State Consumer Disputes Redressal Commission
M/S Hariram Sultania vs Branch Manager & Others on 21 February, 2014
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR(C.G.).
Appeal No.FA/13/246
Instituted on : 30.03.2013
M/s Hariram Sultania,
Through : Proprietor : Vikas Sultania,
Dabhra Road,
Kharsia, District Raigarh (C.G.) ... Appellant.
Vs.
1. Branch Manager,
The New India Assurance Company Ltd.,
Sattiguri Chowk
Raigarh, District Raigarh (C.G.)
2. Branch Manager,
The New India Assurance Company Ltd.,
Second Floor, Bajrang Market,
R.D.A. Building, G.E.Road,
Raipur (C.G.)
3. Branch Manager,
State Bank of India, Branch Office Kharsia,
District Raigarh (C.G.) ... Respondents.
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MS. HEENA THAKKAR, MEMBER
COUNSEL FOR THE PARTIES: -
Shri Mukesh Sharma, Advocate for appellant.
Shri Manoj Agrawal, Advocate for respondent Nos.1 & 2.
Shri Rajesh Tiwari, Advocate for respondent No.3.
ORDER
Dated : 21/02/2014 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 01.03.2013 passed by the District Consumer Disputes Redressal Forum, Raigarh (C.G.) //2 // (henceforth "District Forum") in Complaint Case No.151/2012, whereby the complaint filed by the appellant/complainant has been dismissed.
2. Briefly stated the facts of the complaint of the appellant/complainant before the District Forum are : that the appellant/complainant is a firm and running a business of selling fertilizers. The office of the appellant/complainant, is situated at Dabhra Road, Kharsia (C.G.) and stock of fertilizers are stored in the godown situated at Chapriganj, Kharsia (C.G.). The godown is obtained on monthly rent from Sahkari Vipnan Sangh, Kharsia (C.G.) and Fertilizer Registration Certificate was issued by the Deputy Director, Agriculture, Raigarh which is valid for the period from 28.10.1975 to 31.03.2011. The aforesaid registration was again renewed till 31.03.2014. The map of the godown is also annexed with. The appellant/complainant obtained facility of C.C. Open Limit from respondent No.3/Bank State Bank of India, Branch Kharsia, District Raigarh (C.G.). The goods were insured with the respondent Nos.1 & 2/Insurance Company for the period from 29.03.2011 to 28.03.2012. The goods/fertilizers were insured for Rs.25,00,000/- and the appellant/complainant deposited a sum of Rs.13,120/- as premium on 16.03.2011 and Policy No.450301/48/10/34/0000/1368, was issued by the respondent No.2 and the policy was handed over to the respondent No.3. The godown of the appellant/complainant, was inspected by the employees of respondent No.3 / Bank from the time to time. On 13.04.2011, due to //3 // storm, tempest and heavy rains, tin shed got opened and blown down and fertilizers of the appellant/complainant were badly damaged due to heavy rains. The incident was published in daily newspaper on 13.04.2011. As on 13.04.2011, the status of the fertilizers was as under :-
Ø- [kkn dk uke dqy LVkd o"kkZ esa Hkhxus ds dkj.k gq, cpr lgh [kkn uqdklku cksjs nj jkf'k cksjs nj jkf'k cksjs nj jkf'k 1- xksnkojh 1766 420 741720 1095 420 459900 671 420 281820 10-26-26 2 14-35-14 137 480 652800 750 480 360000 610 480 292800 3- Mh-,-ih- 1097 520 570440 712 520 370240 385 520 200200 4- lqij QkLQsV 1078 170 183260 110 130 18700 968 170 164560 5- uojruk 664 420 278880 84 420 35280 580 420 243600 6- QkliksftIle 280 80 22400 & & & & & & 7- ;wfj;k 2755 280 771400 944 280 264320 1811 280 507080 ;ksx& 1508440 iUnzg yk[k vkB gtkj pkj lkS pkyhl :-
The matter was reported to the respondents and the appellant/complainant made claim before the respondent Nos.1 & 2. The respondent Nos.1 & 2 appointed Surveyor, who inspected the place where incident was occurred and prepared Survey Report. The appellant/complainant also made request to the respondent No.3/Bank for compensation. On 21.06.2011, respondent No.3/Bank sent letter to respondent No.2 and informed that the appellant/complainant had obtained insurance policy regarding the fertilizers, which were kept in the godown. In the insurance policy, instead of godown, "shop" was mentioned by mistake. The above mistake was not within the knowledge of the appellant/complainant prior to the incident. Had any mistake was caused in the insurance policy, it is the duty of respondent No.3/Bank to intimate the respondent Nos.1 & 2/Insurance Company for removal of the defect in the insurance policy, but the respondent //4 // No.3/Bank did not bother to remove the above defect in the insurance policy. The claim of the appellant/complainant was repudiated by the respondent Nos.1 & 2 / Insurance Company. Hence the appellant/complainant filed complaint before the District Forum.
