State Consumer Disputes Redressal Commission
Sh. Amit Kumar. vs Sbi General Insurance Co. Ltd. & Ors. on 7 November, 2019
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 228/2018
Date of Presentation: 28.08.2018
Order Reserved on : 31.05.2019
Date of Order : 07.11.2019
......
Amit Kumar son of Shri Hem Singh Village Ghera P.O. Talyahar
Tehsil Sadar District Mandi (H.P).
...... Appellant/Complainant
Versus
1. SBI General Insurance Company Limited Registered and
Corporate Office Nataraj 101, 201 and 301 Junction of
Western Express Highway and Andheri Kurla-Road Andheri
(East).
2. Branch Manager SBI General Life Insurance Company
Limited SCO No.457-458 1st and 2nd Floor Sector 35-C
Chandigarh-160035.
......Respondents No.1 & 2 /Opposite parties No.1 & 2
3. Branch Manager State Bank of Patiala Indira Market
Mandi Town District Mandi (H.P).
......Respondent No.3/Opposite party No.3
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Ms. Sunita Sharma Member
Whether approved for reporting?1 Yes.
For Appellant : Ms. Kirti Sood vice Mr. Digvijay Singh
Advocate.
For Respondents No.1&2: Mr. Chandan Goel Advocate.
For Respondent No.3 : Mr. Bhupinder Pathania vice Arvind
Sharma Advocate.
1
Whether reporters of the local papers may be allowed to see the order? Yes.
Amit Kumar Versus SBI General Insurance Co. Ltd. & Ors.
F.A. No.228/2018
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed against order dated 25.07.2018 passed by Learned District Consumer Forum/ Commission in consumer complaint No.162/2016 titled Amit Kumar Versus SBI General Insurance Co. Ltd. & Ors. Brief facts of consumer complaint:
2. Complainant filed consumer complaint under Consumer Protection Act pleaded therein that complainant took loan to the tune of Rs.950000/-(Nine lac fifty thousand) from opposite party No.3 i.e. State Bank of Patiala in order to run oil trading business. It is pleaded that OP No.3 insured business of complainant from opposite parties No.1 & 2. It is pleaded that on dated 08.04.2014 at 7.45 PM fire took place in the premises of complainant and destroyed all raw material and finished goods which were situated in premises. It is further pleaded that fire also damaged furniture, fixtures and roof of building. It is pleaded that fire incident was immediately brought to the notice of local police and fire department. It is pleaded that on dated 09.04.2014 complainant personally visited office of opposite party No.3 and informed officials about fire incident. It is further pleaded that thereafter officials of opposite party No.3 told complainant to inform opposite party No.2. It is further 2 Amit Kumar Versus SBI General Insurance Co. Ltd. & Ors. F.A. No.228/2018
pleaded that thereafter complainant immediately contacted telephonic call in the office of opposite party No.2 and informed about fire incident. It is pleaded that official of opposite party No.3 visited premises of complainant on dated 09.04.2014 at about 4.30 PM. It is further pleaded that Insurance company did not settle claim and committed deficiency in service. Prayer for acceptance of consumer complaint sought.
3. Per contra version filed on behalf of opposite party No.1 pleaded therein that claim was closed by way of repudiation letter dated 29.05.2014. It is pleaded that claim is not payable by Insurance company because insured has committed breach of terms and conditions of Insurance policy. It is further pleaded that two oil extracting units i.e. M/s Amit Oil Industries and M/s Radhika Oil Industries and one wheat floor mill were running within one premises consisting of one Hall room and there was no partition to distinguish identity of respective units. It is pleaded that present consumer complaint is barred by limitation. It is pleaded that claim of complainant was repudiated vide letter dated 29.05.2014 and present consumer complaint was not filed within two years from cause of action. It is further pleaded that complicated question of facts are involved in present consumer complaint and complainant be relegated to 3 Amit Kumar Versus SBI General Insurance Co. Ltd. & Ors. F.A. No.228/2018 civil court. It is pleaded that Insurance company did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought.
4. Opposite party No.2 did not file version and opposite party No.2 was proceeded ex-parte by Learned District Consumer Forum/Commission.
5. Per contra separate version filed on behalf of opposite party No.3 pleaded therein that complainant has no cause of action against opposite party No.3. It is pleaded that complicated questions of facts and laws are involved in present consumer complaint and complainant be relegated to civil court for adjudication of dispute. Prayer for dismissal of consumer complaint sought.
