National Consumer Disputes Redressal
Prabodh J. Kothari & Ors. vs The Oriental Insurance Co. Ltd. & Ors. on 28 February, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1561 OF 2012 (From the order dated 15.12.2011 in First Appeal No. A/11/310 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai) Prabodh J. Kothari 18, Nutan Laxmi Society, Prasad Building, N.S. Road J.V.P.D. Scheme, Vile Parle (West) Mumbai 400056 Petitioner (s) Versus 1. The Oriental Insurance Co. Ltd. Boriavli Divisional Office Shraddha Shopping Centre 2nd Floor, S. V. Road, Borivali (West) Mumbai 400092 2. M/s C. P. Mehta & Co. No. 4-DB, Edena Building, 97, Marine Lines Mumbai 400020 3. The Oriental Insurance Co. Ltd. Mumbai Regional Office No. 2, Oriental House, 7th Floor, 7, Jamdshedji Tata Road, Churchgate Mumbai 400020 Respondent (s) BEFORE: HONBLE MR.JUSTICE K. S. CHAUDHARI, PRESIDING MEMBER HONBLE MR. VINAY KUMAR, MEMBER For the Petitioner (s) : Mr. A.A. Pirani, Advocate For the Respondents : Mr. Arvind Gupta, Advocate for R-1 & 3 NEMO for R-2, Surveyor Pronounced on : 28th February, 2013 O R D E R PER MR. VINAY KUMAR, MEMBER The complaint of the revision petitioner, Mr Prabodh J. Kothari (hereinafter referred to as the complainant or RP) was partly allowed by the District Consumer Disputes Redressal Forum, Mumbai. But, it was dismissed in the order of the Maharashtra State Consumer Disputes Redressal Commission which allowed the appeal of the Oriental Insurance Company Ltd, (hereinafter referred to as the OP or respondent). This revision petition is therefore, filed by the complainant, challenging the order of the State Commission. 2. The consumer dispute in these proceedings had arisen from an incident of house breaking and burglary. The loss, according to the complainant, was of Rs.18,16,192/- which included a claim of Rs.16,96,092/- towards loss of jewellery. The OP admitted the claim partly and paid Rs 31,186/- only. The failure of the OP to allow the full claim of the complainant under the House holders Insurance Policy, led to filing of the consumer complaint. 3. The District Forum considered the case of the two sides and directed the OP to pay an additional sum of Rs 13,38,429/- together with interest and compensation. The view taken by the District Forum was that Surveyor/assessor reported that only the jewellery items belonging to the complainants wife, by name Ramila Kothari; which were stolen were included in the list, schedule attached to the insurance policy. Then, on internal page (06) of his final survey report, the surveyor/assessor furnished a table of All Risks portion of the insurance policy and there, the surveyor/assessor mentioned that items worth an amount in the sum of Rs.33,000/- belonging to Mr. Prabodh Kothari- the complainant herein; were not in the list attached to the insurance policy and the items worth an amount in sum of Rs.13,38,429/-belonging to the Complainants wife, Smt. Ramila Kothari, were included in the insurance policy, but she was a person not mentioned in the insurance policy. On this basis, the surveyor/assessor observed that, that was not the liability under the insurance policy. 16. Here, we may observe that admittedly and as transpired form the survey report, Smt. Ramila Kothari; is the Complainants wife. She has been described such in the first as well as second survey report. Items recorded against her name in the table at page (06) were the items included in the insurance policy. However, the surveyor proposed to disallow the claim only on the ground that she was not the Insured under the insurance policy. Obviously, those items must have gone under the name of the Complainant, since he was the proposer/Insured. While filling in the proposal form and taking the insurance policy, if the Complainant has furnished details of the ornaments of his wife, claiming the same as his own, no fault could be found with the same. Interpretation of the surveyor that the jewellery items belonging to the Complainants wife were not belonging to the Complainant, as the Insured, was perverse inasmuch as in the final survey report under Clause No. 4.2) thereof, while giving list of the insureds family members, the surveyor/assessor had mentioned status of Smt. Ramila Kothari, as the Complainants wife. 4. As already noted the State Commission allowed the appeal of the OP and set aside the award of the District Forum on two grounds. First, that the complaint was filed in 2007 when the claim related to a burglary of 2001. Secondly, that there was no deficiency of service. The Commission has observed that 3. It is not in dispute that when the