State Consumer Disputes Redressal Commission
M/S. Shri Sainath Industry Pvt.Ltd. vs National Insurance Co.Ltd. Through ... on 27 February, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.CC/2016/56
Instituted on : 05.10.2016
M/s Shri Sainath Industry (Pvt.) Ltd.,
Behind Samrat Talkies, Station Road,
Raipur (C.G.), Through Their Director
Shri Rohit Agrawal, aged about 52 years
S/o Shri R.D. Agrawal. ... Complainant.
Vs.
National Insurance Company Limited,
Through : Divisional Manager, Divisional Office ,
2nd Floor, Mobin Mahal,
Opposite Shahid Smarak Bhawan, G.E. Road,
Raipur (C.G.). ..... Opposite Party
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES:
Shri Sudipto Gupta, Advocate for the complainant.
Shri P.K. Paul, Advocate for the opposite party.
ORDER
Dated : 27/02/2017 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 O.P. seeking following reliefs :-
(a) The present complaint be allowed and the O.P. be directed to pay Rs.56,66,690/-(Rs. Fifty Six Lakhs Sixty Six Thousand Six Hundred Ninety) to the complainant along with interest @ 12% p.a. from the date of loss.
// 2 //
(b) The O.P. be also directed to pay Rs.50,000/- (Rs. Fifty thousand) towards mental pain and agony.
(c) The O.P. be also directed to compensate the complainant for the financial losses it has incurred to the tune of Rs.1,00,000/- (Rupees One Lac).
(d) Any other relief which the Hon'ble Commission deems fit in the facts and circumstances of the case.
2. Briefly stated the facts of the complaint of the complainant are that the complainant is a Private Limited Company registered under the Companies Act, 1956. Rohit Agrawal as Director of the complainant Company, being fully acquainted with the facts and circumstances leading to the present complaint, is fully authorized file the complaint on behalf of the complainant company vide Board Resolution dated 01.09.2016. The complainant is rated by the Government of India as Two Star Export House engaged in export of Iron ore fines, Millscale, Rice and other commodities. The complainant had taken a Standard Fire & Special Perils Policy No.285100/11/14/3100000486 for the period from 10.10.2014 to 09.11.2014 covering 5200 bags of Non Basmati Parboiled Rice situated at CFS Shravan, Vishakapatnam, for a sum insured of Rs.50 lacs. On 12.10.2014 cyclone Hud-Hud struck the Vishakapatnam Coast and caused large scale devastation. The above cyclone completely blew up // 3 // the CFS shed where the cargo of the complainant was kept and water started logging inside the CFS. The ensuing incessant rain completely drenched and damaged the cargo thus rendering it completely unusable, unmerchantable and unfit for human consumption. Due to the cyclonic effect communication was totally disrupted. Only after the communication was restored news of the damage to the cargo reached the complainant. Immediately an intimation was served on the O.P. on 14.10.2012. In pursuance thereof one Mr. Venkatraman of M/s Rank Surveyor was appointed to carry out an on the spot inspection, observation and assessment of loss on account of aforesaid damage to the cargo. The Surveyor visited the affected site on 17th, 18th & 19th October, 2014. All the necessary documents that were sought by the Surveyor were submitted to the above Surveyor without any delay. Subsequently, Mr. R.C. Banga on behalf of the O.P. investigated the loss and damages and various prospects for waiving the close proximity aspects of the captioned claim. Full cooperation was extended to the Investigator by the complainant and all the required documents were promptly tendered to the above Investigator. No adverse or negative remarks were ever communicated to the complainant by the above two professionals and experts. The above cyclone has far reaching consequences so far as the complainant' representative is concerned. As a result of the above loss to the cargo the routine business of the complainant was disturbed and the // 4 // complainant is hard pressed due to severe financial crunch experienced as a result thereof. In his relentless pursuit in expediting the claim settlement the complainant left no stone unturned. But the conduct of the O.P. was rather evasive. The consideration of the close proximity aspect was kept pending without any substance for a considerable period of time by the O.P. The vigour of the complainant was diluted every time is approached the O.P. for Redressal of its grievance. Ultimately perturbed by the indifferent attitude of the O.P., the complainant sought the Survey Report and all related documents under RTI Act on 08.05.2015 But as the information and the documents were not made available to the complainant, the complainant left with no other options preferred an appeal under the RTI Act, thereby seeking the above mentioned documents, but the documents were never given to the complainant, which clearly reveals unfair trade practices adopted by the O.P. In spite of all odds against the complainant, the complainant waited in futile for a favourable response from the O.P. and was finally shocked to receive the letter dated 27.07.2016 whereby the Insurance Company