3. Respondent Nos.1 & 2/Insurance Company filed their written version before the District Forum and denied the allegations made by the appellant/complainant in the complaint. The respondent Nos.1 & 2 averred that it is false that the appellant/complainant obtained godown from Sahkari Vipnan Sangh, Kharsia (C.G.) on monthly rent basis and appellant/complainant was not registered during the period 28.10.1975 to 31.03.2011 and thereafter registration certificate was not issued after renewal till 31.03.2014. The goods, which were kept in the godown were not insured with the respondent Nos.1 & 2 and the insurance policy was issued for the shop situated at Dabhra Road, Kharsia (C.G.) and not for Chapriganj, Kharsia (C.G.), therefore, the godown situated at Chaprigaj, Kharsia (C.G.), was not insured with the respondent Nos.1 & 2. Had premium was deducted from the account of the appellant/complainant, the insurance was for the shop situated at Dabhra Road, Kharsia (C.G.).
and the appellant/complainant himself, is liable for the mistake and negligence. The respondent Nos.1 & 2/Insurance Company, appointed Surveyor and the Surveyor inspected the place, where incident occurred and submitted his report. On the basis of the Survey Report and the insurance policy, the claim of the appellant/complainant was denied by //5 // the respondent Nos.1 & 2/Insurance Company. The appellant/complainant obtained Shopkeeper's Insurance Policy and he never obtained insurance policy from the respondent Nos.1 & 2 for the godown situated at Chapriganj, Kharsia (C.G.) and for the godown Shopkeeper's Insurance Policy was not issued and only Fire Policy was issued relating to godown on floater basis. According to the appellant/complainant he obtained facility of C.C. Open Limit to the tune of Rs.25,00,000/- and according to the Stock Statement as on 05.03.2011 the appellant/complainant stored goods to the tune of Rs.1,07,38,660/- which is much higher than the C.C. Limit obtained by the appellant/complainant. Prima facie, it appears that the appellant/complainant falsely and exaggeratedly made claim before the respondent Nos.1 & 2 / Insurance Company, therefore, the appellant/complainant, is not entitled for any compensation and complaint, is liable to be dismissed.
4. The respondent No.3/Bank filed separate written statement before the District Forum and denied the allegations made in the complaint. The respondent No.3/Bank averred that the shop of the appellant/complainant, is situated at Dabhra Road, Kharsia (C.G.). The insurance policy was issued the respondent Nos.1 & 2/Insurance Company and the respondent No.3 / Bank, has only deducted the amount of the insurance premium from the account of the insured on the basis of the application dated 29.11.2008 submitted by the //6 // appellant/complainant. C.C. Limit was sanctioned by the respondent No.3/Bank in favour of the appellant/complainant and the certified copy of the insurance policy was given to the appellant/complainant by the respondent No.3/Bank.
