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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
V.K. Jain, Presiding Member, Dr. B.C. Gupta, Member
Kishan Cold Storege & Anr. —Complainants
versus
Bajaj Allianz General Insurance Co. Ltd. & Ors. —Opp.Parties
Consumer Case No.52 of 2009
Decided on 21.4.2016
For the Complainants:Mr. Ravi Sikri, Sr. Advocate with Mr. Priya Ranjan Roi, Mr. Deepak Yadav, Advocates
For the Opp.Party Nos.1 to 3:Mr. Atul Nanda, Sr. Advocate with Mr. P.T. Vasandani, Advocate
For the Opp.Party Nos.4 & 5:Mr. Rabi Narayan Rovi, Advocate
IMPORTANT POINT
Setting-up of a cold-storage for providing facility of storage to farmers of area by raising loan from Bank is a commercial activity.
Headnote:(A) Consumer Protection Act, 1986—Section 21—Insurance—Cold Storage—Damage to stored Potatoes—It had been adequately brought out in report of Surveyors that complainant failed to maintain required temperatures during loading of stocks as well as during storage and complainant acted in contravention of warranty clause 6(i) and (ii) of Policy—Complainant failed to supply log book for refrigeration machinery to Surveyor but entries in log book explicitly showed that temperature was more than that required for operations of plant—Insurance Company was not liable to make payment of claim under ‘exception’ clause—It has nowhere been stated by complainant that there was any sudden” or unforeseen event that led to damage to stocks—Complainant had neither been given FOES Policy nor machinery breakdown policy—It is made out that claim is not covered under Insurance Policies issued—There is no justification for giving directions to OP Insurance Company to compensate complainant for damage to stocks—Complainants did not take adequate steps to ensure that requisite power supply was made available to refrigeration chambers at the time of loading as well as storage as per technical requirements—Complainants could have arranged sufficient number of generators to ensure that power supply was available to plant in accordance with such requirements—Complaint dismissed. (Paras 8, 10, 14, 18 and 21)
(B) Consumer Protection Act, 1986—Section 2(1)(d)—Complaint—Maintainability— Setting-up of a cold-storage for providing facility of storage to farmers of area by raising loan from Bank is a commercial activity—Complainants do not fall under definition of ‘Consumer’ qua Bank and complaint against Bank is not maintainable—In case, any deficiency was shown by Bank in obtaining such policies with a view to ensure proper coverage etc., complainants can take-up issue against Bank in a Court or Forum of competent jurisdiction, but relief can be granted under provisions of Consumer Protection Act only, if it is established that complainant is a Consumer vis-à-vis Bank. (Para 16)
Result: Complaint dismissed.
The complainant, Kishan Cold Storage is a registered partnership firm consisting of four family members as partners, and engaged in the business of running a cold storage to preserve food stuff belonging to the farmers, after taking requisite charges from them. The complainant firm raised finance from the United Bank of India (opposite party No. 04 & 05) as cash credit loan/working capital etc. for setting-up the said cold storage and for that purpose, they mortgaged/pledged the entire assets of the cold storage with the Bank. The said loan facility was granted by the Bank subject to taking up comprehensive insurance policy covering all possible risks in the business. As stated in the complaint, the Bank insisted that it shall approach the insurance company to get the insurance to its satisfaction. The complainant had no option but to issue a letter of authority in favour of the Bank. For the years 2005, 2006 and 2007, the Bank took the insurance policies from the New India Insurance Company and debited the premium to the account of the complainant and kept the policies with itself only. For the year 2008, the Bank asked the complainant to make payment of insurance policy premium to them which the complainant did on 31.03.2008, under legitimate expectation that the plant, machinery and stock of potatoes would be under full coverage against all risks. The Bank took the Insurance Policies from Opposite Party No. 1 to 3, (OP 1- 3), M/s. Bajaj Allianz General Insurance Company Ltd. instead of the previous company, i.e., New India Insurance Company. As per the complainant, the Bank did not provide them copy of the Insurance Policy at any time. As per the version given, due to load-shedding of electric supply in the area and the break-down of the generator sets, the temperature in the cold storage started rising. The complainant tried to get the generator set repaired, but the potatoes kept in the cold storage could not be saved and got damaged, resulting in loss of approximately Rs.1,40,00,000/- to the complainant. The complainant contacted the insurance agent on 29.05.2008 and also lodged claim on 30.05.2008. An authorized surveyor of OP 1 to 3 Insurance Company inspected the cold storage on 03.06.2008. Another surveyor appointed by the OP 1 to 3 examined the matter in greater detail on 12.06.2008. It is alleged that the surveyor did not perform their job as per relevant regulations on the subject. Based on the report of the surveyor, the Insurance Company repudiated the claim, saying that the loss was not attributable to the insured peril of the insurance policy. The complainant took up the matter with the insurance company and also with the Insurance Regulatory Development Authority (IRDA) but to no effect. The complainant also requested the Bank to do the needful, but to no effect. The consumer complaint, in question, was then filed with the following prayers:-
“(A) Declare that the Opposite Party No. 1 is guilty of deficiency of service and unfair trade practices as against the complainant;
(B) Direct the Opposite Party to pay a sum of Rs.1,60,00000 towards compensation to the Complainant alongwith interest at the rate of 24% p.a. from the date of transfer of the amount from the account of the complainant till the date of payment;
(c) Award a compensation of Rs.50,00,000/- for arbitrarily and illegal action and for undue harassment, mental agony and suffering in favour of the complainant and against the Opposite Party;
(D) Award the costs of the litigation in favour of the Complainant and against the Opposite Party;”
2. The complaint has been resisted by OP 1 to 3, Insurance Company by filing a written statement in which they stated that the alleged damage had been caused due to electric failure which was not a peril ‘insured’, but was a specific ‘exclusion’ under the Policy. The loss was on account of insufficient refrigeration and increase in the temperature in the storage chambers due to load-shedding and, hence, unde
