State Consumer Disputes Redressal Commission
New India Assurance Co. Ltd vs M/S Nirmal Automobiles, Lml Agency on 24 May, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No.3261 of 2007 Date of Institution: 05.12.2007 Date of Decision: 24.05.2011 New India Assurance Co. Ltd having its Regional Office at SCO No.36-37, Sector 17-A, Chandigarh, through Shri Anil Chawla Asstt. Manager duly constituted attorney. Appellant (OP-2) Versus 1. M/s Nirmal Automobiles, LML Agency, Railway Road, Ganaur, Distric Sonepat through its Prop. Mahender Singh son of Hari Singh, Resident of Village Rohat, Tehsil and District Sonepat. Respondent (Complainant) 2. Punjab National Bank, Ganaur, through its Branch Manager. Respondent (OP-1) BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. For the Parties: Shri P.S. Saini, Advocate for appellant. None for respondent No.1. Shri Arvind Rajotia, Advocate for respondent No.2. O R D E R
Justice R.S. Madan, President:
This appeal has been preferred against the order dated 19.10.2007 passed by District Consumer Forum, Sonepat in complaint No.64 of 2006 which relates to the insurable benefits in respect of in respect of insured business premises of the respondent No.1 (complainant).
The brief facts of the present case as can be gathered from the record are that the complainant got financed his LML Scooter/Mobike agency located as BST Road, Kaushik Chowk, Ganaur District Sonepat, from the respondent No.2 Punjab National Bank and insured it with the appellant-Insurance Company for the period w.e.f. 15.9.2004 to 14.9.2005. The complainant shifted his aforesaid premises at Railway Road, Ganaur (Sonepat). During the intervening night of 24/25.11.2004 some unknown persons stolen two motor cycles LML freedom besides some other articles i.e. four cylinder kit energe, one Speedo meter adrono, two shoker, two Tanki motorcycle freedom, four Pati Oil Box etc. F.I.R. No.251 dated 25.11.2004 was registered under Sections 457/380 I.P.C. with the police. Intimation was given to the Bank as well as to the Insurance Company. During the investigation, one motorcycle was recovered but another motorcycle and other parts could not be traced out. The claim submitted by the complainant to the Insurance Company was repudiated due to the reason that the complainant had shifted his insured business premises from BST Road, Ganaur to Railway Road, Ganaur without any intimation to the Insurance Company and thus violated the terms and conditions of the Insurance Policy. However, the complainant alleged that the intimation was given to the opposite party with respect to the shifting of its business premises from BST Road, Ganaur to Railway Road, Ganaur and the Insurance Policy was taken for the new premises.
Challenging the action of the opposite party with respect to repudiation of its claim, the complainant filed the instant complaint before the District Forum seeking direction to the opposite party-Insurance Company to pay the amount of Rs.59,669/- alongwith interest @ 2% p.a.; compensation of Rs.20,000/- on account of mental agony and harassment and Rs.20,000/- on account of intentionally and deliberately denying the claim of the complainant.
Upon notice, the opposite parties appeared and contested the complaint. In the written statement they justified the repudiation of complainants claim on the grounds stated in the preceding para and prayed for dismissal of the complaint.
On appraisal of the pleadings of the parties and evidence brought on record, the District Forum accepted the complaint and issued direction to the opposite party No.2 (appellant herein) to pay Rs.59,669/- alongwith interest @ 9% per annum from the date of lodging of the claim by the complainant with the Insurance Company and to pay Rs.5,000/- for unnecessary mental agony and harassment.
Aggrieved against the order of the District Forum, the opposite party No.2 has come up in appeal.
Heard.
The question for consideration before us is whether the theft took place from the insured premises or not. Shri P.S. Saini, learned counsel for the appellant has argued that the complainant had purchased the Insurance Policy with respect to LML Agency located at BST Road, Ganaur (Sonepat) whereas the theft took place from the premises at Railway Road, Ganaur (Sonepat). In support of his argument Shri Saini has referred to Copy of the Insurance Policy Annexure P-1 wherein it has been clearly mentioned that insured premises is located at BST Road, Ganaur District Sonepat whereas the theft took place from the premises located as Railway Road, Ganaur District Sonepat as is evidence from the copy of F.I.R. No.217 dated 25.11.2004 (Annexure P-2).