event of theft/burglary/ house-breaking had taken place at the house of the insured (the Complainant) in between 21/7/2001 to 23/7/2001. Therefore, in view of decision of the Apex Court in the case of Kandimalla Raghavaiah & Co. Vs. National Insurance Co. Ltd ~ III-(2009)-CPJ-75-(SC), the cause of action arose on occurring of the said event and since the consumer complaint was admittedly filed on 7/4/2007 and that too, without any application for condonation of delay, being barred by limitation, could not have been entertained by the Forum. Since this submission is made by the Appellant on the basis of undisputed facts and since the Forum was under an obligation to look into these aspects on its own, we find the Forum committed an error of law entertaining this consumer dispute and as such, impugned order would not sustain in the eyes of law. Submission made in this respect on behalf of the insurance company, therefore, needs to be accepted and appeal is required to be allowed on this count alone. 4. Insurance company only allowed the claim of loss in respect of furniture items. Insurance company disputes the claim in respect of jewellery items belonging to the Complainants wife firstly, because those items were not included in the First Information Report of the theft/burglary lodged with the police and secondly, because it is not conclusively established that those items were stolen from the house or premises in respect of which the insurance policy was taken and, therefore, those items were not covered under the insurance policy (as revealed from the reports of the surveyors-cum-investigators). Further, to establish deficiency in service on the part of the insurance company, the Complainant must establish that repudiation of the insurance claim pertaining to jewellery items belonging to his wife and also about the alleged cash of M/s. Kothari Chemicals & Industries, alleged to have been kept inside the Complainants house; is an arbitrary action on the part of the insurance company. Considering the material placed on the record we find that such arbitrariness cannot be inferred on the part of the insurance company. Therefore, even deficiency in service on the part of the insurance company cannot be inferred. 5. We have carefully considered the records and heard the two counsels. Learned counsel vehemently argued that the complaint could not have been dismissed on the ground of limitation as it was filed well within two years from the date of part-repudiation of the claim. He drew our attention to the letter of 4.12.2006 from the OP to the complainant which stated that The matter has been since examined and the competent authority has conveyed that the claim for jewellery worth Rs. 16,96,029/- is not payable because of inordinate delay in obtaining the Police Report and Final Report. Moreover, from the various facts and the circumstances it is observed that you have not exercised Reasonable Care as per General Condition No.3 of the policy. We therefore regret our inability o admit the loss towards jewellery. In view of the above we once again enclose herewith discharge voucher for Rs. 31,186/- being damage to the furniture. 6. Further, a perusal of the Written Statement of the OP before the District Forum also shows that the settlement of the claim as above, finds a mention therein. Para 7 of the WS says 7. The Opposite parties state that as per Surveyors report only admissible insurance claim as per policy conditions remained, damage to furnitures, and same was honoured by Opposite Parties by sending discharge voucher for Rs.31,186/- to Complainant vide Opposite Partys Borivali Divisional Officer letter dated 4/12/2006 finally deciding/settling the claim of Complainant. Opposite parties will refer to and rely upon Surveyor and Investigators Report and relevant correspondence carried with Complainant, when produced. 7. Evidently, the finding of the State Commission on the question of limitation has overlooked both these important documents on record of the District Forum. The order of the District Forum does refer to the repudiation letter of 4.12.2006 but does not comment on the averment in the complaint that the cause of action in the present complaint has arisen only from that date and therefore, this complaint is filed within the time prescribed u/s 24-A of the Consumer Protection Act, 1986. The term cause of action has been explained by Honble Supreme Court of India in K andimalla Raghavaiah & /co. vs. National Insurance Co. Ltd. & Anr. III (2009) CPJ 75 (SC) in the following terms:- 13. The term cause of action is neither defined in the Act