National Consumer Disputes Redressal
Sadhu Ram Mittal vs United India Insurance Co. Ltd. & Anr. on 19 July, 2010
NATIONAL CONSUME DISPUTES REDRESSAL COMMISSION NATIONAL CONSUME DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL No. 728 OF 2007 (From the Order dated 24.10.2007 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh in Complaint Case No. 10 of 2004) Sadhu Ram Mittal S/o Des Raj Proprietor, Sunrise International Appellant Near Jackson Petrol Pump Salem Tabri, Jalandhar By-Pass Ludhiana, Punjab versus 1. United India Insurance Company Limited 24, Whites Road, Chennai Through its Chairman and Managing Director Respondents 2. Senior Divisional Manager United India Insurance Company Limited Divisional Office, Dalhousie Road, Pathankot FIRST APPEAL No. 776 OF 2007 (From the Order dated 24.10.2007 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh in Complaint Case No. 10 of 2004) 1. United India Insurance Company Limited RO 1, Kanchenjunga Building Barakhamba Road, New Delhi Through its Manager Appellants 2. Senior Divisional Manager United India Insurance Company Limited Divisional Office, Dalhousie Road, Pathankot versus Sadhu Ram Mittal S/o Des Raj Proprietor, Sunrise International Respondent Near Jackson Petrol Pump Salem Tabri, Jalandhar By-Pass Ludhiana, Punjab BEFORE: Honble Mr. Justice R. C. Jain Presiding Member Honble Mr. Anupam Dasgupta Member For the Appellant (in F. A. No. 728/2007 Mr. Chandan Kumar, Advocate and Respondent in F. A. No. 776/2007) For the Appellant (in F. A. No. 776/2007 Mr. Ravi Bakshi, Advocate and Respondents in F. A. No. 728/2007) Dated 19th July 2010 ORDER
Anupam Dasgupta These two cross appeals challenge the order dated 24.10.2007 of the Punjab State Consumer Disputes Redressal Commission (in short, the State Commission), Chandigarh in complaint case no. 10 of 2004. By this order, the State Commission held as under:
In view of the discussion held above, the complaint is partly accepted and it is held that the complainant is entitled to receive a sum of Rs. 13, 93,218/- as per the report of the Second Surveyor dated 27.12.2003 (Annexure R-2). The complainant is also awarded interest @ 9% p.a. on this amount from the date of second repudiation i.e. 23.3.2004 (Annexure C-24) till the date of payment. The complainant is also awarded a sum of Rs. 10,000/- as cost of litigation.
The aforesaid directions be complied with within 45 days of the date of receipt of copy of this order.
Aggrieved, while the complainant (appellant in F. A. no. 728 of 2007) has filed his appeal for enhancement of the awarded amount, the opposite party (OP) insurance company (appellant in F. A. no. 776 of 2007) has prayed in its appeal that the order of the State Commission be set aside. For the sake of convenience, the parties are referred to as per their status before the State Commission.
Relevant Facts 2(i) Sunrise International, a sole proprietary concern of the complainant and a registered small scale industry, was engaged in the manufacture of knitted pile fabrics made mainly of polyester and modacrylic fibres for sale to its buyers, including the Ordnance Clothing Factory (OCF), Shahjahanpur, Uttar Pradesh. The complainant had taken on lease accommodation for his factory, stores and office in the buildings/structures of Everest Woollen Mills which had closed down long back. At the time of starting operations in 2001, the factory accommodation consisted of two large adjoining halls, with an office room in between, on the ground floor of one row of buildings in the Mill compound, taken on licence from the Mill management. Later, during 2002 - 03, an additional storage hall on the first floor of the opposite row of structures towards one end of the buildings (the two rows of structures being separated by an internal road) and a third storage hall on the ground floor of the latter row of structures were also obtained. The stocks of raw material, semi-finished and finished products were hypothecated to the State Bank of Patiala (SBP). These stocks as well as the machinery of the factory were insured with the OP under two policies which were first taken for the period 24.11.2001 to 23.11.2002. The policies were renewed for the period 24.11.2002 to 23.11.2003. For stocks, the insurance amount was Rs. 50 lakh under the OPs standard fire and special perils policy.
