State Consumer Disputes Redressal Commission
Jagjivanbhai Z Patel vs The Oriental Ins. Co. Ltd on 19 October, 2020
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BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION ,
GUJARAT STATE AT AHMEDABAD.
Appeal No.1463 of 2014
Jagjivanbhai Z. Patel
Lilapur Ta. Lakhtar
District Surendranagar ... Appellant
VS.
1. The Oriental Insurance Company Ltd.
Kachwala Building
Jawahar Road,
Surendrangar.
2. Dena Bank
Mahajan Pal, Main Road
Surendranagar.
3. Fortune Investment
New Market, On Praful Sayal Store
Surendranagar. ... Respondents
Shri M. K. Dudhiya, Learned .Advocate. for the appellant
Shri D. B. Mehta learned advocate or the respondents.
Coram : Shri M.J.Mehta, Judicial Member
Smt. Jyoti P. Jani, Member Order by Shri M. J. Mehta, Judicial Member
1. Being aggrieved and dissatisfied with the judgment and order passed by the learned District Forum, Surendranagar in Complaint No. 74 of 2014 dated 30-8-2014 by which the complaint was dismissed, the appellant/complainant has filed present appeal against the respondent /original opponents The parties will be referred to as per their original nomenclature for the sake convenience.
2. To dispose of this appeal, few relevant facts are required to be mentioned : It is the case of the complainant he is the owner 2 of the land bearing Survey No. 112/1 situated at village Lilapur, Ta. Lakhtar. He had constructed a Green House on the said land by taking loan from the Dena bank. He had taken insurance from the opponent insurance company for a sum of Rs. 3,50,000/-. Said insurance policy was effective from 24-5-2013 to 23-5-2014 wherein the risk was covered for natural calamities, Cyclone, heavy rain. Relying on the Agent of the insurance company, he paid premium of Rs. 4917/-.
3. It is further case of the complainant that he had informed the opponents about the damage caused to the Green House by a letter dated 10-6-2013. The opponent insurance company had not taken any action for his application till 20-9-2013. Therefore, the opponents have committed deficiency in service. Therefore, the complainant was constrained to file aforesaid complaint before the learned District Forum for compensation of Rs. 2,70,000/- with interest at the rate of 18% per annum against the opponents.
4. After hearing the learned advocates for both sides and considering the document and evidence produced on record, the learned District forum was pleased to dismiss the complaint of the complainant.
5. Being aggrieved and dissatisfied with the order of the learned District forum, present appeal is filed by the appellant /original complainant challenging the order of the learned District Forum before the State Commission.
6. Heard the learned advocate Mr. Dudhiya for the appellant and Mr. Mehta for the respondents
7. Learned advocate Mr. Dudhiya for the complainant has argued that the order of the learned district forum is not just, 3 legal and in consonance with the law. The learned District forum has not appreciated and considered the documents and evidence adduced on record. The learned District Forum has not rightly dismissed the complaint. So, the order is required to be quashed and set aside.
8. It is further argued that the learned District Forum has erred in holding that STFI coverage is not included in the said policy. It is further argued by Mr. Dudhiya that the learned District Forum has grossly erred in observing that the complainant has not produced any documentary evidence to prove his ownership of the said land. It is further argued that the learned District Forum has erred in observing that the complainant has not paid the premium for the STFI coverage. The learned District Forum ought to have considered the fact that in the policy schedule the basic cover is shown as Rs. 35,00,000/- and STFI cover is shown as Rs. 35,00,000/- and the learned District Forum has wrongly observed that the policy does not cover STFI coverage.
9. In support of his argument, learned advocate Mr. Dudhiya has cited (i) I (2004 ) CPJ 22 (SC ) in the case of United India Insurance Company Limited vs. M/s. Pushpalaya Printers (ii) III (2018 ) CPJ 59 (NC( in the VA Tec Wabag Limited vs. Cholamandalam General Insurance Company Limited (iii) III (2010 ) CPJ 361 (NC) in the case R.V. Fatima Mohammed VS. The New India Assurance Company Limited. (iv ) II (2018 ) CPJ 490 (NC) in the Shah Desai & Co. vs, National Insurance company Limited .
10. Learned advocate Mr. Mehta has argued that the order of the learned District forum is just, legal and is in consonance of the law. The learned District forum has considered and appreciated all the documentary evidence on record. The learned 4 District forum has rightly dismissed the complaint. The learned District forum has not committed any error in dismissing the complaint. L.A. Mr. Mehta has further argued that the appellant has not produced any proof to prove his claim. The appellant has also not produced any evidence to prove that Green House is constructed on the said land. The STFI cover is not included in the terms and conditions of the said policy. The appellant has not paid premium. It is further argued my learned advocate Mr. Dudhiya that the complainant had not stated anything about the damage caused to the Green House in his complaint. It is for the first time on 28-8-2014 the complainant had mentioned all these facts in his affidavit. It is further argued by Mr. Mehta that the complainant has not produced any evidence that on the day time, there was heavy rain with cyclone wherein his Green House was damaged as alleged. It is further argued that no statements or affidavits of neighboring farmers are produced on record about the damage to his Green House. It is further argued that in the Schedule of Premium at sr. No.1 it is clearly mentioned that STFI perils are excluded from the scope of cover and relying on this, the opponent insurance company has repudiated the claim of the complainant. Hence, the order of the learned forum is just, legal and in accordance with law and facts. Hence, it is required no interference by the State Commission. Hence, the Appeal be dismissed in limine.
