State Consumer Disputes Redressal Commission
M/S. Precious Minerals & Smelting Ltd. vs United India Insurance Co.Ltd on 23 May, 2016
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.CC/2015/26
Instituted on : 26.08.2015
Messer's Precious Minerals and Smelting Limited,
Registered Office at -
Semi Urban Industrial Estate,
Frezerpur, Jagdalpur (Chhattisgarh) 494001
Through - Director Cum Authorized Representative
Shri Ashok Kumar Lunia, Aged 49 years,
S/o Shri Narendra Kumar Lunia,
Resident of - Indira Ward, Jagdalpur (C.G.). ... Complainant.
Vs.
United India Insurance Company Limited,
Registered Office at -
24, Whites Road, Royapettah,
Chennai (Tamil Nadu) - 600 014
Inter alia Branch Office at - Anupama Chowk,
Jagdalpur (Chhattisgarh) 494001 ... Opposite Party
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MS. HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES:
Shri Jatin Joshi, for the complainant.
Shri P.K. Paul, for the opposite party.
ORDER
Dated : 23/05/2016 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainant filed this consumer complaint under Section 17 (1)(a) of the Consumer Protection Act, 1986 against the O.P. (Insurance Company) seeking following reliefs :-
// 2 // I. Compensation / Claim amount of Rs.19,33,700/- (Rupees Nineteen Lakhs Thirty Three Thousand and Seven Hundred) being the amount of monetary loss suffered by the complainant due to damage caused to the Excavator which was regrettably burnt by naxalites at midnight between 30.11.2012 and 01.12.2012.
II. Pendentelite and Post Judgment interest on Rs.19,33,700/-
(Rupees Nineteen Lakhs Thirty Three Thousand and Seven Hundred) @ 18% p.a. from 16.09.2013 till actual date of realisation.
III. Compensation for deficiency in service Rs.5,00,000/-
(Rupees Five Lakhs).
IV. Compensation for unfair trade practice Rs.5,00,000/-
(Rupees Five Lakhs).
V. Legal cost including filing expenses and Advocate's fees totaling to Rs.1,00,000/- (Rupees One Lakh).
VI. Any other relief(s)/claim(s) in the discretion of the Hon'ble Commission.
2. Brief facts of the complaint of the complainant are that the complainant M/s Precious Minerals and Smelting Limited is a Public Limited Company incorporated under the Companies Act, 1956 (the Company) having its registered office at Semi Urban Industrial Estate, Frezerpur, Jagdalpaur - 494 001. Shri Ashok Kumar Lunia, Director of the Precious Minerals and Smelting Limited is duly authorized to sign, verify and file the present complaint on behalf of the Company, in terms of Board Resolution dated 18.05.2015. The complainant has got up and // 3 // established a Tin Smelting Plant at Jagdalpur in the State of Chhattisgarh. The said plant was set up for the identification, exploration and exploitation of Tin Bearing areas of Chhattisgarh State in partnership with the Chhattisgarh Mineral Development Corporation Limited, an enterprise of the State Government of Chhattisgarh. The complainant produces high purity Tin ingots with quality which exceeds International Standards and this is an achievement for the company and the technology has been developed in house which surpasses the global standards. The complainant's manufacturing facility houses Tin Smelter, Liquidation Furnace and Refining units with state of the art technology. The O.P. is a Public Limited Company, incorporated under the provisions of the Companies Act, 1956 having its registered office at 24, Whites Road, Royapettah, Chennai - 600014 and inter alia having one of its branch office at Anupama Chowk, Jagdalpur (Chhattisgarh) 494001. The O.P. is a Public Sector General Insurance Company incorporated inter alia with the main object to design and implement insurance covers to customers in the non-life insurance business category. They provide insurance cover inter alia for fire, marine, theft, riot, motor, liability and industry. The complainant in the course of its business had purchased a Hydraulic Excavator L & T Komatsu PC130 on 07.11.2007 for use in its mines at Village Bade Bacheli. As the said machinery was a very valuable addition to the complainant's unit, it was decided to insure the same to protect it // 4 // against unforeseen and sudden physical damage or accident. The complainant therefore approached the O.P. for availing insurance cover and after submission of the necessary documents, the O.P. was pleased to grant a 'Contractor's Plant and Machinery Insurance Policy' initially for a period of one year from 07.11.2007 to 06.11.20078 for a sum of Rs.36,12,000/-. The said policy was renewed from time to time and the last renewal was effected on 31.10.2012 for the period 01.11.2012 to 02.11.2013 under Insurance Policy No.190505/44/12/07/30000010. The said Excavator was regrettably burnt by naxalites at midnight between 30.11.2012 and 01.12.2012 and thus the Excavator was severely damaged. The complainant lodged an First Information Report dated 01.12.2012 at the local Police Station. The complainant had immediately informed the O.P. regarding the said unforeseen incident telephonically and also vide letter dated 01.12.2012. Thereafter the complainant also approached M/s. Unitrade Equipments and Services Private Limited, the repairing company, to arrive at an estimate for undertaking repair of the Excavator. The said M/s. Unitrade Equipments and Services Private Limited under cover of its letter dated 17.12.2012 submitted its quotation for carrying out repairs to the Excavator. They had quoted a sum of Rs.27,14,806/- (Rupees Twenty Seven Lakhs Fourteen Thousand Eight Hundred and Six) towards the value of replacement parts and a sum of Rs.1,00,000/- (Rupees One Lakh) towards service charges, thus a total of Rs.28,14,806/- (Rupees Twenty Eight Lakhs // 5 // Fourteen