5. Learned District Forum, after appreciation of the material available before it, has dismissed the complaint of the appellant/complainant. Hence this appeal.
6. Shri Mukesh Sharma, learned counsel for the appellant/complainant argued that the District Forum has erred in appreciation of the evidence and District Forum has wrongly relied on the version of the respondent Nos.1 & 2/Insurance Company. The appellant/complainant obtained godown on rent from Sahkari Vipnan Sangh, Kharsia (C.G.) and he kept the fertilizers in the said godown and obtained insurance policy for the said godown through respondent No.3/Bank. The respondent No.3/Bank deducted the amount of premium from the account of the appellant/complainant and premium was deposited in favour of the respondent Nos.1 & 2/Insurance Company, therefore the respondent No.3/Bank, was on obligation to obtain the insurance policy on the correct address where godown of the appellant/complainant, is situated. When the appellant/complainant made claim before the respondent Nos.1 & 2/Insurance Company, the respondent No.3/Bank sent the insurance policy to the respondent Nos.1 & 2/Insurance Company, then for the first time, the //7 // appellant/complainant came to know that instead of godown , shop has been wrongly mentioned in the insurance policy. The mistake was committed by the respondent No.3/Bank. He further argued that when appellant complainant could know about the wrong mentioning of the insured place in the policy, then appellant/complainant met with the respondents regarding the correct address of the godown. The respondents are liable to indemnify the loss occurred to the appellant/complainant. Shri Mukesh Sharma, further argued that the appellant/complainant suffered loss to the tune of about Rs.19,00,000/- to Rs.20,00,000/-, but the learned District Forum, has dismissed the complaint of the appellant/complainant.
7. Shri Manoj Agrawal, learned counsel for the respondent Nos.1 & 2/Insurance Company argued that the insurance policy was issued by the respondent Nos.1 & 2/Insurance Company in favour of the appellant/ complainant M/s Hariram Sultania, Dabhra Road, Kharsia (C.G.) and nature of business was Kirshi goods shop. It appears that the insurance policy was issued for the shop of the appellant/complainant situated at Dabhra Road, Kharsia (C.G.) and the godown situated at Chapriganj, Kharsia (C.G.), was not covered in the insurance policy. He further argued that the terms and conditions of the insurance policy have to be construed as it is. Therefore, the respondent Nos.1 & 2/Insurance Company, has rightly repudiated the claim of the appellant/complainant and learned District Forum has rightly dismissed //8 // the complaint of the appellant/complainant and order passed by the District Forum does not suffer from any infirmity or illegality and does not call for any interference by this Commission. He placed reliance on judgment of the Karnataka State Consumer Disputes Redressal Commission, Bangalore, in the case of Sri Vasavi Enterprises v. Royal Sundram Insurance Co. Ltd., II (2008) CPJ 302 and judgment of Hon'ble National Commission in the case of Vijay Solvex Limited. V. United India Insurance Co. Ltd., II (2007) CPJ 316 (NC).
8. Shri Rajesh Tiwari, learned counsel for the respondent No.3/Bank argued that the insurance policy was issued for the shop of the appellant/complainant situated at Dabhra Road, Kharsia (C.G.) and the premium was deduced from the bank account of the appellant/complainant and the copy of the insurance policy had already given to the appellant/complainant by the respondent No.3/Bank and the contents of the insurance policy were well within the knowledge of the appellant/complainant. He supported the impugned order passed by the District Forum.