(ii) In the night of 15.03.2003, a fire broke out in the first-floor additional storage space, severely damaging the hall and completely gutting up the material stored there. The Fire Brigade took several hours to control the fire. The Police as well as the OP were informed by the complainant, who also filed an insurance claim for Rs. 33, 21,485.38. The OP appointed a Delhi-based surveyor to assess the loss. The surveyor visited the factory premises twice - on 18.03.2003 and 12.05.2003. After conducting necessary enquiries and examining the records furnished by the complainant, the surveyor filed his report with the OP on 24.05.2003. Based on the surveyors report, the OP repudiated the claim (treating it as no claim) by its letter dated 05.06.2003 to the complainant, the relevant parts of which are reproduced below:
You have taken two policies no. 111100/11441 and 111100/11442 on 24.11.2001 covering stocks and machinery lying in the premises as detailed in the Cover Note/policy. Our investigations reveal that at the time of taking insurance, the premises available with you were as shown and marked A in the annexed plan. The same policies were subsequently renewed for further period of one year from 24.11.2002 to 23.11.2003. The policies were the renewals of earlier policies covering the same property at the same location and even the sum insured was almost identical.
During the course of survey by the surveyor, Mr. Vinod Sharma, it has come to light that the reported loss has not taken place in the premises as stated above but in another premises marked B which was neither covered nor intended to be covered and not even endorsed subsequently in our policy and hence the policy of insurance issued by our office does not cover the said loss.
Apart from fact stated above, the survey report also indicates that there was no production in the factory except in the month of September 2002; there was sudden spurt of purchases by you during five days immediately prior to the loss as also that you were varying (sic carrying) huge inventory of stocks still (sic and still) the orders pending with you were not executed. All these discrepancies remain unanswered.
It may, however, be noted that while recommending that the claim was not covered (because the loss occurred in the first-floor storage area not covered by the insurance policy), the surveyor assessed the loss at Rs. 17, 56,770/-.
3. As a result of the representation dated 19.06.2003 of the complainant to the Chairman and Managing Director of the OP against the repudiation of his claim, a second, Chennai-based surveyor was appointed who visited the factory premises on 30.09 01.10.2003 and sought information from the complainant by his letters of November 2003. This surveyor submitted his report to OP on 27.12.2003, concluding that the affected hall ought to be considered as included in the insured premises because of the description of the address in the policy schedule but reducing the assessed loss payable to Rs. 13, 93,218/-. However, on consideration of the report, the OP reiterated its decision of repudiating the claim by its letter dated 28.03.2004. This led to the complaint being filed on 12.05.2004.
4. We have heard Mr. Chanchal Kumar, learned counsel for the complainant and Mr. Ravi Bakshi, counsel for the OP and have carefully gone through the documents and evidence on record. Both the counsel have also submitted summary of their submissions in writing.
5. There are only two issues for determination in this case. The first and more important one is whether the storage space, where the fire occurred and damaged the stocks of the complainant, was included in the premises insured during the relevant period (24.11.2002 23.11.2003). The second issue, which would arise only if the answer to the first is in the affirmative, is whether the awarded amount is adequate. The validity of certain observations in the letter of repudiation of the OP (discussed in greater detail in the two surveyors reports, particularly the former) casting doubts on the good faith of the claim from several angles would also need consideration in this context.
Arguments of Parties 6(i) The complainants memorandum of appeal and Mr. Kumars written submissions on behalf of the former make several points concerning the loss assessment by the two, particularly the second surveyor which is the basis of the amount awarded by the State Commission. However, in his arguments, Mr. Kumar has directed most of his energy to the first issue, which clearly is the main ground for repudiation of the complainants insurance claim.
(ii) In this respect, he has relied on three sets of documents produced by the complainant before the State Commission which sought to establish the complainants acquisition of the first-floor, additional storage space on licence terms in October 2002, i.e., well before the renewal of the insurance policies w.e.f. 24.11.2002:
(a) The first set of documents comprises photocopies of letters dated 28.10.2002 and 30.10.2002 purportedly written by the complainant to the Superintendent of Central Excise, Ludhiana. The first letter mentions that the complainant had taken one more godown in the roof of the same premises in the context of having received an order for supply of pile fabric from the Ordnance Clothing Factory, Shahjahanpur and while the second letter encloses the site plan of the godown taken by us w.e.f. 15.10.2002 on the roof in the factory premises of M/s Everest Woollen Mills (size 36 x 100).
(b) The second set of documents comprises photocopies of letter of 30.10.2002 addressed, under certificate of posting, to the insurer/underwriters office and of 25.10.2002 to the Manager of the SBP, Ludhiana. In the letter to the insurers office, the same ground of taking an additional godown on the roof of the first floor of the same premises is mentioned and it is added that copies of the letter written to the Superintendent of Excise and of the site plan enclosed therewith are also attached. The letter to the SBP also refers to the need for extra storing capacity for defence order.