Thousand Eight Hundred and Six). The estimated cost of repairs far exceeded the total value of the insurance cover. The O.P. sent its Surveyor, viz. Florish Insurance Surveyors and Loss Adjusters Private Limited to inspect the complainant's premises particularly the excavator on 30.12.2012. The complainant vide its letter dated 20.12.2012 forwarded the estimate for repairing the excavator to the O.P. together with the duly filled claim form and police report to the O.P. for early disposal of the claim. Subsequently under cover of its letter dated 30.12.2012 all the relevant documents were delivered by hand by the complainant to the Surveyor which were duly acknowledged by the letter. In response to the same, the Surveyor sent an email dated 21.01.2013 raising a number of queries and requisitioning numerous additional documents pertaining to the Complainant's company such as last three available balance sheets, log book of the excavator, maintenance records, operation locations and so on. The Surveyor followed this up with emails dated 05.02.2013 and 16.02.2013 for a further list of requirements such as date of incorporation, nature of business, details of workers, working hours, turnovers, statutory returns filed etc. of the complainant company which, needless to state were completely irrelevant to the claim made. Having regard to the same, the complainant replied to the Surveyor vide letter dated 16.02.2013 and email dated 18.02.2013 categorically stating that none of the documents sought for had any bearing on the merits of the claim // 6 // made under the subject Insurance Policy. Thereafter the Surveyor by email dated 10.05.2013 informed the complainant that the loss assessment works out to Rs.12,52,831/- (Rupees Twelve Lakhs Fifty Two Thousand Eight Hundred Thirty One) and the salvage was in the region of Rs.1,95,000/- (Rupees One Lakh Ninety Five Thousand). As the assessment made was abysmally low and insufficient to cover even half of the expenditure likely to be incurred in carrying out repairing works, it was not accepted by the complainant. After several rounds of talks, on 12.09.2013, the O.P. finally agreed to send the claim under the subject insurance policy at Rs.19,33,700/- (Rupees Nineteen Lakhs Thirty Three Thousand and Seven Hundred) in addition to a sum of Rs.2,73,000/- (Rupees Two Lakhs Seventy Three Thousand) towards salvage value. The complainant accepted the same and on the same day the original First Information Report was submitted to the O.P. The complainant also sent a letter on 12.09.2013 to the O.P. confirming in writing that they were willing to accept the aforementioned amount quantified by the O.P. as compensation and sought for a cheque to be issued to settle the above claim amount. The O.P. vide its letter dated 16.09.2013 accepted its claim for the aforementioned amount thereby admitting its liability to pay the same. By the said letter, the complainant was authorized by the O.P. to take possession of the salvage of the said burnt excavator and to use it. On 20.09.2013, the damaged excavator was shifted and the same was intimated to the O.P. // 7 // by letter. Despite having finally quantified and settled the claim and despite a lapse of more than four months from the time of acceptance of the claim amount, the O.P. did not honour its commitment to pay. The complainant was therefore constrained to issue a legal notice dated 05.02.2013, which was duly served upon the O.P. Even after service of the legal notice, the O.P. did not bother to take any positive steps to make the payment of the claim amounts and to put this issue to rest. In response to the same, the O.P. sent a back dated letter dated 11.03.2013 once again asking for additional documents. The action of the O.P. is tantamount to re-opening the settled claim and is clearly made with the sole object of delaying the matter further. The complainant was hence compelled to issue a final legal notice dated 20.03.2014 calling upon the O.P. to make the payment of the admitted and undisputed sum of Rs.19,33,700/- (Rupees Nineteen Lakhs Thirty Three Thousand and Seven Hundred) within three weeks from the date of receipt of the said notice. This notice was also served upon the O.P. who once again responded with a reply notice dated 02.04.2014 containing untenable averments. The O.P. regularly received premium for several years from the complainant for insuring the said machinery but when the time came for them to honour the claim which is legally due and payable, the O.P. is back tracking on their commitment. In the above circumstances, the complainant's efforts to have the claim settled by the O.P. proved futile. The O.P. was time and again reminded of its liability to pay the // 8 // complainant's claim for the excavator but till date, the O.P. has not made any payment and the same is still outstanding as on date. Despite acknowledging its liability to make payment of Rs.19,33,700/- (Rupees Nineteen Lakhs Thirty Three Thousand and Seven Hundred) under the subject Insurance Policy the O.P. is willfully and want only not making payment. Hence, it is manifestly clear that the above acts of omissions and commissions on the part of the O.P. clearly comes under the ambit of deficiency in service and unfair trade practice as envisaged in the relevant provisions of the Consumer Protection Act, 1986. The O.P. is bound and liable to reimburse to the complainant the aforesaid admitted and undisputed sum of Rs.19,33,700/- (Rupees Nineteen Lakhs Thirty Three Thousand and Seven Hundred) along with interest @ 18% p.a. from 16.09.2013 (i.e. from the date when O.P. agreed to pay the claim of the complainant) till the date of actual reimbursement of the said amount.