repudiated the just and valid claim of the complainant by referred to General Conditions No.1 which states that "this policy shall be voidable in the event of any misrepresentation, mis-description or non-disclosure of any material particular. The claim repudiation was based on the ground that the policy was taken intentionally to cover the risk from the impending // 5 // Hud-Hud cyclone. The apprehensions of the complainant regarding found play by the O.P. turned into reality. It is pertinent to note here that 14 months back before the above repudiation letter was issued, the complainant issued a letter dated 14.05.2015 whereby the complainant inter alia requested the CMD of the O.P. who happens to be at the helm of affairs, for expediting the claim settlement and the compelling factors that prompted the complainant to take the SFSP policy. The complainant had only approached the O.P. with a genuine and bonafide need of the policy to insured its stock. The sole object of any policy is to insure the subject matter against any sudden perils, as is envisaged under the SFSP policy. The prime motive of the insured under any policy or specifically the SFSP policy is to secure its subject insurance from any possible hazards whether accidental or natural. While prospecting the policy the complainant had never anticipated nor contemplated a natural disaster of such a magnitude. Obviously, the O.P. was not aware of the above cyclone too, hence there was no reason to believe as to how the complainant could be aware of the same. The above clearly substantiates the bonafides of the complainant and establishes the fact that the complainant had no idea whatsoever about the Hud Hud cyclone at the time of inception of the policy. The point no.3 of the repudiation letter is indeed ridiculous, which says that the complainant have failed to disclose the material fact, which was known to them and thus tantamount to breach of policy conditions, // 6 // whereas point no.2 of the same letter expressly states that "the Hud Hud alert was announced by media & government." If at all, the news regarding the Hud Hud was propagated, as alleged it was readily accessible to the public at large including the O.P. It is very hard to belief and digest that the said "Material Fact' could have been known only to the complainant and not to the O.P. Hence Point No.3 of the letter of repudiation is baseless. The O.P. is now exploring ways and means to avoid the claim under pretext of close proximity which by all counts amounts to deficiency in service committed by the O.P. Hence the complainant filed complaint before this Commission.
3. The O.P. filed its written statement and averred that a Standard Fire and Special Perils Policy bearing registration No.285100/11/14/3100000486 was issued for the period from 10.10.2014 to 09.11.2014 covering 5200 bags of Non-Basmati Parboiled Rice in shed situated at CFS Shravan Vishakhapatnam for a sum insured of Rs.50 lacs subject to terms and conditions being adhered to, which form and integral and inherent part of the captioned policy and binding on the contracting parties. On 12.10.2014 cyclone Hud Hud struck the Vishakhapatnam cost. The above cyclone did not completely blew up the CFS shed where the cargo of the complainant was kept and water did not start logging inside the CFS. The ensuing incessant rain did not completely drench and damage the cargo thus rendering it completely unusable, unmerchantable and unfit for human // 7 // consumption. The intimation was served after two day from the date of accident whereas immediate intimation was required to be served as per the policy terms and conditions. M/s Rank Surveyors Pvt. Ltd. an IRDA licensed Chartered Engineers, Insurance Surveyors & Approved Valuers from Adyar Chennai was appointed for carrying out on the spot inspection, analysis and assessment of the loss to the subject insured. Mr. D. Venkatraman carried out the on the spot inspection of the affected site and alleged damage to the cargo, behalf of M/s Rank Surveyors Pvt. Ltd. The supposed cause of damage to the subject insurance as inferred by the above Surveyor was due to "Hudhud Cyclonic Storm followed by heavy rain / inundation", which is an insured peril under the policy. The unloading charges of Rs.23,850/- was not considered in the absence of any authentic documents pertaining thereto. The salvage value of the damaged rice was fixed at 5.10 per kg. After deducting the salvage from the insured's claim the net assessed loss is arrived , under insurance @ 6.74% is deducted from the above net assessed loss and adjusted loss is derived wherefrom Policy Excess @ 5% is deducted and the Net Computed loss of Rs.37,24,581/- is arrived. The Survey Report dated 01.12.2014 is issued without prejudice and is subject to the other terms and conditions of the policy. The necessary documents sought by the Surveyor were provided by the complainant belatedly. The finalization of the survey report was kept pending for non-submission of required documents by // 8 // the complainant. Mr. Ramesh Chander Banga (an ex warrant officer) who is by profession a