A.P. Sahi, President

1. This complaint has been filed by a Cold Storage alleging deficiency in service against the Insurance Company, the OP herein for not having entertained the claim of the complainant for losses suffered that were liable to be indemnified under the policies acquired from the OP.

2. The chronology of events, in close proximity of the acquisition of the policy, and the alleged occurrence of losses deserves to be accounted for at the outset.

3. The complainant admittedly established a cold storage in the district of Shahjahanpur, U.P. and entered into a contract with one M/s. Cool Tech Industries to install the machinery and launch the operation of the air cooling system of the plant that had been constructed for the purpose of the storage of potatoes. According to the complainant, the cold storage at its commencement had received 108000 bags of potatoes from farmers. The cold storage was financed by the State Bank of India with a term loan of Rs. 3.5 Crores and a further loan limit of Rs. 80 lakhs that was sanctioned for the purchase of machineries and other infrastructures to run the cold storage.

4. To secure the assets, the complainant had acquired 5 policies from the OP namely 1. The Employees Compensation Liability Policy, 2. The Standard Fire and Special Peril Policy covering the building, 3. The Deterioration of Stock (potato) Insurance Policy, 4. another Standard Fire and Special Peril Policy covering the stocks of potatoes and finally 5. The Machinery Breakdown Insurance Policy.

5. In the present case the claim is in respect of selected insured items, one in respect of the loss of stocks of stored potatoes that had deteriorated due to malfunctioning of the cooling system as alleged by the complainant and the second is the damage to the building and machinery breakdown. Under the head of "loss of potatoes", the claim is of Rs. 3,78,00,000/- and under the head of the "damage to the building and machinery breakdown" is to the tune of Rs. 2 crores. From the pleadings in the complaint it is evident is that two of the alleged claims are prominent, namely that of loss of potatoes and secondly such loss that was due to malfunctioning in the cooling system. This has been stated in paragraph 19 of the complaint, and in paragraph 21 an allegation has also been made about damage caused to the building of the cold storage due to the rottening of the potatoes. Thus, the allegations cover the alleged loss suffered by the complainant due to the deterioration of potatoes, which has also caused damage to the building, as well as due to the alleged malfunctioning of the cooling system.

6. For the purpose of the present controversy, we may point out that the alleged rottening of the potatoes is directly covered by the Deterioration of Stock (Potato) Insurance Policy No. 426, the duration whereof is from 14.04.2015 to the midnight of 13.11.2015. This period is the period of storage of potatoes after harvest. The machinery breakdown policy no. 357 was for the duration 14.04.2015 to 13.04.2016. The commencement of both these policies, as is evident, was from 14.04.2015. The building under the Standard Fire and Special Perils Policy no. 2017 was from 28.01.2015 to 27.01.2016 and the potato bags were secured under a separate Standard Fire and Special Peril Policy which commenced from 14.04.2015 to the midnight of 13.04.2016. Thus, so far as the stocks of potato and machinery breakdown are concerned, the related policies referred to above had their date of commencement from 14.04.2015.

7. The contention of the complainant is that 108000 bags had been received for storage started rottening. The complainant has nowhere given any exact date when the breakdown in the machinery was discovered or as to when the rottening commenced or as to when the said bags of potatoes were received. The allegation contained in paragraph 10 of the complaint is that through a written letter dated 28.04.2015, the Insurance Company was intimated about the rottening of potatoes due to the malfunctioning of the chambers of the cold storage where the potatoes were stored. It is further alleged in paragraph 10 that the Insurance Company sent one Mr. Suresh, the Surveyor, who inspected the cold storage, but till date neither any action was taken nor any further processing of the claim was done. According to the complainant a reminder was sent on 11.07.2015, copy whereof has been filed as Annexure - P5 to the complaint. It is urged that the said reminder mentions about the earlier letters dated 28.04.2015 and 15.05.2015. It is also alleged that since the claim form was also not made available on the web portal of the Insurance Company nor was it provided, it is then that a notice was sent to which a reply was given by the Insurance Company on 02.09.2015. The intimation was also given to the dealer who had installed the cooling plant namely M/s. Cool Tech Industries. The Bank had initiated steps for recovery for the loan taken for setting up and running of the cold storage.

