State Consumer Disputes Redressal Commission
Ajay vs The New India Assurance Company ... on 3 July, 2012
BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SOLAN, H
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA.
Consumer
Complaint No: 13/2008.
Date of Decision: 03.07.2012.
Shri Ajay S/O Shri
Chatter Pal Sharma,
Village Chowk, P.O.
Mahadev,
Tehsil Sunder Nagar,
District Mandi, H.P.
Complainant.
Versus
1. The New
India Assurance Company Limited,
Divisional
Office, Hospital Road,
Mandi,
H.P.-175001.
2. The
Branch Manager,
State
Bank of India, Sundernagar,
District
Mandi, H.P.
Opposite Parties
Coram
Honble
Mr. Justice (Retd.) Surjit Singh, President
Honble
Mr. Chander Shekhar Sharma, Member
Honble
Mrs. Prem Chauhan, Member.
Whether
approved for reporting?[1]Yes.
For the
Complainant: Mr. S. Bhushan
Singh, Advocate.
For the
Opposite Party No.1: Mr. Ratish Sharma, Advocate.
For the
Opposite Party No.2: Mr. Arvind Sharma,
Advocate.
O R D E R:
Justice (Retd.)Surjit Singh, President (Oral) Complainant Ajay Kumar, has approached this Commission by means of the present complaint, under Section 12 of the Consumer Protection Act, 1986, for issuance of a direction to opposite party No.1, i.e. the New India Assurance Company Limited, to pay a sum of `33,73,424/-, as insurance claim with interest at the rate of 15% per annum, to pay `3.00 lacs, by way of damages and also to pay litigation expenses.
2. Facts on which the aforesaid directions are sought may be summed up thus. Complainant by raising loan from State Bank of India, opposite party No.2 herein, purchased certain machinery plant and shuttering material for use by him in his occupation as civil construction contractor. Aforesaid machinery plant and shuttering material was insured with opposite party No.1, through opposite party No.2, in the sum of `50.00 lacs. Insurance policy was effective from 28.06.2007 to 27.06.2008. On 12.08.2007, when shuttering and certain other insured material was in use at a place near Gutkar, District Mandi, in connection with construction of a bridge, the khad on which the bridge was being laid got flooded and a substantial part of the insured material, put in use in construction of the bridge, was washed away.
3. According to the complainant, loss was to the tune of `33,73,424/-. Intimation of the loss was given to the opposite party No.1 on the very next day of the incident. Detailed assessment of the damage was also submitted to the opposite party No.1. It deputed a surveyor, who assessed the loss at `15,85,214/-. However, the claim was repudiated by the opposite party No.1 on the ground that the policy covered the risk of loss of insured material only if the loss/damage was caused when the property was kept at the specified location, i.e. the store of the complainant in village Chowk, P.O. Mahadev, Tehsil Sundernagar, District Mandi.
4. Complainant then filed a complaint, under Section 12 of the Consumer Protection Act, 1986, before this Commission. Opposite party No.1 has filed reply. Prayer made in the complaint is opposed on the ground that the policy did not cover the risk of damage/loss caused to the property if it was not kept at the specified location at the time of damage/loss. It is alleged that the complainant is not a consumer as the service was availed by him for commercial purpose.
5. Parties have adduced evidence which consists of documents and the affidavits of the complainant and functionaries of the opposite parties.
6. We have heard learned counsel for the parties and gone through the record.
7. It is not in dispute that shuttering material, machinery and plant of the complainant was insured in the sum of `50.00 lacs, with the opposite party No.1, at the time when the alleged loss took place owing to flood in the river over which the construction of a bridge by use of the insured material was in progress. The only question that has been raised by opposite party No.1, i.e. the insurer, is that the policy covered the risk of damage/loss to the insured property, if such damage or loss took place while the property was available at the location mentioned in the policy and such location according to opposite party No.1, is the store of the complainant at village Chowk, Tehsil Sunder Nagar, District Mandi.
