National Consumer Disputes Redressal
M/S. Chandra Communication vs Icici Lombard General Insurance Co. ... on 22 June, 2021
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 610 OF 2013 (Against the Order dated 24/07/2013 in Complaint No. 3/2006 of the State Commission Rajasthan) 1. M/S. CHANDRA COMMUNICATION M.I. ROAD, JAIPUR RAJASTHAN ...........Appellant(s) Versus 1. ICICI LOMBARD GENERAL INSURANCE CO. LTD. & ANR. THROUGH MANAGING DIRECTOR, MUMBAI- MAHARSHTRA 2. ICICI LOMBARD GENERAL INSURANCE COMPANY LTD., THROUGH BRANCH MANAGER, BANIPARK, JAIPUR RAJASTHAN ...........Respondent(s)
BEFORE: HON'BLE MR. DINESH SINGH,PRESIDING MEMBER
For the Appellant : Mr. Abhishek Baid, Advocate with
Mr. Mohit Kumar Bafna, Advocate For the Respondent : Mr. Vishnu Mehra, Advocate with
Mr. Anant Mehrotra, Advocate
Dated : 22 Jun 2021 ORDER
ORDER
Taken up through video conferencing.
1. The instant Appeal has been filed under Section 19 of The Consumer Protection Act, 1986 (the 'Act 1986') in challenge to the Order dated 24.07.2013 passed in Consumer Complaint No. 3 of 2006 by the State Consumer Disputes Redressal Commission, Rajasthan (the 'State Commission').
2. The dispute relates to repudiation of an insurance claim.
3. Heard arguments from Mr. Abhishek Baid, learned Counsel for the Appellant (the 'Complainant Co.') and Mr. Vishnu Mehra, learned Counsel for the Respondents No. 1 and No. 2 (the 'Insurance Co.').
Perused the material on record, including inter alia the impugned Order dated 24.07.2013 of the State Commission and the Memorandum of Appeal.
4. Admitted facts are that the Complainant Co. took a Standard Fire & Special Perils Policy (material damage) for four premises. The sum insured was Rs.50,00,000/-. The premium of Rs. 15,759/- was paid. The policy was valid. A fire broke out in one of the insured premises on 06.03.2005. The Complainant Co. submitted a claim of Rs. 48,49,104/- with the Insurance Co. The Insurance Co. repudiated the claim on ground that the Complainant Co. concealed material facts and made fraudulent and false declarations, which violated the terms and conditions of the policy. Aggrieved, the Complainant Co. filed a Complaint before the State Commission.
5. The State Commission vide its impugned Order of 24.07.2013 dismissed the Complaint with cost of Rs.10,000/-.
For ready appreciation, extracts of the appraisal made by the State Commission are reproduced below:
"5. It is an admitted fact that the complainant got a Standard Fire & Special Perils Policy from the Insurance Company for a period 02.12.2004 to 01.12.2005 for an insured amount of Rs. 50 lacs for the damage to it's stock. The four premises, which were located at different places, were covered under the risk and one of the premises, where the fire broke out was situated opposite All India Radia, First Floor, M. I. Road, Jaipur. The complainant was engaged in the distribution of mobile hand sets, cash cards and internet connections. It is also an admitted fact that Cunningham Lindsey was appointed as Surveyor by the Insurance Company and ShambhuAlagundgi was appointed as Forensic Expert for investigation in the present matter. On the basis of report of the Forensic Science Expert (Ex.R-2), the Surveyor submitted it's final report dated 11.07.2005 (Annex-8 & Ex. R-6). On the basis of the report of the Forensic Expert, the Surveyor did not access the loss because it was found that the complainant manipulated the incident and shifted all the debris from the place of incidence to his Farm House prior to inspection by the Surveyor and ultimately complainant's claim was repudiated (Ex.6) on the ground of misrepresentation and concealment of material facts.
"6. The learned counsel for the complainant submitted that the complainant shifted the damaged stock and debris from the place of incident at the directions and at the instance of Officers of the Insurance Company. But no such averment has been made in the complaint nor any affidavit of the complainant has been submitted in this regard. Therefore, it cannot be said that any Officer of the Insurance Company had directed the complainant to shift the debris from the place of incident to some other place before the inspection by the Surveyor. So, it appears that the complainant intentionally shifted the debris himself.
"7. It is an admitted fact that by way of the insurance policy, the Insurance Company had insured the stocks of the complainant, which were lying at four different places and one of the places was where the fire broke out. The complainant did not produce any documentary evidence either before the Insurance Company or before the Commission to show as to what was the actual stock at its premises opposite All India Radio, M.I. Road, where the fire took place. The photocopies of the stock that was hypothecated with the SBBJ also does not reveal as to what was the actual stock at the place of incident. Moreover, the documents produced by the complainant only show the stock on 31.01.2005, whereas the fire broke out on 06.03.2005. Thus, the complainant did not produce any document to show as to what was the actual stock on 05.03.2005 (i.e. day before the incident) at it's premises opposite All India Radio. In absence of actual stock on the date of incident at the premises, it is not possible for the Surveyor to access the actual loss.
