State Consumer Disputes Redressal Commission
The New India Assurance Co. Ltd. vs Mohd. Wahid on 24 January, 2024
First Appeal No. The New India Assurance Company Limited 24.01.2024
104 of 2012 Versus
Mohammad Wahid and another
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
Date of Admission: 10.07.2012
Date of Final Hearing: 09.01.2024
Date of Pronouncement: 24.01.2024
FIRST APPEAL NO. 104 / 2012
The New India Assurance Company Limited
having one of its Branch Office at
34-A, Model House, New Tehri and
One of its Divisional Office at
Bapu Asha Ram Palace, 29, Dehradun Road, Rishikesh
through Regional Office, The New India Assurance Company Limited
Gulfam House, 8/6-7, Astley Hall, Dehradun
(Through: Sh. R.K. Mahajan, Advocate)
...... Appellant
Versus
1. Mohammad Wahid W/o Sh. Abdul Mazid
Proprietor, Alam Garments, Block Road
Chamba, District Tehri Garhwal
(Through: Sh. Saurabh Rana, Advocate)
2. State Bank of India
Branch Chamba, District Tehri Garhwal
(Through: Sh. S. Parashar, Advocate)
...... Respondents
Coram:
Ms. Kumkum Rani, Judicial Member II
Mr. B.S. Manral, Member
ORDER
(Per: Ms. Kumkum Rani, Judicial Member II):
The present appeal has been directed against the judgment and order dated 31.05.2012 passed by learned District Consumer Disputes Redressal Commission, Tehri Garhwal (hereinafter to be referred as "The District Commission") in consumer complaint No. 29 of 2007, styled as Mohammad Wahid Vs. Branch Manager, The New India Assurance Company Limited and another, wherein and whereby the consumer complaint was allowed.1
First Appeal No. The New India Assurance Company Limited 24.01.2024 104 of 2012 Versus Mohammad Wahid and another
2. The facts giving rise to the instant appeal, in brief, are as such that respondent No. 1 / complainant had filed a consumer complaint before the District Commission, alleging that he had got his shop insured with the appellant / opposite party No. 1 under Standard Fire and Special Perils (Policy Perils) for the period from 18.01.2006 to 17.01.2007. It was alleged that on dated 02.07.2006 and 03.07.2006, due to riots and civil commotion, the insured shop was damaged and a case was registered under Section 147, 148, 149, 342, 427, 323, 504 and 506 of Indian Penal Code, 1860. The complainant had lodged a claim with the appellant, which was repudiated on the ground that the loss is not covered under the policy.
3. The appellant / opposite party No. 1 contested the consumer complaint by filing written statement, wherein it was pleaded that the loss is not covered under the policy and, as such the appellant is not liable to pay any amount. It was further pleaded that the surveyor has assessed the loss of Rs. (minus) 3,370/-, hence no amount is payable by the appellant and the claim was rightly repudiated.
4. The respondent No. 2 / opposite party No. 2 (bank) also submitted its written statement before the District Commission, alleging that the cash credit limit was sanctioned in favour of the complainant and for securing the said limit, the shop was got insured with the appellant. The bank has communicated the incident of loss to the insurer through its letter dated 05.07.2006 along with requisite documents, but the insurer through its letter dated 19.10.2006, repudiated the claim, which was informed to the complainant on dated 07.11.2006. There was no deficiency in service on the part of the bank, hence the consumer complaint is liable to be dismissed against the bank.
2First Appeal No. The New India Assurance Company Limited 24.01.2024 104 of 2012 Versus Mohammad Wahid and another
5. Learned District Commission, after hearing the parties and after taking into consideration entire material available on record, passed the impugned judgment and order on dated 31.05.2012, wherein it has held as under:
"f"kdk;rdrkZ dh f"kdk;r foi{kh la[;k&1 chek dEiuh ds fo:) fMØh dh tkrh gSA foi{kh la[;k&1 chek dEiuh dks vknsf"kr fd;k tkrk gS fd og ₹ 2]05]000@& ¼₹ nks yk[k ik¡p gtkj½ dh /kujkf"k 06 çfr"kr lk/kkj.k okf"kZd C;kt dh nj ls f"kdk;rdrkZ dks miyC/k djk;sAa "
6. Having being aggrieved by the impugned judgment and order, the present appeal has been filed on behalf of the insurer as appellant, alleging that it is a settled law that the report of the surveyor is an important piece of document and the same can not be ignored or brushed aside, unless contrary is proved. It is also submitted that in the exclusion clause of the insurance policy, under the heading "Riot, Strike, Malicious and Terrorism Damage", it has been mentioned that "loss of or visible physical damage or destruction by external violent means directly caused to the property insured but excluding those caused by burglary, housebreaking, theft, larceny or any such attempt or any omission of any kind of any person (whether or not such act is committed in the course of a disturbance of public peace) in any malicious act". Learned District Commission has not considered the aforesaid condition of insurance policy and incorrectly passed the impugned judgment and order, thereby the District Commission has wrongly awarded an amount of Rs. 2,05,000/- without any evidence, hence the impugned judgment and order is liable to be set aside.
3First Appeal No. The New India Assurance Company Limited 24.01.2024 104 of 2012 Versus Mohammad Wahid and another
7. Learned counsel for respondent No. 1 / complainant has alleged that the District Commission has passed the impugned judgment and order as per the terms and conditions of the insurance policy, in a justified way, hence the impugned judgment and order deserves to be affirmed.