(c) The third set of documents are also photocopies of three licence deeds executed between the complainant and the authorised representative of the management of the erstwhile Everest Woollen Mills regarding leasing of the premises by the complainant. The first and the second licence deeds of 05.07.2001 and 09.07.2002 respectively are regarding the use of two halls of 100 x 50 (described in the deed as 100 x 50 x 2) and an office room of 50 x 18 6 for the periods 01.08.2001 30.06.2002 and 01.07.2002 31.05.2003. The second licence deed is thus a renewal of the first in respect of the premises originally licensed. The third licence deed is dated 15.10.2002 in respect of use of the first floor hall of 100 x 36 for a period of six months only.
(iii) In addition, he has argued that the OP admitted (vide its written version, paragraph 4) that the first insurance policy (2001-02) did not specify the exact situation/location of the complainants premises within the Everest Mill compound covered by the said policy and only described the insured (including its address) as SBP, Slam Tower, a/c Sunrise Industries, Jalandhar Bye-Pass, Near Jackson Petrol Pump, Ludhiana. The same address was repeated in the renewed insurance policy for 24.11.2002 - 23.11.2003. Thus, the additional storage area taken on licence by the complainant in October 2002 was very much covered by the address recorded in the policy. His next argument is that the complainant filed before this Commission an additional affidavit on 17.04.2009, stating that one Satish Mahajan, an officer of the insurer visited the complainants factory premises and verified all the machinery and the stocks and issued the cover notes for the renewal policies (for machinery as well as stocks) in November 2002 and this was confirmed by the letter dated 03.07.2003 written to the insurer by the Development Officer, named Mukesh Mahajan.
(iv) On the basis of the above-mentioned documents and affidavit, Mr. Kumar has argued that the insurer/underwriter was very much aware that the complainant had taken on licence an additional storage space on the first floor of the buildings in the Everest Mill compound before it issued the cover notes for the insurance policy in respect of stocks for the period 24.11.2002 23.11.2003 and could not, therefore, repudiate the claim on the ground that the said storage area was not included in the insured premises. He also drew attention to the findings of the State Commission in this regard and the view of the second surveyor that if there was vagueness in the description of the insured premises in the policy document, the lapse was primarily that of the underwriter issuing the policy document and the insured could not be made to suffer on that count.
7. Per contra, Mr. Bakshi has sought to rely on the entire gamut of documentary as well as circumstantial evidence.
(i) His first point is that the letter of 30.12.2002 claimed to have been sent to the underwriters office by the complainant was never received by the latter. In any case, the complainant has not produced any proof that the letter was actually delivered to the addressee. The other letters, stated to have been written to the Central Excise and the State Bank of Patiala, are of no consequence from the point of view of insurance coverage of the premises.
(ii) His second argument is that when the first surveyor asked the complainant to produce the reverse sides of the stamp papers on which the licence deed for the additional storage area was stated to have been executed (with a view to ascertaining if the date(s) of purchase of the stamp papers was/were prior to 15.10.2002), the complainant as well as the owners of the Mill premises conveniently stated that the originals of the licence deeds (both the renewal licence deed for July 2002 May 2003 and that for the additional storage area on the first floor for October 2002 - April 2003) had been misplaced. Moreover the licence fee for the said storage area was paid by the complainant only in March 2003.
(iii) Thirdly, the letter dated 03.07.2003 written by the Development Officer (Mukesh Mahajan) to the insurers Divisional Office and relied upon by the complainant clearly stated that when Satish Mahajan and Mukesh Mahajan together visited the complainants factory before issuing the cover notes for the renewal policies commencing from 24.11.2002, the complainant did not inform them of hiring any additional storage space on the first floor nor did he produce any licence deed at that time. The letter further affirmed that the Divisional Office of the insurer never received any written intimation from the complainant in this regard. As stated in this letter, since the complainant gave a written representation seeking adjustment of alleged excess premium of as small a sum as Rs. 3000/-, it would be inconceivable that he would not produce the licence deed for the additional first-floor area had such a deed been in existence by that time.
