State Consumer Disputes Redressal Commission
Naresh Nanda vs National Insurance Company Ltd., on 7 November, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 343 of 2014 Date of Institution : 30.10.2014 Date of Decision : 07/11/2014 Naresh Nanda s/o J.L.Nanda, R/o H.No.1567, Sector 38-B, Chandigarh. Appellant/complainant V e r s u s National Insurance Company Ltd., through its Branch Manager, SCO 305-06, Sector 35-B, Chandigarh ....Respondent/Opposite Party Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
Argued by: Sh. Nirmal Singh, Advocate for the appellant.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 16.09.2014, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, it dismissed the complaint, filed by the complainant (now appellant).
2. The facts, in brief, are that the complainant availed of Standard Fire and Special Peril Policy, for his house, from the Opposite Party, valid for the period from 28.12.2012 to 27.12.2013, for the sum insured, to the tune of Rs.15.00 lacs, on payment of premium of Rs.674/-. It was stated that, under the said Policy, the house of the complainant was insured against the risk of fire, on residential building above plinth level, including permanent fixtures fittings and electrical fittings. It was further stated that neither the terms and conditions of the Policy, in question, were supplied to the complainant, nor the warranties and exclusions thereof, were explained to him.
3. It was further stated that, on the night intervening 14th/15th October 2013, a fire incident took place, at the house of the complainant. Fire tender was called, which extinguished the fire. It was found that loss was caused to the electrical fixtures, meter apparatus, inverter and batteries. It was further stated that the Opposite Party was intimated about the fire incident, immediately, upon which, it deputed Sh.Sanjay Gupta, Surveyor and Loss Assessor, who visited the spot and assessed the loss. It was further stated that damage caused to the meter and electrical fittings was repaired. As such, claim in the sum of Rs.39,410/- was lodged with the Opposite Party, on 31.10.2013. The documents sought for, by the Surveyor were duly supplied to him. The Surveyor submitted his report on 29.01.2014, but it was not supplied to the complainant. However, the Opposite Party vide letter dated 04.02.2014, illegally repudiated the claim of the complainant.
4. Thereafter, a legal notice was served upon the Opposite Party, in the matter, but to no avail. It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Party, to pay the claim amount of Rs.39,410/-, alongwith interest @18% P.A.; compensation, to the tune of Rs.30,000/-, for mental agony, physical harassment, damages and deficiency, in rendering service; and cost of litigation, to the tune of Rs.11,000/-.
5. The Opposite Party, in its written version, admitted the issuance of Insurance Policy aforesaid, in favour of the complainant. It was also not disputed that the fire incident took place, in the house of the complainant. Intimation of the incident to the Opposite Party, was also not disputed. It was stated that, on receipt of intimation about the fire incident, on 15.10.2013, from the complainant, the Opposite Party, appointed the Surveyor and Loss Assessor, to assess the loss. It was further stated that, as per the report of the Surveyor and Loss Assessor, the loss fell under exclusion Clause 7 of the Policy. As such, the said Surveyor and Loss Assessor, recommended that the Opposite Party should close the file of the complainant as No Claim. It was further stated that the Opposite Party, considered the documents submitted by the complainant, including the Surveyor Report, and the terms and conditions of the Policy, including the warranties and exclusion Clauses, and, as such, after due application of mind, repudiated his claim, vide letter dated 04.02.2014, Annexure C-6. It was further stated that the terms and conditions of the Policy were supplied to the complainant, alongwith the cover-note Annexure C-1. It was further stated that, had the terms and conditions been not received by the complainant, he would have requested the Opposite Party, immediately, for sending the same, but he did not do so, meaning thereby, the same were received by him. It was further stated that the complainant had admittedly purchased the Insurance Policy, in question, from the agent namely Sh.J.L.Nanda, who infact, is his (complainant) father. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
6. In the rejoinder, filed by the complainant, he reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Party.
7. The Parties led evidence, in support of their case.
8. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, dismissed the complaint, as stated above.
9. Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.
10. We have heard the Counsel for the appellant, at the preliminary stage, and, have gone through the evidence, and record of the case, carefully.
