State Consumer Disputes Redressal Commission
Smt. Shushila Bai Pandey vs Branch Manager The National Insurance ... on 11 May, 2015
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.CC/13/17
Instituted on : 18.07.2013
Smt. Susheela Bai Pandey,
W/o Late Dharam Singh Pandey, Aged 55 years,
Badedongar, Near Kamlesh Videos,
Kondagaon, Bastar District. ... Complainant.
Vs.
1. The Branch Manager,
The National Insurance Company Ltd.,
First Floor, Naveen Bazaar, Phool Chowk,
Raipur (C.G.)
2. The Divisional Manager,
The National Insurance Company Ltd.,
Divisional Office, IInd Floor, Mobin Mahal, G.E. Road,
Raipur (C.G.) ... Opposite Parties
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MS. HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES:
Shri R.K. Bhawnani, for the complainant.
Shri V.K. Bajpai, for the opposite parties.
ORDER
Dated : 11/05/2015 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainant filed this consumer complaint under Section 17 of the Consumer Protection Act, 1986 against the OPs seeking following reliefs :-
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1. That the insured had got his New JCB 3DX maker insured for Rs.22,44,800/- and due to deficiency of services on the part of the opposite parties the claim of Rs.22,44,800/- was not settled, therefore, the complainant prays this Commission may be pleased to grant an amount of Rs.22,44,800/- for which premium of Rs.15,000/- was paid under the head of own damages.
2. That the complainant is entitled to claim Rs.3,00,000/- towards mental agony, financial loss caused due to delay in settlement of claim. Had the claim been settled, the insured could have restored his work and could have covered the financial loss.
3. That the complainant is entitled to claim interest @ 9% p.a. from the date of incident i.e. from 19.04.2012.
4. That the complainant is entitled for expenses incurred for representing opposite parties and for filing of the complaint before this Commission.
5. The total amount claimed by the complainant is Rs.25,44,800/-
and interest @ 9% p.a. from the date of damage of vehicle.
2. Brief facts of the complaint case are that : the complainant is resident of Badedongar, and Postal address is Village Badedongar, Near Kamlesh Videos, Kondagaon, District Bastar (C.G.). The complainant is wife of Late Dharamsingh Pandey. Late Dharamsingh Pandey, purchased New JCB 3DX BHL CH No.171G457 on 01.10.2010 at // 3 // the cost of Rs.20,10,000/- and the said JCB Machine was insured with the OPs for the period from 30.12.2011 to 29.12.2012. The Insured Declared Value of the said JCB was Rs.22,80,000/- and premium of Rs.15,000/- was paid to the OPs. On 19.04.2012 at Village Kulhadgaon, Near Benur, the work was going on and the JCB Machine was engaged in work, naxalites had set fire to JCB Machine, which was stationed at the work site. The intimation regarding the incident was given to the OPs through telephone and the matter was reported at Police Station Benur on 21.04.2012, where Crime No.11/2012 for offence under Section 435, 394, 427 IPC and under Section 25 of Arms Act was registered against four unknown Maoists. The OPs appointed Shri Mohit Kumar Arora as Spot Surveyor, who visited the spot and inspected the JCB Machine and gavehis report. Thereafter the OPs appointed Shri V.K. Garg as Surveyor & Loss Assessor, who also inspected the JCB Machine and assessed total loss to the tune of Rs.15,45,750/-. The complainant submitted claim form along with all relevant documents before the OPs and Claim No.285101/44/12/5990000002 was registered by the OPs and in order to avoid payment of claim, the OPs have raised a point that work side is different to the site mentioned in the policy schedule. The insured Dharam Singh Pandey had never stated that the JCB Machine would be used at his residence. It is submitted that while obtaining policy insured had given his residential address as Bade Dongar, Near Kamlesh Video, Bastar, but the O.P.No.1 had itself // 4 // mentioned residential address as work addressed and insured the policy. The insured had never stated to O.P.No.1 that the JCB machine would be used at insured's residence and the OPs wrongly repudiated the claim of the complainant. The complainant is entitled to get compensation from the OPs, as mentioned in the relief clause of the complaint.
