These appeals arose from the order dated 30th December, 2005 passed by the Orissa State Consumer Disputes Redressal Commission (For short “State Commission) in CD Case No. 39/2004. The complaint before the State Commission was filed claiming a sum of Rs.11,77,985/- towards the loss sustained by the complainant in a fire accident to his stock of coal besides a sum of Rs.10 lakhs towards the loss of business. The complaint was resisted by the Insurance Company primarily on the ground that the loss occasioned to the complainant was on account of spontaneous combustion of his fuel stock rather than by fire. Therefore, it was not covered under the fire policy under which the stock of the complainant were got insured by Opposite Party No. 2 – Allahabad Bank with whom the goods were hypotheticated. The Bank also denied deficiency in service on their part. The State Commission repelled the plea of the Insurance Company and going by the assessment of loss made by the surveyor, partly allowed the complaint and directed the Insurance Company to pay a sum of Rs.1,54,920/- with interest @ 6% p.a. from two months after the date of peril with the stipulation that the amount shall be paid within two months failing which the rate of interest shall stand increased to 9% p.a. 2. Aggrieved by the said order, the New India Assurance Co. Ltd. – OP No. 2 has filed First Appeal No. 108/2006 praying for setting aside the findings and order of the State Commission while complainant not satisfied with the said order has filed First Appeal No. 497/2006 seeking upgradation of the relief, so granted to him by the State Commission against both the Opposite Parties. 3. We have heard Ms. Meenakshi Midha, advocate for the appellant – Insurance Company, Mr. S.K. Pattanaik, advocate for Respondent No. 1 and Mr. Ashok Jain, Advocate for Allahabad Bank and have considered their submissions. 4. Counsel for the Appellant – Insurance Company would assail the impugned order primarily on the ground that it is not based on correct and proper appreciation of the pleadings, evidence and material brought on record, in particular the terms & conditions of the Insurance policy subject to which the appellant had insured stocks of Respondent no. 1 as also not being in consonance of the settled legal position. In this regard she has invited our attention to the policy document of the Standard Fire and Special Policy which clearly stipulates that if after payment of the premium the Property insured described in the said Schedule or any part of such property be destroyed or damaged by any of the perils specified thereunder during the period of insurance schedule or of any subsequent period in respect of which the insured shall have paid and the company had accepted the premium required for the renewal of the policy, the Company shall pay to the insured the value of the Property at the time of the happening of its destruction or the amount of such damage or at its option reinstate or replace such property or any part thereof: 1. Fire : Excluding destruction or damage caused to the property insured by a) I) its own termination, natural heating or spontaneous combustion. ii) its undergoing any heating or drying process. b) burning or property insured by order of any Public authority. 5. Our attention is also invited to the endorsement/Clause Wordings and Rates for add-on covers, Clause VI of the said documents which reads as: -- vi) Spontaneous combustion: “in consideration of the payment by the insured to the Company of additional premium of Rs………. the Company agrees not withstanding what is stated in the printed exclusions of this policy shall extend to include loss or damage by fire only of or to the property insured caused by its own termentation, natural hearing or spontaneous combustion.” 6. On the strength of these Clauses, counsel for the Insurance Company submits that the Opposite Party Bank has neither sought coverage of the peril of spontaneous combustion nor has paid any premium for such coverage and therefore; this peril would be excluded from the coverage by means of the above-referred Clauses. In this case it is not disputing that in the policy, which has been obtained by the Allahabad Bank in account of the complainant-respondent, the policy was for fire and did not cover the special peril of spontaneous combustion. Now on the face of this position, the question is as to whether the State Commission was justified in allowing the claim though in part, our answer is plainly in the negative going by the decision of the Supreme Court in the case of New India New India Assurance Co. Ltd. Co. Ltd. vs. M/s Zuari Industries Ltd. & Ors. as also a decision of this Commission in the case of Roshan Lal Oils Mills Ltd. Vs. United India Insurance Co. Ltd. In the former case, the Apex court going by the material obtaining on