11. Learned advocate Mr. Mehta has cited ( I ) I (2018 ) CPJ 502 (NC) in the case Laxmipati Balaji Sugar & Distilleries (P) Ltd. vs. United India Insurance Company Limited (ii) III (2012 ) CPJ 542 (NC) in the case Navjivan Roller Flour and Pulse Mills Ltd. vs. National Insurance Company Limited.
512. We have gone through the record and documents produced on record and the impugned order of the learned District Forum. We have gone through and appreciated the authorities cited by both sides. On going through the papers on record, it transpired that the complainant had constructed Green House on his land for agriculture purpose. For that purpose, he had taken loan from the opponent Dena Bank. He had also taken insurance policy to cover the risk by natural calamities, heavy rain, flood, cyclone, hurricane. The insured amount of Rs. 3,50,000/-. Said Policy was effective from 24-5-2013 to 23-5-2014. Required premium was also paid by the complainant to the opponent insurance company. It also transpired from the record that his Green House was damaged due to heavy rain and cyclone. He had also informed the opponent insurance company about the damage to his Green House by a letter dated 10-6-2013. The opponent insurance company had not taken any action to appoint surveyor to assess the damage nor to settle the claim.
13. After scrutinizing the documents on records, we come to the conclusion that the complainant had constructed Green House on his land with the help of loan from the opponent Dena Bank. To protect his Green House from heavy rain, cyclone, hurricane and natural calamities, he had taken insurance policy from the opponent insurance company. On the date and time, his Green House was damaged due to heavy rain and cyclone. He had immediately informed the opponent insurance company by a letter dated 10-6-2013 about the damage to his Green House. The opponent insurance company had neither taken any step to appoint a Surveyor nor settle the claim till 20-9-2013. The opponent insurance company remained silent till three months. During this period, the opponent insurance company had not demanded any evidence from the complainant with regard to his claim.
614. Considering surrounding circumstances on record, one thing is clear that at the initial stage, the insurance company has denied the coverage of STFI under this policy. But, actually on going through the policy itself, premium is recovered for the risk of STFI. On that point, learned advocate Mr. Mehta has submitted before the State Commission that it is a good faith mistake. According to my view, such good faith mistake cannot be looked into. Moreover, he had drawn attention of the State Commission to Peril scheme which is not acceptable in evidence because once the premium is recovered and the policy is issued then there is no question to scrutinize all the disputes regarding Peril plan and it cannot be looked into for the purpose of exclusion of STFI risk and thereby it cannot impress the State Commission to reject the claim.
15. Further, as per the submission of Mr. Mehta, no evidence regarding the damage to the Green House are brought on record nor the claim is established on record. For that, L, A, Mr. Dudhiya has answered that when the insurance company has closed the door with a view that particular risk is not covered. Thereby, there is no chance to produce any kind of evidence before the Insurance company. Considering this aspects, I am of the opinion that when the insurance company has closed the door saying that there is no coverage of particular risk, then the insurance company cannot expect any evidence because of in- action of the insurance company, there was no chance to produce any kind of documentary evidence regarding evidence. Thereby, principle of estoppel come into way. Hence, I am of the opinion that whichever evidence is produced on record is only because of the insurance company. Now, the insurance company cannot claim and argue on the point of non production of the documents and evidence on record by the complainant. Thereby, I am satisfied that deficiency in service and unfair trade practice is 7 adopted by the opponent insurance company because though there was coverage of STFI, it is denied from the initial stage. It cannot be ignored as it is good-faith mistake because of written agreement is there, one cannot come out from liability from the agreement,. Unless and until anything adversely established on record.