3. The OPs filed their joint written statement and averred that the complainant obtained Contractors Plant and Machinery Insurance Policy from the OPs, which is effective for the period from 30.12.2011 to 29.12.2012 and Policy No.285101/44/11/5900000047 was issued. According to the OPs the JCB Machine was insured only for its working place i.e. Badedongar. If any terms and conditions was violated by the complainant, then the OPs are not liable to indemnify the complainant. The Spot Surveyor Shri Mohit Kumar Arora was appointed by the OPs who visited the spot and gave his report in which he mentioned that the place of incident was Village Kulhadgaon and the distance between the place of incident and Benur is 3.5 km and accident was occurred within territorial jurisdiction of Narainpur District. The working place of the JCB Machine was Badedongar, which is far away from the place of occurrence of the incident. In the insurance policy issued by the OPs, the working place is mentioned at Bade Dongar, but the place of the incident is Village Kulhadgaon, P.S. Benur, District Narainpur and both the places are different. It appears that the complainant violated the // 5 // terms and conditions of the insurance policy. The JCB Machine was engaged in the road construction work conducted by a contractor, but insured Dharam Singh Pandey never disclosed that the JCB Machine was engaged in the contract work and he did not file Contractor's Certificate. The place which is mentioned as working place in the insurance policy is different place and the place of incident is different place, where JCB Machine was engaged for work, was not working place, therefore, the OPs are not liable to indemnify the complainant. The complainant is not entitled to get any compensation from the OPs. The JCB Machine was burnt by the naxalites, therefore, according to exclusion clause of the insurance policy, the complainant is not entitled to get any compensation from the OPs.
4. The complainant filed documents. Annexure 1 is APL Ration Card, Annexure 2 is Voter ID, Annexure 3 is Quotation, Annexure - 4 is Cover Note, Annexure 5 is Policy Schedule, Annexure 6 is Certificate in respect of Compliance of Section 64 VB of Insurance Act, 1938, Annexure 7 is letter dated 02.05.2012 sent by Shri Dharam Singh Pandey to Branch Manager, National Insurance Company Ltd. Raipur, Annexure 8 is copy of First Information Report, Annexure 9 is Claim Form, Annexure 10 is Survey Report of V.K. Garg & Company, Insurance Surveyor and Loss Adjusters dated 02.09.2012, Annexure 11 is letter dated 09.10.2012 sent by the National Insurance Company Limited to Shri Dharam Singh Pandey, Annexure 12 is Claim // 6 // Processing Sheet, Annexure 13 is letter dated sent by Shri Dharam Singh Pandey to the Branch Manager, National Insurance Company, Branch Office, Naveen Bazar, Phool Chowk, G.E. Road, Raipur (C.G.), Annexure 14 is letter dated 26.10.2012 sent by the National Insurance Company Ltd. to the Divisional Office, National Insurance Company, Mobin Mahal, G.E. Road, Raipur Annexure 15 is letter dated 07.12.2012 sent by Shri D.D. Verma, Assistant Manager, National Insurance Company Ltd., Annexure 16 is letter dated 07.12.2012 sent by the V.K. Garg & Company, Insurance Surveyor & Loss Adjusters to the Divisional Manager, National Insurance Co. Ltd. Divisional Office, Raipur, Annexure 17 is letter dated 10.12.2012 sent by the Authorised Signatory, National Insurance Company Ltd. Divisional Office, Raipur to The Branch Manager, Raipur City Branch, Annexure 18 are Quotations, Annexure 19 is letter dated 10.01.2013 sent by Shri D.D. Verma, Assistant Manager, National Insurance Co. Ltd. Raipur Divisional Office to Shri K.L. Rajak etc., Annexure 20 is Death Certificate of Late Dharam Singh Pandey, issued by Deputy Registrar, Birth and Death, Annexure 21 is letter dated 04.03.2013 sent by National Insurance Co. Ltd. Raipur Division Office to The Sr. B.M. CBO- I, Raipur, Annexure 22 is letter dated 15.03.2013 sent by Sr. Branch Manager, National Insurance Company Ltd., Branch Office - I, Naveen Bazar, Phool Chowk, G.E. Road, Raipur (C.G.) to Shri Dharam Singh Pandey.