There is nothing on record on behalf of the complainant that any intimation was given to the Insurance Company with respect to the shifting of its business premises from BST Road, Ganaur to Railway Road, Ganaur. In other words the complainant itself shifted its business from BST Road, Ganaur (Sonepat) to the new premises located as Railway Road, Ganaur (Sonepat). The plea of the complainant that information was given to the Insurance Company about the shifting of its business is hardly of any significance because in the Insurance Policy, the necessary correction was never made and for that reason the mere intimation is not sufficient to identify the loss suffered by the complainant.
reference in this regard is made to case law cited as National Insurance Co. Ltd. versus Venketshwera Distributor and another, 2011 CTJ 610 (CP (NCDRC), wherein the Honble National Commission has observed that:-
The insurance company will not be liable to indemnify the insured if the shifting of its business to the new location has neither been approved nor agreed upon by the insurance company.
Para 10 of National Insurance Co. Ltd. versus Venketshwera Distributor and anothers case (Supra) is as under:-
10. In Shri Subhash Chand Jain v. United India Insurance Co. Ltd. and Bank of Maharashtra, 2011 CTJ 285 (CP)=FA No.272 of 2010 decided on 13.10.2010, this Commission held that the insurer is liable to indemnify the insured when the shifting of the business to the new location is approved and agreed upon by the insurer. In Oriental Insurance Co. Ltd. and Anr v. P.R. Automobiles & Oils and Anr., 2010 CTJ 134 (CP) =1(2010) CPJ 83 (NC), it is observed:
Assuming that the letter dated 30.10.1998 was sent by the complainant and was received by the Insurance Company before the date of peril, it is an admitted position that the Insurance Company had not made any endorsement in the policy document in regard to the change of address before the date of peril. To make such endorsement in respect of new location is entirely in the discretion of the insurer. In the case of S.Rathinavelu v. The New India Assurance Co. Ltd. & Ors., 1995 CTJ 620 (CP)=II(1995) CPJ 135 (NC), Honble National Commission unambiguously held that mere receipt of a request for change in address is not sufficient to make the policy applicable to the changed premises it is required to be incorporated in the policy by way of a separate endorsement and till then, no risk is assumed in respect of the new location. To make such endorsement in respect of new location is entirely in the discretion of the insurer. That decision was made applicable by Honble National Commission in the aforesaid case of P.R. Automobile (supra) and it was observed that the insurer was not liable. Honble Supreme Court in the case of Deokar Exports Pvt Ltd v. New India Assurance Co. Ltd., I(2009) CPJ 6 (SC) in paragraph No.11 has observed that a policy of insurance is a contract based on an offer (proposal) and an acceptance.
The facts of the instant case are fully attracted to National Insurance Co. Ltd. versus Venketshwera Distributor and anothers case (Supra). The Insurance Company never gave any permission to the complainant to shift its business from BST Road, Ganaur (Sonepat) to the premised located as Railway Road, Ganaur (Sonepat). Thus, there is violation of the terms and conditions of the Insurance Policy. It is well settled principle of law that the terms of the Insurance Policy have to be construed strictly while settling the claim of the parties qua the Insurance Policy obtained by the insured. Reference in this regard is made to the observation made by the Honble Supreme Court in case cited as United India Insurance Company Ltd. vs. M/s Harchand Rai Chandan Lal IV(2004) C.P.J.
15. Further reference is made to the latest judgment rendered by the Honble Supreme Court of India in case cited as Suraj Mal Ram Niwas Oil Mills (P) Ltd. Versus United India Insurance Co. Ltd and another, 2011 CTJ 11 (Supreme Court) (CP) wherein similar view has been taken. The facts of the instant case are fully attracted to Harchand Rai Chand Lals case (Supra) as well as Suraj Mal Ram Niwas Oil Mills case (Supra).
Since the theft did not take place from the insured premises and also that there was no intimation to the Insurance Company with respect to the shifting of the business premises from BST Road, Ganaur to Railway Road, Ganaur; the Insurance Company cannot be made liable to pay any claim to the complainant. The District Forum has failed to appreciate the true facts of the case and as such the impugned order passed by the District Forum cannot be allowed to sustain.
For the reasons recorded above, this appeal is accepted, the impugned order is set aside and the complaint is dismissed.
The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules, after the expiry of period of appeal and revision, if any filed in this case.
Announced: Justice R.S. Madan 24.05.2011 President B.M. Bedi Judicial Member