Mechanical & Aero Engineer and a licensed Investigator carried out meticulous and careful examination, in this pursuit, to explore the close proximity case of the subject policy. Full cooperation was not extended by the complainant to the Investigator. As the losses occurred within 5 days of inception of the policy the above losses were classified as being under the "Close Proximity Aspect" and as per the guidelines and procedure for settlement of claims it was incumbent upon the insurer to have obtained the close proximity waiver from the competent authority. In this respect complete set of papers along with other relevant information sought by the competent authority were forwarded by the insurer promptly. Mr. R.C. Banga, Investigator, was requested by the insurer O.P. to submit a comprehensive investigation report supported with documentary evidence. Vide letter dated 05.12.2014, Mr. R.C. Banga responded with his report which was duly received by the O.P. on 21.01.2015. The complainant was duly apprised that the close proximity was under
consideration and was subject to approval by the competent authority. The O.P. is unaware of any application being moved under RTI Act by the complainant as also any appeal arising therefrom . Insurance contracts are based on the underlying principle of "Utmost Good Faith". While prospecting an insurance policy, the insured in under an obligation to furnish and bring out correct and material facts // 9 // pertaining to the subject matter of the policy which may or may not be sought by the insurer. The insured is required to state all the above material particulars in policy proposal form which could otherwise have a bearing on the policy contract so that the same can be incorporated in the policy schedule forming part of the insurance agreement. No such verbal or written intimation which could have affected the contemplated covers were ever divulged by the insured and the insurer was totally kept in dark regarding the above risks associated with the impending "Hud-Hud cyclone". Thus the insured have breached the principle of utmost good faith. The above violation clearly and squarely falls within the four corners of General Condition No.1 which states that "This policy shall be voidable in the event of any misrepresentation, misdescription or non-disclosure of any material particulars. The underwriter's liability shall be reduced, in the event of any other existing policies in force on that day, in case of any liability arising from an insured peril and shall be limited to the amount arrived at after deducting the liabilities paid under those existing policies and shall not in any case exceed the sum insured under the questioned policy, here he SFSP policy. The complainant have miserably failed to disclose the compelling reasons which prompted them to take the Short Term SFSP Policy particularly more so when the subject matter of the above insurance policy could have easily been covered under Marine Cargo Open Policy which was also in force at // 10 // the relevant time whereby the risks of inland transit, transit storage for 30-45 days before shipment and shipments of the cargo were comprehensively covered. The series of acts by the complainant and the incidental thereto in prospecting the above SFSP policy shall lead anyone to believe that the complainant had preconceived notions before taking the captioned policy, otherwise it would have been expressly mentioned in the policy proposal form. The O.P. was not aware of any impending Hud Hud Cyclone. The short period of the policy clearly indicates that the complainant was well aware of the risks in the advance and the endeavors and designs of the complainant were to cover up for risks that were not covered under the other on going policies. The insured complainant have tried to befool the O.P. and have not come with clean hand. The complainant had not sent 12 consignments totalling 4770 bags at a total cost of Rs.56,66,690/- of happy brand rice which were offloaded at the CFS of M/s Shravan Shipping Services P. Ltd. The complainant have not produced MTR'S pertaining to the above consignments. No cause of action accrued against the O.P. The complaint be dismissed.
4. The complainant has filed documents. Annexure C-1 is Board resolution dated 01.09.2016, C-2 is insurance policy, C-3 is intimation letter dated 14.10.2014, C-4 is Letter to Surveyor dated 17.10.2014, C-5 is Request Letter to National Insurance Co. dated 08.01.2015, C-6 is reply to above letter dated 09.01.2015, C-7 is request letter to CMD dated // 11 // 14.05.2015, C-8 is continuation letter to CMD dated 03.06.2015, C-9 is reply to RTI application dated 08.06.2015, C-10 is letter to Deputy Manager CRMD dated 13.06.2015, C-11 is reference letter to reply dated 08.06.2015, C-12 is First Appeal u/s 18 RTI Act dated 07.07.2015, C-13 are details of documents provided to insurer and email correspondence, C-14 is details of stock offloaded at CFS Shravan, C-15 claim form, C-16 No claim letter dated 27.07.2016. The complainant has also filed bills, transit pass of vehicles weighment slip etc. of various dates.
