and unfair trade practice committed by the opposite party and cost of litigation.

2. Brief facts of the complaint filed by the complainant is that for Unit No.II of the complainant on proposal for fire insurance a pre-acceptance inspection was done by the opposite party and on receipt of satisfactory inspection report the proposal was accepted. Thus the complainant obtained a Standard Fire and Special Perils Policy from the opposite party vide policy No.2701001117P108132223, Annexure-2. On 20.09.2017 incident of fire i.e. spontaneous combustion, a covered peril under policy, occurred in the sponge iron godown due to rain water as since 17.09.2017 there was heavy rain fall with thunder storm and heavy wind, due to which shade of sponge iron bunker was displaced and rain water entered inside the godown, contaminated with sponge iron and caught fire. The incident was intimated to the opposite party, who in turn instructed the complainant to file claim form, which was accordingly filed by the complainant along with estimate of loss. The opposite party appointed Surveyor Mr. Rajiv Dausage, who inspected the site on 26.09.2017. The surveyor after discussion on the matter asked the complainant to file certain documents including weather report. The complainant filed all relevant documents but then the surveyor issued his survey report, Annexure-6, declining the claim of the complainant. The opposite party also relying on the surveyor"s report denied their liability vide letter Annexure-7 on the ground that loss occurred due to chemical weathering and not due to spontaneous combustion, there is no evidence of storm, the plant was under maintenance and water causes deterioration of sponge iron. Thereafter, the complainant again represented his claim but the opposite party not responded then reminder was also sent by the

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complainant but no response was given by the opposite party which amounts to deficiency in service on the part of the opposite party. Hence this complaint for directions to the opposite party to pay the insurance claim and other relief as aforesaid in paragraph No.1.

3. The opposite party in its written version has admitted the fact of issuance of Standard Fire & Special Perils insurance policy for sum insured of Rs.63,30,00,000/- covering the property described in the policy schedule with add on cover for earthquake, STFI and Spontaneous Combustion for a period w.e.f. 06.09.2017 to 05.09.2018 subject to the terms and conditions of the policy enclosed thereto which formed an integral part of the insurance policy. The averment of the complainant that the said policy was purchased without any adverse qualification / condition is denied. It is further averred that the terms and conditions of Standard Fire and Special Peril policy are standardized as per the established norms and is not influenced as per the choice of the contracting parties. The incident of fire (spontaneous combustion) took place due to rain water on 20.09.2017 in the sponge iron godown of the complainant is also denied. The fact of heavy rainfall with thunderstorm on 17.09.2017 is also denied in absence of any specific report from the Meteorological Department. The opposite party has specifically denied that due to heavy wind shade of the sponge iron bunker displaced and rain water entered inside the godown, which contaminated with the sponge iron and caught fire. It is asserted that as per meteorological report dated 05.04.2018, which was provided to the insured, there was no report of any sort of storm or tempest on the date of alleged incident of fire 20.09.2017. The fact of intimation to the opposite party, submission of

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claim form by the complainant, appointment of surveyor Mr. Rajiv Dausage are admitted by the complainant.

4. The opposite party further asserted that the surveyor visited the site and took statement of one Mr. Sandeep Bhattacharya, President of the complainant in which he stated that on 20.09.2017 there was heavy rain which resulted damage to the store shed of the sponge iron which was adjacent to the bunker and consequently approximately 300 MT of sponge iron got exposed to rain and was damaged. This statement is signed by the said Mr. Sandeep Bhattacharya, President of the complainant company on 27.09.2017. The said statement given by a responsible Officer of the complainant, referred as Annexure II by the Surveyor in his Final Survey Report, was the first statement after giving intimation of the incident to the opposite party. Weather report of Meteorological Department was also not provided by the complainant hence the surveyor explored the Google to access the weather report and he found that on the alleged date of incident wind velocity was 4 to 11 kms per hour and there was no storm and only rain was reported on that date. From the nearby locations also the surveyor gathered information and found that there was no evidence of storm on that day and therefore the contention of the complainant that the store shade sheets were uprooted because of storm was not believed by the surveyor and he arrived at the conclusion that the loss occurred due to rain which was not covered under policy.

5. The opposite party on the basis of such report of the surveyor repudiated the claim of the complainant vide letter dated 28.03.2018 mainly on the ground that there was no evidence of actual self-ignition and the loss was caused by damage due to rain water, which is not covered under the policy. It was also mentioned as reason of repudiation

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of claim that the plant remained shut down for a couple of years and was taken over by new management recently and the pre-insurance inspection by a competent person clearly mentions that the structure needs maintenance and final surveyor has also observed that some maintenance work was underway. The opposite party further asserted that the claim of the complainant was repudiated on the ground that cause of loss was beyond the policy cover, then the same was closed and in doing so no any deficiency in service or unfair trade practice was committed by them and prayed that the complaint be dismissed with compensatory cost for institution of vexatious complaint.

