Malana Power Company Ltd vs Oriental Insurnace Co. Ltd

C. Viswanath, J

Brief facts of the Case are as follows:-

The Complainant is a limited Company registered with the Registrar of Companies having its Corporate Office at Bhilwara Towers, A-12, Sector-1, Noida-201 301(UP). The Complainant started generation of power in July, 2001. The Complainant was interested in securing an indemnity in respect of any shortfall that may take place in aggregate annual power generation at its Hydro Power Plant due to failure of hydrology, which depended on vagaries of nature. M/s IFFICO-TOKIO General Insurance Company Ltd., approached the Complainant for providing insurance cover for the power project. Since the production of Hydro power was dependent upon nature, M/s IFFCO-TOKIO suggested and insisted that the plant and machinery should be insured as a package deal. Accordingly, the Complainant and M/s IFFCO-TOKIO entered into an MOU under which M/s IFFCO-TOKIO provided a package deal of two Policies to the Complainant. The first Policy was Industrial All Risk Policy which covered material, damages due to fire and special perils, machinery breakdown, loss of profit etc. for a period of 12 months. The second Policy was the Special Contingency Policy, which covered loss of power generation due to loss of hydrology. IIFICO-TOKIO agreed to cover all the risks.

The Special Contingency Policy was issued by M/s IFFICO-TOKIO for a period of 12 months from 07.07.2001 to 06.07.2002. Further, the insurance was subject to compulsory excess of 10% of the assessed claim amount. The sum insured under this Policy was Rs.5 crores in case of short fall in aggregate annual power generation due to failure of hydrology. The Policy also clearly provided that the insurance cover was given on the basis of hydrology data record for the period 1970-71 to 1992-93 and also provided that the said data will be considered as an integral part of the Policy. After the commencement of the Special Contingency Policy, according to the Complainant, details of hydrology data were provided regularly to M/s IFFCO-TOKIO on a month to month basis. Before the expiry of the Policies issued by M/s IFFCO TOKIO, the Opposite Party approached the Complainant with a proposal for insuring the power project for the next year, being 2002-2003. Formal discussions were held between the parties with regard to the insurance Policies. All the terms and conditions of the previous Policy, including the fact that the insurance cover given by M/s IFFCO-TOKIO was issued as a package deal were clearly informed to the Opposite Party. A copy of the Policy of M/s IFFCO-TOKIO along with the record of hydrology data was also given to the Opposite Party by the Complainant. However, since the likely loss of generation was estimated to be around Rs.8 crores, the claimant wanted the risk cover to be increased form Rs.5 crores to Rs.10 crores for the year 2002-2003.

The Opposite Party, vide letter dated 02.07.2002, acknowledged the discussions with the Complainant and stated, "We are pleased to inform you that we will be glad to insure your project against hydrology & all risk cover as desired by you in the terms and conditions of your expiring Policy. We look forward for a meeting with you for finalization of the Policy which depends upon the exact terms and conditions to be decided by you for the current year". The parties reached an agreement and it was decided that the Opposite Party would also provide insurance cover as a package deal on the same terms and conditions as in the Policy issued by M/s IFFCO-TOKIO, with the only exception being that the Special Contingency Policy would be for Rs.10 crores instead of Rs.5 crores. In fact the Respondent offered competitive rates over the rates available in the market to insure the risk which clearly showed that there was no inducement on part of the claimant to get the offer from the Respondent, who willingly insured the said risk. Accordingly, the parties entered into an MOU, which was identical to the MOU entered between the Complainant and M/s IFFCO-TOKIO. The Special Contingency Policy issued by the Opposite Party was also identical to the one issued by M.s IFFCO-TOKIO, except that the sum insured was Rs.10 crores in case of shortfall in the aggregate annual power generation due to loss of hydrology.

