ORDER

1. This Appeal is filed by the Appellant/Opposite Party against the order dated 09.07.2013 of the State Consumer Disputes Redressal Commission, Gujarat (in short “the State Commission) in CC/44/2008, whereby the State Commission partly allowed the Complaint filed by the Complainant/Respondent.

2. Case of the Complainant/Respondent is that they took Fire & Special Perils Policy No.142803/11/2007/914 for sum insured Rs.2.25 crores for the period from 17.11.2006 to 16.11.2007. The Policy covered the perils of earthquake, flood, inundation, cyclone and such other AOG perils as stated in Indian Fire Tariff. On 06.08.2007, due to heavy/torrential rain and inundation the stock of the Complainant got damaged. The Complainant intimated the Opposite Party about the loss. The Opposite Party deputed Mr. S.P. Bhatt for investigation and assessment of loss, who assessed the loss at Rs.28,96,886/-. The Opposite Party, vide letter dated 14.03.2008, repudiated the claim on the ground that the damage to the stocks were due to failure of power supply during flood situation. Alleging deficiency in service on the part of the Opposite Party, the Complainant filed Consumer Complaint before the State Commission with the following prayer:-

“(1) Pay the claim amount of Rs.34,57,606/- to the complainant with cost.

(2) Pay interest @ 18% with quarterly rests from the date of filing this complaint till the d ate of final payment realization.

(3) Any other relief that this Hon’ble Commission be pleased to grant to the complainants to meet ends of justice.”

3. The Complaint was contested by the Opposite Party by filing the written statement on the ground that the Complainant was not a “Consumer” under the provisions of the Consumer Protection Act, 1986. The claim of the Complainant was repudiated on the basis of the Surveyor’s Report, since the damage to stock was not caused directly by flood water. The damage was caused due to failure of power supply during flood situation. There was, thus, no deficiency in service on the part of the Opposite Party.

4. After hearing the Learned Counsel for the Parties and perusing the record the State Commission, vide order impugned dated 09.07.2013, partly allowed the Complaint. The impugned order reads as follows: -

“Taking into above facts, following order is passed

ORDER

1. Complaint is partly sanctioned.

2. Opponents are ordered to pay to the complainant an amount of Rs.28,96,886/- Rs. Twenty eight lacs ninety six thousand eight hundred eighty six only with yearly 9% interest from 1st Jan, 2008 till payment.

3. Opponents are ordered to pay to the complainant n amount of Rs.15,000/- being the cost of the complaint.”

5. Aggrieved by the impugned order dated 09.07.2013, the Appellant/Opposite Party has filed the instant Appeal with the following prayer:-

“(a) Stay the impugned final judgment and order dated 09.07.2013 passed in Consumer Complaint No.44 of 2008 by the Gujarat State Consumer Disputes Redressal Commission, Ahmedabad.

(b) Pass such other and further orders as this Hon’ble Commission deems fit and proper under the facts and in the circumstances of the case.”

6. Heard the Learned Counsel for the Parties and carefully perused the record. Learned Counsel for the Appellant submitted that the State Commission failed to appreciate the fact that the stock of the Complainant got damaged due to accidental failure of electricity and not due to the flood. The Surveyor observed that the proximate cause of damage was rise in the temperature of the cold storage, which was not covered under the Policy. The Surveyor further observed that the flood water had not entered the cold storage. It was further submitted that the Policy excludes the loss, destruction or damage to the stock caused by change in temperature. Learned Counsel submitted that the State Commission ignored all these facts, including the Surveyor’s Report. The impugned order is liable to be set aside.

7. Learned Counsel for the Respondent/Complai