State Consumer Disputes Redressal Commission
Amitbhai Jagjivanbhai Patel vs The Oriental Ins. Co. Ltd on 9 October, 2020
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BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION ,
GUJARAT STATE AT AHMEDABAD.
Appeal No.1362 of 2014
Amitabh Jagjivanbhai Patel
Lilapur, Ta.Lakhtar
Dist. Surendranagar ... Appellant
VS.
1. The Oriental Insurance Company Ltd.
Kachwala Building
Jawahar Road,
Surendrangar.
2. Dena Bank
Mahajan Pal, Main Road
Surendranagar.
3. Fortune Investment
New Market, On Praful Sayal Store
Surendranagar. ... Respondents
Shri M. K. Dudhiya, Learned .Advocate. for the appellant
Shri H.L. Parmar learned advocate or the respondents.
Coram : Shri M.J.Mehta, Judicial Member
Order by Shri M. J. Mehta, Judicial Member
1. Being aggrieved and dissatisfied with the judgment and order passed by the learned District Forum, Surendranagar in Complaint No. 72 of 2014 dated 30-8-2014 by which the complaint was dismissed, the appellant/complainant has filed present appeal against the respondent /original opponents The parties will be referred to as per their original nomenclature for the sake convenience.
2. To dispose of this appeal, few relevant facts are required to be mentioned : It is the case of the complainant he is the owner 2 of the land bearing Survey No. 112/1 situated at village Lilapur, Ta. Lakhtar. He had constructed a Green House on the said land by taking loan from the Dena bank. He had taken insurance from the opponent insurance company for a sum of Rs. 3,50,000/-. Said insurance policy was effective from 24-5-2013 to 23-5-2014 wherein the risk was covered for natural calamities, Cyclone, heavy rain. Relying on the Agent of the insurance company, he paid premium of Rs. 4917/-.
3. It is further case of the complainant that he had informed the opponents about the damage caused to the Green House by a letter dated 10-6-2013. The opponent insurance company had not taken any action for his application till 20-9-2013. Therefore, the opponents have committed deficiency in service. Therefore, the complainant was constrained to file aforesaid complaint before the learned District Forum for compensation of Rs. 2,70,000/- with interest at the rate of 18% per annum against the opponents.
4. After hearing the learned advocates for both sides and considering the document and evidence produced on record, the learned District forum was pleased to dismiss the complaint of the complainant.
5. Being aggrieved and dissatisfied with the order of the learned District forum, present appeal is filed by the appellant /original complainant challenging the order of the learned District Forum before the State Commission.
6. Heard the learned advocate Mr. Dudhiya for the appellant and Mr. Parmar for the opponents.
7. Learned advocate Mr. Dudhiya for the complainant has argued that the order of the learned district forum is not just, 3 legal and in consonance with the law. The learned District forum has not appreciated and considered the documents and evidence adduced on record. The learned District Forum has not rightly dismissed the complainant. So, the order is required to be quashed and set aside.
8. It is further argued that the learned District Forum has erred in holding that STFI coverage is not included in the said policy. It is further argued by Mr. Dudhiya that the learned District Forum has grossly erred in observing that the complainant has not produced any documentary evidence to prove his ownership of the said land. It is further argued that the learned District Forum has erred in observing that the complainant has not paid the premium for the STFI coverage. The learned District Forum ought to have considered the fact that in the policy schedule the basic cover is shown as Rs. 35,00,000/- and STFI cover is shown as Rs. 35,00,000/- and the learned District Forum has wrongly observed that the policy does not cover STFI coverage.
9. In support of his argument, learned advocate Mr. Dudhiya has cited (i) I (2004 ) CPJ 22 (SC ) in the case of United India Insurance Company Limited vs. M/s. Pushpalaya Printers (ii) III (2018 ) CPJ 59 (NC( in the VA Tec Wabag Limited vs. Cholamandalam General Insurance Company Limited (iii) III (2010 ) CPJ 361 (NC) in the case R.V. Fatima Mohammed VS. The New India Assurance Company Limited. (iv ) II (2018 ) CPJ 490 (NC) in the Shah Desai & Co. vs, National Insurance company Limited (vi) .
10. Learned advocate Mr. Parmar has argued that the order of the learned District forum is just, legal and is in consonance of the law. The learned District forum has considered and appreciated all the documentary evidence on record. The learned 4 District forum has rightly dismissed the complaint. The learned District forum has not committed any error in dismissing the complaint. L.A. Mr. Marmar has further argued that the appellant has not produced any proof to prove his claim. The appellant has also not produced any evidence to prove that Green House is constructed on the said land. The STFI cover is not included in the terms and conditions of the said policy. The appellant has not paid premium. It is further argued my learned advocate Mr. Parmar that the complainant had not stated anything about the damage caused to the Green House in his complaint. It is for the first time on 28-8-2014 the complainant had mentioned all these facts in his affidavit. It is further argued by Mr. Marmar that the complainant has not produced any evidence that on the day time, there was heavy rain with cyclone wherein his Green House was damaged as alleged. It is further argued that no statements or affidavits of neighboring farmers are produced on record about the damage to his Green House. It is further argued that in the Schedule of Premium at sr. No.1 it is clearly mentioned that STFI perils are excluded from the scope of cover and relying on this, the opponent insurance company has repudiated the claim of the complainant. Hence, the order of the learned forum is just, legal and in accordance with law and facts. Hence, it is required no interference by the State Commission. Hence, the Appeal be dismissed in limine.