5. The O.P. has also filed documents which are Standard Fire and Special Perils Policy Vide Noo.285100/11/14/3100000486 with policy terms and conditions, Surveyor Report of Rank Surveyors Pvt. Ltd.
vide report No.RSCN/NIC/fire/Final/H43/J/14-15 with annexure, Report of Shri R.C. Banga, Investigator, No claim letter of National Insurance Company.
6. Shri Sudipto Gupta, learned counsel appearing for the complainant has argued that complainant is a Private Limited Company registered under the Companies Act, 1956. Rohit Agrawal is Director of the complainant Company and he is authorized to file complaint on behalf of the company. The complainant had taken a Standard Fire & Special Perils Policy No.285100/11/14/3100000486 for the period from 10.10.2014 to 09.11.2014 covering 5200 bags of Non Basmati Parboiled Rice situated at CFS Shravan, Vishakapatnam, for a // 12 // sum insured of Rs.50 lacs. On 12.10.2014, cyclone Hud-Hud struck the Vishakapatnam Coast and caused large scale devastation. Due to Hud- Hud Cyclone, the CFS shed where the cargo of the complainant was kept was damaged and water started logging inside the CFS . The cargo was completely damaged and was unfit for human consumption. Due to cyclonic effect, communication was totally disrupted. When communication was restored, the complainant intimated the O.P. regarding the incident. The O.P. appointed Mr. Venkatraman of M/s Rank Surveyors Pvt. Ltd. to carry out spot inspection and assessment of loss. The Surveyor visited the affected site on 17th, 18th and 19th October, 2014. All necessary documents were provided to the Surveyor. Subsequently Mr. R.C. Banga, was appointed as Investigator for conducting investigation. The complainant also provided all necessary documents to the O.P. even then the O.P. did not settle the claim of the complainant and thus committed deficiency in service. The O.P. did not provide the report of the Surveyor to the complainant and the O.P. repudiated the claim of the complainant on the ground of close proximity, mis-representation, mis-description or non disclosure of material particular. The ground taken by the O.P. for repudiation of the claim of the complainant is baseless and frivolous. He further argued that if the complainant knows about the Hud-Hud cyclone, then the O.P. being one of the biggest Insurance Company could have also known regarding the // 13 // Hud-Hud Cyclone. The information regarding Hud-Hud Cyclone was broadcasted through T.V. and newspapers. The Government of Andhra Pradesh also alert the people. The complainant company is situated at Raipur and its directors are residing at Raipur. The Office of the O.P. (Insurance Company) is also situated at Raipur as well as Vishakapatnam (A.P.), therefore, the O.P. (Insurance Company) has more opportunity to know about Hud-Hud Cyclone, therefore, it is very hard to believe and digest that the complainant could only know regarding the said cyclone and the O.P. could not know regarding the same. Therefore, the ground taken by the O.P. for repudiation of the claim of the complainant is baseless and frivolous. He further argued that if a term or clause of policy is capable of two possible interpretations then one which is beneficial to the insured should be accepted. In the instant case, the complainant did not violate terms and conditions of the insurance policy, therefore, the repudiation of the claim of the complainant by the O.P. is not justified. The act of the O.P. comes within purview of deficiency in service and unfair trade practice. The O.P. committed deficiency in service, therefore, the complainant is entitled to get compensation, as prayed in the relief clause of the complaint. He placed reliance on New India Assurance Co. Ltd. Vs. Aqua World, 2016 NCJ 893 (NC); National Insurance Company Limited Vs. M/s. Biswanath Traders, 2012 NCJ 221 (NC); Prabodh J. Kothari Vs. The Oriental Insurance Company Limited2013 NCJ 220 (NC).
// 14 //
7. Shri P.K. Paul, learned counsel appearing for the O.P. has argued that the case of the complainant comes within close proximity. The complainant knows about Hud-Hud Cyclone in Vishakapatnam and all over India through television, radio and newspaper. The forecast was broadcasted and it was also published in the newspaper. Even then, knowing regarding Hud-Hud Chyclone, the complainant by mis-representation, misd-description and suppression of facts regarding Hud Hud Cyclone obtained insurance policy for getting benefits under the policy, therefore, the O.P. has repudiated the claim of the complainant, because the it comes within close proximity case. The O.P. did not committed any deficiency in service. The Surveyor, who was appointed by the O.P. is duly licensed by IRDA and he inspected the place of occurrence and assessed the loss to the tune of Rs.37,24,281/-. The Investigator has specifically given his report that Policy was taken on 10.10.2014 just two days before the Hud-Hud Cyclone occurred therefore matter was comes within close proximity. Proper care should have been taken by the Insurance Company while issuing insurance policy. The claim of the complainant was rightly repudiated by the O.P. The complainant is not entitled to get any compensation from the O.P. The complaint is liable to be dismissed.