3. The O.P. filed its written version and averred that the complainant being a Public Limited Company incorporated under the Companies Act, is not established by the complainant. The Certificate of Incorporation (Document No.2 under the Index in Page No.18) is the Certificate of Incorporation granted to "The United India Fire & General Insurance Co. Ltd." in the year 1937-1938 under the signature and seal of Assistant Registrar of Companies. Even if otherwise the complainant have procured the Hydraulic Excavator L & T Komatsu in pursuance of // 9 // its business objectives to earn profits and hence is not a consumer within the scope of Section 2(1)(d) of the Consumer Protection Act, 1986, hence the present complaint is liable to be dismissed on this point only. The complainant have failed to place on record the Memorandum and Articles which contains the Objects and bye laws within the framework of which a Public Limited Company carries out its activities. For the sake of exploring its business interests, the complainant in the event of its being a Public Limited Company, is barred from entering any agreements or collaborations which are ultra vires the Memorandum and Articles. The fact that the complainant produces high purity Tin Ingots which exceeds International Standards and also that the in-house technology developed by the company surpasses global standards is not backed by any certificate of an acclaimed International Standards Institute. The O.P. in pursuance of its main objectives and other ancillary objectives have always ensured hassle free settlement of claims within the policy framework and conforming with the directions and circulars of the regulatory body from time to time. The complainant had purchased a Hydraulic Excavator L & T Komatsu PC 130 but the same machine was meant for use in Industrial Estate, Jagdalpur the site that has been mentioned in the policy rather than for use in its mines at Village Bade Bacheli. In the event of the above machinery, which happens to be the subject matter of insurance, being used in any location other than that mentioned in the policy // 10 // without any specific endorsement to this effect, the risk inherent thereto shall be outside the policy domain. The above endorsement acquires significance as the Contractor's Plant & Machinery Policy is specifically locational based policy and only admissible if the loss occurs at the mentioned contract site. The Contractor's Plant and Machinery Insurance Policy No.190505/44/12/07/30000010, was issued for the period from 03.11.2012 to 02.11.2013 in favour of the complainant for a sum assured of Rs.25 lacs, subject to terms, exceptions, exclusions, provisions and conditions contained therein or endorsed thereon and binding on the contracting parties thereto. The Naxalites burnt down an Hydraulic Excavator L & T Komatsu PC 130 in the intervening night of 30-11-2012 & 01-12-2012. The FIR was lodged on 01.12.2012 and the O.P. had been telephonically informed regarding the accident on the same day. The letter of intimation was received by the O.P. on 04.12.2012. The O.P. was quick to respond to the telephone call thereby deputing and appointing one Mr. Arun Kumar Sharma, a licenced Surveyor of the IRDA to conduct a spot survey at Bade Bacheli i.e. at the spot of the unfortunate incident. The complainant approached M/s Unitrade Equipments and Services Pvt. Ltd. for providing an estimate for undertaking repairs of the excavator for a cumulative amount of Rs.28,14,806/-. The O.P. have deputed one M/s. Flourish Insurance Surveyors & Loss Adjusters Pvt. Ltd. on 28.12.2012 and the competent authority of the Surveyor Firm attended the survey on 30.12.2012 at the // 11 // insured's site located at Bade Bacheli, District Dantewada (C.G.). Immediately thereafter on 02.01.2013 vide their Letter of Requirement, the above Surveyor requested the complainant insured to furnish necessary and relevant documents along with the claim form. The documents sought from the Surveyor's end were Brief Write up of the complainant's set up i.e. date of incorporation, commencement, nature of business, nature of activities carried out, workers working hours, capacities, Turnover, bankers, statutory returns filed to Bank, Excise, Sales Tax etc., past claims history etc., arranging drawing catalogues for damaged items from the suppliers, copies of last three available balance sheets along with all schedules, copy of fire brigade report if summoned and reasons if not summoned, copy of final report issued by the police, copy of log book for seven days prior to the date of the accident, maintenance record of the affected machine, highlighting spares used during major break downs during two years prior to the loss, evidence of value at risk of the affected machine supported with quotation for same make and model of machine, details of hour