9. We have heard the learned counsel for both the parties and have also perused the record of the District Forum.
10. The appellant/complainant filed near about 26 documents. Document - 1 is Stock Transfer Note of National Fertilizers Limited, Area Office Bilaspur, document - 2 is receipt dated 07.04.2010 issued by //9 // Kharsia Sahkari Vipnan Sangh Maryadit, Post Kharsia, District Raigarh (C.G.), document 3 & 4 are Kirayanama (rent deed), document 5 is Urvarak Panjiyan Praman Patra (Fertilizer Registration Certificate), document 6 is site map prepared by Fertilizer Inspector, Block Kharsia, District Raigarh (C.G.), document 7 is letter dated 13.04.2011 sent by the appellant/complainant to the Branch Manager of respondent No.3/Bank, document 8 is letter dated 14.04.2011 sent by the Branch Manager of respondent/Bank to the Branch Manager, The New India Assurance Company Limited, Raipur (C.G.) for appointment of the Surveyor, document 9 is letter dated 20.05.2011 sent by the appellant/complainant to one Mr. Jain, document 10 is letter dated 16.06.2011 written by the appellant/complainant to the Branch Manager, State Bank of India, Kharsia (C.G.) for making correction in the insurance policy, document 11 is letter dated 21.06.2011 sent by the Branch Manager, State Bank of India, Branch Kharsia (C.G.) to the Branch Manager, The New India Assurance Company Limited, Raipur (C.G.), document 12, is letter dated 10.03.2012 sent by the State Bank of India, Branch Kharsia (C.G.) to the Branch Manager, The New India Assurance Company Limited, Raipur (C.G.) regarding claim amount of M/s Hariram Sultania, document 13 and 14 is letter dated 09.04.2012 sent by the appellant/complainant to the Branch Manager, the State Bank of India, Branch Kharsia, District Raigarh (C.G.), document 15 is letter dated 01.05.2012 sent by Branch Manager, State Bank of India, Branch Kharsia, District Raigarh (C.G.) to the Branch Manager, The New India //10 // Assurance Company Limited, Raipur (C.G.), document 16 is Fire Insurance Claim Form, document 18 is copy of the Inspection Register of State Bank of India, document 19 is Stock Statement of M/s Hariram Sultania (appellant/complainant), document 20 is letter dated 22.05.2012 sent by Shri P.K.Paul, Advocate to M/s Hariram Sultania (appellant/complainant) on behalf of The New India Assurance Company Limited, Branch Office, Bajrang Market, G.E. Road, Raipur (C.G.), document 21 is letter dated 23.03.2012, sent by the Branch Manager, The New India Assurance Co. Ltd. Raipur (C.G.) to the appellant/complainant, document 22 is letter dated 25.09.2012 sent by the appellant/complainant to the Branch Manager, State Bank of India, Kharsia (C.G.), document 23 is Statement of Account of the appellant/complainant, document 24 is Letter No.ADV/2012-13 dated 25.09.2012 sent by the Branch Manager, State Bank of India, Kharsia (C.G.) to the appellant/complainant, document 25 is copy of the Insurance Policy.
11. The respondent Nos.1 & 2/Insurance Company has also filed documents. Document Annexure 1 is Survey Report of Er. Prakash Jain, Surveyor & Loss Assessor, document Annexure 2 is copy of the insurance policy, document Annexure 3, 4 & 5 are Shopkeepers Insurance Policy, document Annexure 6 is Stock Statement of M/s Hariram Sultania (appellant/complainant).
//11 //
12. The respondent no.3/Bank has also filed document. Annexure 1 is letter dated 29.11.2008 sent by the appellant/complainant to The Branch Manager, State Bank of India, Kharsia (C.G.), annexure 2 is Loan Application Form.
13. According to the appellant/complainant on 13.04.2011 due to storm, tempest and heavy rains, the tin shed of godown got opened and water had entered inside the godown and due to rain water fertilizers to the tune of Rs.15,08,440/- were damaged and the appellant/complainant suffered the above loss. The goods/fertilizers were insured by the respondent nos.1 & 2/Insurance Company at the time of the occurrence of the incident.
