IMPORTANT POINT
Unless report of Surveyor is established to be arbitrary or perverse the same requires to be considered.

ORDER

Subhash Chandra, Presiding Member.—This first appeal under Section 19 of the Consumer Protection Act, 2019 (in short, ‘the Act’) assails the order dated 02.01.2017 of the Telangana State Consumer Disputes Redressal Commission, Hyderabad (in short, ‘the State Commission’) in Complaint case no.160 of 2014 by allowing the complaint and directing opposite party No.1/respondent No.1 to pay Rs.56,90,848/- with interest @ 9% per annum from 02.12.2010 till realization with cost of Rs.5,000/- within four weeks.

2. IA No.4836 of 2017 is an application praying for condonation of delay of 60 days which is condoned in the interest of justice for the reasons stated in the IA.

3. We have heard the learned counsel for the parties and have carefully considered the material on record.

4. The relevant facts of the case, in brief, are that respondent no.1 had proposed to set up an integrated sugar complex with 5000 TCD sugar plant with 24 MW co-generation power plant and 50 KLPD distillery in Tumkur Village, Yadgir District, Karnataka. The respondent engaged an agency to construct two MS Molasses Tank and obtained a Storage-cum-Erection Insurance Policy from the appellant for the period 01.11.2009 to 30.04.2011 for a sum of Rs.2,50,00,000/- (in short, ‘the policy’) covering the entire project. The work was to commence from December 2009 and by October/ November 2010 the erection of one of the tank had already reached the final stage and the second tank was complete upto 60%. However, due to heavy rains in October/ November 2010 the work was stopped. Vide letter dated 08.11.2010 the respondent informed the appellant that the Molasses Tanks were damaged.

5. A surveyor was appointed by the appellant to survey and assess the loss on 10 and 11.11.2010 in the presence of the appellant. As per the preliminary survey report dated 15.11.2010 by the surveyor, it was stated that the exact cause of the loss could not be ascertained for which a detailed study was required. The surveyor therefore approached the Geotechnical Division, Department of Civil Engineering, JNTUH College at Hyderabad for a detailed study.

6. After visiting the site with the surveyor on 27.11.2010, 01.12.2010 and 02.12.2010 to undertake soil investigation to assess the ground condition and analyze the design parameters and workmanship on the project, Expert submitted his report dated 16.12.2010. It was stated in this report that the workmanship was very poor in understanding the guidelines and implementing them in field practice. It was also stated that “water has gone inside and caused the field of soil to settle below the slab during the rainy season due to poor compaction levels in the filled up soil”. Based on this Expert Report the surveyor submitted his final report dated 06.03.2012, attributing failure of the foundation of molasses tank to defective design and bad workmanship. As both these conclusions fell under the “Exclusions Clause” of the insurance Policy, the appellant vide letter dated 31.07.2012 repudiated the insurance claim of the respondent.

7. The respondent approached the State Commission through CC no.160 of 2014 alleging deficiency in service by the appellant and six other Banks and prayed for Rs.99,52,965/- with interest @ 12% from the date of the complaint till realization along with Rs.25,000/- for mental agony and hardship. The complaint came to be disposed of on contest by the appellant (the bank being held to be a proforma party). The State Commission allowed the complaint for Rs.56,90,848/- with interest @ 9% per annum and Rs.5000/- as cost. This order is impugned before us.

8. It is the case of the appellant that the State Commission had erred in concluding that the respondents were entitled to be compensated since the claim of loss was specifically excluded as per Exclusion Clause 1(d) of the insurance Policy whereby the company was not liable for loss or damage due to faulty design, defective material or casting, bad workmanship other than faults i