VINAY KUMAR, MEMBER
The present appeal concerns a consumer complaint, which was first decided by the West Bengal State Consumer Disputes Redressal Commission on 16.7.2007. In the appeal against this order, the National Commission remanded the matter back to the State Commission for fresh disposal. The State Commission has reconsidered the matter and passed a fresh order on 22.9.2011, once again dismissing the complaint. The present appeal is against this last order of the State Commission.
2. As seen from the record, the facts of the case in brief are that the complainant was running a cold storage for which he had taken four different insurance policies. These policies covered the following risks:-
a) Stock fire, with effect from 10.5.1990, risk covered Rs.23.22 lakhs.
b) Building and machineries fire with effect from 18.4.1990 risk covered Rs.21 lakhs.
c) Machinery break down with effect from 10.5.1990 risk covered Rs.10.89 lakhs.
d) Deterioration of stock with effect from 10.5.1990 risk covered Rs.23.33 lakhs.
3. According to the complainant, 'On 4.6.1990 there was sudden break down of AIU-400 engine and Deterioration of stock, the Insurance Co. was duly informed about the breakdown and the complainant tried their best to save the stock but it was not saved due to major breadown'. Claim for a loss of Rs.19.03 lakhs was made on 10.9.1990. The OP-Insurance Company repudiated the claim through their letter of 3.9.1992 for the following two reasons-
'a) Failure of the insured to inform the insurer about disconnection of power supply to the cold storage by Bihar State Electricity Board (the main source of power) from 14.2.1990 to 26.5.1990.
b) The policy did not cover loss due to deterioration of the stock arising out of damage to the generator set.'
4.The claim was further pursued but not accepted by the Insurance Company. Therefore, a legal notice was issued to the OP, Insurance Company, on behalf of the Complainant on 24.6.1998. The consumer complaint itself was filed two months later, on 28.8.1998. In written response before the State Commission on behalf of the OP/National Insurance Company, it was argued that:-
'Mere correspondences after the date of actual cause of action i.e. repudiation of the claim cannot or does not extend the period of limitation.' Therefore, according to OP, the complaint was hopelessly time barred.
5. On the merits of the claim, the stand of the OP was that the policy did not cover deterioration of stock due to failure of DG set/engine for which the claim was lodged. According to the OP, loss for damage to the engine due to sudden break down was covered and also admitted by the insurer to the extent of Rs.9602.50 for repair. But subsequent alleged loss of potato due to deterioration of stock for rise of temperature due to failure of the engine was not covered in the DOS policy. It was also alleged that the power supply to the cold storage had been disconnected from February to May, 1990. This, as per the Insurance Company, was material information and it was suppressed by the insured before the insurance cover was extended with effect from 10.5.1990.
6. The State Commission condoned the long delay of several years in filing the complaint. But significantly, while considering the matter on merits, it observed that-
'It is conspicuous to note that against such positive averments made by the O.P. challenging the trustworthiness or genuineness of the case of the Complainant as averred in the complaint there has been no denial or challenge from the side of the Complainant by means of filing of any counter objection or affidavit.'
7. From the order of 16.7.2007, passed by the State Commission, it is seen that the Commission has considered in detail the report of the surveyor appointed by the OP/National Insurance Co. for assessment of the loss. The Commission had also considered the relevant policy conditions and come to the conclusion that the grounds of repudiation of the claim were reasonable and acceptable. It was this order, which was challenged before the National Commission. The National Commission observed that:-
'Despite a plea taken and prayer made by the complainant, the Insurance Company did not produce the said pre-insurance survey report which was material in order to show as to whether the loss occasioned to the stock of potatoes stored in the cold storage of the complainant due to the rise in temperature on account of breakdown of the diesel engine was covered or not.'