(iv) Therefore, according to Mr. Bakshi, these attendant facts and overall circumstances would not only make it wholly suspect that a licence deed in respect of the said first floor storage area was at all executed prior to the renewal of the insurance policy from November 2002 but would also (and, more importantly) establish that the complainant did not inform either the representatives of the insurer who visited the factory premises prior to the renewal or at any time intimated the insurers Divisional Office about his having taken the additional storage space on the first floor. He has added that the conclusion about the suspect licence deed for the additional storage space on the first floor gained further support from the fact recorded by the first surveyor that in addition, the complainant had obtained possession of another storage space on the ground floor (of the same building where the first floor storage area was claimed to have been taken on licence) in which it stored the finished pile fur fabrics offered to the OCF for inspection October 2002 onwards. It is undisputed that the possession of this storage/inspection area was taken by the complainant on a completely informal basis and it is not even the complainants case that he informed the insurer about acquisition of this area at any time prior to the date of the peril.
(v) Mr. Bakshi would thus argue that the renewal of the policies in respect of both stocks and machinery in November 2002 was on the basis of the insured premises being only those which were in possession of the complainant at the time of issuing the first set of policies in November 2001 (i.e., two halls and one office room on the ground floor of the left side northern row of structures in the Everest Mill compound) and, therefore, the OP insurer was fully justified in concluding that the storage area where the fire occurred resulting in loss of stocks was not covered by the insurance policy issued in November 2002.
Discussion and Conclusions 8(i) Before proceeding further, it is useful to read the wordings of the insurance cover note / schedule describing the property insured. Admittedly, there were two insurance policies for both the periods, i.e., 24.11.2001 23.11.2002 and 24.11.2002 23.11.2003, one in respect of stocks and the other in respect of machinery. While the sum assured for stocks was the same, i.e., Rs. 50 lakh during both the periods, that for the machinery was Rs. 70 lakh for the first-mentioned period and Rs. 60 lakh for the second.
(ii) In respect of stocks, the policy schedule for 24.11.2001 23.11.2002 reads as under:
Detail of stock On stock of all kinds of yarn, acratine (sic acrylic) waste, polyester yarn, acrelic (sic acrylic) tac, mol (sic mod) fibre, Polo Fier (sic fibre), Fibering (?) for HI-Pile fur fiberice (sic fabrics) & all type of finished and unfinished and under Processed (sic under process) fibre &/or fibre on machine & yarn on machine & Polystal (sic polyester) & Mechanical (?) & of all type of stock and all other similar Goods pertaining to the insured trade lying &/or stored in the above said factory premises &/or all attached rooms &/or all machines situated (sic in) all processing block (sic at) above said address Jalandhar Bye-Pass Ludhiana. [Emphasis supplied]
(iii) In respect of machinery, the description in the cover note for the same period is:
On account of all kinds of machinery (sic including) Two Card (sic carding) machines, Three Knitting machines, Stanter (sic stenter) machine, Two Sharing (sic shearing) machines, Tumbler machine, Willow machine, DG set 125 KVA & all type of other machines, electric motors, cables, wires & all type of allied arrangements lying & fitted with machines & used for machines lying and fitted in the above said factory premises & attached rooms & situated at above said address Jalandhar By Pass Ludhiana & all attached sheds and rooms. [Emphasis supplied]
(iv) While the schedule referred to above for the stocks insurance mentioned the name and address of the insured as, SBP Slam Tower Ludhiana A/c M/s Sunrise International, Jalandhar Bye-Pass, Near Jackson Petrol Pump, Ludhiana, the cover note for the machinery insurance described the insured as M/s Sunrise International, Jalandhar Bye-Pass, Near Jackson Petrol Pump, Ludhiana.
(v) It is abundantly clear from the words used (irrespective of the description of the types of stocks or machinery, and of the semi-literate language of description in the case of stocks, in particular) that the stocks and the machinery insurance policy/cover note respectively specified lying &/or stored in the above said factory premises &/or all attached rooms &/or all machines situated (sic in) all processing block (sic at) above said address Jalandhar Bye-Pass Ludhiana and lying and fitted in the above said factory premises & attached rooms & situated at above said address Jalandhar By Pass Ludhiana & all attached sheds and rooms. [Emphasis supplied]
(vi) The dispute before us is in respect of insurance coverage of stocks that were stored during 2002-03 in the additional storage area on the first floor of the row of buildings opposite to that where the complainant had taken his factory accommodation in 2001-02. In this respect, it is once again clear from the words used in the schedule quoted above that during 24.11.2001 23.11.2002 the stocks covered by the insurance policy were only those which were lying and/or stored in the factory premises and/or attached rooms and/or processing block, at the address given therein, viz., M/s Sunrise International, Jalandhar Bye-Pass, Near Jackson Petrol Pump, Ludhiana. It is not disputed that for the subsequent period of 24.11.2002 23.11.2003, the insurance policy for stocks used the same words to describe the stocks covered.