8. This complaint was filed on 08.10.2015 when no response was made by the Insurance Company to the claim of the complainant.

9. Notices were issued on the complaint on 27.07.2016, but in spite of service of notice no one had appeared nor any written statement had been filed on behalf of the OP. An application being I.A. No. 2539/2016 was filed on 09.03.2016 bringing on record a copy of the Machinery Breakdown Policy. Evidence of affidavit was filed by the complainant on 22.03.2017. An order to proceed ex-parte against the Insurance Co. was passed. An application was moved for setting aside the ex-parte order that was allowed on payment of Rs. 10,000/- as costs. Vide an order dated 15.02.2018, the OP was allowed to file a written statement subject to payment of Rs. 30,000/- as costs including a reply to the amended complaint. The amendment was allowed vide order dated 06.04.2018 and since the written statement had not been filed, a further cost of Rs. 20,000/- was imposed on the Insurance Company vide order dated 28.08.2018. Thus, a total amount of Rs. 50,000/- was to be paid as costs. The same was finally accepted after the costs were paid on 01.03.2019 and time to file rejoinder was granted to the complainant.

10. Rejoinder affidavit was filed and the evidence affidavit to be filed by the parties was permitted. The covid pandemic intervened and then the complainant along with an application filed a fresh affidavit of evidence on 02.03.2021 vide a Dy. No. 4656 along with an application I.A. No. 2024/2021. This application was allowed on 09.10.2023. Orders were passed on 14.03.2024 whereafter the case remained pending.

11. Written submissions have been filed by both the parties and apart from that the OP Insurance Company has filed an affidavit through I.A. No. 16132 of 2024 for taking on record the affidavit of one Chunna Lal Chaudhary, the Chief Manager of the Insurance Company giving his explanation in respect of the documents on record.

12. Having heard the learned counsel for the parties, we are satisfied that the affidavits have been filed in support of the pleaded contentions, and therefore I.A. No. 16132/2024 is allowed. Learned counsel for the complainant had taken an objection to the said affidavit which has been filed as evidence through an affidavit of one Mr. Gyan Prakash, the duly constituted attorney of the OP. Learned counsel for the complainant has cited the decision of the Apex Court in the case of State Bank of Travancore vs Kingston Computers India Pvt. Ltd., (2011) 11 SCC 524 to contend that the constituted power of attorney cannot be permitted to exercise any such authority to file an affidavit on behalf of the complainant company. We are not impressed by the argument, in as much as, the said affidavit has been filed accompanied by the affidavit of Mr. Chunna Lal Chaudhary, who is the Chief Manager, Divisional Office, United India Insurance Co. Ltd., who has denied the intimation alleged by the complainant to have been given on 28.04.2015. He has also denied the sending of any such letter and the averments to that effect contained in any other communications regarding such letter. The affidavit is taken on record. There is no material filed to contradict the affidavit of Mr. Chaudhary.

13. Learned counsel for the complainant has urged that with the documents on record, there is a clear deficiency in service on the part of the Insurance Company in neither having conducted any survey nor having tendered a survey report and therefore there is a total failure of the discharge of obligations cast on the Insurance Company under Section 64 UM of the Insurance Act, 1938. It is urged that the IRDA Regulations have been clearly violated by not adhering to the norms and conducting a survey for the assessment of the loss suffered by the complainant in spite of intimation.

14. It is also urged that the stand taken by the OPs are not only inconsistent, but there are clear admissions about the fact of having received the communications intimating the losses as is evident from paragraph 10 of the reply / W.S. filed by the OP Insurance Company. Learned counsel submits that the OP cannot be permitted to resile back from such admissions and which confirms the fact that the complainant had given intimation to the Insurance Company about the incident.

15. Learned counsel therefore urged that the claim is well founded and the losses have been suffered which are indemnifiable under the policies that had occurred during the duration of the policy. Consequently, there is a complete failure on the part of the Insurance Company in indemnifying the claim or even processing it which is a clear deficiency in service.