6. Complainant filed rejoinder and reasserted allegations mentioned in consumer complaint. Learned District Consumer Forum/Commission dismissed consumer complaint. Feeling aggrieved against order passed by Learned District Consumer Forum/Commission complainant filed present appeal before State Commission.
7. We have heard learned Advocates appearing on behalf of parties and we have also perused entire record carefully.
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Amit Kumar Versus SBI General Insurance Co. Ltd. & Ors. F.A. No.228/2018
8. Following points arise for determination in present appeal.
1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal and whether limitation to file consumer complaint starts from original repudiation letter by Insurance company or will start from date of final order passed by Company Grievance Redressal Committee (GRC) which is highest appellate authority of Insurance company in view of ruling reported in 1997(II) CPJ 36 NC (Five Members Bench) titled Sirpur Paper Mills Ltd. Versus National Insurance Co. Ltd. and in view of ruling announced by Hon'ble Apex Court of India reported in 2009(I) CPJ 55 Apex Court titled Oriental Insurance Company Ltd. Versus Prem Printing Press and whether Insurance company is under legal obligation to pay genuine claim?
2. Final order.
Findings upon point No.1 with reasons:
9. Complainant filed affidavit in evidence. There is recital in affidavit that deponent took loan from opposite party No.3 i.e. State Bank of Patiala to the tune of Rs.950000/-
(Nine lac fifty thousand) to run oil trading business. There is recital in affidavit that State Bank of Patiala obtained Insurance policy from opposite parties No.1 & 2 and insured business of deponent. There is recital in affidavit that on dated 08.04.2014 at about 7.45 PM fire took place in the 5 Amit Kumar Versus SBI General Insurance Co. Ltd. & Ors. F.A. No.228/2018 premises and fire destroyed all raw material and finished goods which were lying in the premises. There is further recital in affidavit that on dated 09.04.2014 deponent personally visited office of OP No.3 and informed official namely Mr. Manchanda about fire incident. There is recital in affidavit that thereafter Mr. Manchanda contacted in the office of opposite party No.2 and official of opposite party No.2 told Mr. Manchanda to ask deponent to inform opposite party No.2 personally. There is recital in affidavit that thereafter Mr. Manchanda handed over telephone of opposite party No.2 to deponent and thereafter deponent immediately informed in the office of opposite party No.2 by way of telephone. There is recital in affidavit that despite several requests Insurance company did not settle the claim.
10. Complainant also filed corroborative affidavit of eye witness namely Sh. Raj Kumar in evidence. There is recital in affidavit that on dated 08.04.2014 at about 7.45 PM fire took place in the premises of complainant and damaged all raw material and finished goods lying in said premises. There is recital in affidavit that raw material and finished goods lying in said premises were emitting foul smell and created odious situation all around the factory area. There is recital in affidavit that on dated 15.04.2014 deponent was engaged by Sh. Amit Kumar to remove burnt garbage. There 6 Amit Kumar Versus SBI General Insurance Co. Ltd. & Ors. F.A. No.228/2018 is recital in affidavit that deponent alongwith few other persons removed and threw garbage into nearby flowing stream.
11. Complainant also filed affidavit of Sh. Kamal Singh in evidence. There is recital in affidavit that complainant is running oil trading business. There is recital in affidavit that on dated 08.04.2014 at about 7.45 PM fire took place in the premises of complainant and destroyed all raw material and finished goods lying in said premises. There is recital in affidavit that burnt stock and furnitures were emitting foul smell and created odious situation all around factory area. There is recital in affidavit that deponent was engaged by complainant to remove damaged raw material and damaged finished goods. There is recital in affidavit that deponent removed damaged raw material and damaged finished goods and threw garbage into nearby stream of Rivolsar road. State Commission has carefully perused all annexures filed by complainant.
12. Insurance company filed affidavit of Miss Madhavi Uttam in evidence. There is recital in affidavit that deponent is competent authority of Insurance company. There is recital in affidavit that complainant flouted terms and conditions of Insurance policy. There is recital in affidavit that two oil extracting units i.e. M/s Amit Oil Industries and M/s Radhika 7 Amit Kumar Versus SBI General Insurance Co. Ltd. & Ors. F.A. No.228/2018 Oil Industries and one wheat floor mill were running within one premises consisting of one Hall room and there was no partition to distinguish identity of respective units. There is recital in affidavit that claim was repudiated on dated 29.05.2014 and present consumer complaint was not filed within limitation. There is recital in affidavit that complainant destroyed all burnt stock and other material with nefarious design.