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5. The OPs have also filed documents. N.A. Encl. N.1 is Duplicate Schedule of Policy No.385101/44/11/5900000047, N.A.Encl.No.2 is First Information Report, N.A. Encl. No.3 is letter dated 02.05.2012 sent by Shri Dharam Singh Pandey to the Branch Manager, National Insurance Co. Ltd. Naveen Bazar, Raipur, N.A. Encl. No.4 is Engineering Insurance Machinery Breakdown Claim Form, N.A. Encl. No.5 is Motor (Spot) Survey Report dated 10.05.2012 of Shri Mohit Kumar Arora, Surveyor & Loss Assessor, N.A. Encl. No.6 is Survey Report dated 02.09.2012 of Shri V.K. Garg, Insurance Surveyor and Loss Adjusters, N.A. Encl. No.7 is letter dated 15.03.2013 sent by the National Insurance Company Limited, Branch Office -1, Naveen Bazar, Phool Chowk, G.E. Road, Raipur to Shri Dharam Singh Pandey, N.A. Encl. No.8 is letter dated 18.11.2013 sent by Sr. Branch Manager, National Insurance Company Ltd., to The Divisional Manager, Raipur D.O., N.A. Encl. No.9 is Interim Protection Note issued by the National Insurance Company Ltd., NA. Encl. No.10 is Standard Policy Form, Contractor's Plant & Machinery Insurance Policy.
6. On the basis of averments of both the parties, the points for determination is :-
(1) Whether the complainant is entitled for getting compensation, as mentioned in the relief clause of the complaint ?
// 8 // Discussions and its conclusion:
7. Shri R.K. Bhawnani, learned counsel appearing for the complainant has argued that the husband of the complainant purchased New JCB 3DX BHL CH No.171G457 at the cost of Rs.20,10,000/-. The said JCB Machine was insured with the OPs for the period from 30.12.2011 to 29.12.2012. On 19.04.2012 the said JCB Machine was burnt by naxalites. He further argued that the matter was reported to the concerned Police Station as well as to the OPs immediately but OPs wrongly repudiated the claim of the complainant. The place of residence and place of work is same. The husband of the complainant was not engaged in any contract work. The complainant has not violated any terms and conditions of the insurance policy .Only a single page policy was provided by the OPs to the complainant and no terms and conditions thereof were provided to him along with a single page policy. Therefore, the complainant is entitled to get compensation as mentioned in the relief clause of the complaint.
8. Shri V.K. Bajpai, learned counsel appearing for the OPs argued that the terms and conditions of the insurance policy are binding on both the parties and the terms of the contract have to be construed strictly and it is the duty of the Court to interpret the words in which the contract is expressed by the parties. He further argued that the JCB Machine in question was burnt by naxalite, therefore, on the basis of Exception Clause of the insurance policy, the complainant is not entitled // 9 // to get any insured amount from the OPs. He further argued that the place of occurrence and work place are different and the complainant violated terms and conditions of the insurance policy, therefore, the OPs have rightly repudiated claim of the complainant.
9. We have heard counsel for both the parties and have also perused the documents produced by them.
10. It is admitted that the JCB in question was insured with the OPs for the period from 30.12.2011 to 29.12.2012. The complainant filed Annexure 4 i.e. Interim Protection Note and Annexure 5 i.e. Policy Schedule. In Annexure 5 i.e. Policy Schedule, the insured's address is mentioned as Village Bade Dongar, Nr. Kamlesh Video, Tah. Pharasgaon, Kondagaon, District Bastar Chhattisgarh and premises work address is mentioned as Bade Dongar. The insurance policy was effective for the period from 30.12.2011 to 29.12.2012 and the insured declared value of the JCB Machine is mentioned as Rs.22,44,800/-.
