National Consumer Disputes Redressal
Dr. Nitin Vijay Kimmatkar vs National Insurance Co. Ltd. on 23 February, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2685 OF 2015 (Against the Order dated 15/07/2015 in Appeal No. 2451/2005 of the State Commission Maharastra) 1. DR. NITIN VIJAY KIMMATKAR 274,SHRENDRE COMPLEX,CHAPRU NAGAR CHOWK, CENTRAL AVENUE ROAD, NAGPUR - 440008 MAHARASHTRA ...........Petitioner(s) Versus 1. NATIONAL INSURANCE CO. LTD. DIVISIONAL OFFICE NO.3 SAJJANSINGH BUILDING MOUNT ROAD EXTENSION, SADAR NAGPUR-440001 MAHARASHTRA ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER HON'BLE DR. B.C. GUPTA, MEMBER For the Petitioner : MR. M.R. JOSHI For the Respondent :
Dated : 23 Feb 2016 ORDER JUDGMENT JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL)
The complainant/petitioner purchased one Metrx Endoscopy Unit from USA on 25.07.2003 at a cost of US$ 45,000 and got the same insured with the respondent to the extent of Rs. 20 lakhs by taking a special contingency insurance policy, for the period from 22.07.2004 to 21.07.2005. The said policy covered risk, inter-alia, on account of burglary and during transit. The case of the complainant is that on 16.10.2004, when he was carrying the aforesaid endoscopy unit in his car, the vehicle broke down on the way and after locking the car, he went in search of a mechanic to repair the vehicle. It is further alleged that when the complainant/petitioner returned to the car, he found that the unit had been stolen. The matter was reported to the police and a claim was lodged with the Insurance Company. The claim was repudiated vide letter dated 04.11.2004, which, to the extent it is relevant, reads as under:-
"We wish to inform you that the loss due to Theft/Burglary other the Hospital/Locker is not covered under the policy. Moreover, Theft/Burglary from an unattended vehicle is specifically excluded as per exclusion no. 32 of the above said policy. Therefore, your claim intimation is not entertained and registered with us."
2. Being aggrieved from the repudiation of the claim, the complainant/petitioner approached the concerned District Forum by way of a complaint. The complaint was resisted by the Insurance Company primarily on the same ground on which the claim had been repudiated.
3. The District Forum, vide its order dated 18.11.2005, dismissed the complaint. Being aggrieved, the complainant/petitioner approached the concerned State Commission by way of an appeal. The said appeal also having been dismissed vide impugned order dated 15.07.2015, he is before us by way of this revision petition.
4. Clause 32 of the insurance policy taken by the complainant excluded the liability of the Insurance Company in a case of loss or damage due to theft or burglary from an unattended vehicle. Since, admittedly, the vehicle, in which the unit was being carried by the complainant/petitioner, was unattended at the time the unit was stolen, the only question which arises for our consideration is as to whether clause 32 of the policy was applicable to the insurance taken by the complainant or not. The case of the complainant/petitioner is that the terms and conditions of the insurance policy were never provided to him or brought to his knowledge and therefore, he is not bound by the said terms and conditions. Reliance is placed in this regard upon the decision of the Hon'ble Supreme Court in M/s. Modern Insulators Ltd. vs. Oriental Insurance Co. Ltd., I (2000) CPJ 1 (SC).
5. A concurrent finding of fact against the complaint/petitioner has been returned by both the fora below, which had come to the conclusion that the complainant/petitioner was very much in the know of the terms and conditions of the policy. This Commission, will not be justified in interfering with the aforesaid concurrent finding of facts, in exercise of its revisional jurisdiction, unless the said finding is shown to be perverse in the sense that no reasonable person acting on the material available to the fora below could have recorded the finding which the said fora returned in this case.
6. In response to para '5' of the complaint, the Insurance Company, inter-alia, stated as under:-
"Complainant again approached Divisional Manager Mr. Sonkar of O.P. to seek his guidance to ascertain whether the policy at Exh. 4 above would be adequate to cover above mobile METRX Endoscopy Unit, while it is in transit or taken out of the Hospital during Camp at various centers to treat needy patients there and also no ascertain whether the METRX Endoscopy Unit would be protected against damage to it occurring during transit to and from Hospital and Camp site, Divisional Manager Mr. Sonkar of O.P. advised that has policy at Exh. A would not cover such contingency and suggested complainant to take another insurance policy under Special Contingency Insurance Cover to cover risk in Spinal METRX endoscopy and in accessories against perils of Burglary, Theft, Fire and Allied perils accidental damage and transit.
7. It is thus evident that the policy in question was taken by the complainant/petitioner after due discussion with the officers of the Insurance Company and after understanding the terms and conditions attached thereto including the exclusion clause contained in the said policy. It was after understanding the terms and conditions applicable to the policy in question that the complainant/petitioner decided to cancel the previous policy namely Electronic Equipment Policy, which he had taken from the same insurer and obtained the policy in question. The conduct of the complainant/petitioner in cancelling the previous policy and taking a new policy also corroborates the version given by the opposite party in this regard, in response to the complaint. In the backdrop of the aforesaid material, the finding of fact returned by the fora below cannot be said to be perverse, so as to call for interfere by this Commission in exercise of its revisional jurisdiction.
The revision petition is accordingly dismissed. No order as to costs.
......................J V.K. JAIN PRESIDING MEMBER ...................... DR. B.C. GUPTA MEMBER