State Consumer Disputes Redressal Commission
The New India Assurance Co. Ltd. vs 1. Jagdish P. Ramkunvar on 6 September, 2013
1 F.A. No. 208-07
STATE CONSUMER DISPUTE REDRESSAL COMMISSION,
MUMBAI, CIRCUIT BENCH AT AURANGABAD.
Date of filing: 13.03.2007
Date of Order:
06.09.2013
FIRST APPEAL NO.208 OF 2007
IN COMPLAINT CASE NO. 123 OF 2006
DISTRICT CONSUMER FORUM: PARBHANI.
The New India Assurance Co. Ltd.
Branch Parbhani
Through the Manager, Branch
Yeshodeep' Station Road, Parbhani. ... Appellant
VERSUS
1. Jagdish P. Ramkunvar
R/o. Main Road,
Near Lahoti Estate, Manvat,
Dist. Parbhani.
2. State Bank of Hyderabad
Through the Branch Manager,
Located at Main Road,
Manvat, Dist. Parbhani. ... Respondents
Coram : Shri. S.M. Shembole, Hon`ble Presiding Judicial Member.
Mrs. Uma S.Bora, Hon`ble Member.
Shri. K. B. Gawali, Hon'ble Member.
Present: None for appellant. None for respondents.
- :: JUDGMENT :: -
(Delivered on 6th September, 2013) Per Mrs. Uma S. Bora, Hon`ble Member
1. The New India Assurance Co. ltd. through Branch Manager, Parbhani preferred this appeal against the judgment and order passed by District Consumer Forum, Parbhani on 30.11.2006 in consumer complaint No.123/2006.
2. Facts in nutshell are as under:
Complainant Jagdish Ramkunvar Mantri R/o. Manvat, Dist. Parbhani is businessman and running Dalmill. For the purpose of his business he had obtained loan from the State Bank of Hyderabad and for the said loan purpose he hypothecated stock of Dalmill with the bank. Since 1998 he had insured his stock with appellant insurance company. He had obtained policy No.160902/11/04/01445 on 31.03.2005 and insured the stock to the tune 2 of Rs.6,60,000/-. On 14.07.2005 there was rain in the city of Manwat, due to which stock of pulses stored in the godown was washed out and thereby caused loss near about Rs.9 to 10 Lakhs. But as the sum insured was Rs.6,60,000/- complainant claimed less amount. It is further submitted by complainant that he approached to Tahsil office Manwat and informed about the loss. Accordingly the panchnama conducted by Revenue authorities. He also approached to police authorities on 28.07.2005 and informed the said incident to bank also. After receiving the intimation about the incident insurance company appointed surveyor Shri. Robert Rodrigue to assess the loss. Accordingly said surveyor visited the spot on 29.07.2005. Surveyor demanded all the required documents from the complainant.
Complainant submitted all the required documents, but after perusal of said documents surveyor informed the complainant that there were no damages to the electric motor, switches, starter etc. It is further informed by the surveyor that your policy is in respect of Graphite electrode Manufacturing and according to said policy electrical motors, starters, switches and accessories are insured. Therefore your claim is not maintainable. Insurance company also informed to the complainant that the policy is not in respect of stock of pulse but is for electric motors etc. Therefore complainant approached to Forum and demanded Rs.8,60,000/- from the insurance company and State Bank of Hyderabad jointly and severally.
3. Appellant/respondent insurance company appeared before Forum and denied the claim on the ground that in fact the policy was obtained for Graphite electrode Manufacturing and accordingly electric motors, starters, switches were insured. Policy was not obtained in respect of stock of Dalmill. Therefore complainant is not entitled to claim any insurance amount. It is further submitted that claim of the complainant was rightly repudiated by the insurance company.
4. Respondent No.2 State Bank of Hyderabad appeared before Forum and submitted that complainant had obtained loan for running his business and insurance premium was paid by the bank within stipulated period. But bank is not having knowledge about the insurance policy that for which purpose complainant obtained insurance. There is no deficiency in service on the part of bank and there is no concern of the bank with the loss caused to the complainant. Therefore complaint against them be dismissed.
5. After hearing both the parties District Forum directed insurance company to assess the loss caused to the stock in the Dalmill by appointing surveyor within a month. It is further directed by Forum that surveyor to discuss with the management of bank about the 3 F.A. No. 208-07 loss caused to the complainant and accordingly amount of assessed loss be paid to complainant with 6% interest from 14.07.2005 till realization of amount.