11. The Counsel for the appellant/complainant, submitted that neither the terms and conditions of the Policy, in question, were ever supplied to the complainant, nor the warranties and exclusions were explained to him. He further submitted that, even if, it was assumed that the terms and conditions of the Policy, in question, were supplied to the complainant, still the Opposite Party was completely wrong, in coming to the conclusion, that the loss, in question, fell within the ambit of exclusion Clause 7 of the same (terms and conditions of the Policy). He further submitted that even the report of the Surveyor was not conclusive, as he was not certain, with regard to the cause of fire. He further submitted that, as such, the claim of the complainant was illegally and arbitrarily repudiated by the Opposite Party. He further submitted that by illegally and arbitrarily repudiating the genuine claim of the complainant, the Opposite Party was deficient, in rendering service, as also indulged into unfair trade practice. He further submitted that the order of the District Forum, being illegal, and invalid is liable to be set aside.
12. After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the appellant, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons, to be recorded hereinafter. The first question, that falls for consideration, is, as to whether, the terms and conditions of the Policy were supplied to the complainant, or not. No doubt, it was asserted by the complainant, in the complaint, that the terms and conditions of the Policy were not supplied to him, at any point of time, and, as such, the Opposite Party could not invoke the exclusion Clauses, for the purpose of repudiation of his claim. Such an assertion of the complainant, does not appear to be correct. It is evident from Annexure C-1, copy of the cover-note of the Policy that therein, it was in clear-cut terms mentioned that The Insurance under this Policy is subject to the warranties and clauses (as per forms attached) and Extended to cover risks (as per forms attached). Since as per Annexure C-1, the cover-note, the warranties and exclusions, as per the forms were attached, in case, the complainant had not received the same, he could immediately write a letter, to the Opposite Party, to supply the same. The Policy, in this case, commenced on 28.12.2012, and the incident of fire took place, on 15.10.2013. From 28.12.2012 till 20.02.2014, (the date of legal notice) the complainant kept silent, with regard to the alleged non-receipt of the terms and conditions of the Policy. It was, for the first time, in the legal notice dated 20.02.2014, Annexure C-6, that he came up with the plea, that the terms and conditions of the Policy were not supplied to him. Since the warranties and exclusions, as per the cover-note Annexure C-1 were attached with the same, and the complainant slept over the matter, from 28.12.2012 to 20.02.2014, as stated above, and never complained in-between, regarding non-receipt of the terms and conditions of the Policy, his such a plea could not be believed. Not only this, in paragraph No.4 of the written reply, the Opposite Party, in clear-cut terms, stated that the father of the complainant, namely Jawahar Lal Nanda, was its Insurance agent. The Policy, in question, was also obtained by the complainant, from his father i.e. Sh. Jawahar Lal Nanda, who was an agent of the Opposite Party. Sh. Jawahar Lal Nanda, very well knew the importance of the terms and conditions of the Policy. By no stretch of imagination, it could be said that he would have kept silent or allowed his son Naresh Nanda, to keep silent for such a long time, in case, the terms and conditions of the Policy, had not been received. It is, therefore, held that the terms and conditions of the Policy were supplied to the complainant, and, as such, the Opposite Party was well within its right, to invoke the same. The submission of the Counsel for the appellant, therefore, being devoid of merit, must fail, and the same stands rejected
13. The Counsel for the appellant, however, placed reliance of M/s Modern Insulators Ltd. Vs Oriental Insurance Co. Ltd. I (2000) CPJ 1 (SC), to contend that since the Opposite Party failed to perform its utmost duty to supply the Insurance Policy, and the terms and conditions thereof, including the exclusions and warranties, to the complainant/insured, so as to enable him, to go through the same, and understand the same, later on, the same could not be invoked by it (Opposite Party), to repudiate the claim. It may be stated here, that in M/s Modern Insulators Ltd.`s case (supra), the complainant succeeded in proving, that the terms and conditions of the Policy were never supplied to it, by the Insurance Company. Whereas, in the instant case, as stated above, the terms and conditions of the Policy, in question, containing the warranties and exclusion Clauses were supplied to the complainant, alongwith Annexure C-1, copy of the cover-note. Under these circumstances, the facts and circumstances of the instant case, being completely distinguishable, from the facts and circumstances of the case, relied upon by the Counsel for the complainant, no help can be drawn therefrom, by him. The submission of the Counsel for the complainant, thus, being devoid of merit, must fail, and the same stands rejected.