A premium of Rs.16,95,750/- was paid by the Complainant. Further this Policy also provided that the insurance cover was based on the hydrology record as considered in the previous Policy and was deemed to be an integral part of the Policy. On the expiry of the Policy issued by M/s IFFCO-TOKIO, the Complainant lodged a claim with M/s IFFCO-TOKIO. After signing of the MOU and issuance of the Policies, the Opposite Party, vide letter 05.08.2002, asked the Complainant to provide details of the claim lodged with M/s IFFCO-TOKIO. The Complainant informed the Opposite Party, vide letter dated 06.08.2002, that they had lodged a claim for loss of hydrology with the previous insurer for the year 2001-02. It was further stated that the pervious insurance company was still in the process of determining the exact amount of claim and that the estimated loss would be around Rs.4-5 crores. The Complainant regularly provided the Opposite Party, the record of hydrology data collected by them. Much after issuance of the insurance Policies, the Opposite Party informed the Complainant that the Special Insurance Policy issued by them was required to be revised as no reinsurer was willing to accept the sum insured beyond Rs.5 crores. The Opposite Party requested the Complainant to convey its formal acceptance for the Revised Policy with an insured sum of Rs.5 crores, instead of Rs.10 crore.

Along with the letter, the Opposite Party enclosed the revised Policy which provided for increasing the compulsory excess to 20% subject to a minimum of Rs.25 lakhs. Further certain special conditions were added therein which were not part of the Policy issued either by the Opposite Party or by M/s IFFCO-TOKIO. The Complainant, vide letter dated 12.11.2002, stated that Policy cannot be altered during its currency, after having been issued 4 months ago. The Complainant rejected and contested all the allegations made by the Opposite Party and clearly provided that changes suggested by the Opposite Party were not acceptable. It was stated that the MOU signed between the parties was a legally binding contract and would continue to operate without any changes and the Opposite Party was requested to withdraw its letter dated 11.11.2002. On 20.11.2002, the Opposite Party issued another letter to the Complainant requesting the Complainant to accept the revised terms and conditions or in the alternative to treat the letter as a 7 days notice for cancellation of the Special Contingency Policy. On 22.11.2002, the Complainant addressed a letter to the Opposite Party highlighting the major changes in the original Policy and the amended Policy sought to be given by the Opposite Party.

The Opposite Party, vide letter dated 25.11.2002, cancelled the Special Contingency Policy and enclosed a cheque of Rs.10,38,380/- towards the prorata refund of the premium for the remaining period of the Policy i.e. 27.11.2002 to 06.07.2003. As the insurance cover, given by the Opposite party under the MOU dated 06.07.2002, was a package deal which included two Policies, the Opposite Party could not cancel the Special Contingency Policy unilaterally. Besides, the Policy period could not be broken into two different periods, as done by the Opposite Party. There was no provision regarding payment of prorate premium or refund.The Complainant, vide letter dated 26.11.2002, informed the Opposite Party that there had been a shortfall of 28302839 Kwh of electricity generated from 07.02.2002 to 20.11.2002 and the loss suffered was Rs.5,20,37,800/-, which after providing for deduction of 10%, works out to Rs.4,68,33,840/-. The Complainant stated that this letter was a formal lodging of the claim with the Opposite Party and asked them to reimburse the same within a period of 15 days. The Complainant, vide letter dated 28.11.2002, informed the Opposite Party that they do not accept the purported cancellation of the Special Contingency Policy and stated that they were not encashing the cheque dated 20.11.2002 sent by the Opposite Party refunding the prorata premium. It was further provided that the Complainant treated the Policy as being in force and binding till 06.07.2003.