16. Responding to the allegations, Mr. Amit Kumar Singh, learned counsel for the Insurance Company has urged that there was no intimation either of the machinery breakdown or even the date on which the breakdown had occurred. He submits that no details whatsoever was ever intimated or spelt out including the extent of damage and the nature of the equipments that had been damaged due to machinery breakdown. There is no evidence at all of any such failure reported nor is there any evidence of the damage to the building.

17. Mr. Singh submits that so far as the stocks are concerned, no details are available nor any documents were ever filed to demonstrate the extent of losses nor is there any document on record in the present complaint so as to establish any loss being suffered by the complainant. The claim is absolutely unsubstantiated and therefore deserves to be rejected and it is for this reason that there was no occasion for the Insurance Company to have tendered any survey report after carrying out a survey as there was no intimation in respect of the losses nor any such intimation is substantiated on record.

18. Learned counsel for the complainant in his rejoinder at the time of conclusion of the arguments has cited the following decisions in support of his submissions:

i. National Insurance Co. Ltd. vs. Harsolia Motors & Ors. (2023) 8 SCC 362

ii. Rutu Mihir Panchal & Ors. vs. Union of India & Ors., 2025 SCC Online SC 974

iii. Wilson Home Appliances vs. New India Assurance Co. Ltd., 2020 SCC Online NCDRC 493: (2021) 2 CPR 88 (NC)

iv. United India Insurance Co. Ltd. vs. M.K.J. Corporation, (1996) 6 SCC 428

v. Gurmel Singh vs. Branch Manager, National Insurance Co. Ltd., (2022) 18 SCC 190

vi. Canara Bank vs. M/s. United India Insurance Co. Ltd. & Ors., Civil Appeal No. 1042 of 2020 with connected appeals., decided on 06.02.2020 by Supreme Court.

19. Before we enter into the merits of the claim, it may be necessary to point out that the policy for Deterioration of Stock as well as the Machinery Breakdown Policies, both commenced on 14.04.2015. There is no date referred to by the complainant either in the complaint or in the evidence affidavit or in the documents filed by the complainant as to when and on what date had the failure of the cooling system occurred. The first communication alleged by the complainant which is stated to have been sent to the Insurance Company is recited in paragraph 10 of the complaint which is extracted hereinunder:

10. That since 1,08,000 packets of potatoes of farmers have been stored in the Cold Storage of the Complainant and the Chambers of the Cold Storage has become malfunctioning and the stored potatoes starting rotten, the Complainant party vide letter dated 28.04.2015 informed to the Opposite on which Mr. Suresh, Surveyor of the Opposite party inspected the Cold Storage. But till date no action / proceeding has initiated even several reminder has forwarded by the Complainant to the Opposite party including Reminder-1 dated 15.05.2015 & Reminder 2 dated 11.07.2015 to the opposite party by which the Complainant also requested to inspect the potatoes stored in Chamber 3 of the cold storage. A true and translated copy of Reminder -2 letter dated 11.07.2015 is annexed herewith and marked as Annexure P-5.

It is pertinent to stated that since the Claim Form was not make available on the web portal of the opposite party and also the same was not provided by the opposite paty on repeated request then the complaiant applied for claim vide letter dated 28.04.2015 with sevral reminders to the opposite party.

20. In this paragraph, 28.04.2015 is the date of the first letter followed by a reminder dated 15.05.2015 and the second reminder dated 11.07.2015.

21. A reply to this paragraph 10 of the complaint has been given in paragraph 10 of the written statement. The same is extracted hereinunder:

10. Paragraph No.10 of the complaint is wrong and denied. It is denied that 1,08,000 packets of Potatoes of farmers were stored in the Cold Storage of the Complainant and/or chambers of the Cold Storage or that there was any mal-functioning and/or the Potatoes which were stored started rotting. It is admitted that the Petitioner had written a letter to the Respondent. However, it is submitted that the Respondent had replied to the said letter vide letter dated 02.09.2015. It is denied that there was any need to take any action. It is submitted that the Complaint of the Complainant was absolutely vague inasmuch as it did not give any date of accident or loss. It is denied that any reminder was sent to the Respondent by the Complainant.