8. We have heard learned counsel appearing for both the parties and have also perused the documents filed by the parties in the complaint case.
// 15 //
9. The complainant has filed copy of Board Resolution Dated 01.09.2016 passed by the complainant company, which is marked as Annexure C-1 in which it is mentioned that the directors ofM/s Sri Sainath Industry Pvt. Ltd. have authorized Rohit Agrawal to file the case before this Commission, therefore, Rohit Agrawal has signed the complaint and he is competent to file the instant complaint.
10. The complainant has filed copy of Standard Fire and Special Perils Policy, which is marked as Annexure C-2 and the O.P. has also filed copy of the insurance policy. According to the Standard Fire and Special Perils Policy, the sum assured is Rs.50,00,000/- and premium of Rs.25,000/- was paid by the complainant to the O.P. The Standard Fire and Special Perils Policy was issued by the O.P. for the period from 10.10.2014 to 09.11.2014.
11. According to the complainant, the incident of Hud-Hud Cyclone took place on 12.10.2014 i.e. after three days of the obtaining Standard Fire and Special Perils Policy.
12. Now we shall consider whether due to Close Proximity, the O.P. has rightly repudiated the claim of the complainant ?
13. In M/s. BHS Industries Vs. Export Credit Guarantee Corp. & Anr. III (2015) CPJ 1 (SC) = (2017) (1) CPR 18 (SC), Hon'ble Supreme Court, has observed that :-
// 16 // "9. At the outset, it may be stated that contracts of insurance are contracts of uberimma fides and every material fact is required to be disclosed. In United India Insurance Co. Ltd. v.
M.K.J. Corpn., (1996) 6 SCC 428 a two Judge Bench has observed :-
"It is fundamental principle of Insurance law that utmost good faith must be observed by the contracting parties. Good faith forbids either party from concealing (non-disclosure) what he privately know, to draw the other into a bargain, from his ignorance of that fact and his believing the contrary. Just as the insured has a duty to disclose, 'similarly, it is the duty of the insurers and their agents to disclose all material facts within their knowledge, since obligation of good faith applies to them equally with the assured."
Regard being had to these principles, the authorities cited by Mr. Gupta, learned senior counsel for the appellant are to be seen.
10. In Amalgamated Electricity Co. v. Ajmer Municipality, (1969) 2 SCR 430 = AIR 1969 SC 227 though in a different context, it has been held that :-
"In construing the true nature of the contract entered into between the parties, the contract has to be read as a whole and if so read it is clear that what the plaintiff undertook was to pump water from the wells in question and not to supply any electrical energy. Hence, we are in agreement with the learned Judges of the High Court that the plaintiff's case in this regard should fail."
11. In Bay Berry Apartments (P.) Ltd. and Another v. Shobha and others, (2006) 13 SCC 737 the Court has observed that // 17 // in construing a document, the Court cannot assign any other meaning; and a document as is well known must be construed in its entirety.
12. In Polymer India (P) Ltd. and Another v. National Insurance Co. Ltd. and Others, (2005) 9 SCC 174, this Court has held thus :-
"19. 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 interpret the document of contract as was understood between the parties. In the case of General Assurance Society Ltd. v.
Chandumull Jain, (1996) 3 SCR 500 : AIR 1966 SC 1644 it was observed as under :
"In interpreting documents relating to 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."
20. Similarly, in the case of Oriental Insurance Co. Ltd.
v. Samayanallur Primary Agricultural Coop.
Bank, (1999) 8 SCC 543, it was observed as under :-
"The insurance policy has to be construed having reference only to the stipulations contained in it and no artificial far-fetched meaning could be given to the words appearing in it."
21. Therefore, the terms of the contract have to be construed strictly without altering the nature of the contract as it may affect the interest of the parties adversely."