14. The respondent nos.1 & 2 / Insurance Company appointed Surveyor Er. Prakash Jain and he inspected the premises of the appellant/complainant. In his Survey Report it is mentioned that "This is to be noted that the present loss has occurred over distant located (detached) godown which cannot be covered by shop keeper's policy (Misc. Dept). Such type of risk can be covered by fire policy on Floater basis." According to the Surveyor's Report, the circumstances & cause of loss is thus :
"As told by Mr. Sultania heavy storm (confirmed by News paper) with rains started on 13.04.2011 at about 04.30 p.m. Due to that the G.I. sheets of godown (of Coop. Market Society) situated at Chapri Ganj, Kharsia badly damaged, uprooted and blown out. The roof got opened and the stock of fertilizer lying there got damaged due to rain //12 // water. Due to non-availability of labour insured could not take any preventive measure in order to minimize the loss (by covering with tarpaulin). Thus the said loss was due to storm and rains." Ultimately the Surveyor reached to the conclusion that based on my experience and survey of said risk I made my opinion that about 40% damages can be occurred. Accordingly, the quantum of loss should be as follows:-
Quantum of damages should be approx.
40% of claimed amount of Rs.15 Lakh i.e. Rs. 6,00,000.00
Less : Under Insured 75.30% Rs. 4,51,800.00
Rs. 1,48,200.00
Less : Excess Clause (AOG Perils) Rs. 25,000.00
Rs. 1,23,200.00
15. In the case of M/s Vijay Concerns v/ State Bank of India, Through Branch Manager & Anr., 2013 (4) CPR 165 (NC,) Hon'ble National Commission, has observed thus :-
"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 //13 // 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."
16. In the case of M/s Export Credit Guarantee Corporation of India Ltd. v. M/s Garg Sons International, 2013 (4) CPR 373 (SC), Hon'ble Supreme Court, has observed thus :-
"9. The insured cannot claim anything more than what is covered by the insurance policy.
"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."
17. 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 //14 // 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."
18. In the case of Deokar Exports Pvt. Ltd. v. New India Assurance Company Ltd., I (2009) CPJ 6 (SC), 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."
//15 //
19. 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."
20. Looking to the documents and the insurance policy it is clear that the insurance policy was issued as Agriculture Goods Shop Policy for the shop situated at Dabhra Road, Kharsia, Raigarh District and there was no contract of insurance between the parties in respect of the //16 // godown of the appellant/complainant situated at Chapriganj, Kharsia. In the insurance policy document Annexure - 2, specifically it is mentioned that Shopkeepers Insurance and address is mentioned as M/s Hariram Sultania, Dabhra Road, Kharsiya, Raigarh District and the insurance policy was issued on 18.03.2011 and the appellant/complainant for the first time wrote letter on 16.06.2011 to the respondent no.3/Bank for correction in the insurance policy and he wants to modification in the insurance policy regarding the address of godown situated at Chapriganj, Kharsia (C.G.) and such letter was written after the incident and incident took place on 13.04.2011 and letter was sent to the respondent No.3/Bank on 16.06.2011 i.e. after more than two months from the date of incident. From bare perusal of the insurance policy filed by the parties, it appears that the insurance policy was issued in respect of shop situated at Dabhra Road, Kharsia (C.G.) and the godown situated at Chapriganj, Kharsia was not covered and the Insurance Company was not liable to indemnify for the loss occurred to the godown of the appellant/complainant situated at Chapriganj, Kharsia (C.G.).
21. Looking to the facts and circumstances of the case, it is established that the insurance was done only for the shop of the appellant/complainant situated at Dabhra Road, Kharsia (C.G.) and therefore the respondent Nos.1 & 2/Insurance Company is not liable for indemnifying the loss occurred to the godown situated at Chapriganj, //17 // Kharisa (C.G.) and the Insurance Company has rightly repudiated the claim of the appellant/complainant. Therefore, the order passed by the District Forum, does not suffer from any infirmity or illegality and does not call for any interference by this Commission.
22. Therefore, the appeal filed by the appellant/complainant being devoid of any merits, is liable to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (Ms. Heena Thakkar)
President Member
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