MANAGER Vs. CHAIRMAN

JUDGEMENT

(1.) This first appeal has been filed under section 19 read with section 21(a)(ii) of the Consumer Protection Act, 1986, against the impugned order dated 13.04.2011, passed by the West Bengal State Consumer Disputes Redressal Commission, Kolkata (hereinafter referred to as "the State Commission") in Consumer Complaint No. 61/o/97, vide which, the said complaint, filed by the respondent/complainant Cooperative Society, was allowed and the opposite party (OP) Insurance Company was directed to make payment of a sum of Rs. 878917 with interest @ 9% per annum from the date of the complaint for damage to the potato stocks.

(2.) Briefly stated, the facts of the case are that the complainant is a cooperative cold storage society, carrying on the business of cold storage of potatoes of farmers and businessmen on rental basis. They have installed the necessary plant and machinery for the purpose, consisting of two chambers for storage, in which 333335 bags can be stored in each chamber. The complainants obtained three insurance policies from the OP Insurance Company- one covering the plant and machinery and the other two covering the stocks in the two chambers. It has been stated that there was failure of electric supply (FOES) from 04.09.1995 to 09.09.1995 i.e. for 144 hours continuously, which caused damage to 13,667 bags out of the total 66,666 bags, despite the fact that the complainant used their 125 KVA generating set to maintain temperature for the protection of stocks. On intimation, the OP Insurance Company appointed a surveyor to assess the loss. However, the OP sent repudiation letter dated 09.09.1996, saying that the claim did not come under the purview of the policy conditions, because there had been no damage to plant and machinery. The complainant filed the consumer complaint in question, seeking directions to the OP Insurance Company to pay a sum of Rs. 19,94,000/- to them as compensation for damages, alongwith another sum of Rs. 5,000/-. It was stated in the consumer complaint that though the claim was for an amount of Rs. 38,13,093/-, but they had reduced it to Rs. 19,94,000/-, because they had no capacity to file the consumer complaint before the National Commission (based on the pecuniary jurisdiction to handle the cases in those days).

(3.) The said claim was contested before the State Commission by the OP Insurance Company on the ground that the same was barred by limitation, as under clause '7' of the policy, the claim was liable to be filed within three months from the date of repudiation letter i.e. 09.09.1996. The State Commission accepted the plea of the Insurance Company and dismissed the consumer complaint. However, in appeal before this Commission, the said order was set aside on the ground that the provisions of the clause '7' of the Insurance policy were violative of section 28 of the Contract Act and hence, void. The case was sent back to the State Commission for deciding the consumer complaint on merits. The State Commission allowed the consumer complaint vide impugned order dated 13.04.2011 and directed the Insurance Company to pay the claim, as per the report of the surveyor valued at Rs. 8,78,917/- alongwith interest @ 9% per annum. Being aggrieved against this order of the State Commission, the OP Insurance Company is before this Commission by way of the present first appeal.