14. The next question, that falls for consideration, is, as to whether, the claim of the complainant was legally and validly repudiated by the Opposite Party or not. On receipt of information, with regard to the fire incident, the Surveyor was appointed. The Surveyor gave his report Annexure OP/A/R-5. Under the heading Occurrence of loss, it was stated by the Surveyor that, as per the written statement of Naresh Nanda, on 14.10.2013, at night, all of a sudden fire stood caused due to short circuit, in the distribution panel, located in the porch of the building. It was further stated by the Surveyor that, according to Naresh Nanda, he saw that there was a fire near the energy meter box and immediately he tried to extinguish the same. He extinguished the fire, with the help of his neighbours within 15-20 minutes, and due to the said fire, the energy meter, MCB Box, inverter and batteries were damaged. Under the heading Cause of Loss, in his report, it was stated by the Surveyor that the insured, in his statement had mentioned that the fire could have occurred due to an electric short circuit. It was further stated, under the heading Cause of Loss, by the Surveyor, that the fire appeared to have started from the energy meter installed at the residence of the insured and it caused damage to the same (energy meter box), MCB Box and UPS Batteries, and no other cause could be ascertained. It was further stated by the Surveyor, in his report that, in view of the above, fire following short circuit, appeared to be the proximate cause of loss. The Surveyor also submitted his affidavit, by way of evidence, stating therein, that he had experience of about 18 years, in preparing the estimate of losses, being on the panel of Nationalized/Private General Insurance Companies, including the Opposite Party, at Chandigarh, Panchkula and Mohali. He corroborated his report Annexure OP/A/R-5 dated 29.01.2014., through his affidavit, referred to above. It is, no doubt, true that the report of the Surveyor is neither binding on the parties, nor the Consumer Foras, yet, it being a very significant and material document, cannot be discarded lightly. Cogent and convincing evidence, is required to be produced by the party to challenge the correctness thereof. No expert evidence was led by the complainant, to the effect, that fire had taken place, due to some other reason, than the short circuit. Since the fire had taken place, on account of short circuit, as reported by the Surveyor, after inspection of the site, and on the basis of statements of Naresh Nanda and others, to rebut the same, the complainant could produce cogent and convincing evidence of some expert, but he failed to do so. In the absence of any cogent evidence, having been produced, by the complainant that the fire took place, otherwise, than by short circuit, no plausible reason is made out, not to rely on the report Annexure OP/A/R-5 of the Surveyor, supported by his affidavit. It is, therefore, held that the fire took place, on account of short circuit only. The District Forum was also right, in coming to such a conclusion. The findings of the District Forum, in this regard, being correct, are affirmed. The submission of the Counsel for the appellant, therefore, being devoid of merit, must fail and the same stands rejected.
15. The next question, that falls for consideration, is as to whether, the loss, in question, fell within the ambit of exclusion Clause 7 of the terms and conditions of the Policy or not. Exclusion Clause No.7, forming part of Annexure R-4, reads asunder:-
7. Loss, destruction or damage to any electrical machine, apparatus, fixture, or fitting arising from or occasioned by over-running, excessive pressure, short circuiting, arcing, self heating or leakage of electricity from whatever cause (lightning included) provided that this exclusion shall apply only to the particular electrical machine, apparatus, fixture or fitting so affected and not to other machines, apparatus, fixtures or fittings which may be destroyed or damaged by fire so set up.
16. The perusal of the aforesaid exclusion Clause 7 of the terms and conditions clearly goes to show that loss, destruction or damage to any electrical machine, apparatus, fixture, or fitting arising from or occasioned by over-running, excessive pressure, short circuiting, arcing, self heating or leakage of electricity from whatever cause was excluded. No doubt, it is evident that such exclusion applied only to the particular electrical machine, apparatus, fixture or fitting, so affected and not to other machines, apparatus, fixtures or fittings, which may be destroyed or damaged by fire. Since the fire took place, on account of short circuit, any damage caused to the energy meter box, MCB Box, inverter and UPS Batteries, was excluded under exclusion Clause 7 aforesaid. The coverage under the Policy, as is evident from Annexure C-1 was of residential building, above plinth level, including permanent fixtures, fittings and electric fittings. The inverter and batteries, which were also allegedly damaged, on account of fire due to short circuit, did not fall within the definition of permanent fixtures, fittings and electric fittings. Under these circumstances, the loss which was caused to the meter, MCB, inverter and batteries was completely excluded under the exclusion Clause 7 extracted above. The District Forum was, thus, right, in holding that the Opposite Party was legally right, in repudiating the claim of the complainant. By repudiating the claim of the complainant, legally and validly, the Opposite party was neither deficient, in rendering service, nor indulged into unfair trade practice.
17. No other point, was urged, by the Counsel for the appellant.
18. In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
19. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.
20. Certified copies of this order, be sent to the parties, free of charge.
21. The file be consigned to Record Room, after completion.
Pronounced.
07/11/2014 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Rg