11. In Deokar Exports Pvt. Ltd. vs. New India Assurance Company Ltd. , I (2009) CPJ 6 (SC), Hon'ble Supreme Court has observed thus :-
"11. A policy of insurance is a contract based on an offer (proposal) and an acceptance. The appellant made a proposal. The respondent accepted the proposal with a modification. Therefore, it was a counter proposal. The appellant had three choices. The first was to refuse to accept the counter - proposal, in which event there would have been no contract. The second was to accept either expressly or impliedly, the counter proposal of the respondent (that is respondent's acceptance // 10 // with modification) which would result in a concluded contract in terms of the counter proposal. The third was to make a counter proposal to the counter proposal of the respondent in which event there would have been no concluded contract unless the respondent agreed to such counter proposal. But the appellant definitely did not have the fourth choice of propounding a concluded contract with a modification neither proposed nor agreed to by either party. If the appellant did not agree to the policy covering the period 26.8.1988 to 25.8.1989 instead of the period 12.3.1988 to 12.9.1989, the result would never create an insurance contract effective from 30.6.1989 or any other date".
12. In Dr. Tarunjit Dutta Roy vs. The Branch Manager, The New India Assurance Company Ltd. 2013 NCJ 418 (NC), Hon'ble National Commission has observe thus :
"21. In Oriental Insurance Co. Ltd. vs. Sony Cheriyan, this Court held (SCC p 455, para 17) .................... the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy. That being so, the insured has also to act strictly in accordance with the statutory limitations or terms of the policy expressly set out therein."
"23 In the case of Polymat India (P) Ltd., and Another as National Insurance Co. Ltd., and Ors. and National Insurance Co. Ltd., vs. Polymat India (P) Ltd., and Another (2005) 9 Supreme Court Case 174, the Apex Court has held that:
....................
In this connection a reference may be made to a series of decisions of this Court wherein it has been held that it is the duty of the court to // 11 // interpret the document of contract as was understood between the parties. In the case of General Assurance Society Ltd. vs. Chandumull Jain SCR at P 510 A-B it was observed as under:
"In interpreting documents relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract, however, reasonable, if the parties have not made it themselves".
"25. In the case of Suraj Mal Ram Niwas Oil Mills Private Limited vs. United India Insurance Company Ltd., and Another (2010) 10 Supreme Court Cases 567, the Apex Court has held as under :
"Before embarking on an examination of the correctness of the grounds of repudiation of the policy, it would be apposite to be examine the nature of a contract of insurance. It is trite that in a contract of insurance, the rights and obligations are governed by the terms of the said contract. Therefore, the terms of contract of insurance have to be strictly construed, and no exception can be made on the ground of equity.
In General Assurance Society Ltd., a Constitution Bench of this Court had observed that (AIR p.1649, para 11) ........In interpreting documents relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract, however reasonable, if the parties have not been made it themselves".
13. The complainant pleaded in para 6 of the complaint that on 19.04.2012 the work was going on at Village Kulhadgaon near Benur, then the naxalites had set fire to JCB Machine. The JCB Machine was // 12 // stationed at the work site. From bare perusal of para 6 & 7 of the complaint, it appears that the JCB Machine was being used in the construction work and JCB Machine was stationed at the work site Village Kulhadgaon, Near Benur, but in the insurance policy, the work place is mentioned as Bade Dongar.
14. The OPs filed N.A. Encl. No. 2 i.e. First Information Report. In the said document the place of incident is mentioned as Village Kulhadgaon Stop Dam (Talab), P.S. Benur, District Narainpur (C.G.). The OPs have also filed document N.A. Encl. No.5 i.e. Motor (Spot) Survey Report dated 10.05.2012 of Shri Mohit Kumar Arora, Surveyor & Loss Assessor, in which under the head Cause & Nature of Accident it is mentioned that "as per insured's representative version, the subjected machine was used for the road construction work and was parked near the site meanwhile 4 maoists reached there, threaten them and spread the diesel all over the machine and set the fire due to which insured machine burnt severely." In the Survey Report the insured's address is mentioned as Bade Dongar, Nr. Kamlesh Video, Pharasgaon, Kondagaon, Bastar (C.G.) and the place of accident/survey is mentioned as Kulhadgaon Stop Dam, 3.5 Km from Benur, Kondgaon, Nayanpur Road (C.G.). It appears that the insured's address mentioned in the policy and place of accident are different places and JCB Machine was being used by the complainant for construction work // 13 // near Village Kulhadgaon, which is far away from the residencel and work place of the complainant.