6. The complainant in support of his complaint has filed affidavit of authorized signatory Mr. Rohit Raman S/o. Shri Ashok Kumar Mishra and documents as per list which includes copy of Risk Inspection Report, Annexure-1, the insurance policy and its endorsement Annexure-2, Newspaper cuttings, Survey Report, details of chemical weathering and Test Certificate issued by National Test House etc. Whereas the opposite party insurance company has filed affidavit of its Senior Divisional Manager Mr. Janranjan Purohit, affidavit of the surveyor Mr. Rajiv Dausage, copy of policy document and schedule of standard fire and special perils policy and its terms and conditions, intimation letter, letters written to the complainant, Survey Report along with photographs marked as Annexure OP-4, weather report dated 05.04.2018, Annexure OP-8, letter of repudiation Annexure OP-9 etc.

7. We have heard arguments advanced by both parties, perused the record, affidavits of the complainant, opposite party as well as the affidavit of the surveyor. We have also gone through the written arguments filed by both parties and the citations relied upon by them.

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8. In the facts and circumstances of the case and in view of the letter of repudiation of claim on the basis of Final Survey Report, pre-insurance inspection report as well the cause of loss, its coverage under the policy is under challenge and the entire case hinges around the fact that the loss caused was due to rain water or due to spontaneous combustion as contended by the complainant.

9. It this regard the material available on record is whether report Annexure OP-8, Final Survey Report Annexure OP-4 and the statement of Mr. Sandeep Bhattacharya, President of the complainant company given to the Surveyor. First of all it pertinent to mentioned here the coverage of risk under policy and its general exclusion clause which are as under : -

"Description of Risk : Sponge Iron Plants Brief Description of Risk: building & super structural, plinth & foundation, plant & machinery, f.f.f. stock raw material- coal, sponge iron, iron ore, dolomite and

Add on Cover (1) STFI, earthquake, spontaneous combustion (coal, spontaneous combustion (sponge iron) Occupancy Name: sponge iron & power plant"

Under the head ADD ON COVERS the Spontaneous Combustion has been mentioned as : -

"SPONTANEOUS COMBUSTION Policy may be extended to cover the above subject to following endorsement wordings :

"In consideration of the payment by the Insured to the Company of additional premium of Rs.14,000.00, the Company agrees notwithstanding what is stated in the printed exclusions of this policy to the contrary that the insurance by (items) of this policy shall extend to include loss or damage by fire only of or to the property insured caused by its own fermentation, natural heating or spontaneous combustion"

N.B. The expression „by fire only" in the endorsement above must not be omitted under any circumstances"

The exclusions under the policy is mentioned in the policy under the head A) GENERAL EXCLUSION has been mentioned as : -

"A) GENERAL EXCLUSIONS

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1. Standard Fire and Special Perils Policy (except dwellings with individual owners) 5% of claim amount subject to a minimum of Rs.25,000/-.

2. Loss, destruction or damage caused by war, invasion, act of foreign enemy hostilities or war like operations (whether war be declared or not), civil war, mutiny, civil commotion assuming the proportions of or amounting to a popular rising, military rising, rebellion, revolution, insurrection or military or usurped power.

3. Loss, destruction or damage directly or indirectly caused to the property insured by

a) ionizing radiations or contamination by radioactivity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel.

b) the radio active toxic, explosive or other hazardous properties of any explosive nuclear assembly or nuclear component thereof.

4. Loss, destruction or damage caused to the insured property by pollution or contamination excluding

a) pollution or contamination which itself results from a peril hereby insured against.

b) any peril hereby insured against which itself results from pollution or contamination.

5. Loss, destruction or damage to bullion or unset precious stones, any curios or works of art for an amount exceeding Rs.10000/-, goods held in trust or on commission, manuscripts, plans, drawings, securities, obligations or documents of any kind, stamps, coins or paper money, cheques, books of accounts or other business books, computer systems records, explosives unless otherwise expressly stated in the policy.

6. Loss, destruction or damage to the stocks in Cold Storage premises caused by change of temperature

7. Loss, destruction or damage to any electrical machine, apparatus, fixture, or fitting arising from or occasioned by over-running, excessive pressure, short circuiting, arcing, self heating or leakage of electricity from whatever cause (lightning included) provided that this exclusion shall apply only to the particular electrical machine, apparatus, fixture or fitting so affected and not to other machines, apparatus, fixtures or fittings which may be destroyed or damaged by fire so set up.

8. Expenses necessarily incurred on (i) Architects, Surveyors and Consulting Engineer's Fees and (ii) Debris Removal by the Insured following a loss, destruction or damage to the Property insured by an insured peril in excess of 3% and 1% of the claim amount respectively

9. Loss of earnings, loss by delay, loss of market or other consequential or indirect loss or damage of any kind or description whatsoever.