The dispute is that while according to the insurer the latter was only a renewal of the previous policy without any change in the premises covered, according to the complainant the renewed policy included (or, should have, in view of his letter of 15.10.2002) the first-floor additional storage space taken on licence by him w.e.f. 15.10.2002.
9(i) We may now refer to the decision of the Supreme Court in the case of Polymat India (P) Ltd. v National Insurance Co. Ltd. [(2005) 9 SCC 174] because in that case the Court dealt with issues which were similar to those that have arisen in this case and the principles laid down or reiterated therein are squarely applicable here.
(ii) In the said case, the insured Polymat (P) Ltd. was a factory engaged in refining burnt/used lubricating oil. The factory included several types of plant and machinery, part of which was located inside a large building, consisting of two large structures and the remaining in the open yard inside the factory premises. The stock of used/burnt lubricating oil, the raw material, was stored in barrels in the open as well as in used-oil pits. Similarly, the finished product of refined oil was either loaded in oil tankers and moved out or stored in drums. All the plant and machinery and material were insured under two fire policies, one for plant and machinery and the other for stocks, with New India Assurance Company Ltd. up to 19.03.1992. Thereafter, insurance was sought from National Insurance Company Ltd. The representative of the factory management signed (allegedly blank) proposal forms and also gave replies to specific questions in a questionnaire accompanying the proposal form. Copies of the insurance policies issued by New India Assurance Company Ltd. were also furnished to the Development Officer of the National Insurance Company Ltd. who visited the factory premises for this purpose. When the policy documents were received from the new insurer, the insured noticed some discrepancies in the policy for stocks, the more significant of which was regarding description of the insured premises as factory-cum-godown and office premises. The insured immediately wrote back pointing out, inter alia, that there was no godown in its factory premises and instead the description should be stock and stock-in-process inside or outside the building but within the factory compound. In response to this letter, while the insurer carried out the suggested amendment in respect of change of the name of the bank to which the stocks and stocks-in-process were hypothecated, it did not accommodate the change in the description of the premises as suggested by the insurer. When a fire broke out in the factory premises destroying the stocks as well as the plant and machinery, the insurer did not at all admit the claim of the insured for the stocks lying in the open yard inside the factory compound and made significant deductions even the loss assessed by the surveyor in respect of plant and machinery in fact, it allowed the claim only on non-standard basis. This led to a complaint being filed before this Commission. This Commission partly allowed the complaint against which both the complainant Polymat (P) Ltd. and the National Insurance Company Ltd. went up in appeal before the Apex Court.
(iii) The Apex Court held in this case as under:
(a) Dealing with the issue whether the expression factory-cum-godown used in the insurance policy included all plant and machinery and all goods lying within the factory compound, the Court observed that a factory as defined in the Factories Act, . meant any premises including the precincts thereof where a manufacturing process is carried on and manufacturing process would ordinarily mean manufacturing within the plants. This would not ordinarily cover the area outside the plant. However, recognizing that the expression premises including the precincts thereof in the definition of factory would not only mean the building (in which the plant is located) but also the open area or compound about that building, the Court concluded that each definition would have to be construed within the context in which it was used.
(b) Referring to a series of decisions of the Apex Court, the Court reiterated the duty to interpret the document of contract as was understood between the parties.
(c) In respect of change/amendment to an insurance contract subsequent to its having been reduced to writing, the Court observed, When the terms of contract have been reduced to writing, it (sic they) cannot be changed without the mutual consent of both the parties.
10(i) In this case, we have already noticed that the description in respect of the stocks insured during the period 24.11.2001 23.11.2002 referred explicitly to all type of stock and all other similar goods pertaining to the insured trade lying &/or stored in the above said factory premises &/or all attached rooms &/or all machines situated (sic in) all processing block (sic at) above said address. The policy for insurance of the plant and machinery of the complainants factory for the same period also referred to lying and fitted in the above said factory premises & attached rooms & situated at above said address .. & all attached sheds and rooms. [Emphasis supplied]
(ii) Thus, the intention was to cover all stocks lying and/or stored in the factory premises and/or attached rooms. It is an undisputed position that the complainants factory premises, where the plant and machinery were fitted and the manufacturing process was carried on, consisted only of two halls on the ground floor of the row of halls/rooms to one side (northern) of the internal road inside the Everest Mill Compound there was neither any attached room nor any open area appurtenant to or outside the two halls which were included in the factory premises covered by the insurance policy.
