National Consumer Disputes Redressal
M/S. Solidix India vs New India Assurance Co. Ltd. on 7 January, 2020
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2629 OF 2019 (Against the Order dated 25/07/2019 in Appeal No. 725/2012 of the State Commission Delhi) 1. M/S. SOLIDIX INDIA THROUGH ITS PROP. SHRI BAHADUR SINGH PALI, R/O. 33, S.F.S FLATS, SECTOR 1, EXTN. ROHINI DELHI-110085 ...........Petitioner(s) Versus 1. NEW INDIA ASSURANCE CO. LTD. NEW INDIA ASSURANCE BUILDING 87, MG ROAD, FORT MUMBAI MUMBAI MAHARASHTRA-400001 ...........Respondent(s)
BEFORE: HON'BLE MR. DINESH SINGH,PRESIDING MEMBER
For the Petitioner : Mr. Kanishk Rana, Advocate For the Respondent :
Dated : 07 Jan 2020 ORDER
ORDER
1. This Revision Petition has been filed under Section 21(b) of The Consumer Protection Act, 1986, hereinafter referred to as the 'Act', challenging the Order dated 25.07.2019 passed by The Delhi State Consumer Disputes Redressal Commission, hereinafter referred to as the 'State Commission', in F.A. No. 725 of 2012 arising out of the Order dated 29.06.2012 in Case No. 76/07/27 passed by The District Consumer Disputes Redressal Forum, Delhi, hereinafter referred to as the 'District Forum'.
2. The Petitioner herein, M/s Solidix India through its Proprietor, was the Complainant before the District Forum, and is hereinafter being referred to as the 'Complainant Firm'.
The Respondent herein, The New India Assurance Co. Ltd., was the Opposite Party before the District Forum, and is hereinafter being referred to as the 'Insurance Co.'.
3. Heard learned Counsel for the Complainant Firm on admission.
Perused the material on record including inter alia the Order dated 29.06.2012 of the District Forum, the impugned Order dated 25.07.2019 of the State Commission and the Memo of Petition.
4. The short point in the case is that the Complainant Firm made a claim of Rs. 3,96,160/- with the Insurance Co. under its fire peril insurance policy. The Insurance Co. did not allow the claim. The Complainant Firm filed a Complaint before the District Forum.
The District Forum vide its Order dated 14.01.2002 dismissed the Complaint. In Appeal, the State Commission remanded the case to the District Forum for adjudication afresh.
5. In adjudication afresh, the District Forum heard both sides, appraised the evidence, and, vide its Order dated 29.06.2012, dismissed the Complaint with cost of Rs. 10,000/-.
For ready appreciation, the gist of the appraisal made by the District Forum is reproduced below:
A perusal of the aforesaid letters which were written by the investigator to the complainant makes it amply clear that the complainant had failed to supply vital information necessary for the investigation / adjudication of the case. The complainant had failed to supply the books of account and relevant bills / vouchers for the material alleged to have been damaged. Even though, the complainant had supplied a copy of the court order vide which the owner of the premises had been directed to restore electric supply to the premises in question, the complainant had failed to give evidence as to when electricity was actually restored. Indeed, the investigator found out that the owner had filed an appeal and had not complied with the court order. He had further found out that there was no electric supply to the premises in question on the date of the alleged incident of fire. The investigator had further found out that no manufacturing activity had been going on in the factory for the last two years. Infact, it was admitted by the complainant that only assembling activity was being carried out in the premises in question. In these circumstances, it was imperative on the part of the complainant to have supplied the investigator with the relevant material such as the book of accounts and the relevant bills / vouchers in respect of the goods damaged in the fire. The complainant has not explained as to why this vital evidence was not produced before the investigator / surveyor.
The investigator had further found out that the list of goods for which a claim was lodged with the OP did not tally with the list of damaged goods which was prepared on 8.5.1998 at the spot and which was signed by the investigator, the surveyor and the complainant. The complainant was, therefore, guilty of misrepresentation.
The investigator had also pointed out that no residue / salvage / boxes were found at the spot in respect of voltage stabilizers / transformers / relays etc. which were alleged to have been burn by the complainant. He had thus concluded that list of goods claimed to have been damaged was fabricated by the complainant. The investigator had filed his own affidavit in spot of his report. We see no reason to disagree with his findings and conclusions.
From the above discussion we are convinced that there was no deficiency on the part of the OP in not setting the claim of the complainant. The complainant was guilty of violation of the terms and conditions of the policy of the insurance and had failed to cooperate with the investigator / surveyor. He was also guilty of misrepresentation. According, we hold that there are no merits in this complaint which we dismiss with a cost of Rs. 10,000/-.
(extracts from the District Forum's Order)
6. The Complainant Firm filed an Appeal under Section 15 of the Act before the State Commission.
7. The State Commission heard both sides, appraised the evidence, and, vide its Order dated 25.07.2019, dismissed the Appeal.