10. Loss, or damage by spoilage resulting from the retardation or interruption or cessation of any process or operation caused by operation of any of the perils covered.

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11. Loss by theft during or after the occurrence of any insured peril except as provided under Riot, Strike, Malicious and Terrorism Damage cover.

12. Any Loss or damage occasioned by or through or in consequence directly or indirectly due to earthquake, Volcanic eruption or other convulsions of nature.

13. Loss or damage to property insured if removed to any building or place other than in which it is herein stated to be insured, except machinery and equipment temporarily removed for repairs, cleaning, renovation or other similar purposes for a period not exceeding 60 days.

14. Loss, damage cost or expenses of whatsoever nature directly or indirectly cause by, resulting from or in connection with any act of terrorism regardless of any other cause or event contributing concurrently or in any other sequence to the loss are excluded."

The complainant has failed to file any weather report regarding occurrence of heavy rain with storm and heavy wind on the date of incident. Only some newspaper cuttings, Annexure-3 reporting heavy rain in certain areas of Bilaspur have been filed on record. But in the contrary weather report issued by Meteorological Department of Government of India in respect of Bilaspur for 20.09.2017 is submitted by the opposite party as Annexure OP-8 in which no any storm or heavy wind was reported and the wind speed was mentioned at 02 KMPH and rainfall in past 24 hours recorded at 0830 hours IST of 20.09.2017 and 21.09.2017 was

38.8 mms and 43.4 mms respectively. This weather report clearly shows that no storm or heavy wind was recorded and only rainfall was recorded. Therefore the cause of the entire loss was the rain water of such rain.

10. The complainant has based his claim on spontaneous combustion consequent to stock of sponge iron came into contact with rain water and damage to the such stock. As per the complainant during continuous rainfall there was high winds and storm also which uprooted the roof sheet of storage shed of sponge iron and that is why the rain water came into contact with the stock of sponge iron and on this ground has claimed the amount of net assessed loss by the Surveyor Rs.19,22,325/-. But as per

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the weather report Annexure OP-8 only the rainfall was recorded without storm and heavy wind, hence there was no question of uprooting roof sheet of godown shed and loss has occurred only due to the rain water, which was not covered under the policy. As per Annexure-4 the complainant had informed Mr. Ameet Jain Vice President of IRM Insurance Brokers Pvt. Ltd. regarding the loss that during heavy rainfall shed of the sponge iron bunker suddenly collapsed due to which the rain water entered in the sponge iron stored in the bunker and there was spontaneous combustion which caused the loss of stock of sponge iron. As per Annexure-6 filed by the complainant and Annexure OP-4 filed by the opposite party i.e. the Final Survey Report of surveyor Mr. Rajiv Dausage, he find out after the complete survey that there was no any storm on the date of incident and as discussed above only heavy rainfall was recorded, as per Annexure OP-8, the report issued by India Meteorological Department, Government of India, Deputy Director General of Meteorology, Regional Meteorological Centre, Nagpur. Therefore, as per policy Standard Fire and Special Perils Policy, risk of (1) STFI, earthquake, spontaneous combustion is covered only and the loss due to rain is not covered.

11. It was the duty of the complainant to prove that the spontaneous combustion was the cause of loss to the sponge iron stock. Statement of Mr. Sandeep Bhattacharya, President of the complainant Agrawal Structure (P) Ltd. Unit II was recorded by the Surveyor on 27.09.2017, Annexure OP-5 in which in para-5 it has been specifically stated that on 20.09.2017 there was heavy rainfall which resulted into damage to the storing shed of sponge iron, which is adjacent to bunker. The approximate quantity of sponge iron is 300 MT which got expose to rain and quantity

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has damaged. Under the insurance policy spontaneous combustion was covered but the loss due to rain was not covered. There was no any evidence to show that spontaneous combustion was caused due to any self-ignition, fire or weathering only the reason shown and as stated by Mr. Sandeep Bhattacharya, President of the complainant also was that due to heavy rain the godown shed collapsed and stock of sponge iron got damaged due to coming into contact with rain water, which is not the covered peril under the insurance policy in question.