meter, details of operation locations covered under the policy, restoration cost details and claim form duly filled up. But instead of complying with the above Letter of Requirement, the complainant only filed the claim form with a copy of the police report and the rest of the documents were never furnished by the complainant for reasons best known to them. The Surveyor in his pursuit to amicably resolve the above claim and // 12 // facilitate claim settlement reminded the complainant vide e-mails sent on 21.01.2013, 05.02.2013 and 16.02.2013, but the complainant willfully chose to be at loggerheads with the Surveyor thereby creating debacles in the way to an amicable claim settlement. The above is clear from the letter dated 16.02.2013 sent by the complainant through speed post, wherein the complainant insured becomes the Judge of its own cause and asserts thereby that none of the documents as sought by the Surveyor were required for their claim. Even after receiving the above letter, which clearly reflected the uncompromising stance taken by the insured, the Surveyor sent repeated requests and reminders to the insured, but the same wee of no avail. The Surveyor was thus constrained to submit his Final Survey Report without the documents as were required from the complainant insured. The repercussions arising therefrom, for not furnishing the required documents and information, compelled the Surveyor to prepare the Survey Report based on available documents only without any co-operation from the complainant. The Surveyor is not supposed to importune the insured on behalf of the insurer with respect to loss assessment or any other matter that is subject to ratification by the insurer. The O.P. have offered to have the claim settled subject to policy conditions being adhered to and furnishing of the locational details of the subject matter of the insurance and various other documents by the insured that were time and again sought by the Surveyor from the complainant and those // 13 // which were never tendered by the complainant. The documents that were sought by the Surveyor were necessary for objective and effective appraisal of the claim on the basis of which the claim was to be settled, but the belligerent attitude of the complainant insured in not yielding to the repeated requests of the Surveyor derailed the disposal of the claim completely, for which the insurer O.P. is not to be blamed. The submission of the above mentioned documents is a condition precedent for acceptance of the claim and this necessary condition which is inherent in the policy conditions have not been fulfilled by the insured complainant thereby creating impediments in payment of the claim. The complainant has misconceived his remedy by using coercive tactics. The prerequisites for settlement of the claim were not satisfied by the complainant insured thereby hampering the settlement of the claim for which the O.P. is at fault. The insurer O.P., after perusing the available documents on hand and after waiting in vain for a considerable time in anticipation of the receipt of documents from the complainant, repudiated the claim of the complainant insured vide letter dated 18.09.2014 on the premise that the location mentioned as place of contract work in the policy is "Industrial Estates, Jagdalpur" whereas the loss has occurred in "Bade Bacheli Mines" which is not the place of contract work as per policy. The complainant have miserably failed to comply with his part of the insurance contract by deliberately concealing the information and the documents which could have // 14 // thrown light on the factual part of the case. The acknowledgement of its liability to make payment of the claim of Rs.19,33,700/- is always subject to the above compliances i.e. providing the locational details of the Hydraulic Excavator and the relevant documents that were sought by the Surveyor on the very next day of his assignment. The O.P. has not committed any deficiency in service and unfair trade practice. The insured complainant was given every possible opportunity to substantiate his claims by way of facts and documents which the complainant miserably failed to deliver inspite of repeated requests and reminders from the O.P. and as a result thereof the O.P. was left with no other option but to repudiate the claim. The above repudiation is undoubtedly justified in facts and circumstances of the case. The O.P. is not liable to reimburse to the complainant the aforesaid and undisputed sum of Rs.19,33,700/- along with interest @ 18% p.a. from 16.09.2013. The entire claim settlement has been delayed as the insured complainant has taken an adamant stand right from the start. The reliefs claimed is exaggerated and is devoid of any substance. The complainant has no locus standi to file the present claim. The complaint, is liable to be dismissed.