13. Insurance company also filed affidavit of Surveyor cum Loss Assessor namely Sh. Rakesh Khanna in evidence. There is recital in affidavit that deponent has submitted survey report. State Commission has carefully perused all annexures filed by Insurance company.
14. Opposite party No.3 did not adduce any evidence by way of affidavits qua controversial facts.
15. Submission of learned Advocate appearing on behalf of complainant that limitation to file consumer complaint will not start from date of repudiation by Insurance company i.e. 29.05.2017 but will start from date of order of appellant authority of Insurance company i.e. Company Grievance Redressal Committee (GRC) i.e. 25.07.2014 which is highest appellate authority to hear and address customer grievance is decided accordingly. State Commission is of the 8 Amit Kumar Versus SBI General Insurance Co. Ltd. & Ors. F.A. No.228/2018 opinion that limitation to file consumer complaint will not start from original repudiation letter dated 29.05.2014 issued by Insurance company but will start from 25.07.2014 when Company Grievance Redressal Committee which is highest appellate authority to hear and address customer grievance passed the order. It is proved on record that GRC highest appellate authority of Insurance company passed the order on 25.07.2014 and present consumer complaint was filed before Learned District Consumer Forum/Commission on dated 30.06.2016 within two years w.e.f. 25.07.2014. It is held that consumer complaint filed by complainant is within limitation. Order of Learned District Consumer Forum/Commission that consumer complaint was not filed within limitation warrants interference by State Commission. See 1997(II) CPJ 36 NC (Five Members Bench) titled Sirpur Paper Mills Ltd. Versus National Insurance Co. Ltd. See 2009(I) CPJ 55 Apex Court titled Oriental Insurance Company Ltd. Versus Prem Printing Press.
16. Submission of learned Advocate appearing on behalf of complainant that complainant is legally entitled for Insurance claim is decided accordingly. Sh. Raj Kumar and Sh. Kamal Singh eye witnesses have specifically mentioned in their affidavits that all raw material and finished goods lying in the premises were damaged. Even Up-Pradhan Gram 9 Amit Kumar Versus SBI General Insurance Co. Ltd. & Ors. F.A. No.228/2018 Panchayat Talyahar has given certificate and there is recital in certificate that raw material and finished goods lying in the premises were damaged and information to Insurance company was also given. There is further recital in certificate that bad smell started emitting and thereafter local Panchayat directed complainant to remove burnt raw material and finished goods and also directed complainant that in default legal proceedings would be initiated against the complainant for not removing burnt raw material and finished goods. State Commission is of the opinion that affidavits filed by Sh. Raj Kumar and Sh. Kamal Singh independent eye witnesses are trustworthy, reliable and inspire confidence of State Commission. In view of affidavits of Sh. Raj Kumar and Sh. Kamal Singh and in view of certificate given by Up-pradhan Gram Panchayat State Commission is of the opinion that present Insurance claim is a genuine claim and Insurance company is under legal obligation to settle genuine claim. See AIR 2017 SC 4836 (DB) titled Om Prakash Versus Reliance General Insurance & Anr. See 2019(1) CPR 471 NC titled ICICI Lombard General Insurance Company Ltd. Versus Honest Bio-vet Pvt. Ltd.
17. Submission of learned Advocate appearing on behalf of Insurance company that no opportunity was given to Surveyor cum Loss Assessor to inspect burnt material and 10 Amit Kumar Versus SBI General Insurance Co. Ltd. & Ors. F.A. No.228/2018 burnt material was disposed of by the complainant and on this ground appeal filed by complainant be dismissed is decided accordingly. State Commission is of the opinion that complainant has disposed of all raw material and finished goods because direction was given to complainant by local Gram Panchayat to remove burnt raw material and finished goods failing which Panchayat would take legal action against the complainant. It is proved on record that burnt raw material and finished goods were emitting foul smell and in order to save lives of inhabitants of locality Local Panchayat directed the complainant to remove burnt raw material and finished goods immediately. State Commission is of the opinion that complainant has removed burnt raw material and finished goods under compelling circumstances on the concept of 'Force Majeure'. State Commission is of the opinion that in view of above stated facts it is not expedient in the ends of justice and on the principles of natural justice to exonerate Insurance company from liability.
