State Consumer Disputes Redressal Commission
N.D. Umakrithika Devi, vs National Insurance Company, on 14 November, 2023
Daily Order Date of filing : 20.02.2019 IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI. Present: Hon'ble THIRU JUSTICE R. SUBBIAH : PRESIDENT C.C.No. 44 of 2019 Tuesday, the 14th day of November 2023 N.D. Umakrithika Devi Rep. by her Father and Power Agent Mr. N.Namasivayam 14/904,1st Main Road Eri Scheme, Mogappair Chennai - 600 037. .. Complainant - Vs - National Insurance Company Rep. by Chief Regional Manager Chennai Regional Office Hamid Building, II-Floor 90, Anna Salai Chennai - 600 006. .. Opposite Party Counsel for the Complainant : M/s. Yogesh Kannadasan Counsel for the Opposite party : M/s. S. Vadivel This Complaint came up for final hearing on 28.08.2023 and after hearing the arguments of the counsel for the opposite party and perusing the material on record and having stood over for consideration till this day, this Commission passes the following:- O R D E R
R.SUBBIAH J., PRESIDENT This complaint has been filed by the Complainant under Section 17 of the Consumer Protection Act, 1986, against the opposite party claiming the following directions:
To pay a sum of Rs.75,00,000/- towards damages caused to the Godown;
To pay interest @ 12% for the said sum, for 6 months, i.e. Rs.1,50,000/-; and To pay a sum of Rs.15,00,000/- as compensation towards mental and physical sufferings and deficiency of service;
2. The case of the complainant as projected in the Complaint is that she had put up a godown for storage of Agricultural products in her premises situated at S.No.37/4-A, 37/4B, 37/4E, 37/4F, 37/4/9 and 37/11 Adambakkam Village, Ponneri Taluk, as per the specifications provided by NABARD. In the same area, the complainant's father and mother also own godowns for the same purpose. All the godowns were initially insured with United India Insurance Company and later it was switched over to the opposite party. One Mr.Dinakaran representing on behalf of the opposite party, was responsible for the complainant to get the policies in favour of her, as well as her father and mother. Believing the words of said Mr.Dinakaran, the complainant remitted the renewal premium amounts by way of cheques, not only for the claimant but also for her father and mother. The opposite party issued policy Nos. 506001111610000005 dt. 29.11.2016 and 506001111610000004 dt. 29.11.2016, in favour of her father and mother, respectively. The complainant did not receive her policy and on enquiry, she was informed by the opposite party that they have not received any cheque in favour of the complainant. Hence, left with no other alternative, she issued another cheque. Thereafter, the opposite party issued the policy bearing No.506001111610000006 dated 02.12.2016, belatedly. The godown was insured for a sum of Rs.4 Crores and the complainant paid a premium of Rs.31,626/-, as claimed by the opposite party. The policy was effective from 02.12.2016 to 01.12.2017. The complainant as well as her father & mother insured on the same day and the premium amount was remitted through cheque by the complainant. The complainant's policy was not issued on a false ground that they have not received the cheque. As stated above, only after the complainant issued a fresh cheque, the opposite party had issued the policy, belatedly. Whileso, during the severe cyclonic storm 'Vardha' on 12.12.2016, all the godowns of the complainant and her parents were damaged severely. As per the advice of the opposite party, the loss was assessed by engaging experts in the field. The opposite party agreed to settle the claim for a paltry sum to the complainant's parents, by raising untenable and unsustainable objections. With regard to the claim of the complainant, the opposite party disowned their liability by invoking a clause in the policy, which was not brought to the notice of the complainant, during the inception of the policy. Had the opposite party intimated about the said new clause which was added in the policy before hand, she might have avoided the policy and approached some other insurance company for protecting her interest. The said act of the opposite party, adding a new clause behind her back was deliberate and unlawful and the same has been done with a view to evade the claim of the complainant. The new clause that was added in the policy, is as follows:-
"STFI CLAUSE warranted that a waiting period of 15 days for all STFI claims from the date of inception of the policy period."