4. The complainant has filed documents. Annexure C-1 is Certificate of Incorporation and Certificate of Commencement of Business of the complainant company, Annexure C-2 is Invoice for the purchase of Hydraulic Excavator L & T Komatsu PC 130 issued to the // 15 // complainant on 07.11.2007, Annexure C-3 is Contractor's Plant and Machinery Insurance Policy issued to the complainant renewed for the period 03.11.2012 to 02.11.2013 under Insurance Policy No.19055/44/12/07/30000010 dated 31.10.2012, Annexure C-4 is Letter dated 01.12.2012 sent by the complainant to the O.P. regarding information towards loss of L & T Komatsu PC 130 due to file (along with English Translation), Annexure C-5 is FIR dated 01.12.2012 registered at the Police Station, Bacheli, District Dantewada (Chhattisgarh) along with typed version), Annexure C-6 is Summary and Quotation dated 17.12.2012 for Machine Repair and Service Charges given by Unitrade Equipments and Service Pvt. Ltd. to the complainant, Annexure C-7 is letter dated 20.12.2012 sent by the complainant to the O.P. towards submission of estimates, claim form, FIR copies etc (along with English translation), Annexure C-8 is email correspondence sent by the Surveyor viz. Flourish Insurance Surveyors and Loss Adjusters Private Limited to the complainant on 20.01.2013, Annexure C-9 is Email correspondence sent by the Surveyor, viz Flourish Insurance Surveyors and Loss Adjusters Private Limited to the complainant on 05.02.2014, Annexure C-10 is Email correspondence sent by the Surveyor, viz Flourish Insurance Surveyors and Loss Adjusters Private Limited to the complainant on 16.02.2014, Annexure C-11 is letter bearing Ref. No./2012-13/510 sent on 18.02.2013 by Speed Post by the complainant to Flourish Insurance Surveyors and Loss // 16 // Adjusters Private Limited towards the Insurance Claim (along with postal receipt), Annexure C-12 is Email correspondence sent by the complainant to the Surveyor, viz Florish Insurance Surveyors and Loss Adjusters Private Limited to the complainant on 18.02.2013, Annexure C-13 is Back dated letter dated 11.03.2013 bearing REF 190505/365/2013 sent by the O.P. to the complainant, Annexure C-14 is Email correspondence sent by the Surveyor, viz Flourish Insurance Surveyors and Loss Adjusters Private Limited to process the claim of the complainant on 10.05.2013, Annexure C-15 is letter dated 12.09.2013 sent by the O.P. to the complainant (along with English translation), Annexure C-16 is letter dated 12.09.2013 sent by the complainant to the O.P. towards its consent to accept to claim as agreed by the O.P. (along with English translation), Annexure C-17 is letter dated 13.09.2013 sent by the O.P. to the complainant to provide Closure Report (along with English translation), Annexure C-18 is letter dated 16.09.2013 bearing number 190505/Claim/179/2013 sent by the O.P. to the complainant acknowledging liability (along with English translation), Annexure C-19 is Reply dated 20.09.2013 on behalf of the complainant to the letter dated 16.06.2013 sent by the O.P. (along with English translation), Annexure C-20 is Legal notice dated 05.02.2014 issued by the complainant's counsel Shri V.K. Munshi, Advocate to the O.P. (along with postal receipts and acknowledgement cards), Annexure C-21 is Legal notice dated 20.03.2014 issued by the complainant's counsel to // 17 // the O.P. (along with postal receipt and acknowledgement card), Annexure C-22 is Reply cum Notice dated 02.04.2014 issued by the O.P.'s counsel Shri Pradeep Kumar Paul (Advocate) to the complainant), Annexure C-23 is Board Resolution dated 18.05.2015.
5. The O.P. has also filed documents. Document OP-1 is Contractors Plant and Machinery Insurance Policy, Vice Policy No.190505 /44 /12 /07 /30000010 for the period from 03.11.2012 to 02.11.2013, OP-2 is First Information Report dated 01.12.2012, OP-3 is Claim Intimation Letter dated 03.12.2012, OP-4 is Spot Survey Report of Er. Arun Kumar Sharma with Photographs and Survey Fees Bill dated 16.12.2012, OP-5 is Final Survey Report of Flourish Insurance Surveyors and Loss Assessors Pvt. Ltd. Indore (M.P.) dated 03.09.2013, OP-6 is Quotation dated 23.08.2013, OP-7 is Invoice of Komatsu L & T Excavator dated 01.01.1998, OP-8 is Quotation issued by Deccan Earthmovers dated 17.08.2013, OP-9 is Spares Offer from L & T Construction Equipment dated 11.12.2012, OP-10 is Letter of Salvage Solution Tech for purchasing of Burnt Komatsu L & T Excavator dated 07.08.2013, OP-11 are Email correspondence, OP-12 is letter of United India Insurance Co. Ltd. addressed to M/s Precious Minerals and Smelting Ltd. for submission of required documents dated 11.03.2013, OP-13 is Claim Repudiation letter dated 18.09.2014 sent to M/s Precious Minerals and Smelting Ltd. from United India Insurance Co. Ltd. Branch Office Jagdalpur (C.G.).
// 18 //
6. On the basis of averments of the parties, the points for determination is :-
(i) Whether the complainant is entitled to get compensation from the O.P. (Insurance Company), as mentioned in the prayer clause of the complaint ?