8. The policy is Annexure C-1. Policy nowhere says that the insurer will be liable to indemnify the insured for any damage or loss caused to the insured property, if such loss or damage occurred while the property is kept at the aforesaid location. No doubt, it is stated in the policy that the property is situated at village Chowk, P.O. Mahadev, but from mere mention of the place where the property was stacked at the time of insurance, it cannot be inferred that the insurer covered the risk of loss/damage to the property, only if such loss/damage was caused when the property was lying at the aforesaid place.
It appears that location of the property is given in the insurance policy only for the purpose of its identification at the time of the issuance of the insure policy.
9. There is also an affidavit of Ganesh Lal, Administrative Officer of opposite party No.1. A reading of para 2 of the affidavit makes the things clearer. As per this para, property which had been insured was available in village Chowk, at the time of its insurance. It has nowhere been declared in the affidavit that the insured or the Manager of the Bank, i.e. opposite party No.2, through whom the insurance was done, was given to understand that the risk would be covered only if damage/loss was caused to the property when lying inside the store of the complainant at village Chowk.
10. Apart from the above stated position, proposal form which was filled in at the time of seeking the insurance also suggests that no particular location of the insured material was specified/suggested. Said form is Annexure C-12 (at pages 298 & 299). Column No.14 of the proposal form pertaining to location of the insured property was kept blank. Otherwise also, shuttering and other material, which the complainant had got insured with opposite party No.1, is required to be moved out of the store for use. No damage or loss is likely to be caused to this kind of material, when kept in store. Damage or loss can be caused only when it is put to use. Therefore, it can legitimately be presumed that the opposite party No.1 insured the material for the risk of damage/loss to it at any place where it was used by the complainant in connection with his business as a civil contractor. We have taken similar view in another matter, i.e. Chanchal Singh versus United India Insurance Company Limited & Anr., First Appeal No.105/2011, decided on 10.05.2012.
11. Learned counsel representing the opposite party No.1, relying upon a precedent of Honble National Consumer Disputes Redressal Commission, New Delhi in Lalita Shivaji Jagtap versus Bank of India & Anr., III (2006) CPJ 226 (NC), argues that when the location of insured goods is specified in the policy, insurer would be liable only if the goods are damaged/lost at the specified location. For atleast the following two reasons, the precedent is not applicable to the facts of the present case. First we have held hereinabove that no location was specified in the policy. Secondly, the precedent pertains to goods where the business premises together with stock in trade had been insured.
12. As regards the quantum of insurance money payable to the complainant, opposite party No.1s own surveyor assessed the loss at `15,85,214/-. Complainant has not adduced any evidence in support of his plea that damage caused to the insured material was to the extent of `33,73,424/-. Therefore, we hold that the complainant is entitled to that much amount of money, on account of insurance claim, as has been assessed by the surveyor, engaged by opposite party No.1. Out of the amount assessed by the surveyor of opposite party No.1, a sum of `79,260/- (equivalent to 5% of the assured loss), is required to be deducted, on account of excess clause. Thus, the amount payable to the complainant on account of insurance claim comes to `15,05,954/-.
13. As a result of the above discussion, complaint is allowed. Opposite party No.1 is ordered to pay a sum of `15,05,954/-, on account of insurance claim with interest, at the rate of 9% per annum, from the date of the complaint, to the date of the payment of the aforesaid amount of money and also to pay `50,000/-, on account of damages for wrongful repudiation of the claim, which caused mental torture and harassment to the complainant. Opposite party No.1 is further ordered to pay `10,000/-, on account of litigation expenses.
14. One copy of this order be sent to each of the parties, free of cost, as per Rules.
(Justice Surjit Singh) President (Chander Shekhar Sharma) Member (Prem Chauhan) Member July 03, 2012.
N Mehta) [1] Whether reporters of the local papers may be allowed to see the order?