6. Dissatisfied with the said judgment and order insurance company came in appeal. Adv. Shri. V. N. Upadhye appeared for appellant. None appeared for Respondent No.1/original complainant. Adv. Shri. Ruturaj Patil appeared for Respondent No.2/Bank. It is submitted by Adv. Himanshu Patankar holding for Adv. Upadhye that on receipt of the claim insurance company appointed the surveyor Shri. Robert Rodrigue to conduct the survey and report accordingly. In the report submitted by surveyor it is mentioned that stock of the pulses stored in the Dalmill is not covered under the policy and as per the policy issued in favour of complainant only electric motors, starters, switches and accessories are insured and therefore complainant is not entitled to claim any amount. It is further submitted by Adv. Patankar that, after receipt of said report insurance company rightly repudiated the claim on the ground that policy in respect of stock is never issued to the complainant. He further submitted that District Forum committed error in directing insurance company to appoint the surveyor and to assess the loss. Hence appeal be allowed.
In support of his contention he relied on- Oriental Insurance Co. Ltd. Vs. Bacchu Devnath -1997 STPL (CL) 350 NC. It is held by National Commission in the presence of the surveyor's report, the State Commission could not resort to other methods of assessing the compensation. State Commission acted in exercise of its power illegally and with material irregularity. Complainant entitled for compensation on the basis of the report of the surveyor."
7. Adv. Ruturaj Patil submitted that complainant had obtained loan from the Resp.No.2 bank by hypothecating the material and stock of the Dalmill with the bank. Accordingly complainant insured the stock stored in the Dalmill. But it seems that insurance company by mistake covered the electric motors, switches, starters etc. under the head 'Graphite electrode Manufacturing' which is not proper and correct. It is further submitted that code number of 096 wrongly mentioned instead of code number of Dalmill i.e. 097. This is unfair on the part of insurance company. It is submitted by Adv. Ruturaj Patil that insurance company was asked to produce proposal form preferred by complainant with the insurance company while obtaining insurance policy but said proposal form was not produced by the insurance company before the Forum. Therefore Forum has rightly directed insurance company to appoint the surveyor to assess the loss.
48. We heard both counsel and perused the record. It is an admitted fact that complainant had availed the loan from the State Bank of Hyderabad and also availed the cash credit facility through bank. Therefore bank obtained the insurance policy in respect of stock stored in the insured premises. It is an admitted fact that on 26.07.2005 there was heavy rains in the Manwat city and due to which stock stored in the premises of Dalmill was damaged. Therefore complainant preferred the claim with insurance company under the impression that his stock of pulses, stored in Dalmill was insured with the insurance company, on the visit of surveyor, surveyor informed the complainant that in fact the policy obtained by the bank is in respect of code No. 096 which is in respect of Graphite electrode Manufacturing, according to which electric motors, switches and starters were insured. Therefore claim in respect of damages and stock of pulses is not maintainable. After getting the said news complainant shocked and immediately informed the said fact by letter dated 13.08.2005 to the bank and asked the bank to correct the policy. It seems that thereafter in the policy it was written that "198 Dalmill", said hand writing mentioning of "198 Dalmill"
never denied or disputed by the appellant insurance company. On perusal of list of description of risk it is found that at 096 there is mentioned of Graphite electrode Manufacturing and 097 is a code about risk of Dalmill. In our view, due to human error and mistake perhaps while issuing policy 'Graphite electrode Manufacturing' might have mentioned instead of "097 Dalmill" as both the entries are serially at 096 and 097. This can be considered as human error, but without correcting the same insurance company tried to repudiate the claim without any explanation. After receipt of letter by the complainant State Bank of Hyderabad immediately wrote a letter to Branch Manager, New India Assurance Co. Ltd. Parbhani and informed the said fact to them. Even then insurance company failed to correct the policy. We are relying on- General Assurance Society Ltd. Vs. Chand Mull Jain, AIR 1966 SC . It is held by Apex Court that "in case of ambiguity or doubt insurance contract is to be construed contra proferentem i.e. against insurance company."
9. In the present case it is seen that due to human error policy was wrongly issued. It is but natural that the person owning Dalmill instad of obtaining insurance for his stock will obtain the insurance policy for Graphite Electrode Manufacturing which has no concern with Dalmill. Insurance company was directed to produce the proposal form which was filed by the complainant through bank while obtaining the insurance policy. But insurance company avoided to produce the same before the Forum and even before this Commission. In these circumstances adverse inference can be drawn against insurance company. The 5 F.A. No. 208-07 perusal of proposal form would have definitely help to decide for which purpose complainant availed the insurance policy. In our view District Forum rightly considered the facts and evidence and rightly appreciated evidence brought before it while allowing the complaint. The appellant is directed to assess the loss immediately within a month by relying on the documentary record of the Bank as well as complaint of the relevant time. Respondent No.2 Bank is to extent their assistance and help for the same purpose. After assessment within a month after receipt of this order insurance company is to grant the claim of insurance to the complaint. We do not want to interfere the reasoning recorded by the District Forum. Hence, the following order.
-:: ORDER ::-
1. The appeal is dismissed.
2. Appellant to pay Rs.5000/- as a cost of this appeal to the respondent.
(K. B. Gawali) (Mrs. Uma S. Bora) (S.M. Shembole)
Member Member Presiding Judicial Member
Kalyankar
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