at Rs.50,17,580/-. The claim of the Complainant, however, was not covered under the Policy. It was also stated that as per report of the Central Soil Salinity Research Institute, Karnal, wind speed was 8 km per hour on 24.06.2010 and 8.9 km per hour on 25.06.2010, which could not be termed as storm.

6. After hearing the Learned Counsel for the Parties and perusing the record, the State Commission, vide impugned order dated 17.07.2013, dismissed the Complaint with the following observation: -

"In view of the above, the complainant has miserably failed to establish on the record that the roof of godown had fallen due to storm or heavy rain but the cause of damage/fall could not be ascertained. Without any cogent and convincing evidence available on record about the damage of the roof of the godown due to storm, we feel it a case of fraud and dishonest intention of the complainant to get false claim on flimsy grounds. The story of the complainant seems to be a cooked up and therefore we do not find it a fit case to grant any insurable benefit to the complainant.

For the reasons recorded above, this complaint is dismissed."

7. Aggrieved by the order dated 17.07.2013, the Appellant/Complainant has filed the instant Appeal with the following prayer: -

"A. In the interest of justice the Appeal be accepted and the order dated 17th July, 2013 whereby the State Consumer Disputes Redressal Commission dismissed the Complaint of the Appellant be set aside.

B. The complaint filed by the Appellant be allowed in terms of the relief claimed in the complaint.

C. Any other or such further relief, which this Hon'ble Forum may deem fit and proper in the facts and circumstances of the case may be passed in favour of the Appellant and against the Respondent.

8. Heard the Learned Counsel for the Parties and carefully perused the record. Learned Counsel for the Appellant/Complainant submitted that the Appellant produced the report of Metrological Department, Delhi to prove that the loss sustained by the Complainant was due to storm. The State Commission erred in relying upon the report of Salinity Research Institute, Karnal. The Surveyor had wrongly given the cause of damage that it was not due to storm or heavy rain. The State Commission failed to appreciate the fact that on the date of incident there was heavy rain and storm and the rainwater inundated the stock lying in the insured premises. Learned Counsel relied on the judgment of this Commission United India Insurance Co. Ltd. vs. Imperial Gift House & Anr. I (2007) CPJ 6 (NC) and Bajaj Allianz General Insurance Co. Ltd. vs. Gondamal Hardyal Mal [IV (2009) 165 (NC).

9. Learned Counsel for the Respondent/Opposite Party submitted that the case involved complicated questions of facts and law, which required voluminous evidence and could not be decided in summary jurisdiction by the Consumer Forum. Learned Counsel also submitted that as the Complainant was involved in commercial activities, it was not a "Consumer" under Section 2 (1) (d) of the Consumer Protection Act, 1986.

10. On merits, Learned Counsel for the Opposite Party submitted that the Surveyor recorded that there was no damage to any other building in the entire area due to the alleged storm. The Complainant submitted report of the Metrological Department of Safdarjung Area, New Delhi which is 200 km. away from the place of incident. The Opposite Party, however, submitted the report from the Central Soil Salinity Research Institute, Karnal, which stated that the wind speed on 24.06.2010 and 25.06.2010 was 8.0 km per hour and 8.90 km respectively, which could not be termed as storm.

11. Regarding preliminary issue of maintainability of the Complaint, we find that no complicated facts are involved as alleged by the Opposite Party. The State Commission was very well within its jurisdiction to decide the Consumer Complaint. Opposite Party alleged that as the Complainant was involved in commercial activities, it was not a "Consumer. This Commission in Harsolia Motors v National Insurance Company Ltd. [I (2005) CPJ 26 (NC)] held that a contract of insurance is a contract of indemnity and, therefore, there is no question of commercial purpose in obtaining insurance coverage. In view of law laid down by Hon'ble Supreme Court, the Complainant is a "Consumer" and the Complaint before the State Commission was maintainable.