For ready appreciation, the gist of the appraisal made by the State Commission is reproduced below:
9. Facts of the case being indisputed, I may in the first instance advert to the report furnished by the investigator / surveyor stating, inter alia, that the complainant / appellant having failed to furnish the desired information / documents of the case, they have closed the case as "No Claim".
10. The Hon'ble NCDRC in the matter of Rahul Furniture House versus New India Assurance Co. Ltd. as reported in II [2016] CPJ 589 (NC) has observed that non-furnishing of requisite documents is a ground to take a view against the insured. It is a 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 knows, 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 insurer and their agents to disclose all material facts within their knowledge since obligation of good faith applies to them equally with the assured. The duty of good faith is of continuing nature. After the completion of the contract, no material alteration can be made in its terms except by mutual consent.
11. In the absence of the material documents the insurer would be handicapped verifying the documents. It is not possible for the surveyor or investigator to given their final report for enabling the insurer to take a view on the settlement of the claim. The OPs have taken various steps as is evident from the letters detailed in the impugned order to retrieve the information / documents but of no avail. In this connection letter issued by the surveyor to the OPs on 10.05.2011 is very relevant, the extract of which are indicated below:
We were ready to accept the insured's loss to the extent of goods found by us damaged / burnt provided its cost would have been provided by the insured duly supported by purchase bills of material and manufacturing expenses. The same were not provided and even as on date the same have not been provided. The insured's claim of Rs. 3,96,160/- cannot be verified in absence of books of accounts i.e. cash book, ledger and their supporting bills for purchase, sale etc. In view of above even as on date we are not in a position to assess insured's loss in absence of above records.
12. The Ld. Counsel for the complainant has placed reliance on the judgement of the Hon'ble Apex Court in the matter of I.C. Sharma versus Oriental insurance Co. as reported in [2008] 2 SCC 76 holding that insurer is required to advise the insured when it insists on the item wise valuation. On careful consideration of the subject matter it is noticed that both the insurer and the surveyor / investigator have addressed several letters to the insured in this behalf advising them to furnish the documents. They have taken the decision of no claim only after finding no response from the complainant / appellant. Hence reliance of the judgment is misplaced so far as the complainant is concerned.
13. The Hon'ble NCDRC in the matter of New India Assurance Company Ltd. vs. R. Subramanium as reported in III [2014] CPJ 424 (NC) has however held as under:
There is no dispute about the principle of law laid down by the Apex Court. However, in the present case, petitioner has not placed on record the basic document, that is, the insurance policy along with its conditions which was issued to the respondent. It is well settled that if a party withholds the basic document on which it relies upon, then the adverse inference has to be drawn against it. Since, petitioner has not placed on record the copy of the insurance policy, along with complete conditions, hence inference has to be drawn against it for withholding the best evidence. Under these circumstances, the depreciation with regard to parts allowed from 5% to 50% is of no consequence.
14. Having regard to the discussion done and legal position explained I am of the considered view that there exists no infirmity in the order passed by the District Forum holding that there is no deficiency on the part of the OPs not processing the claim owing to non furnishing of item wise details / documents by the complainant / appellant. Accordingly upholding the orders passed by the District Forum I dismiss the appeal leaving the parties to bear the cost.
(extracts from the State Commission's impugned Order)
8. The Revision Petition has been filed with delay of 13 days.
9. However, in the interest of justice, and to settle the matter on merit, the delay in filing the Petition is condoned.
10. The impugned Order of the State Commission is well-appraised and well-reasoned.
11. The State Commission has concurred with the findings of the District Forum.
12. It is seen that the Complainant Firm averred that fire in its factory occurred on 05.05.1998 but came to its notice on 07.05.1998 i.e. belatedly after two days.
The investigator of the Insurance Co. noted that there was no electricity supply to the premises in question on the date of the alleged incident of fire (due to dispute with the landlord), no manufacturing activity had been going on in the Complainant Firm's factory for the last two years, no residual / salvage / boxes were found at the spot in respect of stabilizers / transformers / relays etc. that were alleged to have been burnt.
The Complainant Firm failed to supply material information to the surveyor of the Insurance Co. as was necessary for assessing the claimed loss, it failed to supply its books of accounts and relevant bills / vouchers in respect of the stock averred to have been damaged despite sufficient opportunity, it failed to furnish cogent logical explanation for not supplying the information.
13. Within the ambit and scope of Section 21(b), no crucial error in appreciating the evidence by the two Fora below is visible, as may cause to require de novo re-appreciation of the evidence in revision.
14. No jurisdictional error, or a legal principle ignored, or miscarriage of justice, is visible, as may require interference in exercise of revisional jurisdiction of this Commission under Section 21(b).
15. The Revision Petition, being patently misconceived and bereft of merit, is dismissed.
16. A copy of this Order be sent to the Insurance Co. by the Registry within three days of its pronouncement.
...................... DINESH SINGH PRESIDING MEMBER