The Opposite Party, vide letter dated 23.12.2002, stated that the Policy stood cancelled and that they would not be liable for any unfortunate occurrence after 27.11.2002. The Opposite Party, vide another letter dated 30.12.2002, returned the hydrology data sheet submitted by the Complainant. In 2002-03, the Opposite Party, without informing the Complainant, appointed M/s A.K. Gupta & Associates for carrying out a survey and giving an investigation report on the loss of power generation due to loss of hydrology under the Special Contingency Policy.On the expiry of the two Policies issued by the Opposite Party on 06.07.2003, the Complainant, vide letter dated 14.07.2003, lodged a total claim of Rs.6,82,32,502/- against the Special Contingency Policy for the entire period of one year. The Surveyors appointed by the Opposite Party, M/s A.K. Gupta & Associates submitted their report to the Opposite Party on 13.10.2003, concluding that the claim of the Complainant was not payable on the ground that the Complainant concealed material facts and information by not furnishing the loss of hydrology for the immediate preceding years. This report/finding was given despite the fact that Govt. of Himachal Pradesh was responsible for calculating and giving the data, which it failed to do.This fact was known to Surveyors and the Opposite Party. It was to be noted that the report of the Surveyor was not even provided to the Complainant by the Opposite Party. The report was provided to the Complainant only after the Special Leave Petition filed by the Opposite Party against the order dated 23.05.2007 was dismissed by the Hon'ble Supreme Court on 25.04.2008. The Opposite Party, vide letter dated 09.07.2004, rejected the claim made by the Complainant on the ground that as per the reportof the Surveyor, there was concealment of material facts by the Complainantand therefore, the Policy was declared as void.

Alleging deficiency on the part of the Opposite Party, the Complainant filed a Consumer Complaint before this Commission under Section 21 of the Consumer Protection Act, 1986, praying relief as under:-

Direct the Opposite Party to pay Rs.85,677,608.81/- with interest @12% yearly compounded on the fiscal year basis from the date of filling of the Complaint till the date of payment.

Cost of the petition should also be awarded.

To pass any other relief which this Hon'ble Commission may deem fit and proper under the circumstances of the case, may also be granted.

The Complaint was opposed by the Opposite Party by filing Written Statement which stated that the Complainant has taken out Special Contingency Insurance Policy to cover the risk of short fall in the aggregate annual Power Generation at the Hydro Power Plant at Village Chauki, Kullu District for the period 07.07.2002 to 06.07.2003.The sum insured was Rs.10 crores. The Policy was issued with certain special conditions, inter alia, that the insurance cover was based on the hydrology shortfall for past 24 years. The said record was made an integral part of the Policy. Further the insurance was subject to MOU signed by the Oriental Insurance Co. Ltd. and the Insured. The Complainant made a claim alleging loss due to short production of electricity due to short fall in hydrology to the extent of Rs.6,14,09,251/- and interest and compensation in total for Rs.8,56,77,608/-. At the time of proposing for insurance, the Complainant had not disclosed the hydrological data at Nallah Malana for the last 9 years prior to the commencement of the project. The Complainant had produced hydrology records for the earlier years but informed that the records pertaining to the immediate preceding 9 years were not existing.Due to ecological reasons the hydrology could never achieve the result of 1992-93, fact which was known to the Complainant but fraudulently suppressed at the time of affecting the Policy.

The Complainant also did not disclose that there was a huge claim against the previous insurer i.e. M.s IFFCO-TOKIO General Insurance Co. The Complainant made the claim against the Policy for the year 2001-2002 with IFFCO-TOKIO just 3 days after taking the Policy from the Opposite Party. The Insurance contract was clearly vitiated by fraud as material information like the decline in hydrology from the year 1992-93 levels; certainty of shortfall of current hydrology when compared to 1992-93 levels; information regarding hydrology levels after 1992-93, availability of data for 07.07.2001 to 06.07.2002 submitted of IFFCO-TOKIO and the raising of claim on the IFFCO-TOKIO Policy were all suppressed from the Opposite Party. On the insistence of the Complainant, the Opposite Party had also issued an Industrial All Risks Policy. The Policy was issued on the basis of anticipated power generation on 95% plant availability for 90% dependable year based on the hydrology data for the years commencing from 1970-71 to 1992-93. The Complainant concealed the data for the years commencing form 1993 onwards upto the year 2001-2002. The Complainant refused to provide hydrology data for the years subsequent to 1992-93, stating that such data was not available. The said concealment was a deliberate attempt to defraud the Opposite Party in the same manner in which they treated their previous insurer.