8. It was also observed that the question of coverage of damage to the stock of potatoes due to the damage to diesel generating set needed to be examined with reference to the proposal for insurance, the acceptance of such proposal by the insurance Company vide their communication of 10.7.1990 as well as the conditions relating to the coverage of the loss. Therefore, the National Commission remanded the matter to the State Commission on 15.1.2010, with the following observation:-
'In the result, this appeal is partly allowed. The complaint is remitted back to the State Commission for deciding the same afresh, after calling for the report of the pre-insurance surveyor (Mr. Sanjiv Banerjee) and considering the contentions putforth by the complainant before us. The parties are directed to appear before the State Commission on 18.02.2010 for receiving further directions in the matter. We expect, the State Commission will decide afresh expeditiously after affording due hearing to the parties.'
9. On remand, the matter has been reconsidered by the State Commission in their order of 22.9.2011. On the question of obtaining and considering the report of pre-insurance surveyor (Mr. Sanjeev Banerjee) the order of the State Commission notes that:-
'After remand the O.P. was asked to produce the said pre-Insurance surveyor’s (Mr. Sanjib Banerjee) report. The O.P. Insurance Company by making an application has stated that on November 1998, a devastating fire broke out in the Regional Office of the O.P. Insurance Company for which the relevant file of the instant matter got destroyed. Accordingly it has been contended that the O.P. insurer is not in a position to place the said pre-insurance surveyor’s report before the State Commission.'
10. Significantly, the appellant/complainant also has not availed this opportunity to adduce evidence in support of his claim. The State Commission has therefore reconfirmed its earlier order with the following observation:-
'After such observation has been made by the Hon’ble National Commission it appears that the complainant has neither adduced any further evidence nor tendered any documents whatsoever to establish that the Diesel Generator set/Engine used as power back-up for running of the refrigeration plant in case of sudden failure of power or due to rising temperature was covered under the conditions of the Policy. Nor any single piece of evidence has been led by the complainant after the remand of this complaint case to prove that the terms and conditions of the Policy were not supplied to the complainant soon after taking of the insurance cover by the complainant or despite the assurance of the Insurance Company given in its letter dated 10th July 1990 that it would forward the said policy expeditiously. All such questions are related to the facts of the case which have been directed by the Hon’ble National Commission to be decided on merits for the purpose of adjudication of the complaint. The complainant has not made any attempt to prove such questions of facts by tendering any evidence thereof.This State Commission cannot sit on its earlier judgment as an appellant authority unless new materials are placed before it to arrive at a fresh judgment.
Both the said facts are not the admitted facts and as such are required to be established in evidence. The complainant having not come forward to prove and/or establish such facts in evidence after remand by the National Commission, the State Commission has no other alternative than to reaffirm the order as passed earlier on merits by this State Commission on 16th July 2007 in dismissing the above complaint case. The complaint case is thus dismissed.'
11. It is clear from the above observations of the State Commission that the complainant had, not one but two, distinct opportunities to adduce evidence in support of his claim. He failed on both occasions. Therefore, in the background of failure of the Complainant to lead any specific evidence, before the State Commission, as observed in both the orders, i.e. the first on 16.7.2007 and post-remand on 22.09.2011, the case of the Complainant has to be seen with reference to the evidence which was already placed on the record of the State Commission.
12. We have perused the records of this case and considered the matter in the light of the arguments advanced by the counsel for the appellant.