22. The contents of the aforesaid paragraph are a bit surprising as against the affidavit of Mr. Chunna Lal Chaudhary dated 27.09.2024 filed by Mr. Gyan Prakash on 05.11.2024. In paragraph 10 of the written statement, it is evident that the writing of a letter by the complainant to the Insurance Company has been admitted. There is no reference in the said paragraph 10 as to which of the three letters namely dated 28.04.2015, 15.05.2015 and 11.07.2015 have been admitted.

23. Strangely enough, the letter dated 28.04.2015 has not been filed on record either by the complainant or the OP. There is nothing on record to verify the contents of the said letter in order to gather "any intimation" about the breakdown of the machinery or the malfunctioning of the cooling system.

24. At this juncture, it is appropriate to reproduce the affidavit of Mr. Gyan Prakash dated 04.11.2024 that was filed on 05.11.2024. Mr. Gyan Prakash has described himself as a duly constituted Attorney and also supported his affidavit with an affidavit dated 27.09.2024 of Mr. Chunna Lal Chaudhary, the then Divisional Manager, who had been promoted to Chief Manager of the Insurance Company. The affidavit dated 04.11.2024 of Mr. Gyan Prakash reveals the following contents:

1. I say that I am the Constituted Attorney of the Opposite Party and am well conversant with the facts of the case. As such, I am competent and authorised to swear this evidence by way of affidavit.

2. I say that I have read and understood the accompanying evidence by way of affidavit and state that the same has been drafted under my instructions. Facts stated therein are based on the records of the Opposite Party maintained by it in the regular course of business and believed by me to be true and correct.

3. I say that the Opposite Party Insurance Company was never informed by the Complainant about the alleged loss in accordance with the terms and ARY conditions of the Insurance Policy. I say that no intimation of loss was received from the Complainant within a reasonable time or at any time thereafter. I say that the Company maintains a diligent system for recording claims, but no communication was made by the Complainant regarding the alleged incident.

4. I say that the operating office at Shahjahanpur and Sh. C.L. Chaudhary, Chief Manager (Scale -5) RO Lucknow who was in charge of DO Shahjahanpur (Scale-4), confirmed to the regional office that there was no intimation letter on record from the Complainant.

5. I say that inquiries were made to confirm whether the claim was intimated to the Company, and no record or communication was found to indicate that the claim had been reported.

6. I say that the Shahjahanpur Office confirmed that there is no claim intimation or relevant correspondence or papers related to the claim for the period in question.

7. I say that based on the available records and the confirmation provided by the previous in-charge, Mr. C.L. Chaudhary, and the current in-charge, Mrs. Shobha Ghildiyal, Deputy Manager (Scale-3), the Opposite Party has no record of any claim intimation from the Complainant to the Opposite Party.

25. The said affidavit takes a somersault as against the admission in paragraph 10 of the written statement indicated above. We may point out that the written statement filed by the OP is supported by the affidavit of one Mr. S. C. Giri, the Regional Manager, which is also stated to be based on record.

26. The affidavit dated 27.09.2024 of Mr. Chunna Lal Chaudhary is extracted hereinunder:

1. That the Deponent was posted from 13.09.2010 to 15.09.2016 as a Divisional Manager in the Divisional Office, United India Insurance Company Limited, Shahjahanpur and as such is fully aware from the affairs of the Company which took place during the period of his posting there.

2. That the deponent states that no such claim intimation/application dated 28.04.2015 as alleged by the Complainant in its application dated 11.07.2016 contained as Annexure No.-P-5 at page No. 60 of the Complaint was ever been given by the Complainant to him nor any Surveyor as alleged by the Complainant was ever been appointed by him for the survey of the alleged loss caused to the Complainant and the averments made by the Complainant to this effect are false and fabricated and have been made only to extract money from the United India Insurance Company Limited by misleading this Hon'ble Commission.