12. We have gone through the entire Final Survey Report submitted by the Surveyor he assessed the net loss to the tune of Rs.19,22,325/- and just below his assessment has put note to the effect that : -

"a. The incident which is said to be reported is due to storm and rain but from the documents it has not been established which only due to rain loss occurred which is not covered under the policy.

b. Insured has seeked the spontaneous combustion for sponge iron product, but the loss has caused due to rain which is once again, the loss would fall under the exclusion unless it is established otherwise.

c. Insured has not preferred the claim pertaining to structure / shed which is normally first part of the claim if the damages have occurred on account of STFI peril. However presently claim has been preferred only for stock portion which is also on account of rain.

d. Insured has furnished risk inspection report, in which 2 page under the head of Overall Management Interest About Fire Safety confirms that the building structure needs maintenance"

Looking to the photographs enclosed with the final survey report also it clearly appears that the structure of the complainant was in need of maintenance. Looking to the entire case and the evidence adduced by both parties we are of the view that the cause of loss was only the rain water and not any fire or spontaneous combustion due to self-ignition. Therefore, the report given by the surveyor appears appropriate, we are

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satisfied with the report and of the opinion that the complainant has failed to prove his case.

13. In the surveyor report there is mention of testing report for observing the deterioration of quality of sponge iron. The complainant after a long time from the date of incident 20.09.2017 obtained a Test Certificate on 17.09.2019 from National Test House, Kolkata of Government of India and sample was collected on 02.09.2019 i.e. after two years and at the time of collection and sending the sample no any information was given to the opposite party, therefore we are not inclined to believe this report as against report already mentioned in the Final Survey Report of the Surveyor.

14. Learned counsel for the complainant has placed reliance upon judgement dated 09.04.2009 of Hon"ble Apex Court in Civil Appeal No.3253 of 2002 between New India Insurance Company Limited Vs. Pradeep Kumar and judgements of Hon"ble National Commission in

Original Petition No.253 of 1999 between M/s. Murli Agro Products Ltd. Vs. M/s. Oriental Insurance Co. Ltd., decided on 10.12.2004 and in

Consumer Complaint No.115 of 2007 between Saurashtra Chemicals Ltd. Vs. National Insurance Co. Ltd. decided on 06.01.20015 but the principle laid down in those case are not applicable in the facts of the instance case as it has different set of facts. In the case of Murli Agro (supra) however the spontaneous combustion has been discussion in detail, but in that case the spontaneous combustion occurred due to auto heating of molasses which burnt and solidised. In the Surashtra Chemicals (supra) case the company remained closed for about six months and when the plant was reopened it was noticed by the employees that some stock of coal and ignite had got diminished/

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destroyed. But the facts of present case is different and even if the story of complainant is believed the sheet of shed was uprooted due to storm and heavy wind and consequently rain water entered to the stock of sponge iron which contaminated with the sponge iron and incident of spontaneous combustion occurred hence the principle laid down in Surashtra Chemicals (supra) case is also not applicable in the facts of the present case and the facts of the Pradeep Kumar (supra) case is was also different.

15. Learned counsel for the opposite party insurance company has placed reliance upon judgement of Hon"ble National Commission in the case of S.R. Pharmaceuticals Vs. HDFC ERGO General Insurance Co. Ltd. & Anr., II (2022) CPJ 288 (NC); East India Cotton Manufacturing Co. Ltd. Vs. New India Assurance Co. Ltd., I (2016) CPJ 72 (NC); V. Ramalingam Vs. United India Insurance Co. Ltd. & Ors., II (2016) CPJ 341 (NC); Mukesh & Co. Tobacoo Products Pvt. Ltd. Vs. New India Assurance Co. Ltd., IV (2018) CPJ 12 (NC); Oriental Insurance Co. Ltd. Vs. Sunil Bansal, III (2012) CPJ 612 (NC); National Insurance Co. Ltd. Vs. Sri Chakravarthi Enterprises, I (2012) CPJ 344 (NC); & IV (2018) CPJ 12 (NC), Sarat Chandra Dash Vs. New India Assurance Co. & Ors., II (2015) CPJ 85 (NC). In S.R. Pharmaceuticals (supra), East India Cotton Manufacturing (supra), V. Ramalingam (supra), Mukesh & Co. (supra), the weather report of Meteorological Department or the Government Authority was believed by the Hon"ble National Commission. In the facts of the present also we find no reason to disbelieve the report of Meteorological Department as against only the newspaper cuttings filed by the complainant and of the view that there was no storm or heavy wind only the rainfall was recorded in the past of 24 hours and on the date of incident.

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16. For the foregoing discussion, we are of the considered opinion that the complainant has failed to prove his case by adducing any cogent evidence that the loss occurred due to spontaneous combustion and not due to rain water. In fact looking to the statement of Mr. Sandeep Bhattacharya, President of complainant, which was the first version from the side of the complainant after intimation of incident to the opposite party insurance company, it appears that the complaint is filed on the basis of afterthought story of loss caused due to spontaneous combustion and the complainant has tried his luck to get the benefit of claim on basis of an afterthought story without any cogent evidence. Hence the complaint fails and is dismissed with no order as to cost.

(Justice Gautam Chourdiya) (Gopal Chandra Shil) (Pramod Kumar Varma) President Member Member

/03/2023 /03/2023 /03/2023

Pronounced On: 15^th March 2023

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