State Consumer Disputes Redressal Commission
National Insurance Co. Ltd Having Its ... vs M/S Pooja Sanitation, Opp. Man Mandir, ... on 9 January, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No. 738 of 2010 Date of Institution: 21.05.2010 Date of Decision: 09.01.2012 National Insurance Co. Ltd having its Regional office at SCO 337-340, Sector 35-B, Chandigarh through its duly constituted attorney Shri Arun K. Bhardwaj, Dy. Manager. Appellant (OP) Versus M/s Pooja Sanitation, Opp. Man Mandir, Old D.C. Road, Sonepat through its Prop. Shri Kishan Chand Batra son of Shri T.R. Batra, Resident of Gali No.5, New Barham Colony, Sonepat (Haryana). Respondent (Complainant) BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. For the Parties: Shri Paul S. Saini, Advocate for appellant. Shri Rohit Goswami, Advocate for respondent. O R D E R
Justice R.S. Madan, President:
This appeal has been preferred against the order dated 13.04.2010 passed by District Consumer Forum, Sonepat in complaint No.417/2009.
The brief facts of the present case as can be gathered from the record are that the complainant (respondent herein) while running business of trading of sanitary products, had obtained an Insurance Policy from the appellant-opposite party with respect to the shop known as M/s Pooja Sanitation, Opposite man Mandir, Old D.C. Road, Sonepat which was taken by the complainant on rent from Smt. Bhagwan Devi for twelve months w.e.f. 01.01.2008 to 31.12.2009, vide Rent Agreement. Complainant shifted the aforesaid business of M/s Pooja Sanitation in another shop which was taken by him from Dr. Ramesh Mehta situated at opposite Ganpati Dental Hospital Old D.C. Road, Sonepat. During the intervening night of 24/25-10-2008, a theft occurred in complainants shop. According to the complainant, goods worth Rs.1,20,545/-were stolen. F.I.R. No.438 dated 25.10.2008 under Section 457/380 I.P.C. was lodged with the Police Station Civil Lines, Sonepat. Upon an intimation to the opposite party, Shri Surender K. Singla, Surveyor and Loss Assessor of the Insurance Company investigated the matter whereupon it reveled that the complainant had shifted business of M/s Pooja Sanitation from the insured premises to the other shop which was taken by him from Dr. Ramesh Mehta, without any intimation to the Insurance Company. Accordingly, complainants claim was repudiated on account of violation of the terms and conditions of the Insurance Policy. Challenging the repudiation of its claim, complainant filed complaint before the District Forum. Opposite Party resisted complainants claim on the above stated ground.
While disposing of the complaint, District Consumer Forum observed that the theft took place in the shop named M/s Pooja Sanitation Limited, Sonepat and as the material lying in the said shop was insured with the opposite party and the Insurance Policy was effective on the date of theft, therefore, the Insurance Policy was liable to pay the loss suffered by the complaint. With these observation, District Forum issued direction to the opposite party given below:-
We, therefore, accept the complaint of complainant and direct the respondent to make the payment of Rs.1,03,330/- with interest 9% p.a. from the date of filing the present complaint till realization of final payment to the complainant. the respondent is also directed to pay a sum of Rs.5000/- (Rs.Five thousand only) as compensation on account of mental agony, harassment and litigation expenses to the complainant. The order be complied within one month. Accordingly, the present complaint stands disposed of.
Aggrieved against the order of the District Consumer Forum, opposite party has come up in appeal.
We have heard learned counsel for the parties and perused the case file.
On behalf of the appellant-opposite party it is contended that as per report of the surveyor Shri Surender K. Singla, it has been established on the record that the premises where the alleged theft took place, was different than that of the insured premises. Surveyors report Annexure A-1, produced on the record reflects the location of the place where the mishap place, the surrounding of the said place was noticed as under:-
South side: Shop (Agrim Digital Studio) North Side: Residence West Side: Pawan Auto Work Shop East Side: Residence Complainant had submitted the Rent Deed submitted by the insured duly signed by him, vide which the complainant had taken the insured premises on rent from Smt. Bhagwan Devi wife of Shri Om Parkash, the location which given in the surveyors report as under:-
South Side: Street North Side: Shop of Landlord East Side: Residence of Landlord West Side: Road.
In view of the above report submitted by the surveyor, it is crystal clear that that the insured premises was other than that of the premises where theft took place. Thus, it is established on the record that the complainant had shifted its business of M/s Pooja Sanitation, without any intimation to the Insurance Company.
It is well settled law that if the insured does not inform the Insurance Company about the shifting of insured premises and further fails to get necessary correction/entry in the Insurance Policy, then the Insurance Company is not liable to pay any loss suffered by the complainant. Similar controversy was decided by this Commission in First Appeal No.3261/2007 titled as New India Assurance Co. Ltd versus M/s Nirmal Automobiles, LML Agency, Railway Road, Ganaur, decided on 24.05.2011, wherein while relying upon authoritative pronouncements of Honble Supreme Court and Honble National Consumer Commission, the Insurance Company was held not liable to pay any insurable benefits to the claimant. For ready reference the operative part of the judgment is as under:-
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 instant case is fully covered by our earlier decision in New India Assurance Co. Ltd versus M/s Nirmal Automobiles case (Supra).
In view of the above, as the complainant had shifted its business from the insured premises to the other premises and no intimation was given to the Insurance Company and that the complainant failed to get incorporate the name of the shifted premises in the Insurance Policy issued by the Insurance Company by way of necessary entry in this regard, nothing is payable by the appellant-opposite party to the complainant. District Consumer Forum has not appreciated the facts brought out by the appellant-opposite party in repudiating the claim of the respondent-complainant. Hence, the impugned order cannot be allowed to sustain.
Accordingly, this appeal is accepted, 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 09.01.2012 President B.M. Bedi Judicial Member