3. That the deponent also states that copy of a letter alleged to be sent by him to the Complainant contained as Annexure No.-P-6 at page No. 62 of the Complaint is a false and fabricated document and was never been sent by him to the Complainant. The deponent further submits that the falsehood of the alleged letter also stands proved from the fact that it, neither contains the date on which, it was sent to the Complainant nor the signature of the deponent and even the designation of the deponent has been written therein as General Manager whereas the deponent was posted as a Divisional Manager in the Divisional Office, United India Insurance Company Limited, Shahjahanpur and not as a General Manager.

27. We find this stand of the Insurance Company to be peculiar and somewhat inconsistent, in as much as, on the one hand, paragraph 10 of the written statement, the writing of the letter by the complainant stands admitted, but what is peculiar is that this admission could also be in respect of the letter dated 28.04.2015 which has not been filed either by the complainant or the OP. It is therefore not possible for us to conclusively construe any despatch of intimation by the complainant to the Insurance Company, particularly about the information regarding the breakdown of machinery through the alleged letter dated 28.04.2015.

28. The complainant's counsel has then invited the attention of the Bench to the reminder dated 11.07.2015. This is the first document captioned as Reminder-2 which we find on record regarding an alleged intimation to the Insurance Company. The same is extracted hereinunder:

 Ref. No. Reminder - 2 Date: 11.07.2015

To.

The Manager,

United India Insurance Co.Ltd.

Shahjahanpur

Subject:- in respect to deteriorating and rotten of potatoes stored in Chamber No. 3 & 4 of the M/s Sheel Cold Storage Village-Bharmai, Chandpur, Kasba Kalan, Tehsil Jalalabad, District Shahjahanpur (U.P.) Sir, It has requested that Sheel Chandra Gupta son of Late Sri. Balak Ram Gupta resident of Kalan is the proprietor of M/s Sheel Cold Storage Village-

Bharmai, Chandpur, Kasba Kalan in which One Lacs Eight Thousand (1,08,000) packets of the potatoes of farmers was stored from the month of February to 15th March 2015 which was get insured by the owner of the cold storage from United India Insurance Co. Ltd. Shahjahanpur U.P. on dated 14.04.2015 for deteriorating of the entire potatoes up till the period ending on 13.11.2015. about 27500 packets stored in chamber 3, whose market value is Rs.96,25,000/- calculating at the rate of Rs.350/- per packet, is going to be deteriorate. 22000 packets stored in chamber 4, whose market value is Rs.77,00,000/- calculating at the rate of Rs.350/-per packet, has been deteriorated in the month of May 2015. In this regards, an written application dated 28.04.2015 has filed before the Manager United India Insurance Pvt. Ltd. By the proprietor of the M/s Sheel Cold Storage on which inspection was done by Mr. Suresh Surveyor. But no action has taken.

Therefore, it is humbly request that kindly inspect the potatoes stored in above mentioned chamber no. 3 to make payment.

Regards, Sd/-

M/s Sheel Cold Storage Village-Bharamai, Chandpur, Kasba Kalan, Distt. Shahjahanpur

29. A perusal of the said letter nowhere indicates any information of the breakdown of machinery except for a complaint with regard to the loss of rottening potatoes. This letter however, states that earlier a letter had been sent on 28.04.2015 and an inspection had been made by one Mr. Suresh, but no action was taken. This letter nowhere mentions any information dated 15.05.2015 as alleged in the complaint. Learned counsel for the complainant urged that the complainants are not that well-read people. We reject this argument, in as much as, the complainants are the owners of a cold storage dealing in several crores and are assisted by their own team of Administrators and Legal Experts. We therefore cannot believe this argument that the complainants were unaware of the manner in which they had to write letters about facts regarding breakdowns. Thus till 11.07.2015, we do not find any evidence of the despatch of the letter dated 28.04.2015 nor the said letter has been brought on record nor is there any other evidence of intimation about the breakdown.

30. Learned counsel for the complainant has then invited the attention of the Bench to the letter allegedly sent by Mr. Chunna Lal Chaudhary on 02.09.2015 that has been filed as Annexure P-6 at page 62 of the paperbook. The same is extracted hereinunder:

UNITED INDIA INSURANCE COMNPANY LIMITED (A Subsidiary of General Insurance Corporation of India) Divisional Office:

Chaudhary Complex, Sadar Bazar, Shahjahanpur - 242001 (Code No.: 082600) To M/s Sheel Cold Storage Bharamai Chandpur Kalan Distt. Shahjahanpur Subject:- in respect to deteriorating and rotten of potatoes stored in Chamber No. 3 & 4.