12. It is admitted that the Complainant obtained Standard Fire & Special Perils Policy No.FMD0006080000100 from the Opposite Party/Respondent Insurance Company, valid from 26.04.2010 to 25.04.2011, for sum insured Rs.1,25,00,000/-. It is also admitted that on the date of incident the Policy was valid. The Surveyor assessed the loss at Rs.50,17,580.53. According to the Complainant the roof of godown collapsed due to thunderstorm and heavy rain and rain water entered into the godown causing damage to the medicines stocked in the godown. The case of the Opposite Party is that on intervening night of 24/25.06.2010 wind speed was 8 km per hour in Karnal, which could not be termed as storm. The best evidence to prove that the loss was caused due to the thunderstorm and heavy rain was the weather report from the concerned Department. Though the Complainant submitted the weather report from the Metrological Department but the said report pertained to Safdarjung Area, New Delhi which is 200 kms far from the place of incident. The State Commission, therefore, discarded the said report. The Opposite Party submitted the weather report from Central Soil Salinity Research Institute, Karnal, which stated that the wind speed on 24.06.2010 and 25.06.2010 was 8.0 km per hour and 8.90 km respectively. On the basis of the said weather report, the Surveyor observed as follows:-

"i) The area of Karnal witnessed Rain in the night of 24/25.06.2010.

ii) The insured's godown collapsed due to unknown reasons and rain water fell into the godown.

iii) The stock of medicine got wet/damaged in the captioned mishap.

......

The matter was discussed with the Insurance Surveyors of the building, who was also of the opinion that the loss has not been occasioned by any peril under the fire policy. Further a wind speed of 8km/hrs that was there in Karnal on that day on 24 & 25.06.2010 cannot be termed as STORM and in no way it can cause collapse of building."

Relying on the weather report of Central Soil Salinity Research Institute, Karnal and the Survey Report, the Opposite Party repudiated the claim of the Complainant. Central Soil Salinity Research Institute is a reputed Research Institute established by the Central Government. There is no reason to disbelieve the statistics maintained by them. The Complainant failed to place any evidence on record to prove that the weather report of Central Soil Salinity Research Institute, Karnal submitted by the Opposite Party was not correct. State Commission rightly relied on the report submitted by the Opposite Party. The judgments United India Insurance Co. Ltd. vs. Imperial Gift House & Anr. I (2007) CPJ 6 (NC, Bajaj Allianz General Insurance Co. Ltd. vs. Gondamal Hardyal Mal [IV (2009) 165 (NC) and M/s S.R. Pharmaceuticals vs. HDFC ERGO General Insurance Co. Ltd. & Anr. relied by the Learned Counsel for the Complainant/Appellant are not applicable in the facts of the case since there is a clear report of Central Soil Salinity Research Institute, Karnal stating that wind speed on 24.06.2010 and 25.06.2010 was 8.0 km per hour and 8.90 km respectively. In Imperial Gift House case (supra) the issue before this Commission r

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elated to the interpretation of the terms "flood" and "tornado" whereas in the instant case there is a specific weather report from the Central Soil Salinity Research Institute to the effect that on 24.06.2010 and 25.06.2010 was 8.0 km per hour and 8.90 km respectively. There is no question of interpretation of this report especially when the Complainant had not produced to the contrary. In Gondamal Hardyal Mal (supra) also the issue related to the interpretation of the term "flood." This case is also not applicable as in the instant case there is no dispute relating to the interpretation of the term "flood." In M/s S.R. Pharmaceuticals (supra) also the issue before Hon'ble Supreme Court was regarding the interpretation of the terms "flood" and "inundate", which is not in the case on hand. This case is, therefore, not applicable to the facts of the case. 13. For the foregoing discussion, we find that the Opposite Party was justified in repudiating the claim of the Complainant. The State Commission rightly dismissed the Complaint. Complainant/Appellant failed to point out any infirmity or irregularity in the impugned order. The Appeal is, therefore, dismissed with no order as to cost.
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