16. Learned advocate Mr. Dudhiya for the complainant has further submitted before us that the policy disclosed two contradictions in the terms and conditions of the insurance policy. The insurance policy itself speaks that coverage of STFI is there. On the other hand, same is excluded and the risk is not covered. So, looking with these contradictions in the terms and conditions in the policy, the Honorable Apex Court has laid down that when there is such situation on record, then terms and conditions which are favourable to the consumer is to be looked into and considered. It is laid down by the Honorable Apex Court that when two interpretations possible, one beneficial tyo the insured should be accepted. Words of documents if ambiguous, shall be construed against party who prepared it. So, we incline to accept the version that the policy coverage of STFI is clearly mentioned, it should not be lightly viewed only on submission that it is a typographical mistake . It can be corrected or rectified well within soon or time., However, no steps are take to correct or rectify the mistakes. So, the submission on behalf of Mr. Mehta cannot be accepted that it is a typographical mistake. It is very much clear as earlier, we have discussed coverage of STFI is accepted. Moreover, learned advocate Mr. Dudhiya l. a. for the complainant has submitted before the State Commission that premium tariff guidelines provide that in case STFI coverage is not requested then 0.35% could be discounted and here in this policy accordingly no such discount is given. It itself suggests that it is a policy for coverage of STFI.
817. Learned advocate Mr. Mehta has vehemently submitted before us that same survey numbers are disclosed in the policy. So, some hidden facts are not disclosed and thereby this is a forged complaint by the complainant.
18. On that count, learned advocate Mr. Dudhiya l. a. for the complainant has submitted that there are three policies on each of the complainant, It does not mean that it is a forged complaint and forged policy. Once, the policy is issued then the complainant has right to file a complaint independently. Here, it is so.
19. Learned advocate Mr. Mehta has submitted before us that no quantum, of damage is brought on record and established. Here, as earlier, we have discussed hereinabove, that the insurance company has closed the case of the complainant and coverage is not included in the policy. So, the proceedings are terminated by the insurance company. Therefore, there is no possibility to bring the evidence of damage on record by the complainant. Further, it should be noted that the insurance company after lapse of three months has decided that the policy does not cover the risk of STFI and the claim proceedings are terminated and closed. Here, it should be noted that at the initial stage, the complainant has intimated the insurance company about the damages then it is the primary duty of the insurance company to appoint the surveyor to assess the damages and the insurance company should collect the report of the surveyor. Keeping with this dispute about the coverage, the insurance company has to get the report from the surveyor about the damage on the spot. But, that duty is not performed by the insurance company and after lapse of three months, closed the claim proceedings for availing an opportunity to the complainant with evidence along with the claim form. So, the insurance 9 company cannot take the benefit of its own wrong and prevented the complainant to produce the evidence on record. Here, all these circumstances suggest that the insurance company has not given any opportunity to the complainant to adduce any document or evidence of damages. Subsequently, the insurance company cannot insist upon the ground of damages not brought on record by the complainant nor the arguments impress upon us that the same survey number is disclosed in the policy. But, in one survey number of land, there may be possibility of different owners. There is no rule that one survey number owns by one owner only. So, without referring any detail, we observe that one survey number is owned by different owners. So, it is not crystal question to deal with the claim of the complainant only other aspects to deal with the claim of the complainant should be adjudicated are on record.
20. Now, on the point of quantum of compensation, when there is no specific contents regarding damages, it should be presumed that there was damage and thereby the complainant has intimated the insurance company on 14.3.2013. However, the insurance company did not move to appoint primary Surveyor to assess the damage whether the incident has taken place or damage is caused or not. Only on 19-6-2013 at page 23, the insurance company has repudiated the claim on the ground that STFI risk is not covered. According to my view, the insurance company might have, pending the dispute of coverage, collect the document and evidence and photographs for the damages as claimed by the complainant. Looking to page 24, the insurance company on 20-9-2013 closed the claim " no claim ". This matter is very much important to counter arguments. Once the insurance company closed the claim as " no claim ", it is not tenable in the eye of law because as discussed above earlier, keeping pending the dispute regarding coverage, it is the primary duty to invite 10 required documents from the complainant and it should be adjudicated by giving detail reason on merits.
21. In view of all this situation, we are of the opinion that deficiency in service and unfair trade practice is adopted by the opponent insurance company and for that lump sum amount of compensation needs to be awarded to the complainant. So, considering all these aspects, we come to the conclusion that it is just and proper to award lump sum compensation to the complainant.
22. In view of the aforesaid discussion, following order is passed.
ORDER
i) Appeal No. 1463 of 2014 is partly allowed.
ii) The order dated 30-8-2014 passed by the learned District
Forum, Surendranagar in complaint No. 74 of 2014 is quashed and set aside.
iii) The opponent insurance company is ordered and directed to pay Rs. 50,000/- ( Rupees Fifty Thousand only ) with interest at the rate of 7% p.a. from the date of filing of the complaint till its realization.
iv) The opponent insurance company is ordered and directed to pay Rs. 3000/- towards the cost of this litigation and Rs. 2000/- towards harassment and mental agony.
v) The opponents nos. 2 and 3 are hereby exonerated from its liability.
vi) The amount of the Award should be paid to the complainant within 60 days from the date of this order.
vii) Copy of the judgment be provided to the parties free of charge.
Pronounced in the open court today on 19th October, 2020.
(Smt. Jyoti P. Jani ) ( M.J.Mehta )
Member Judicial Member
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