"8. In the present matter, the most important factor is the report of the Forensic Science Expert (Ex.R-2 dated 29.04.2005). It is evident from the Forensic Expert's Report that when he visited the site, he found that electric wires inside the outer PVC Box were not affected and the Electric Control Devices like Switch Boxes, which were made of plastics, were not affected by the fire, whereas the PVC outer Box, control switches, plastic switch boards, etc., got affected between 100o C & 150o C. The Forensic Expert also burnt a few mobile handsets (Samsung N620) after raising temperature from 50o C to 650o C. The Forensic Expert stated in para 6.3 of his report that the handsets were burnt to ashes only at the temperature around 1000o C and in such situation, the storage devices like plywood racks & showcases would have been completely reduced to ashes. But, in the present matter plywood showcases & racks, electric switch boxes and plastic wires were not affected by fire and they were intact and undamaged. On the basis of the report of the Forensic Expert, it can very well be assumed that the stocks, such as mobile handsets, SIM Cards and devices relating to internet connections were in fact not burnt to ashes as alleged by the complainant.
"9. It is also evident from the report of the Forensic Expert that the samples of the handsets, which were examined by him from the Farm House of the complainant had green grass stuck on them. This fact was corroborated by Dr. M. Jayram, who was a Professor of Botany in P.G. Department, Karnatak University.
"10. Thus, it appears from the evidence submitted by the Insurance Company that neither the complainant succeeded in proving the actual stock just before the incident nor could he prove that the stock lying at it's premises opposite all India Radio had burnt to ashes as a result of fire, which broke out there on 06.03.2005. As the plastic items, storage racks, plastic electric fittings at the premises were undamaged, so it cannot be presumed by any stretch of imagination that the entire stock of mobile handsets and other connected items were burnt to ashes at the disputed premises on account of fire as alleged by the complainant. It appears that the complainant intentionally shifted the debris to confuse the Surveyor and claim the damages as per his wishes. The report of the Forensic Expert (Ex.R-2) appears to be reliable and trustworthy and on the basis of this report, the Surveyor rightly did not access the loss holding that the complainant fraudulently misrepresented and made false declarations. The Insurance Company, on the basis of the Forensic Report as well as the Surveyor Report, rightly repudiated the claim of the complainant as he desperately failed to prove actual loss in the incident of fire.
"11. For the aforesaid reasons we are of the opinion that the complainant manipulated the facts and made false and fraudulent misrepresentations, which violated the terms and conditions of the Insurance Policy. Therefore, there is no deficiency of service on part of the Insurance Company in repudiating the claim of the complainant and hence, the present complaint deserves to be dismissed with some costs.
ORDER The present complaint of M/s. Chandra Communication is dismissed with a cost of Rs. 10,000/- (Rupees Ten Thousand)."
6. It is seen that the State Commission has passed a well-appraised reasoned Order. No palpable crucial error in appreciating the evidence is visible. No jurisdictional error, or legal principle ignored, or miscarriage of justice, is visible.
7. It is also seen that the Forensic Science Expert, for reasons recorded, concluded his Forensic Report dated 29.04.2005 as below:
"Based on our above-mentioned observations and findings, we are of the opinion that, "1. There was an incident of fire at the insured premises which was noticed in the early hours of March 6, 2005.
"2. Insured has not given us an opportunity to investigate into the cause of fire. Insured has removed the debris from the scene of occurrence in spite of insurers' request not to remove the debris from the scene of occurrence.
"3. The actual number of hand sets affected by fire at the insured premised as a result of fire on June 3, 2005 shall not exceed the exact number of battery packs and charger units (either damaged or in undamaged condition).
"4. Insured has inflated the claim using fraudulent method and also misrepresented the material facts about the claim."
8. It is further seen that the Surveyor, for reasons recorded, concluded its Survey Report dated 11.07.2005 as below:
"The insured have indicated a loss of Rs. 48,49,104 on the basis of last, declaration submitted to the bankers copy enclosed as Annexure 5.
"The insured also provided balance sheets for the year ending March 2002, March 2003, March 2004 (copies enclosed).
"We, however, in view of misrepresentation of the material facts, have not gone ahead with the exercise of assessing the loss."
9. In this context, it is to note that Investigation and Survey are fundamental in determining the amount to be paid to the insured. As such, an Investigation or Survey cannot be disregarded or dismissed without cogent reasons.
However, having said that, it also goes concomitantly that the basis and rationale recorded in Investigation or Survey should be convincing and pass credence in scrutiny.
10. In the instant case, no reason is forthcoming to disregard or dismiss the self-contained self-speaking Forensic Report of 29.04.2005 and Survey Report of 11.07.2005, the basis and rationale for arriving at the respective conclusions have been well brought forth in the said two Reports.
11. Bad air pervades the whole case of the Complainant Co. ('fraud and justice never dwell together').
The repudiation made by the Insurance Co. cannot be faulted.
The State Commission rightly dismissed the Complaint with cost of Rs. 10,000/-. Imposition of the cost is fitting; summary proceedings under the alternative additional remedy available to 'consumer' are not meant to be instruments for deliberate wrongful gain in the way and manner the Complainant Co. has attempted in the instant case.
12. The Appeal, being ill-conceived and bereft of merit, is dismissed.
13. The State Commission's Order of 24.07.2013 is confirmed.
14. The Registry is requested to send a copy each of this Order to the Complainant Co. and to the Insurance Co. within three days. The stenographer is requested to upload this Order on the website of this Commission immediately.
...................... DINESH SINGH PRESIDING MEMBER