8. We have heard learned counsel for the parties and perused the record. It is an admitted fact that the complainant had got his shop insured with the appellant under Standard Fire and Special Perils (Policy Perils) for the period from 18.01.2006 to 17.01.2007. It is also not disputed that the bank has granted cash credit limit to the complainant. It is also an admitted fact that the intimation regarding loss in the insured shop was immediately given to the insurer through bank. The bank has also conceded that after getting the information about the occurrence, it has immediately forwarded the same to the insurance company, but the insurance company repudiated the claim on the ground that the loss is not covered under the policy. Learned counsel for respondent No. 1 / complainant has contended that in regard to the same incident, the insurance company has awarded compensation to other persons / shopkeepers and their claim papers have been submitted by respondent No. 1 before the District Commission along with his affidavit.
9. The original record of the consumer complaint is available before us. From a perusal of F.I.R. lodged in regard to the incident dated 02.07.2006, it is clearly proved that case crime Nos. 518 of 2006 was registered against the accused persons. The said F.I.R. has clearly transpired that on dated 02.07.2006, the occurrence took place in the insured shop. From the same F.I.R., it is also evident that the shop "Garhwal Photostat", Chamba, Tehri Garhwal belonging to Mohd. Younus and Mohd. Ashraf, was also damaged in the said incident.
4First Appeal No. The New India Assurance Company Limited 24.01.2024 104 of 2012 Versus Mohammad Wahid and another Patwari, Chamba, District Tehri Garhwal has also submitted his report dated 05.07.2006 to the Tehsildar, Tehri Garhwal vide paper Nos. 17kha/1 to 17kha/3 of the original record, wherein the loss occasioned in the insured shop in question due to the incident dated 02.07.2006 and 03.07.2006 has been assessed as Rs. 1,20,000/-, whereas loss on account of the said incident in Garhwal Photostat owned by Mohd. Ashraf S/o Sh. Ismail, has been assessed to the tune of Rs. 4,00,000/-. The Tehsildar, Tehri has forwarded the said report to S.D.M., Tehri vide paper Nos. 19kha/1 to 19kha/2.
10. Before the District Commission, the respondent No. 1 / complainant has submitted his affidavit along with documentary evidence (Paper Nos. 59kha to 60kha/9). The said documents have indicated that in the same occurrence of theft and loot made by the miscreants, loss caused to other shopkeepers has been compensated by the insurance company. The respondent No. 1 has obtained information under Right to Information Act, 2005, which finds place in the record of the District Commission. As per the said documentary evidence, it is proved that the claim was submitted by Mohd. Ashraf of Garhwal Photostat, Chamba with the insurance company (National Insurance Company Limited) for compensating the loss occurred in the said shop due to theft and loot, which was settled in full and final by the insurer of the said shop at Rs. 1,45,160/-.
11. In our opinion, when in regard to the same incident, some other insurance company has settled the claim of the insured and granted compensation, the insurer in the present case, was not justified in repudiating the claim, stating that the loss is not covered under the Section of IPC registered by the police. Here, it is pertinent to mention that inspite of several directions, the insurance company has not submitted the proposal form filled in by the insured before taking the 5 First Appeal No. The New India Assurance Company Limited 24.01.2024 104 of 2012 Versus Mohammad Wahid and another insurance policy in question from the insurer. Non-production of such proposal form has apparently and clearly transpired the fact that in the proposal form, the exclusion clause was not included / mentioned. Apart from it, the terms and conditions of the insurance policy have been submitted by the insurance company before the District Commission vide paper No. 38kha/4, which is only one document and entire terms and conditions were not submitted by the insurance company before the District Commission. Moreover, it is not proved that such a condition was made known to the complainant at the time of obtaining the insurance policy in question. We are of the considered view that the claim of the insured falls within the terms and conditions of the insurance policy and the same does not fall under the exclusion clause. The District Commission has considered all the legal points involved in the matter and acted in accordance with law and has not ignored the facts, evidence and law. Thus, we are of the view that learned District Commission has not erred in allowing the consumer complaint.
12. The surveyor has assessed the loss in the negative (minus). We have perused the assessment of loss made by the surveyor, wherein the amount against child suits; towels; child / ladies chappals; umbrellas and cash looted has been disallowed, but reasons have not been mentioned. The insurance company has also not submitted any provision to the effect that on account of not maintaining the account books, deduction @25% was to be made. Thus, we are of the view that the surveyor has assessed the loss in the minus, in order to facilitate the insurance company. The Tehsildar has assessed the loss occasioned to the complainant at Rs. 1,20,000/-. Hence, we are of the opinion that after all reasonable depreciation and deduction on account of excess clause, the complainant is entitled to Rs. 1,00,000/- and in our view, the amount of Rs. 2,05,000/- awarded by the District Commission should 6 First Appeal No. The New India Assurance Company Limited 24.01.2024 104 of 2012 Versus Mohammad Wahid and another be reduced to Rs. 1,00,000/-. Interest @6% p.a. awarded by the District Commission is perfectly justified and need not be interfered with. Accordingly, we hold that the appeal is fit to be partly allowed.
13. Appeal is partly allowed. Impugned judgment and order dated 31.05.2012 passed by the District Commission is modified to the extent that the amount of Rs. 2,05,000/- awarded by the District Commission in favour of respondent No. 1 / complainant is hereby reduced to Rs. 1,00,000/-. Rest of the impugned judgment and order dated 31.05.2012 passed by the District Commission is hereby confirmed. No order as to costs of the appeal.
14. A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 / 2019. The Order be uploaded forthwith on the website of the Commission for the perusal of the parties. A copy of this Order be sent to the concerned District Commission for record and necessary information. The original record of the District Commission be also remitted back forthwith.
15. File be consigned to record room along with a copy of this Order.
(Ms. Kumkum Rani) Judicial Member II (Mr. B.S. Manral) Member Pronounced on: 24.01.2024 7