15. In the Information Report, it is mentioned that JCB Machine was burn by the naxalites. Late Shri Dharam Singh Pandey, himself sent letter dated 23.10.2012 to Branch Manager, National Insurance Company Limited, Branch Office Naveen Bazar, Phool Chowk, G.E. Road, Raipur (C.G.) in which it is mentioned thus :-
"fo"k; %& ikyhlh dkUVsDVj iykUV ,oa e'khuhjh nkok esa tkudkjh nsus esa ckcr~~A egksn;] mijksDr fo"k;kUrxZr ys[k gS fd gekjk ts-lh-ch vfuy jk; Bsdsnkj jksM+ dk;Z ds fy;s fnukad 19-04-2012 dsk lqcg Bsdsnkj ds nksLr vfHk"ksd >k jksM+ dk;Z esa py jgk Fkk mlh le; Hkkstu vodk'k ds le; [kM+k fd;s Fks 2 cts ds vklikl xkM+h dks tyk fn;s mlds ckn us'kuy dEiuh iykUV ,.M e'khujh dk yk;lsl ,oa dkUVªsDVj Bsdsnkj dk QksVksdkih eaxus ls bUdkj dj fn;kA "
It appears that the JCB Machine in question was burnt by the naxalites.
16. In Exception Clause of the Contractor's Plant & Machinery Insurance Policy, it is mentioned thus :-
"EXCEPTIONS :
THE COMPANY SHALL NOT BE LIABLE UNDER THIS POLICY IN RESPECT OF :-
a) ..................
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b) ..................
c) ...................
d) .....................
e) .....................
f) ......................
g) .......................
h) ........................
i) .........................
j) .........................
k) ..........................
Note :- This does not apply to Machineries used in Tunneling works.
l) War, Invasion, act of foreign enemy, hostilities or war like operation (whether war be declared or not), Civil War, Rebellion, Revolution Insurrection, Mutiny, Civil Commotion, Military or usurped power, material law, conspiracy, confiscation, commandeering a group of malicious person or persons acting on behalf of or in connection with any political organization, requisition or destruction or damage by order of any government de jure or de facto or by any public, Municipal or Local Authority.
m) .....................
n) .....................
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17. In Muralidhar Sarangi vs. New India Assurance Co. Ltd., (2000) 3 Supreme Court Cases 466, Hon'ble Supreme Court has observed thus :-
"8. Endorsement No .IMT 21, which has been reproduced above, consists of two distinct parts. The first part speaks of mutiny assuming the proportion of popular rising, military rising, rebellion, revolution, insurrection etc. The second part consists of :-
"Any act of any person acting on behalf of or in connection with any organization with activities directed towards the overthrow by force of the Government de jure or de facto or to the influence of it by terrorism or violence or by the direct or indirect consequence of the said occurrences."
13. When read in the light of the above statutory provisions as also the attending circumstances of this case, it becomes clear that provision
(b) of Endorsement No. IMT 21 of the insurance policies did not cover the risk complained of. The trucks were destroyed by acts of terrorism and a driver of the truck was also shot dead. The National Commission was, therefore, fully justified in its conclusion that the respondent was not liable for the loss suffered by the appellant at the hands of Bodo activists who completely destroyed the trucks of the appellant by setting them on fire and killed one of the drivers."
18. In the case the vehicle in question was burnt by the naxalite, therefore, the Exception Clause of the insurance policy is applicable in this case. On the basis of Exception Clause of the insurance policy, the OPs (Insurance Company), is not liable to indemnify the complainant. On the basis of Exception Clause of the insurance policy and judgment // 16 // of Hon'ble Supreme Court in Muralidhar Sarangi vs. New India Assurance Co. Ltd. (Supra), the complainant is not entitled to get any compensation or insured amount from the OPs.
19. Therefore, the complaint filed by the complainant against the OPs is liable to be dismissed, hence the same is dismissed. Parties shall bear their own cost.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar) (NarendraGupta) President Member Member Member /05/2015 /05/2015 /05/2015 /05/2015