18. Submission of learned Advocate appearing on behalf of Insurance company that as per Surveyor cum Loss Assessor report fire incident was minor in intensity and on this ground appeal filed by complainant be dismissed is decided accordingly. It is well settled law that report submitted by Surveyor cum Loss Assessor is not sacrosanct 11 Amit Kumar Versus SBI General Insurance Co. Ltd. & Ors. F.A. No.228/2018 report. Eye witnesses namely Sh. Raj Kumar and Sh. Kamal Singh have specifically mentioned in their affidavits that raw material and finished goods which were lying in premises were damaged and they have removed burnt raw material and finished goods because burnt material were emitting odious smell. See 2009(VII) SCC 787 Apex Court DB titled New India Assurance Company Ltd. Versus Pradeep Kumar. See 2018(4) CPR 719 NC titled Tata AIG General Insurance Co. Ltd. Versus Maninder Singh and others.
19. State Commission is of the opinion that it is not expedient in the ends of justice and on the principles of natural justice to rely upon report of Surveyor cum Loss Assessor in view affidavits of eye witnesses namely Sh. Raj Kumar and Sh. Kamal Singh and in view of certificate given by Up-pradhan Gram Panchayat.
20. Submission of learned Advocate appearing on behalf of Insurance company that Insurance policy was obtained for oil trading business and fire took place in unit i.e. oil manufacturing unit which is outside scope of Insurance policy and on this ground appeal filed by complainant be dismissed is decided accordingly. State Commission has carefully perused Insurance policy. As per Insurance policy stock destroyed due to fire and allied perils and stock relating to oil trading were insured for a sum of 12 Amit Kumar Versus SBI General Insurance Co. Ltd. & Ors. F.A. No.228/2018 Rs.400000/-(Four lac). There is also positive recital in Insurance policy that type of policy was business package insurance policy. State Commission is of the opinion that in business package policy Insurance company is under legal obligation to indemnify loss of stocks kept in oil trading business and it is not expedient in the ends of justice and on the principles of natural justice to exonerate Insurance company from liability.
21. Submission of learned Advocate appearing on behalf of Insurance company that matter falls within exclusion clause of Insurance policy and on this ground appeal filed by complainant be dismissed is decided accordingly. State Commission is of the opinion that there is no evidence on record that Insurance company has communicated exclusion clause to the insured. It is well settled law that when exclusion clauses were not explained to insured by Insurance company then Insurance company is not competent to take benefit of exclusion clause. See 2000(2) Supreme Court Cases 734 Modern Insulators Ltd. Versus Oriental Insurance Company Ltd. See 2019(2) SC 820 Himachal Law Reporter titled Bharat Watch Versus National Insurance Co. Ltd. See 2007(III) CPJ 34 NC National Insurance Company Ltd. Versus D.P. Jain.
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Amit Kumar Versus SBI General Insurance Co. Ltd. & Ors. F.A. No.228/2018
22. Submission of learned Advocate appearing on behalf of Insurance company that complicated questions of facts and laws are involved in the present matter and complainant be relegated to civil court is decided accordingly. State Commission is of the opinion that present matter could be disposed of under Consumer Protection Act and it is not expedient in the ends of justice and on the principles of natural justice to relegate complainant to civil court for adjudication of dispute. Point No.1 is decided accordingly. Point No.2: Final Order
23. In view of findings upon point No.1 above appeal filed by appellant is partly allowed. Order of Learned District Consumer Forum/Commission is set aside. It is ordered that Insurance company i.e. Opposite parties No.1 & 2 shall jointly and severally pay O.D claim to complainant to the tune of Rs.400000/-(Four lac) alongwith interest @ 9% per annum from the date of institution of complaint till actual payment. It is further ordered that opposite parties No.1 & 2 shall jointly and severally pay compensation to complainant for mental agony and harassment to the tune of Rs.20000/- (Twenty thousand). It is further ordered that opposite parties No.1 & 2 shall jointly and severally pay litigation costs to complainant to the tune of Rs.10000/-(Ten thousand). Insurance company will comply the order within one month 14 Amit Kumar Versus SBI General Insurance Co. Ltd. & Ors. F.A. No.228/2018 after receipt of certified copy of order. Complaint against opposite party No.3 is dismissed.
24. O.D. claim of damage of raw material and finished goods will be paid to complainant subject to furnishing of NOC from financier i.e. Opposite party No.3 State Bank of Patiala. If complainant will not submit NOC from financier in that eventuality O.D claim will be directly submitted to opposite party No.3 i.e. State Bank of Patiala in the loan account of complainant for liquidation of loan amount. Insurance Policy Annexure-O-I(2) and certificate issued by Up-Pradhan Gram Panchayat Talyahar shall form part and parcel of order.
25. Certified copy of order be sent to Learned District Consumer Forum/Commission for information forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Sunita Sharma Member 07.11.2019 K.D 15