In fact it came to the light that data for the period 07.07.2011 to 06.07.2002, was submitted by the Complainant to the previous insurer, IFFCO-TOKIO. The deliberate suppression of the data was to mislead the Opposite Party and obtain a cover for a non-existent risk of short fall in aggregate annual power generation, because hydrology would be recording a short fall every year compared to the hydrology for the year 1992-93. In the present case, despite loss of hydrology, the Complainant had made profits. Since the short fall in the hydrology would occur every succeeding year, the insurance taken was not for a fortuitous loss but pertains to a fictional loss. Such a loss could not be a subject matter of a valid insurance. Insurance covers only fortuitous risks and not fictional ones. The attempt of the Complainant was to defraud the insurer by suppressing hydrology data preceding the year of insurance cover and instead relying on pre 1992-93 data. The short fall was certain to happen. This was the reason that the Complainant approached a different insurance company every year. The Policy was void ab initio due to fraudulent concealment of material facts. In order to properly adjudicate the present Complaint, this Commission would require to scrutiny of extensive scientific evidence of a highly technical nature on power generation form hydro electrical projects.The case involved unearthing of a blatant fraud. This could be satisfactorily done only by examining several witnesses from the Government of Himachal Pradesh as well as from the officials of the previous insurers.

Heard the learned counsels for the Complainant as well as the Opposite Party.Also carefully perused the record.

A memorandum of understanding was drawn on 06.07.2002 between the Complainant and the Opposite Party wherein the Complainant agreed to take operational insurance coverage for the company unit from the Opposite Party for any material damage/loss of machinery, breakdown and loss of profit due to fire and loss in profit due to lack of hydrology.In pursuance of the same, a Special Contingency for Hydrology Risk Policy was taken for the period 07.07.2002 to 06.07.2003, reserving the right of the Opposite Party to cancel the policies by giving a 7 days' notice in writing of such cancellation to the insured's last known address.In such an event the Company would return a pro-rata portion of the premium for the unexpired part of the insurance.The risk was described as shortfall in aggregate annual power generation at insured's hydro power plant due to failure of hydrology.The sum insured was for Rs.10 crores only.It was also specifically mentioned in the Policy that the Insurance Policy was based on the hydrology record for past 24 years submitted by the insured.The hydrology record for past 24 years as annexed was deemed to be an integral part of the Policy.The Policy was signed on 08.07.2002.On 11.11.2002, a letter was addressed by the Opposite Party to the Complainant stating that the Policy issued could not be continued as it was technically incorrect in many respects and not acceptable to the reinsurer.

The Opposite Party sent a copy of the Revised Policy terms and conditions wherein the refund coverage was to be revised from Rs.10 crores to Rs.5 crore only, as no reinsurer was willing to accept the sum insured beyond Rs.5 crore.

The Complainant conveyed to the Opposite Party that the MOU signed between them and the Policy issued by the Opposite Party was a legally binding contract and such arbitrary major changes during the currency of the Policy were unacceptable as the very basic purpose of issuance of Policy and Insurance Coverage got defeated.The Opposite Party, vide letter dated 25.11.2002, enclosed a cheque for Rs.10,31,380/- towards prorata refund of the premium for the remaining period, i.e., 27.11.2002 to 06.07.2003 following cancellation of the Policy.

On 26.11.2002, the Complainant sent a letter to the Opposite Party stating that from 07.07.2002 to 20.11.2002, the Company suffered a loss of 28302839 Kwh in power generation amounting to Rs.5,20,37,600/- and after providing deduction of 10% in terms of the Policy, the net amount claimed was Rs.4,68,33,840/-.