13. The complaint petition itself, starting with the report of break down of the engine on 4.6.1990, gives no details of the measures taken to save the stock and the result of those measures. On the contrary, the question of proceedings before the judicial Magistrate, Purnia, Bihar have been mentioned in considerable detail. As seen from the record, the matter concerned proceedings initiated by the State Electricity Board as a case of suspected theft of power. The complaint petition refers to meter reading being taken on 14.2.1990, in an apparent attempt to counter the claim of the Insurance Company but merely states that he had sent certified copies of the order of the Judicial Magistrate to OP/Insurance Company on two occasions. We fail to understand how acquittal in this criminal case before the Judicial Magistrate could be taken as evidence that there was no disconnection of power as alleged by the OP. We also fail to understand what prevented the Complainant from producing before the State Commission receipts of payment for power consumed by the cold storage during the period 14.2.1990 to 26.5.1990. This matter has been dealt with sufficiently in the order of 16.7.2007 by the State Commission in the following terms:-
'So this much was to be observed by that Ld. Magistrate the accused person in that criminal case (who happens to be the Complainant here) was not found guilty of the offence of which he was charged and that part of the findings of the Ld. Judicial Magistrate must be taken as a valid piece of evidence to show that the allegations of pilferage against him had not been substantiated. But as regards the question whether there was disconnection of electricity or not, this being a dispute of civil nature, a civil court’s verdict is required particularly when in the present case there has been evidence in abundance to show that there was disconnection of electric energy in the disputed Cold Storage for a considerable period as mentioned above.'
14. We find ourselves in agreement with the State Commission that no evidence has been placed on record by the appellant/complainant against alleged disconnection of power during this period.
15. In their written statement before the State Commission OP/National Insurance Company have categorically taken a position that the DOS policy did not cover any loss due to deterioration of stock arising out of damage to the generator set. The State Commission has made the following observation in this behalf:-
'In its claim petition in the prescribed form (annexure ‘B’) against column no.5 the Insured has stated in unambiguous terms that the cause of the accident was sudden break down and failure of water pump and ceasing of Generator Engine to function etc.. These being the admitted facts that Generator Set was being operated by the Complainant and due to its sudden break down the Generator Set ceased to function, the plea taken by the Insurance Company in repudiating the claim of the Complainant appears to be quite genuine and since there is no clause in the agreement to compel them to take the responsibility of making good any loss arising out of damage to the Generator Set, this ground taken by the Insurance Company appears to be bonafide, valid and hence acceptable.'
16. According to the OP, 'Oil Engines/DG sets are never endorsed in the D.O.S. Policy as per procedure norms for issuance of policy.' On this point, we also find on record a copy of the Proposal Form on the basis of which insurance cover was apparently extended to the appellant/complainant Tribeni Cold Storage Pvt. Ltd. Column (14-D) of this form carries a question 'Do you have stand-by arrangement in the event of failure of main source of electric supply? If so give details'. The question is answered as 'yes own DG set.' This lends further support to the reasoning advanced in the impugned decision.
17. It is also alleged in the complaint petition that by a letter of 10.7.1990 the respondent/OP had informed the appellant/complainant that the Proposals submitted have been accepted w.e.f. 10.5.1990. A copy of this communication No.153500/DEV/MLS/90 dated 10.7.1990 addressed to the appellant/complainant is on record. The letter categorically states that-- 'However, we are assuring you that all the polices will be handed over to you vary shortly'.
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But, in para 17 of the written statement before the State Commission it is stated by Respondent/OP that:- 'The petitionermay be advised to produce before the court the original policy issued to them from where the genuinity of the statement could be easily verified.' 18. Learned counsel for the appellant argued that this conduct of the Insurance Company amounted to a deficiency in service. In this behalf, he drew our attention to the decision of this Commission in HundiLal Jain Cold Storage and Ice Factory Pvt. Ltd. Vs. Oriental Insurance Company Ltd. (2004) CTJ 1070 (CP) (NCDRC). The Insurance Company had only issued the cover note and had failed to deliver the policies. It was therefore difficult to expect the Complainant to adhere to the insurance conditions not known to it. This lapse on the part of Oriental Insurance Company was held to be a deficiency in service. However, the facts in the present case are different. The appellant did not produce any evidence before the State Commission to show that the policy documents were not sent to him or, if sent, were not delivered to him. At para 10 above, we have already noted the observation of the State Commission in this regard. 19. In the background of the detailed examination above, it is held that the appellant has failed to substantiate his case against the impugned order. The appeal is, therefore, dismissed for want of merit. In the circumstances of the case, there are no orders as to costs.