11. Learned advocate Mr. Parmar has cited ( I ) I (2018 ) CPJ 502 (NC) in the case Laxmipati Balaji Sugar & Distilleries (P) Ltd. vs. United India Insurance Company Limited (ii) III (2012 ) CPJ 542 (NC) in the case Navjivan Roller Flour and Pulse Mills Ltd. vs. National Insurance Company Limited.
512. We have gone through the record and documents produced on record and the impugned order of the learned District Forum. We have gone through and appreciated the authorities cited by both sides. On going through the papers on record, it transpired that the complainant had constructed Green House on his land for agriculture purpose. For that purpose, he had taken loan from the opponent Dena Bank. He had also taken insurance policy to cover the risk by natural calamities, heavy rain, flood, cyclone, hurricane. The insured amount of Rs. 3,50,000/-. Said Policy was effective from 24-5-2013 to 23-5-2014. Required premium was also paid by the complainant to the opponent insurance company. It also transpired from the record that his Green House was damaged due to heavy rain and cyclone. He had also informed the opponent insurance company about the damage to his Green House by a letter dated 10-6-2013. The opponent insurance company had not taken any action to appoint surveyor to assess the damage nor to settle the claim.
13. After scrutinizing the documents on records, we come to the conclusion that the complainant had constructed Green House on his land with the help of loan from the opponent Dena Bank. To protect his Green House from heavy rain, cyclone, hurricane and natural calamities, he had taken insurance policy from the opponent insurance company. On the date and time, his Green House was damaged due to heavy rain and cyclone. He had immediately informed the opponent insurance company by a letter dated 10-6-2013 about the damage to his Green House. The opponent insurance company had neither taken any step to appoint a Surveyor nor settle the claim till 20-9-2013. The opponent insurance company remained silent till three months. During this period, the opponent insurance company had not demanded any evidence from the complainant with regard to his claim.
614. Considering surrounding circumstances on record, one thing is clear that at the initial stage, the insurance company has denied the coverage of STFI under this policy. But, actually on going through the policy itself, premium is recovered for the risk of STFI. On that point, learned advocate Mr Parmar has submitted before the State Commission that it is a good faith mistake. According to my view, such good faith mistake cannot be looked into. Moreover, he had drawn attention of the State Commission to Peril scheme which is not acceptable in evidence because once the premium is recovered and the policy is issued then there is no question to scrutinize all the disputes regarding Peril plan and it cannot be looked into for the purpose of exclusion of STFI risk and thereby it cannot impress the State Commission to reject the claim.
15. Further, as per the submission of Mr. Parmar, no evidence regarding the damage to the Green House are brought on record nor the claim is established on record. For that, L, A, Mr. Dudhiya has answered that when the insurance company has closed the door with a view that particular risk is not covered. Thereby, there is no chance to produce any kind of evidence before the Insurance company. Considering this aspects, I am of the opinion that when the insurance company has closed the door saying that there is no coverage of particular risk, then the insurance company cannot expect any evidence because of in- action of the insurance company, there was no chance to produce any kind of documentary evidence regarding evidence. Thereby, principle of estoppel come into way. Hence, I am of the opinion that whichever evidence is produced on record is only because of the insurance company. Now, the insurance company cannot claim and argue on the point of non production of the documents and evidence on record by the complainant. Thereby, I am satisfied that deficiency in service and unfair trade practice is 7 adopted by the opponent insurance company because though there was coverage of STFI, it is denied from the initial stage. It cannot be ignored as it is good-faith mistake because of written agreement is there, one cannot come out from liability from the agreement,. Unless and until anything adversely established on record.
16. Now, on the point of quantum of compensation, when there is no specific contents regarding damages, it should be presumed that there was damage and thereby the complainant has intimated the insurance company on 14.3.2013. However, the insurance company did not move to appoint primary Surveyor to assess the damage whether the incident has taken place or damage is caused or not. Only on 19-6-2013 at page 23, the insurance company has repudiated the claim on the ground that STFI risk is not covered. According to my view, the insurance company might have, pending the dispute of coverage, collect the document and evidence and photographs for the damages as claimed by the complainant. Looking to page 24, the insurance company on 20-9-2013 closed the claim " no claim ". This matter is very much important to counter arguments. Once the insurance company closed the claim as " no claim ", it is not tenable in the eye of law because as discussed above earlier, keeping pending the dispute regarding coverage, it is the primary duty to invite required documents from the complainant and it should be adjudicated by giving detail reason on merits.
17. In view of all this situation, I am of the opinion that deficiency in service and unfair trade practice is adopted by the opponent insurance company and for that lump sum amount of compensation needs to be awarded to the complainant.
818. In view of the aforesaid discussion, following order is passed.
ORDER
i) Appeal No. 1362 of 2014 is partly allowed.
ii) The order dated 30-8-2014 passed by the learned District
Forum, Surendranagar in complaint No. 72 of 2014 is quashed and set aside.
iii) The opponent insurance company is ordered and directed to pay Rs. 50,000/- ( Rupees Fifty Thousand only )with interest at the rate of 7% p.a. from the date of filing of the complaint till its realization.
iv) The opponent insurance company is ordered and directed to pay Rs. 3000/- towards the cost of this litigation and Rs. 2000/- towards harassment and mental agony.
v) The opponents nos. 2 and 3 are hereby exonerated from its liability.
vi) The amount of the Award should be paid to the complainant within 60 days from the date of this order.
vii) Copy of the judgment be provided to the parties free of charge.
Pronounced in the open court today on 9th October, 2020.
( M.J.Mehta ) Judicial Member .
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