// 18 //
14. In New India Assurance Company Limited Vs. Aqua World (Supra), Hon'ble National Commission has observed thus :-
"6. It is not disputed that OP issued policy in favour of complainant for a period of one year from 28.09.2009 to 27.09.2010 for launches / passenger vessels employed in Inland waters upto radius of one NM into the sea which carries condition of reimbursement only on total loss. It is also not disputed that in the same policy by another endorsement effective from 13.4.2010 to 27.9.2010 after charging extra of Rs.3300/-. insurance cover was given for single voyage from Panaji to Mumbai for repairs / renovations and terms & conditions of policy did not restrict insurance cover only on total loss which was in the original policy. Thus, it becomes clear that while making endorsement and charging premium for single voyage from Panaji to Mumbai, OP covered loss to the vessel whether it is partial or total and learned State Commission rightly rejected contention of learned Counsel for appellant and rightly observed as under :-
"7. We are unable to accept the first defense taken by the OP. We are in inclined to accept the submission made on behalf of the complainant that the complainant had obtained two policies with their own terms and conditions, which have to be read independently. The second policy by virtue of Clause 4.1 did not restrict unlike the first policy that the complainant would be indemnified only in case of total loss (actual or constructive). On the other hand, the second policy by virtue of Clause 4.1 stipulated that loss or damage to the subject matter would be indemnified. It does not say that total loss or damage would be indemnified. Therefore, Clause 4.1 admits payment of partial loss or damage.
7.1. The O.P. was not entitled to read clause 4.1 of the second policy into the first policy. Any attempt in that direction would make the policy ambiguous. Assuming the // 19 // second policy was issued as endorsement to the first policy as contended then we will be left in one policy, with two sets of conditions, one which favours of the OP and the other which favours the insured. A contract of insurance is like any other contract except that it is uberrimae fidei. It is well and settled position of law that if a term or a clause is capable of two possible interpretations, one which is beneficial to the insured should be accepted consistent with the purpose for which the policy is taken namely to cover the risk on the happening of certain event ( see United India Insurance Company Ltd. Vs. M/s. Pushpalaya Printers - 2004 (2) CPR 62). If both the clauses are read as part of one policy one which favours the insurer and the other to the insured that would make the policy ambiguous. In case of ambiguity or doubt the policy needs to be construed contra proferentem i.e. against the insurer. This is on the assumption that clause 6.1 and 4.1 form part of the same policy. However, we have concluded that both the policies were issued independently on their own terms and conditions and in view of Clause 4.1 of the second policy, the complainant was entitled to be indemnified for partial loss".
Learned Counsel for the respondent also placed reliance on judgment of Hon'ble Apex Court in (2007) 7 SCC 101 - United India Insurance Co. Ltd. Vs. Great Eastern Shipping Co. Ltd. in which it was held as under :-
11. In support of the contention, learned counsel relied on a decision of this Court in Shashi Gupta (Smt.) vs. Life Insurance Corporation of India & Anr. [ [1995 Supp. (1) SCC 754] in which it was held as follows :
"As both the aforesaid interpretations are reasonably possible, we would accept the one which favours the policy-holder, as the same advances the purpose for which a policy is taken and // 20 // would be in consonance with the object to be achieved for getting lives assured."
22. After considering the ratio with regard to the construction of the terms of the policy in transpires that while interpreting the policy the courts should keep in view the intention of the parties as well as the words used in the policy. If the intention of the parties subserves the expression used therein then the expression used in that context should be given its full and extended meaning".
In the light of aforesaid principle of law laid down by Hon'ble Apex Court, I do not find any illegality in the impugned order and appeal is liable to be dismissed. Learned State Commission has already disallowed claim pertaining to expenditure incurred towards wages paid to the crew."
15. According to the complainant, on 12.10.2014, Cyclone Hud-Hud struck the Vishakapatnam Coast and caused large scale devastation. The above cyclone completely blew up the CFS shed where the cargo of the complainant was kept and water started logging inside the CFS.
16. Letter dated 27.07.2016 was sent by the O.P. to the complainant in which it is mentioned that "THIS POLICY shall be voidable in the event of mis-representation, mis-description or non disclosure of any material particular", but the O.P. did not show which material particular was suppressed by the complainant.
17. The Officers of the O.P. were also well acquainted with the fact that Hud-Hud Cyclone may be occurred, even then the insurance policy was issued in favour of the complainant, therefore, it cannot be // 21 // held that the complainant obtained the insurance policy by concealing or mis-representing the material facts. The O.P. is also responsible for issuing the insurance policy, therefore, the O.P. has no right to repudiate the claim of the complainant on the ground of Close Proximity, mis-representation, mis-description or non-disclosure of any particular material.