(iii) It is also undisputed that the additional storage hall, claimed to have been taken on licence from 15.10.2002, was located on the first floor of the building opposite to the building where the factory was situated. Therefore, this hall was neither attached to the factory premises nor within nor a part of the factory premises as understood at the commencement of the insurance policy for the first year in fact, in this case, the geographical bounds of the factory premises were the same as those of the factory alone. The word attach(ed) used in the context of attached rooms used in the policy is also to be understood in the common sense of the term; viz., fasten(ed) or join(ed) (vide Concise Oxford Dictionary). The hall on the first floor of the building opposite to that where the factory was located cannot, by any stretch of imagination, be considered as attached to the factory. Nor was it a processing block, another term used in the stock insurance policy. Thus, it was entirely an addition to the factory or factory premises covered by the insurance policy for the first period and hence its inclusion in the next insurance policy depended on explicit agreement/consent of the insurer.
(iv) It is also noteworthy that in his letter of 30.10.2002, the complainant informed the insurers Divisional Office that it had taken an additional godown on the roof of first floor in the same premises and requested it to do the needful and oblige. What was the needful? What prevented the complainant from specifically requesting inclusion/endorsement of the said additional godown in the insurance policy for the next year (which was to begin from 24.11.2002)? More important, what prevented the complainant from writing back to the insurers Divisional Office soon after 24.11.2002 and drawing its attention to the fact that the additional godown did not seem to have been incorporated in the renewal insurance policy for 24.11.2002 23.11.2003? There are no answers, leave alone any acceptable answers, to these relevant questions.
(v) Even taking the best case of the complainant at its face value, i.e., he wrote on 30.10.2002 about inclusion of this additional hall in the insured premises and the insurer received the said letter before the renewal policy for 24.11.02 23.11.2003 was written, it can only mean, in the absence of any change in the description of the premises in the renewed insurance policy, that the insurer did not consent to the suggested addition/amendment. This follows squarely from the law laid down by the Apex Court in the case of Polymat India (P) Ltd. referred to above that any change/amendment to an insurance contract, once it is reduced to writing, can be made only by mutual consent of the parties. Moreover, this Commission, while dealing with the same issue of material/physical change in business premises and the conditions subject to which such change could be held to have been covered by the insurance policy, has held unambiguously, vide judgments in S. Rathinavelu v The New India Assurance Company Limited [II (1995) CPJ 135 (NC)] and Oriental Insurance Company Limited & Another v P. R. Automobiles and Oils & Another [I (2010) CPJ 83 (NC) a most recent decision of this very Bench] that unless such a change intimated by the insured to the insurer is incorporated by the latter in the insurance policy by way of a specific endorsement, the change in the premises cannot be held to have been included in/covered by the insurance policy in question.
(vi) Therefore, we have no hesitation in concluding that even if the complainant had informed the insurer by his letter of 30.10.2002 about his having taken an additional godown on the roof of first floor in the same premises and the insurers Divisional Office had actually received the said letter (a position hotly contested by the latter), the undisputed fact that this additional godown on the roof of the first floor was not specifically mentioned in the policy written for the period 24.11.2002 23.11.2003, meant and could be held to mean, in fact and law, only that the request had not been mutually agreed to or, that the request was not consented to by the insurer and that the change had not been incorporated for coverage by making the mandatory endorsement in the policy incorporating the said change. The fact that the said additional godown was located in the same premises of the Everest Woollen Mills or that the same address of the complainants concern could include the location of the godown has thus no meaning in the eyes of law on the subject. Hence, the damage caused by the fire of 15.03.2003 to the stocks stored in the said godown was neither covered nor indemnifiable under the insurance policy for the relevant period and the insurer was justified in repudiating the claim. As a result, it is not necessary at all to go into the second issue, i.e., whether there was any defect in the assessment of loss by any of the two surveyors or, for that matter, whether the State Commission erred in awarding the amount that it did. In our view, the State Commission was grossly in error on the very first issue of whether the loss was covered by the insurance policy.
11. Consequently, we allow First Appeal no. 776 of 2007 filed by the Insurance Company and set aside the impugned order of the State Commission. In view of this, First Appeal no. 728 of 2007 filed by the complainant becomes infructuous and is dismissed as such. The parties shall bear their own costs.
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[R. C. JAIN, J] ..
[ANUPAM DASGUPTA]