By making use of the said clause, the opposite party has illegally refused to consider the claim of the complainant. The said clause was added in the policy without the concurrence of the complainant and therefore, the same is not binding on her. The failure to compensate the loss by the opposite party, through their letter dated 28.02.2017 is unjust. Inspite of the letter dated 28.02.2017 issued by the Branch Manager of the opposite party, settlement talks were going on between the parties for amicable settlement of the claim. Ultimately, the Chief Regional Manager of the opposite party through his letter dated 22.02.2018 has refused to concede the claim of the complainant. Hence, the complainant sent a notice dated 17.04.2018 through his counsel seeking for appointment of Arbitrator to resolve the dispute. But the opposite party vide their letter dated 26.04.2018, refused to go for Arbitration. Due to the deficiency of service caused by the opposite party, the complainant had suffered huge loss, for which the opposite party alone are liable to compensate. Although the loss resulted to the godown is Rs.1,16,07,472/-, the complainant has restricted her claim to Rs.75,00,000/-. In addition to the actual loss suffered for the destruction of the godown, the complainant is also entitled to get interest @ 12% p.a., atleast from 12.12.2016 to 20.02.2019. Further, the opposite party are liable to pay damages for the mental and physical sufferings undergone by the complainant, for construction of godown, by obtaining loan from the Bank at an exorbitant rate of interest. Therefore, the complainant was forced to file the present complaint claiming the reliefs stated supra.
3. Resisting the case of the complainant, the opposite party has filed a version stating that the opposite party is not aware of the previous policies taken by the complainant, her father and mother for their godowns, with the United India Insurance Company Limited. The complainant voluntarily approached the opposite party for insuring their godowns. After being satisfied with the terms and conditions of the policy, the complainant obtained the policy. The complainant had taken the policy on her own will and pleasure and hence the opposite party is not responsible for issuing the policy as alleged in the complaint. It is not true that the complainant remitted the requisite premium amount by issuing cheques not only for her but also for her father and mother. If at all the opposite party received the cheque for the premium amount for the complainant, definitely they would have issued the policy in favour of the complainant. The opposite party received the cheques for issuing the policies for the complainant's father Mr.Namachivayam and the complainant's mother Mrs. Shyamali only and hence policy Nos. 506001111610000005 and 506001111610000004 were issued in their favour, on 29.11.2016. Since no cheque was received from the complainant towards the premium amount, the opposite party had no obligation to issue any policy in favour of the complainant. The averments of the complainant that, "But they have failed to issue the policy in favour of the complainant on a false ground namely, that the complainant has not given any cheque for renewal. Such a stand taken by the insurance company is nothing but a deliberate lie. On the other hand, the same was false, deliberately made to get over their liability" are absolutely false and made with an ulterior motive. As soon as the premium of Rs.31,626/- was received by the opposite party, they issued Policy No. 506001111610000006 on 02.12.2016, covering the period from 02.12.2016 to 01.12.2017, the sum assured was Rs.4 Crores. The complainant was fully aware of the terms and conditions of the policy well in advance i.e., even before issuing the policy and only after being fully satisfied and having understood the terms and conditions of the policy, the complainant had taken the policy. The contention of the complainant that they were unaware of the terms and conditions purported to have annexed to the policy, is absolutely false. The STFI warranty clause is incorporated in the policy schedule itself under the caption, 'List of Clauses, Endorsements, Warranties'. "STFI CLAUSE, warranted that a waiting period of 15 days for all STFI claims from the date of inception of the policy period." Therefore, the complainant cannot contend that the complainant is unaware of the policy conditions. The STFI warranty clause in the policy was an integral part of the policy. The complainant was aware of the policy coverage/ exclusions including STFI warranty "compulsory waiting period". So the complainant's contention that the STFI clause was added in the policy without the consent and concurrence of the complainant is not correct. The opposite party had never misled the complainant at any point of time while issuing the policy. Subsequent to the repudiation letter dated 28.02.2017, the opposite party did not have any settlement talks with the complainant and thus denies the said averment of the complainant. Therefore, there is no deficiency of service on the part of the opposite party and thus sought for dismissal of the complaint.