nor in the Code of Civil Procedure, 1908 but is of wide import. It has different meanings in different contexts, that is when used in the context of territorial jurisdiction or limitation or the accrual of right to sue. Generally, it is described as bundle of facts, which if proved or admitted entitle the plaintiff to the relief prayed for. Pithily stated, cause of action means the cause of action for which the suit is brought. Cause of action is cause of action which gives occasion for and forms the foundation of the suit [See Sidramappa v. Rajashetty & Ors. 1970 (1) SCC 186]. In the context of limitation with reference to a fire insurance policy, undoubtedly, the date of accrual of cause of action has to be the date on which the fire breaks out. 8. Therefore, in the present case, the cause of action first arose when the burglary took place on 21.7.2001. The question is, whether it arose again when the claim under the policy was substantially repudiated in the letter of 4.12.2006. The concept of recurring cause of action has been explained by the Apex court in Raja Ram Maize Products vs. Industrial Court of M.P. and Ors. (2001) 4 SCC 492 in the following terms:- 10.The concept of recurring cause of action arising in a matter of this nature is difficult to comprehend. In Balakrishna Saalram Pujari Waghmare Vs. Shree Dhyaneshwar Maharaj Sansthan, AIR 1959 SC 798 it was noticed that a cause of action which is complete cannot be recurring cause of action as in the present case. When the workers demanded that they should be allowed to resume work and they were not allowed to resume work, the cause of action was complete. In such a case the workers going on demanding each day to resume work would not arise at all. The question of demanding to allow to do work even on refusal does not stand to reason. 9. Facts of the case before us need to be seen in the light of the law as laid down above. The bundle of facts begins with the incident of burglary, goes through the assessment of the loss by the surveyor and culminates in partial acceptance together with substantial rejection of the claim of the complainant in the letter of repudiation issued by the OP. Therefore, the period of limitation would run again from the date of repudiation in 2006 and would not remain confined to the date of loss in 2001. A similar view was taken by this Commission in Iffco Tokio General Insurance Co. Ltd. vs. M/s Gokak Textiles Ltd. in First Appeal No. 80 of 2012, decided on 5.7.2012. 10. We therefore, do not agree with the view of the State Commission that in this case the complaint was barred by limitation and should not have been entertained by the District Forum. 11. In so far as the finding on repudiation of the claim to the extent of jewellery items is concerned, the State Commission has held that the material placed on record does not bring out any arbitrariness on the part of the insurance company. On this issue, we have cited at length the material considered before the District Forum. It has noted that though the loss of jewellery was not initially reported, it was in fact added to the Police report and was a part of the subsequent investigation by the Police. This development was within the knowledge of the surveyor however, for reasons best known to him, he chose not to include the claim in his final recommendation. 12. From the written response of the O.P. before the District Forum, we find that the policy in question itself was called House-holders Insurance Policy covering risk under various heads including fire, burglary, housing breaking etc. It is therefore obvious that the insured under such a policy is covered as a house-holder and not just as an individual. It is not the case of the OP that a house-holders policy is the same as and not distinct from a policy of individual indemnification. It is not the case of the OP that the jewellery items were not included in the proposal for insurance. It is also not the case of the OP that in the proposal form names of all members of the household were required to be mentioned. We therefore, have no hesitation in holding that the decision of the OP to exclude the jewellery from the admissible claim, is nothing but an act of arbitrariness. It amounts to a deficiency of service. 13. Consequently, the revision petition is allowed and the impugned order passed by the Maharashtra State Consumer Disputes Redressal Commission in First Appeal No. A/11/310 is set aside and order of the District Forum allowing complaint is affirmed. No order as to costs. ...
(K.S. CHAUDHARI,J.) PRESIDING MEMBER ...
(VINAY KUMAR) MEMBER Naresh/reserved