The Opposite Party, vide letter dated 23.12.2002 to the Complainant, stated that in view of their not agreeing to the changes in the Policy which were absolutely necessary and in view of the circumstances explained, it was not possible for them to run the risk beyond 27.11.2002 and hence they were left with no option but to cancel the Policy in accordance with the cancellation condition in the Policy.They made it clear that the Policy stood cancelled and the Company would not be liable for any unfortunate occurrence after 27.11.2002.

The Special Contingency Policy was issued on 08.07.2002 with effect from 07.07.2002 with Rs.10 crore as the sum assured, for which the entire premium of Rs.16,95,750/- demanded by the Opposite Party was duly paid.The Complainant, vide letter dated 14.07.2003, made a total claim of Rs.6,82,32,502/- for the entire period of one year.The claim of the Complainant was repudiated, vide letter dated 09.07.2004, in view of concealment of material facts.Non-disclosure of material information, i.e., the hydrology data of the immediate preceding years of insurance, amounted to concealment of facts and vitiated the contract.

It is, however, seen that the Opposite Party did not even supply a copy of the Surveyors report to the Complainant.The Opposite Party informed that "surveyors report is a private and confidential document and for the use of the insurer only.We regret our inability to accede to your request."On this the Complainant had perforce to approach this Commission which, vide order dated 23.05.2007, observed :

"This is on the face of it unjustified and against the Insurance Act, 1938 as well as Insurance Regulatory and Development Authority (Protection of Policy Holders' Interest) Regulations 2002 and hence deplorable.

The said communication on the face of it, is breach of Regulation 9(2) which interalia, specifically provides that Surveyor shall communicate his findings to the insurer within 30 days of his appointment with a copy of report being furnished to the insured, if he so desires. In the present case, the Insurance Company refused to hand over the copy of Surveyor report by stating that it was private and confidential. This is nothing but an arbitrary action."

On this order, the Opposite Party appealed to the Hon'ble Supreme Court.Hon'ble Supreme Court, vide order dated 25.04.2008, dismissed the Special Leave Petition as they did not find any ground to interfere with the orders of this Commission.It is thus seen that the Opposite Party was avoiding to give and disclose the Surveyor's report for reasons best known to them.

As per the Policy taken for the previous year with IFFCO TOKIO, the Company was required to submit claim against loss of hydrology within 60 days of the expiry of the Policy, which it did.According to the Complainant senior officials of the Opposite Party were told about the loss of hydrology in the previous Policy, when they had come for renewal of Policy on 06.07.2002 and that the Company would be filing the claim shortly.Since the loss was higher than the sum insured, i.e., Rs.5 crores, the Opposite Party was requested to increase the sum insured to Rs.10 crores in the renewal which was agreed by the Opposite Party in the meeting.MOU was signed to renew the Policy on the same terms and conditions as were applicable to IFFCO TOKIO during the previous year, except that the cover on the Hydrology Policy was increased from Rs.5 crore to Rs.10 crores.At the time of renewing the Policy, the Officials of the Opposite Party studied the terms and conditions relating to the expiring Policy and accepted the same, with modification as stated above.The Opposite Party, vide letter dated 02.07.2002, offered to insure the Project against hydrology and all risk cover, as desired by the Company, on the terms and conditions of the IFFCO TOKIO Policy with certain changes as mentioned above.

According to the Complainant, the data for the year 1993 to 2002 could not be provided as they were not available and this was made known to the Opposite Party while issuing the Policy.The Surveyor appointed by the Opposite Party instead of assessing the loss of hydrology as per the Policy document went into questioning the project viability and company's management skill.The data as supplied by the Complainant was even accepted by the Central Electricity Authority while granting techno economic clearances to the Project in July 1998 taking into account hydrology data for the past 24 years as approved by the State Government.