4. In order to prove the case, the complainant, along with proof affidavit, has filed 23 documents and the same were marked as Ex.A1 to A23. On the side of the opposite party, along with proof affidavit 2 documents were filed and the same were marked as Ex.B1 & Ex.B2.
5. Heard the submissions of the counsel for the opposite party and perused the material available on records.
6. It is the submission of the opposite party that no doubt the complainant had availed Standard Fire and Special Perils Policy with the opposite party, for her godown at Survey Nos.37/4A, 37/4B, 37/4E, 37/4F, 37/9 and 37/10 & 14 in Adambakkam village, Ponneri Taluk, Tiruvallur District vide Policy No. 506001111610000006 covering the period between 02.12.2016 and 01.12.2017. The complainant had insured her godown for a sum of Rs.4 crores. The complainant's father and mother have also insured their godowns vide Policy Nos. 506001111610000005 and 506001111610000004 dated 29.11.2016. The said policy is contractual in nature and under the terms and conditions contained therein. The parents of the complainant issued premium cheques for renewing their policies for their godowns on 29.11.2016. Hence, the policies of the complainant's parents were issued covering the period 29.11.2016 to 28.11.2017. The opposite parties could not renew the policy in favour of the complainant since the payment to that policy was not made by the complainant, along with the cheques issued for her parents. Only on 02.12.2016, the complainant gave a cheque to renew her policy and accordingly the policy was issued on 02.12.2016 covering the period from 02.12.2016 to 01.12.2017. There is no deliberate act against the complainant, in issuing the policy by the opposite party. Whileso, on 12.12.2016 there was a severe cyclonic storm named Vardha struck Chennai. The complainant's godown was damaged by the cyclonic storm. The complainant approached the opposite party to assess the damages and to settle the claim. Admittedly, the policy issued to the complainant was covering the period between 02.12.2016 to 01.12.2017. As per the STFI Clause incorporated in the policy there was a waiting period of 15 days. The damage alleged to have occurred to the complainant's godown was within the waiting period of 15 days. Hence, the opposite party repudiated the claim of the complainant by letter dated 28.02.2017 since her claim squarely comes within the STFI clause incorporated in the policy. But the contention of the complainant in the complaint is that the STFI clause was not added in the policy of her father and mother and only in the policy issued in favour of the complainant, this clause was purposely introduced. With regard to this statement made in the complaint, it is the submission of the opposite party that the policies of the complainant's parents were issued on 29.11.2016 and as such the same did not contain the STFI clause because the STFI clause was included in the policies which were all issued, after the cyclone warning given by the India Meteorological Department as well as based on the instructions given by the higher authorities. As the policy of the complainant is issued on 02.12.2016, i.e., after the cyclone warning, the said clause is very much available in the policy of the complainant. The complainant had accepted the policy, without raising any objection. Further, the previous policy of the complainant had expired on 25.11.2016. Had the premium for renewal was paid on right time, definitely the renewal would have been made from 26.11.2016 and the policy would have been issued instantaneously. In such case, the STFI clause would not have been included. The break in policy was due to non-payment of premium. Therefore, there is no deficiency of service on the part of the opposite party. Thus, the Counsel for the opposite party sought for dismissal of the complaint.