18. The O.P. has filed terms and conditions of Standard Fire and Special Perils Policy. In Condition No.VII of the terms and conditions of the policy, it is mentioned thus :-
"VI. Storm, Cyclone, Typhoon, Tempest, Hurricane, Tornado, Flood and Inundation.
Loss, destruction or damage directly caused by Storm, Cyclone, Typhoon, Tempest, Hurricane, Tornado, Flood or Inundation excluding those resulting from earthquake, Volcanic eruption or other convulsions or nature. (Wherever earthquake cover is given as an "add on cover" the words "excluding those resulting from earthquake volcanic eruption or other convulsions or nature" shall stand deleted).
19. In General Conditions, in Condition No.1 it is mentioned that THIS POLICY shall be voidable in the event of mis-representation, mis-description or non-disclosure of any particular material", but in the instant case the O.P. did not produce any evidence to show that the complainant suppressed particular material or obtained insurance policy from the O.P. after mis-representation, mis-description or non disclosure of any particular material.
// 22 //
20. According to the complainant, the Andhra Pradesh Government alert the people of the Andhra Pradesh regarding Hud-Hud Cyclone and the same was also broadcasted through news channel as well as newspapers and it was readily accessible to the public at large including the O.P. If forecast regarding the Hud-Hud Cyclone was broadcasted through news channel, therefore, it is more possible for the O.P. to know regarding the Hud-Hud Cyclone. After knowing the above fact, the O.P. issued the policy to the complainant, therefore, the O.P. has no right to repudiate the claim on the ground of mis- representation, mis-discription of non-disclosure of any material particular. The ground taken by the O.P. for repudiation of claim of the complainant is not acceptable.
21. Shri R.C. Banga, Investigator, in his Investigation Report dated 19.01.2015 opined thus :-
"CONCLUSION : The Marine Open Cover Policy has already taken for the cargo of Rice, but as they say that the actual date of shipment was not clear, keeping the safety of cargo. The subject policy (Standard Fire and Special Perils Policy) is taken on 10.10.2014 just two days before the Hud-Hud Cyclone, which is not convincing. Proper care should have been taken by the Insurance / B.C. Agent while issuing the policy".
// 23 //
22. Mr. T.P. Vaidyanathan and Mr. D. Venkataraman of Rank Surveyors Pvt. Ltd. submitted their report dated 01.12.2014 in which it is mentioned thus :-
"NET COMPUTED LOSS :
Insured's Claim Rs. 56,66,691/-
Gross Assessed Loss. Rs.56,32,793/-
Admissible Loss. Rs.53,61,191/-
Salvage Rs.11,57,700/-
Net Assess Loss. Rs.42,03,491/-
Under Insurance % 6.74%
Under Insurance Amount Rs. 2,83,195/-
Adjusted Loss. Rs.39,20,296/-
Policy Excess @ 5% Rs. 1,96,015/-
Net Computed Loss Rs.37,24,281/-"
23. Mr. T.P. Vaidyanathan and Mr. D. Venkataraman of Rank Surveyors Pvt. Ltd. reached to the conclusion that the complainant has suffered net loss of Rs.37,24,281/- (Rupees Thirty Seven Lakhs Twenty Four Thousand and Two Hundred Eighty One) towards loss of around 63MT of rice bags stored in the same premises.
24. The report of the Surveyor, is a reliable evidence. The Surveyor's report is genuine and dependable. The report of the Surveyor can be given due weightage and it cannot be discarded lightly. The report of Surveyor is acceptable. We do not find any reason to discard the report of Surveyor.
25. In Devendra Malhotra Vs. United India Insurance Co. Ltd. & Anr. 2016 (3) CLT 525 (NC), Hon'ble National Commission, has observed thus :-
// 24 // "Consumer Protection Act, 1986, Sections 2 (1) (g), 19 & 21 (a) (ii)- Insurance claim Surveyor report Held It is a established legal proposition that the report made by the surveyor, who is a professional in his field, cannot disbelieved, unless there are cogent and convincing reasons to do so."
26. In Oriental Insurance Co. Ltd. Vs. Pavan Enterprises & Anr. I (2016) CPJ 503 (NC), Hon'ble National Commission has observed thus :-
"12. I see no reason to discard the report of the Surveyor. He appears to be a guideless witness. No motive was ever attributed to him. There must be some reasonable ground or doubt to reject his report. The report of the Surveyor carries infinite significance as was held in Roshan Lal Oil Mills Ltd. & Ors., 2014 (SLT Soft) 1 = 2014 (CPJ Soft) 1 = (2000) 10 Supreme Court Cases 19 and in D.N. Badoni v. Oriental Insurance Co. Ltd., I (2012) C.P.J. 272 (NC)."