Discussions and its conclusion:
7. Shri Jatin Joshi, learned counsel appearing for the complainant has argued that the complainant had purchased a Hydraulic Excavator L & T Komatsu PC130 on 07.11.2007 for use in its mines at Village Bade Bacheli and the complainant had obtained Contractor's Plant and Machinery Insurance Policy initially for a period of one year from 07.11.2007 to 06.11.2008 for a sum of Rs.36,12,000/- and the policy was renewed from time to time and the last renewal was effected on 31.10.2012 for the period 01.11.2012 to 02.11.2013. During intervening night of 30.11.2012 and 01.12.2012, the Naxalites burnt the Excavator Machine and same was badly damaged. The complainant lodged First Information Report on 01.12.2012 at concerned Police Station and also informed the O.P. immediately regarding the incident and also approached M/s. Unitrade Equipments and Services Private Limited, the repairing company, to arrive at an estimate for undertaking repairing of the Excavator. The O.P. (Insurance Company) appointed M/s Flourish Insurance Surveyors and Loss Adjusters Private Limited for conducting survey. The complainant submitted estimate for // 19 // repairing of the Excavator to the O.P. as well as to the Surveyor and relevant documents were also provided to the Surveyor. The Surveyor demanded for balance sheets, log book of the Excavator, maintenance records, operation locations. As the balance sheet is privileged document, therefore, the balance sheet was not provided to the Surveyor. The Surveyor assessed loss to the tune of Rs.12,52,831/- (Rupees Twelve Lakhs Fifty Two Thousand Eight Hundred and Thirty One) and the salvage was assessed to the tune of Rs.1,95,000/- (Rupees One Lakh Ninety Five Thousand). On 12.09.2013, the O.P. agreed to settle the claim at Rs.19,33,700/- (Rupees Nineteen Lakhs Thirty Three Thousand and Seven Hundred) and the complainant accepted it on the same day, but the O.P. did not provide the amount, which was settled by O.P. and thus the O.P. committed deficiency in service. The insurance policy was issued for Premises / Work Address Industrial Estate, Jagdalpur (Financier L & T Finance Limited) and the incident took place at Bade Bacheli, District Dantewada (C.G.). There is no terms and condition in the insurance policy to the effect that the Excavator machine will not be used outside the premises, as mentioned in the policy, therefore, the O.P. has erroneously repudiated the claim of the complainant. Shri Jatin Joshi, further argued that the O.P. repudiated the claim of the complainant on the ground that the complainant violated the terms and conditions of the insurance policy. The complainant is entitled to get a sum of Rs.19,33,700/- from the O.P. // 20 // along with interest and also Rs.5,00,000/- (Rupees Five Lakhs) towards compensation for mental agony, Rs.5,00,000/- towards compensation for unfair trade practice and Rs.1,00,000/- towards cost of litigation
8. Shri P.K. Paul, learned counsel appearing for the O.P. has argued that the insurance policy was issued by the O.P. in favour of the complainant and the address of the insured premises is mentioned as Industrial Estate, Jagdalpur (C.G.), whereas the loss has occurred in Lunia Mines Bade Bacheli, which is not place of contract work as per the insurance policy. The Contactor's Plant and Machinery Policy was issued for Premises / Work Address Industrial Estate, Jagdalpur (Financier L & T Finance Limited) and the Contractor's Plant & Machinery Policy is specifically locational based policy and the loss occurred outside the insured premises mentioned in the insurance policy, therefore, the claim is not payable and the O.P. has rightly repudiated the claim of the complainant. Shri P.K. Paul has further argued that Insurance Contract is based on offer and acceptance of the proposal made, therefore, the place of occurrence was not covered in the insurance policy. The terms and conditions of the insurance policy have to be construed as it is, therefore, the O.P. has rightly repudiated the claim of the complainant. He placed reliance on Deokar Exports Pvt. Ltd. Vs. New India Assurance Company Ltd., I (2009) CPJ 6 (SC); Export Credit Guarantee Corpn. of India Ltd. Vs. M/s Garg Sons International; 2013 (4) CPR 373 (SC); Orient Clothing Company Pvt.
// 21 // Ltd. Vs. Bajaj Allianz General Insurance Co. Ltd. IV (2015) CPJ 364 (NC); State Bank of India Vs. Anil Kumar & Anr., I (2015) CPJ 1 (NC); M/s. Vijay Concerns Vs. State Bank of India, Through : Branch Manager & Anr. 2013(4) CPR 165 (NC); M/s AICAM Engineering Limited Vs. National Insurance Company Limited 2009(2) CPR 259 (NC); Vijay Solvex Limited Vs. United India Insurance Co. Ltd., II (2007) CPJ 316 (NC) and Subhash Chand Jain Vs. M/s. United India Insurance Company Limited and Another, First Appeal No.272 of 2010 decided by Hon'ble National Commission on 13.10.2010.