The Policy was cancelled on the ground of not getting reinsurance cover and non-acceptance of the proposed changes by the Company.It is also not understood as to why the Opposite Party did not cancel the entire Insurance Policy, if the Opposite Party was convinced that there was suppression of information and fraud by the Opposite Party and instead offered an alternative package.If they believed that there was fraud and deceit and suppression of material facts on the part of the Complainant, there was no reason for the Opposite Party to express any desire of continuing with an alternate Policy, making only two important change of reduction the risk coverage from Rs.10 crore to Rs.5 crore and increasing the compulsory excess from 10% to 20% of the assessed claim amount.Further, the basis for believing that the water in the Nala was reduced after 1991 to 2001 is not understood.The hydrology of any water system is certainly bound to vary from time to time and unless there is adequate evidence, one should not predict doom and expect that for years for which no data was collected there was loss of hydrology in the water system.Insurance cover was sought only for the purpose of covering the risk of loss of profit due to loss of Hydrology, which could take place due to vagaries of nature.

The Opposite Party with their eyes wide open entered into an MOU with the Complainant and issued the Policy on the same lines as the previous Policy, duly incorporating the available hydrology data.The Surveyor seeking data which was not available and not incorporated in the Policy even at the time of issuance of the Policy and making that a ground for repudiation of the claim is not appropriate and reasonable.The insured having paid hefty premium under faith and trust, and on fulfilling all the Policy conditions, cannot be left high and dry when he really required their support.There is no known non-disclosure of material information in terms of the Policy issued by the Opposite Party.The available hydrology data was duly supplied and incorporated in the Policy itself.The Policy noted in clear terms that "the insurance cover is based on the hydrology record for the past 24 years submitted by the insured.This hydrology record for past 24 years as annexed deemed to be an integral part of this Policy." "This Policy is also subject to MOU signed by the Oriental Insurance Company and Malana Power Company attached."Nowhere has it been mentioned that the hydrology data for the later period would be an additional requirement to be supplied by the Party at a future date.

No letters have ever been written by the Opposite Party seeking supply of hydrology information for years later than those already supplied.It was only when the Opposite Party approached the reinsurers, that they sought information on claim experience.As per the letter of the Senior Divisional Manager of the Insurance Company dated 11.11.2002, inspection of the Malana Power Project was carried out by their team in September 2002.The inspection report alongwith their comments were sent to the reinsurers who in turn sent revised policy terms and conditions for continuation of coverage.The sum insured was proposed to be reduced to Rs.5 crores only as no reinsurer was willing to accept the sum insured beyond Rs.5 crores.The Opposite Party, therefore, requested the Complainant to accept the revised Policy restricting the sum insured to Rs.5 crore.

It is thus seen that the Opposite Party, as late November 2002, was willing to continue with the existing Policy with the restriction of sum insured to Rs.5 crores.The letter did not mention any suppression of material information.By this time, they had with them all the available information on hydrology as well as the claim made with the previous insurer, yet they were prepared to go ahead with a revised Insurance Policy cover for the Complainant's Project.The letter of the Senior Divisional Manager of the Insurance Company was written to the Complainant after a detailed inspection of the Project by their team and sought the acceptance of the Complainant of their revised Policy proposal. It was only because of the non-acceptance of changes in Policy and contract of Insurance by the Complainant, that the Policy was cancelled midway on 25.11.2002, that too only the Policy relating to loss of profit due to loss of hydrology, though it was part of a package deal, which normally should have been taken or closed as one.It left the Complainant in the lurch as they would find it difficult to approach another Insurer halfway through and that too, for part of a package deal, the other part still remaining with the same Insurer, the Opposite Party.