Sir, Today dated 02.09.2015, we have received a letter of Sri. Amit Verma, advocate authorized by you in respect of above said subject matter. In this regard, it has informed you that whatever you have claimed, it should be claimed under the machinery insurance. If the stock deteriorated due cause of machinery, then as per policy, the advance proceedings has initiated. In your case, neither any claim under the machinery has forwarded to this office nor has any information made. Therefore your claim has not substantiated as per policy. The reply of the previous notices has been sent to you. Kindly be acquainted.

Regards,

 Sd/-

 (C. L. Chaudhary)

 General Manager

31. As noted above in the affidavit of Mr. Chaudhary dated 27.09.2024, there is a complete denial about sending of this letter and it has been described as fake. This letter dated 02.09.2015 indicates that it was a reply to a letter of some Mr. Amit Verma, Advocate who had sent some letter on behalf of the complainant. Firstly, the said letter therefore is a reply to some letter sent by Mr. Amit Verma, Advocate and not by the complainant or its Proprietor. This is also established from the fact that the recitals contained in the letter dated 11.07.2015 about the letter dated 28.04.2015 is stated to have been written by the Proprietor and not by Mr. Amit Verma. Thus, the letter dated 02.09.2015 cannot be treated as a reply accepting receipt of the letter dated 28.04.2015. The alleged letter of Mr. Amit Verma dated 02.09.2015 has also not been filed by the complainant. Thus the complainant has conspicuously and deliberately withheld the letters dated 28.04.2015 and 02.09.2015, if any, that have been denied categorically in the affidavits of Mr. Gyan Prakash and Mr. C. L. Chaudhary. There is no rebuttal to these affidavits. The argument on behalf of the complainant therefore is unacceptable regarding intimation about breakdown of machinery.

32. The admission in paragraph 10 of the written statement is therefore totally inconsistent with the above noted facts. An admission without supporting evidence can always be explained and in our considered opinion the affidavit of Mr. Gyan Prakash and Mr. Chaudhary subsequently filed as noted above clearly explains the admission of paragraph 10 of the written statement.

33. However, even if this admission is taken into account, the complainant has to stand on his own legs. It is strange that the letters dated 28.04.2015 and 02.09.2015, if at all existed or are available, could have been filed with the complaint or even with the rejoinder. Not only this, it could have been filed with the evidence affidavit or even subsequently, but no attempt at all has been made by the complainant to bring on record the letters dated 28.04.2015 alleged to have been written by the proprietor and the letter dated 02.09.2015 alleged to have been written by Mr. Amit Verma.

34. In view of the discussions made hereinabove, we do not find any intimation about the breakdown of the machinery at least till 11.07.2015 or any other evidence to that effect.

35. It is for this reason that the letter of Mr. Chaudhary dated 02.09.2015 which was in reply to a letter of Mr. Amit Verma, Advocate seems to state that no claim under the Machinery Breakdown Policy had been forwarded, but we are not inclined to enter any discussion on it further, for the simple reason that further communications filed by the complainant also indicate that there was no intimation to the Insurance Company about the machinery breakdown.

36. For this, we may reproduce the letter dated 15.09.2015 that was dispatched by the complainant as alleged by him to the suppliers of the cooling equipment that is reproduced hereinunder:

Ref. No. Date: 15.09.2015

To,

M/s Cool Tech Industries

Regd. Office:

150, First Floor, G.S. Complex,

Sarai Jullena,

New Delhi-110025

Subject:- in respect to defect in machine

 Sir,

It has acquaint to you that an agreement has executed on dated 17.11.2014 with you for machinery and cooling system and as per terms and conditions, the entire payment has paid by me through Bank within the time limitation and the cooling plant has functioned after fitting in my cold storage by you but the plant could not functioning properly then your engineer told that I'll come back after a day with some machinery and staff for functioning of the plant properly. But no any service has provided by you in accordance to terms and conditions of the agreement nor your service engineer appear to resolved the cooling system nor any staff has send by you. Consequently the entire potatoes of these chambers has about to become rotten till date today whose value is Rs.4.5 Crore. It has acquaint to you that prior an information about the deteriorating of the potatoes in chamber no. 3 & 4 has already been forwarded to you which was replied by you with wrong facts and any type of the damages has not paid and nor rectify cooling system by which it has clear that you have damaged my cold storage in grave violation of the terms and conditions of the agreement and whole liabilities is laying on you.