record and in particular the version put forth by the partner of the complainant before the Surveyor soon after the incident i.e. on 10th June, 2002 and as subsequently also, it is very much clear that the damage to the stock of the complainant was on account of spontaneous combustion. The surveyor has considered that version as also based on his own observation, found as under:-- OCCURRENCE : It was informed by the Insured that on 08-06-02 at 3 P.M. smoke was found to be coming out of one of the coal heap. The Insured as reported immediately started pouring water on the affected coal heap from all sides to damp down the fire. The smoke subsided & the Insured thought that, fire had completely been extinguished. Again at about 8 P.M., the employees of the Insured noticed that flame was coming once again from the same heap of coal. The fire brigade Station, Cuttack was immediately informed over phone. The fire brigade reached the site & the fire was brought under control by the combined effort of the Insured’s employees & fire brigade. The matter was then informed to the underwriter to arrange necessary survey of the loss. SURVEY As per the information received from you over phone on 10-06-2002 we immediately proceeded to the Insured’s depot and conducted survey and inspection of the loss. During our stay at the coal depot, we observed that, the Insured have 2 Nos. of coal heaps & one of the coal heap was sprayed with water which was affected. We physically checked samples from different places of the heap and also collected samples randomly from the heap of coal. We also noticed that fire had travelled through out the length and breadth of the heap. From the extent of damage, we feel that combustion of coal initiated much before 08-06-02, which was only noticed on 08-06-02 at 3 P.M. when smoke started coming out. After the fire was damped down on 08-06-02, Insured thought that fire had completely been extinguished but in fact combustion was going on underneath the heap, which again appeared at 8 P.M. on the same day with flame. So we feel that combustion was going on unnoticed inside the coal heap. CAUSE OF FIRE ; During our visit we had discussed with the Insured regarding the cause of loss. Looking into the nature of affected item & nature of damage, we are with the opinion that, the fire had originated due to spontaneous combustion. The Insured have also submitted a written statement about the occurrence and cause of fire in which they have mentioned the same cause, which is enclosed for your reference. 7. Lastly, on the basis of the above observations and findings, the surveyor had concluded that the loss had occurred due to spontaneous combustion and the Insured had taken a fire & special perils policy and therefore it was left to the underwriter to check whether spontaneous combustion was taken by the Insured as “Add on” cover and accordingly the admissibility of the claim may be decided. 8. Going by the above material, there is no escape from the conclusion that the loss suffered by the complainant to his stock of coal was on account of spontaneous combustion rather than fire which is not covered under the policy in question. The Insurance Company was, therefore, justified in repudiating the claim of the complainant on that ground. No fault or deficiency can be found in the said repudiation. 9. Mr. Pattanaik, counsel for the respondent – complainant has submitted before us that even if the Insurance Company can not be held liable to indemnify for the loss suffered by the complainant, Opposite Party No. 1 Allahabad Bank who had taken the policy from the Insurance Company should be held guilty of deficiency in service for not taking the proper policy and fully safeguard their own interest in regard to the hypotheticated goods as also the interest of the complainant. We are afraid, we cannot take such a view because the primary responsibility for taking the proper policy was on the complainant and the responsibility of the Bank was only secondary and on the failure of the complainant to take policy himself. If the complainant found the policy taken by the Bank faulty or improper, they should have immediately objected to the same. After the peril, they cannot be heard to say that the policy was improper and did not cover the peril in question. 10. Having considered the respective submissions, we are of the view that First Appeal No. 108/2006 should be allowed and the impugned order passed by the State Commission must be set aside. For the above reasons, First Appeal No. 497/2006 is liable to be dismissed. 11. In the result, Appeal No. 108/2006 is hereby allowed and the order passed by the State Commission is hereby set aside. Consequently, the second Appeal No. 497/2006 filed by M/s Tarini Enterprises fails and is dismissed. Parties to bear their own cost throughout. | 