In view of the specific mention in the Policy that that the Insurance Policy was based on the Hydrology record for the past 24 years submitted by the Insured and annexed as integral part of the Policy; after seeking information on claim experience and other required information, inspection of the Project by a team under Senior Engineer/Manager of the Opposite Party, after meetings between the two parties, the Opposite Party's willingness and keenness to continue with the Policy insuring loss of profit due to loss in hydrology on certain revised terms, we are convinced that the Complainant cannot be accused of suppression of material information.The Opposite Party, vide its letter dated 23.12.2002, has also not made any mention about cancellation of Policy due to non-submission or suppression of any material facts or evidence known to the Complainant.Senior Divisional Manager vide letter dated 25th Nov. 2002 states "so far we have not heard anything from your side.Therefore, we are enclosing our Ch. No. 77961 dated 20.11.2002 for Rs.10,31,380/- towards pro-rata refund of the premium for the remaining period, i.e., 27.11.2002 to 06.07.2003 following cancellation of the Policy."

It is strange that the Senior Divisional Manager of the Opposite Party issued a 7 days-notice for cancellation of the Policy on 20.11.2002, without waiting for the reply of the Complainant and then taking a decision, prepared the cheque for Rs.10,31,380/- on 20.11.2002 itself towards pro-rata refund of the premium for the remaining period 27.11.2002 to 06.07.2003 and sent it vide letter dated 25.11.2002.It shows their scant regard to principles of natural justice. The Opposite Party had already decided to cancel the Policy and prepared the cheque while issuing the show-cause notice on 20.11.2002.

The Opposite Party wrote vide letter dated 23rd Dec. 2002, "In view of your not agreeing to the changes in the Policy which were absolutely necessary in view of the circumstances explained to you, it was not possible for us to run the risk beyond 27.11.2002 and hence we were left with no option except to cancel the policy in accordance with the cancellation condition appearing in the Policy.We wish to make it clear that the policy stands cancelled and the Company would not be liable for any unfortunate occurrence after 27.11.2002."

Non-acceptance of the changes in Policy, and not suppression of material facts was the main reason for termination of the contract, which has been provided in the Policy.It is surprising to note that the Surveyor builds his argument on non-disclosure of material information and concealment of facts by the Complainant, which the Opposite Party did not even raise after repeated inspections and meetings, implying that the hydrology data provided was acceptable to them as recorded in the Policy itself and also with details of claims as sought by them to satisfy the reinsurers.After satisfying themselves with the material information given, only then the Opposite Party proceeded making the revised offer reducing the insurance sum to Rs.5 crore and increasing the compulsory excess from 10% to 20% of the assessed claim amount.It is all the more surprising that this report of the Surveyor forms the basis for repudiation of the claim by the Complainant.

Regarding non-provision of data and suppression of known information between 1993-94 to 2002-2002, the Complainant has time and again stated that HPSEB had stopped recording hydrology data after May 1993, because the Project was awarded to them on 28.08.93.They also have not recorded data upto 5.07.2001, till the Commissioning of the Project.The Surveyor admits in his report "During our investigations, we also got in touch with M/s. Himachal Pradesh State Electricity Board but they could not submit us the hydrology data between 1993 and 2001".

The Surveyor calculated the loss based on their claim, i.e., with reference to 90% dependable year 1990-91 as per the Policy and for 7.7.2002 to 20.11.2002 as well as upto 6.7.2003.He has also calculated loss/profit based on discharge of the period 2001-2002, and concludes that there was negative loss, i.e., net gain of hydrology and energy.Since the Policy was cancelled on 27.11.2002, the loss of Rs.4,68,33,840/- calculated by the Surveyor upto 20.11.2002 in terms of the Policy, is relevant in this case.It is just and appropriate that the Complainant is compensated for the loss suffered.

In view of the above, the Consumer Complaint is allowed and we direct the Opposite Party to pay Rs.4,68,33,840/-, the loss suffered by the Complainant in terms of the Policy, alongwith interest @6% p.a. from the date of filing the present Complaint till the date of payment, within 3 months from the date of this order.There shall be no order as to costs.