Therefore it has respectfully acquainted to you that in present time the entire potatoes have deteriorated whose value id Rs.4.5 Crore. The amount of the damages has to pay to the above said firm M/s Sheel Cold Storage within 15 days of the receipt of this letter by which the damages of the farmers could be disbursed. Otherwise constrain to take legal action against you in competent court of law whose the cost and liabilities will bear of you.

Information forwarded with respect for necessary action.

Regards,

Sd/-

M/s Sheel Cold Storage

Village-Bharmai, Chandpur,

Kasba Kalan, Distt. Shahjahanpur

37. This letter clearly establishes that the intimation had been given to the equipment suppliers as alleged by the complainant. This letter is nowhere addressed to or even copied to the Insurance Company. There is no reference about this intimation of the defect in machinery of the cooling plant of the cold storage.

38. There is one more peculiar fact which emerges from a reading of the said letter. There is an allegation against M/s. Cool Tech Industries that after having carried out the fitting of the equipment, the cooling plant had not functioned properly and therefore invoking the agreement dated 17.11.2014, it was alleged that the said agency had been requested about the said complaint and the Engineer who had arrived had informed the complainant that he would be returning back to set right the machinery. Unfortunately, no service was provided by the Engineer or by the said agency and the allegations made in the said letter therefore clearly indicate that the functioning of the cooling plant was defective may be from inception. It is not understood as to why this intimation was not given to the Insurance Company when the coverage of the machinery breakdown policy was from 20.04.2015. The letter states that the installed plant had not been giving effective service causing losses. If that was so, and the losses to the potatoes were apprehended, then it was the duty of the complainant to have intimated to the Insurance Company about the alleged failure of the machinery which does not seem to have been done. This letter also therefore confirms that the machinery breakdown had not been intimated to the Insurance Company.

39. For the first time, the letter dated 08.10.2015 sent to the Branch Manager of the State Bank seems to make a vague reference about the malfunctioning of the four chambers of the cold storage resulting in deterioration of potatoes, but so far as the Insurance Company is concerned, a letter of the same date has been filed as Annexure P-9 which is extracted hereinunder:

Ref. No. Date: 08.10.2015 To, Zonal Manager United India Insurance Company Limited Zonal Office, Chaudhary Complex, Sadar Bazar, Shahjahanpur-242001 Subject:- in respect to deteriorating of potatoes stored in Chamber No. 1 to 4 of the M/s Sheel Cold Storage Village-Bharmai, Chandpur, Kasba Kalan, Tehsil Jalalabad, District Shahjahanpur Sir, It has requested that a term loan of Rs.3,50,00,000/- bearing Account No.3489624195 and AVL limit of Rs.80,00,000/- bearing Account No.34805535112 has been sanctioned by you branch to M/s Sheel Cold Storage Village-Bharmai, Chandpur, Kasba Kalan, Tehsil Jalalabad, District Shahjahanpur. Cold Storage has operated on the said loan and 1,08,000 packets of the potatoes was stored in chamber no. 1,2,3 and 4 of the cold storage. Due to malfunctioning of the cooling system (machine), the cooling was not make up to the standard by which the potatoes stored in these four chambers has become deteriorated. This information has already been forwarded to you by M's Sheel Cold Storage. But till date claim of the insurance has not paid. The insurance of the M/s Sheel Cold Storage was obtained from your company United India Insurance Company Limited whose insurance has done under Machinery Break Down Insurance Policy No. 0826004415P100509356. The information about the claim under the said policy has already been forwarded to you before by the Cold Storage but till dated no any insurance claim has reimbursed which is the violation of the terms of the said policy. In nonpayment of the insurance claim, the payment of Bank loan and the cost of the potatoes could not be made to the farmers. Due cause of that the farmers are aggressive and demanding their payments.