27. In New India Assurance Co. Ltd., vs. Pave Infrastructures Pvt. Ltd., 2015 (3) CPR 577 (NC), Hon'ble National Commission has observed that "Loss of assessment by approved Surveyor can be discarded only on cogent reasons".
28 In Garg Acrylics Ltd., Through Sh. Anish Bansal G.M. (G.M.) Authorised Representative vs. United India Insurance Co. Ltd., 2015 (1) CPR 273 (NC), Hon'ble National Commission has observed thus :-
"11.................. This is settled Law that the report of the surveyor is to be given much more weightage than any other piece of evidence. See the Law laid down in United India Insurance Co. Ltd. & Others // 25 // Versus Roshan Lal Oil Mills Ltd. & Ors. (2000) 10 Supreme Court Cases 19 & in D.N. Badoni Vs. Oriental Insurance Co. Ltd. I (2012) C.P.J. 272 (NC)".
29. In The Oriental Insurance Co. Ltd., Through its Regional Manager vs. Ishwar Singh, 2015 (1) CPR 157 (NC), Hon'ble National Commission has observed thus :-
"17. Counsel for the petitioner has also drawn our attention to the Apex Court Judgment in the case Sri Venkateswara Syndicate vs. Oriental Insurance Company Ltd., and Another, (2009) 8 Supreme Court Cases 507 wherein the Apex Court has held as under :-
"There is no disputing the fact that the surveyor/surveyors are appointed by the insurance company under the provisions of the Insurance Act and their reports are to be given due importance and one should have sufficient grounds not to agree with the assessment made by them".
30. The Standard Fire and Special Perils Police No.285100/11/14/3100000486 was issued by the O.P. in favour of the complainant, but the O.P. did not show that the complainant violated the terms and conditions of the insurance policy. The repudiation of the claim of the complainant by the O.P. merely on the ground that the complainant was knowing regarding the Hud-Hud Cyclone, even then by mis-representation, mis-description, obtained insurance policy,, is not justified and the complainant is entitled for the getting the amount, as assessed by the Surveyors. The Surveyors assessed the loss // 26 // to the tune of Rs.37,24,281/- (Rupees Thirty Seven Lakhs Twenty Four Thousand and Two Hundred Eighty One) and the complainant is entitled for the above amount.
31. The complainant prayed for directing the O.P. to pay a sum of Rs.56,66,690/- (Rupees Fifty Six Thousand Sixty Six Thousand Six Hundred and Ninety. The complainant is not entitled for the above amount. The complainant is only entitled to get the amount which has been assessed by the Surveyors i.e. Rs.37,24,281/- (Rupees Thirty Seven Lakhs Twenty Four Thousand and Two Hundred Eighty One).
32. The complainant sought for interest @ 12% p.a. Looking to the facts and circumstances of the case, it is just and proper to award interest @ 9% p.a. to the complainant on 37,24,281/- from the date of filing of the complaint i.e. 05.10.2016 till realisation.
33. The complainant also prayed for directing the O.P. to pay a sum of Rs.50,000/- (Rupees Fifty Thousand) towards mental pain and agony. Looking to the facts and circumstances of the case and the ground on the basis of which the claim of the complainant has been repudiated, the complainant is entitled for Rs.50,000/- (Rupees Fifty Thousand) and it is just and proper. The complainant is not entitled for compensation towards financial loss. The complainant is entitled for Rs.10,000/- (Rupees Ten Thousand) towards cost of litigation and advocate fees.
// 27 //
34. Therefore, the complaint of the complainant is partly allowed and it is directed that :-
(a). The O.P. will pay Rs.37,24,281/- (Rupees Thirty Seven Lakhs Twenty Four Thousand and Two Hundred Eighty One) to the complainant, along with interest @ 9% p.a. from the date of filing of the complaint i.e. 05.10.2016 till realisation.
(b). The O.P. will also pay a sum of Rs.50,000/- (Rupees Fifty Thousand) towards compensation for mental agony to the complainant.
(c). The O.P. will also pay a sum of Rs.10,000/- (Rupees Ten Thousand) towards cost of litigation and advocate fees to the complainant.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta) President Member Member 27 /02/2017 27 /02/2017 27 /02/2017