9. We have heard learned counsels appearing for the parties and have also perused the documents filed by the parties in the complaint case.
10. According to the complainant during intervening night of 30-11-2012 & 01.12.2012 the Naxalites burnt the Excavator of the complainant and the Excavator was badly damaged. The complainant lodged First Information Report on 01.12.2012 at concerned Police Station. The complainant suffered loss to the tune of Rs.19,33,700/.
11. The complainant filed document Annexure C/1 which is Contractor's Plant and Machinery Insurance Policy. In the said document, Premises/Works Address is mentioned as Industrial Estate, Jagdalpur (Financier L & T Finance Ltd.) In the insurance policy there is Exceptions Clauses. In Clause (h) it is mentioned that "loss or damage // 22 // whilst in transit from one location to another location (Public Liability will not be payable while Contractors Plant and Machineries are on Public Roads."
12. In the instant case, the incident took place outside the premises. At the time of incident, the Excavator Machine was working at Bade Bacheli, which is far away from the insured premises and according to the Exception Clause (h) at the time of incident the place of occurrence, is outside the purview of the insurance policy.
13. In Orient Clothing Company Pvt. Ltd. Vs. Bajaj Allianz General Insurance Co. Ltd. (Supra), Hon'ble National Commission has observed that "In a floater policy benefit of insurance can be claimed by insured only in respect of loss at those locations which are disclosed to Insurance Company before loss actually occurs. Plot No.749 was not one of the locations disclosed to Insurance Company either at the time of taking policy or any time thereafter. Complainant not entitled to reimbursement of damage suffered by it on account of fire which took place at Plot No.749. Repudiation justified."
14. In State Bank of India Vs. Anil Kumar & Anr. (Supra), Hon'ble National Commission has observed that "Complainant was under
obligation to intimate Insurance Company about change of place of business and to get necessary endorsement on policy. Violation of conditions of policy.
Repudiation justified."
// 23 //
15. In the case of National Insurance Co. Ltd. v. Vinod Puri, I (2014) CPJ 341 (NC) , Hon'ble National Commission has observed thus :-
"8. Hon'ble Supreme Court while deciding, Civil Appeal No.2080 of 2002 titled as Vikram Greentech (I) Ltd. & Anr. v. New India Assurance Co. Ltd., II (2009) CPJ 34 (SC) = IV (2009) SLT 35, has looked into the issue as to how insurance contract must be construed. In the aforesaid judgment, Hon'ble Supreme Court has observed thus :
"An insurance contract, is species of commercial transactions and must be construed like any other contract to its own terms and by itself. In a contract of insurance, there is requirement of uberimma fides i.e. good faith on the part of the insured. Except that, in other respects, there is no difference between a contract of insurance and any other contract. The four essentials of a contract of insurance are, (i) the definition of the risk, (ii) the duration of the risk, (iii) the premium, and
(iv) the amount of insurance. Since upon issuance of insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risks covered by the insurance policy, its terms have to be strictly construed to determine the extent of liability of the insurer. The endeavour of the Court must always be to interpret the words in which the contract is expressed by the parties. The Court while construing the terms of policy is not expected to venture into extra liberalism that may result in re-writing the contract or substituting the terms which were not intended by the parties. The insured cannot claim anything more than what is covered by the insurance policy."
16. In the case of M/s Vijay Concerns v/ State Bank of India, Through Branch Manager & Anr. (Supra), Hon'ble National Commission, has observed thus :-
// 24 // "8. From the material on record, it is very clear that the place where the loss has occurred was not within the knowledge of the Insurance Company. Moreover, the Bank can also not be held liable for any deficiency in service, because it was the primary duty of the complainant/petitioner to obtain the Insurance Policy and to have knowledge about its terms and conditions.
9. The State Commission while passing the impugned order have rightly placed reliance on the orders passed by the Hon'ble Supreme Court in the case United India Insurance Co. Ltd. v.
M/s Harchand Rai Chandan Lal and in the case Deokar Exports Pvt. Ltd. v. New India Assurance Co. Ltd. according to which the rights and obligations of the parties are strictly governed by the policy of Insurance and no exception or relaxation can be made on the grounds of equity. Further, a similar view has been expressed by the Hon'ble Supreme Court in the case of Suraj Mal Ram Niwas Oil Mills Private Ltd. v. United India Insurance Co. Ltd. & Anr. In which it has been observed by the Hon'ble Supreme Court as follows :-
"The Courts should always try to interpret the "words" in the insurance contract as they have been expressed by the parties. It is not open for the Court to add, delete or substitute any words. The words used in the Insurance Contract must be given paramount importance."