The Cold Storage is in loss of more than about Rs.4.5 Crore by reason of rotten of the potatoes and the entire construction has demolished to take out the rotten potatoes to thrown outside and has to make the payment to the labourers. It is very hard to repay the loan given by the Bank by reason of rotten potatoes stored in cold storage and disbursement of such money and bardana to kashtkar through AVL Limit has also dumped. It is requested to you that kindly claim the insurance of deteriorating potatoes etc. under the Machinery Policy and to get the claim amount by which the applicant could make the payment of the loan and farmers. Photocopy of the Machinery Break Down Insurance Policy No. 0826004415P100509356 is annexed herewith by the applicant.

Thanks Date:

Regards, Sd/-

M/s Sheel Cold Storage Village-Bharmai, Chandpur, Kasba Kalan, Distt. Shahjahanpur

40. It is thus evident that on record it is the said letter dated 08.10.2015 which mentions about the malfunctioning of the cooling system to the Insurance Company for the first time without any accompanying details.

41. As discussed above and from the facts on record, the intimation about machinery breakdown particularly the malfunctioning of the cooling system does not appear to have been intimated to the Insurance Company at all. No details or any material was produced by the complainants setting up the claim of machinery breakdown or requesting the Insurance Company to carry out any survey in respect of the same. There is no reference at all about any particular machine or equipment or part thereof specifying the failure. It is not known as to what component of the machine had failed.

42. The sending of an intimation to the supplier of the machine on 15.09.2015 also demonstrates as if the machine was defective from inception, but the said complaint was also made in September 2015 without any evidence of reference of the same to the Insurance Company.

43. In our understanding the question of assessing a loss of the stock of potatoes, which is based allegedly on machinery breakdown, cannot be sustained unless the machinery breakdown is established. The existence of potatoes and its rottening are directly dependent upon the cause of failure of the machinery resulting in failure of cooling which has not been established, nor the claim of machinery breakdown seems to have been made or intimated. The documents which have been filed by the complainant nowhere detail any intimation of the details of machinery failure. It is therefore obvious that with no intimation to the Insurance Company, the allegation of any omission or deficiency on their part is not established. The entire claim therefore falls under a cloud of suspicion and serious doubt to construe a failure of machinery and the consequential loss on account of such failure.

44. The Insurance Company had no opportunity to get the claim assessed regarding machinery breakdown or even otherwise, in the absence of any such material, and it is for this reason that the claim was not entertained. The allegation that one Mr. Suresh had been appointed as a Surveyor has also been denied. The contention raised on behalf of the complainant that it was the duty of the OP to have intimated about claiming the loss under the machinery breakdown policy is an argument in desperation, in as much as, it was the obligation of the complainant to have raised this issue with cogent material and any facts relating to the machinery breakdown as alleged by them that gave rise to the rottening of the potatoes. The complainant therefore failed to discharge this burden and therefore the alleged deterioration of the stocks of potatoes independent of the machinery breakdown is neither logical nor was the Insurance Company obliged on the facts of the present case to proceed with the matter any further.

45. As already noticed above, the complainant failed to bring on record the letters dated 28.04.2015 and 02.09.2015 said to have been dispatched by the complainant and subsequently by his lawyer Mr. Amit Verma. These are letters which have been withheld and were relevant to have thrown light on the controversy. This having not been done, and in the absence of any proof to establish that the said communications were sent, the contentions raised on behalf of the Insurance Company deserves acceptance.

46. Learned counsel for the complainant has vehemently urged with the aid of the decision in the case of Canara Bank (supra) that the terms and conditions of the policy should be reasonably construed and the loss having been established the present complaint deserves to be entertain and allowed.

47. As already noted above, in view of the terms of the policy and also the conduct of the complainant in not having intimated the Insurance Company regarding the claim of machinery breakdown or any other details pertaining to the deterioration of potatoes, such lack of evidence therefore does not entitle the complainant to claim the reliefs.

48. The complaint is accordingly dismissed.