The main legal point established in the judgment is that the complainant cannot be deprived of the benefits of the Re-instatement Value Clause due to the negligence of the insurer, and depreciation cannot be allowed when there is an RIV clause in the policy.

ORDER

K.S. Chaudhari, Presiding Member: - This appeal has been filed by the appellant against order dated 24.9.2014 passed by State Commission in Complaint No. 169 of 2008 - M/s. Fine Print v. New.India Assurance Co. Ltd and Ors.; by which complaint was partly allowed.

2. Brief facts of the case are that the complainant subscribed insurance policy with total sum insured of Rs. 1,90,00,000/- to provide insurance cover to plant and machinery with other items of property/ stock included in the policy. Out of the total sum insured, plant and machinery was insured for Rs. 70,00,000/-. The proposal form submitted to the opponent/respondent - insurer specifically mentioned RIV clause for incorporation in the policy document. However, the policy document was issued without such a provision of Re-instatement Value Clause. The policy document was directly dispatched to the State Bank of India as a mortgagee against the loan advanced to the complainant firm, so, they had no opportunity to verify policy details (term and conditions) and only when the calamity occurred on 26th July, 2005, they came to know that the policy did not contain RIV clause much in contravention of the policy proposal submitted prior to issuance of policy. Complainant firm was diligent to inform the insurer about the loss to insured property including plant and machinery instantly.

The first appointed surveyor ('B' grade category) M/s. J.H. Parekh quickly visited insured premises and carried out the preliminary survey on 03/08/2005. The said surveyor sought guidance from the opponent/insurer to carry out final survey/ assessment as they were ( B category) surveyor. Opponent insurer directed the said surveyor to go ahead and submit final survey report on/or before 22/09/2005. In obedience of this direction, detailed survey report was submitted by M/s. Parikh quantifying loss of Rs. 18,00,000/- to the plant and machinery besides loss incurred to other injured properties and estimated the total loss to Rs. 49,41,671/-. Instead of acting on the said report, the opponent/ insurer had appointed M/s. A.P. Phadke and company second surveyor to carry out the survey and submit report without knowledge of the complainant. Second survey was carried out and report was submitted in August, 2006, i.e. almost after 13 months from the date of occurrence of the incidence. The loss quantified in respect of plant and machinery was Rs. 11,99,400/ and the net payable was worked out to Rs. 4,24,989/-. Presuming that the policy was not bearing RIV clause, the opponent offered the amount of Rs. 4,24,898/- as a full and final settlement of the claim.

Complainant refused to accept the said offer. Alleging deficiency on the part of opposite party, complainant filed complaint before State Commission. Opposite Party resisted complaint and submitted that on reinstatement basis the loss was assessed to the extent of Rs. 18,00,000/- by M/s. J.H. Parekh Associates, the first appointed ( B grade) surveyors. The complainant wrongfully insisted for total loss/ price of the machinery, though, the machineries were repairable. It was further stated that even if RIV clause was applicable, it was incumbent upon the complainant to have performed their duty to repair machines expeditiously within 12 months form the date of occurrence of the incidence. Complainant neglected and failed to act according to terms and conditions of the RIV clause, therefore, not entitled to claim and take benefit under the RIV clause. The complainant cannot have any grievance since admittedly they have accepted the assessment vis-a-vis valuation of Rs. 32,233,91/- on market basis in respect of other properties excluding plant and machinery assessed and finalised by M/s. A..R. Phadke and company. The complaint (sic) from infirmity as it is not filed within the limitation, since the cause of action arose on 01/1/2006 i.e. offer of claim of Rs. 4,24,898/- which was wrongfully rejected by the complainant, whereas this consumer complai