17. In the case of M/s Export Credit Guarantee Corporation of India Ltd. v. M/s Garg Sons International (Supra), Hon'ble Supreme Court, has observed thus :-
"9. The insured cannot claim anything more than what is covered by the insurance policy.
// 25 // "The terms of the contract have to be construed strictly, without altering the nature of the contract as the same may affect the interests of the parties adversely."
18. In the case of Deokar Exports Pvt. Ltd. v. New India Assurance Company Ltd. (Supra), Hon'ble Supreme Court has observed thus :-
"11. A policy of insurance is a contract based on an offer (proposal) and an acceptance. The appellant made a proposal. The respondent accepted the proposal with a modification. Therefore, it was a counter proposal, in which event three would have been no contract. The second was to accept either expressly or impliedly, the counter proposal of the respondent (that is respondent's acceptance with modification) which would result in a concluded contract in terms of the counter proposal. The third was to make a counter proposal to the counter proposal of the respondent in which event there would have been no concluded contract unless the respondent agreed to such counter proposal. But the appellant definitely did not have the fourth choice of propounding a concluded contract with a modification neither proposed nor agreed to by either party."
19. In M/s AICAM Engineering Limited Vs. National Insurance Company Limited (Supra), Hon'ble National Commission has observed that "Location in question was not shown as one of the locations where insured items of machinery lay in the list attached with policy. Terms of policy including schedule and list appended are to be construed strictly. Policy // 26 // showed that machinery lying at location from where it was stolen was not covered under policy. No deficiency in service in repudiation of claim."
20. In the case of United India Insurance Company Ltd. v. M/s Harchand Rai Chandan Lal, 2005 (1) CPR 64 (SC), Hon'ble Supreme Court has observed thus :-
"6. The terms of the policy have to be construed as it is and we cannot add or subtract something. Howsoever liberally we may construe the policy but we cannot take liberalism to the extent of substituting the words which are not intended. It is true that in common parlance the term 'burglary' would mean theft but it has to be proceeded with force of violence. If the element of force and violence is not preset then the insured cannot claim compensation against theft from the insurance company. (Para
6).
It is not open to interpret the expression appearing in policy in terms of common law; but it has to give meaning to the expression reproduced the terms of the policy as also the definition of burglary and / or housebreaking as defined in the policy."
21. Document Annexure C/5 is First Information Report, which was lodged in Police Station Bacheli, District Dantewada. In the First Information Report the place of occurrence is mentioned as "Lunia Khadan Bade Bacheli".
22. In Final Survey Report of Flourish Insurance Surveyors and Loss Adjusters Pvt. Ltd. dated 03.09.2013 (Annexure OP-5) against the // 27 // column Location of the Operation it is mentioned "The above excavator was utilized for excavation purpose at insured Mining site located at Village Vadebacheli, District Dantewada (C.G.)."
23. Looking to the documents and the insurance policy, it is clear that the Premises situated at Industrial Estate, Jagdalpur (C.G.) was insured. It means that the work premises was insured and the complainant obtained Contractor's Plant and Machinery Insurance Policy. From bare perusal of the insurance policy, it appears that the machineries which were kept in the Plant were insured.
24. In the instant case the occurrence took place at Lunia Mines, Bade Bacheli, which is a different place. It is very clear that the place where loss has occurred is not within the knowledge of the O.P. and according to the terms and conditions, the complainant has knowledge regarding the terms and conditions of the insurance policy. There is no contract of insurance between the parties in respect of place where occurrence was took place i.e. Lunia Mines, Bade Bacheli, because in the Contractor's Plant & Machinery Insurance Policy, Premises / Work Address is mentioned as Industrial Estate, Jagdalpur (Financier L & T Finance Limited). The complainant did not intimate the O.P. regarding the change of place and the insurance policy was issued in respect of premises situated at Industrial Estate, Jagdlapur, therefore, the O.P. (Insurance Company) is not liable to indemnify the loss occurred to the Excavator at Lunia Mines, Bade Bacheli.
// 28 //
25. Looking to the facts and circumstances of the case, it is established that the insurance was done only for the premises of the complainant situated at Industrial Estate, Jagdalapur and the O.P. (Insurance Company) is not liable for indemnifying the loss occurred to the Excavator, which was working at Lunia Mines, Bade Bacheli because the place of occurrence is not covered under the insurance policy. Therefore, the O.P. (Insurance Company) has rightly repudiated the claim of the complainant and does not commit any deficiency in service by doing so.
26. Hence, the complainant is not entitled to get any reliefs from the O.P. (Insurance Company), as prayed by the complainant in the prayer clause of the complaint and the complaint filed by the complainant against O.P. (Insurance Company), is liable to be dismissed, hence the same is dismissed. Parties shall bear their own costs. (Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar) (Narendra Gupta) President Member Member Member 23 /05/2016 23 /05/2016 23 /05/2016 23 /05/2016