7. Keeping the submissions made by the learned Counsel for opposite party, I have gone through the materials placed on record. It is the case of the complainant that she is the owner of a godown for storage of agricultural products in her premises at Adambakkam Village, Ponneri Taluk, which was put up as per the specifications provided by NABARD. In the very same locality the complainant's father and mother also own godowns, for the same purpose. All of them used to insure their godowns with the Insurance Company, periodically. Initially, they had insurance coverage with the United India Insurance Company and later it was with the opposite party. An officer of the opposite party was responsible for getting the insurance coverage from time to time for their godowns. The complainant and her parents deposed confidence on the said officer of the opposite party and remitted the requisite premium amounts for getting their insurance policies renewed, by issuing cheques. While the opposite parties issued insurance policies for the godowns belonging to the claimant's father and mother belatedly, they failed to issue policy for the complainant stating that the policy amount has not been remitted. Although the said contention of the opposite party is false, the complainant had issued another cheque for a sum of Rs.31,626/- towards insurance premium and obtained the policy on 02.12.2016. The complainant and her father and mother, were not called upon to execute any documents or cover note before issuing the respective policies. Based on the value of the property, the opposite party collected the premium amount from the complainant and her parents. After obtaining the policies, there was a severe cyclonic storm named Vardha that struck Chennai on 12.12.2016, by which all the godowns of the complainant and her parents were damaged severely. As directed by the opposite party, the loss was assessed. After assessing the damage, the opposite party disowned their liability placing reliance on the STFI clause newly introduced by them, which warranted a waiting period of 15 days, from the date of inception of the policy period. Hence, the effective period was cut and reduced by 15 days, which is illegal, unwarranted and not binding on the complainant. The policy was issued on 02.12.2016 and on that date, no cyclone was predicted by the India Meteorological Department. They issued warning only on 06.12.2016. There was no cyclone or storm, formed or existed on the date of issuance of the policy on 02.12.2016 in favour of the complainant. The opposite party has no right to cut short the liability period, after having collected the entire premium amount from the complainant for the entire period stated in the policy. The said STFI clause has been included in the policy of the complainant, only to get rid of the liability. Therefore, there is clear deficiency of service on the part of the opposite party and thus she prays to allow the complaint.
8. Be that as it may, when the complainant has not raised any objection at the time of obtaining the policy, now she cannot state that only to get rid of the liability, the Insurance Company has introduced the STFI clause. The further contention of the complainant that the STFI clause was included without her knowledge and consent, if the same was brought to her knowledge at the time of inception of the policy, she would have avoided the opposite party and obtained insurance coverage from other insurance companies for her godown. This submission of the complainant is not acceptable, since the said clause is very much available in the policy, at the time of issuance of the policy. Having accepted the said clause without raising any objection, now she cannot allege that there is unfair trade practice on the part of the opposite party in rejecting her claim. Therefore, this Commission finds no merit in the case of the complainant and hence the complaint deserves to be dismissed.
9. In the result, the complaint is dismissed. No order as to costs.
R.SUBBIAH PRESIDENT LIST OF DOCUMENTS MARKED ON THE SIDE OF THE COMPLAINANT Sl.No. Date Description of Documents Ex.A1 30.10.2013 Policy for the period from 30.10.2013 to 29.10.2014 Ex.A2 02.12.2016 Policy for the period from 02.12.2016 to 01.12.2017 Ex.A3 18.04.2018 Power of Attorney Ex.A4 Surveyor report Ex.A5 27.02.2017 E-mail letter of the complainant Ex.A6 13.03.2017 E-mail letter of the complainant Ex.A7 E-mail further letter of the complainant Ex.A8 E-mail letter of the opposite party Ex.A9 28.02.2017 Letter of the Opposite party Ex.A10 09.02.2018 Letter of the complainant Ex.A11 22.02.2018 Letter of the opposite party Ex.A12 01.02.2017 Letter of the lending bank Ex.A13 17.04.2018 Counsel's notice Ex.A14 26.04.2018 Letter of the opposite party Ex.A15 02.12.2016 Returned cheque Ex.A16 12.05.2017 Letter of the opposite party Ex.A17 13.12.2016 Cyclone warning issued by I.M.D Ex.A18 24.11.2015 Policy in the name of N.Namasivayam Ex.A19 29.11.2016 Policy in the name of N.Namasivayam Ex.A20 24.11.2015 Policy in the name of Shiyamali Ex.A21 29.11.2016 Policy in the name of Shiyamali Ex.A22 12.06.2020 Final Award in the name of N.Namasivayam Ex.A23 12.06.2020 Final Award in the name of Shiyamali LIST OF DOCUMENTS MARKED ON THE SIDE OF THE OPPOSITE PARTY Ex.B1 02.12.2016 Policy 506001111610000006 Ex.B2 28.02.2017 Repudiation Letter R.SUBBIAH PRESIDENT Index : Yes/ No AVR/SCDRC/Chennai/Orders/November /2023