w w w . L a w y e r S e r v i c e s . i n



Heinz India Private Limited v/s National Insurance Company Limited & Another


Company & Directors' Information:- NATIONAL INSURANCE COMPANY LIMITED [Active] CIN = U10200WB1906GOI001713

Company & Directors' Information:- HEINZ INDIA PRIVATE LIMITED [Active] CIN = U15200MH1994PTC138918

Company & Directors' Information:- HEINZ INDIA PRIVATE LIMITED [Not available for efiling] CIN = U15499DL1994PTC059610

Company & Directors' Information:- NATIONAL CO LTD [Strike Off] CIN = U51909WB1917PLC002781

Company & Directors' Information:- NATIONAL CORPORATION PVT LTD [Not available for efiling] CIN = U51909PB1942PTC000480

Company & Directors' Information:- I.N. INSURANCE COMPANY PRIVATE LIMITED [Strike Off] CIN = U67200DL1994PTC062554

Company & Directors' Information:- INSURANCE OF INDIA LTD [Strike Off] CIN = U67200WB1936PLC008634

Company & Directors' Information:- NATIONAL CORPORATION PRIVATE LIMITED [Not available for efiling] CIN = U99999MH1950PLC009913

    First Appeal No. 286 of 2014

    Decided On, 18 September 2020

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. PREM NARAIN
    By, PRESIDING MEMBER & THE HONOURABLE MR. C. VISWANATH
    By, MEMBER

    For the Appellant: Navneet Kumar, Mohit Singh, Advocates. For the Respondents: Yogesh Malhotra, Advocate.



Judgment Text

This First Appeal has been filed by the appellant Heinz India Private Limited against the respondent National Insurance Company Ltd. & anr. challenging the order dated 11.03.2014 of the State Consumer Disputes Redressal Commission, Maharashtra, (in short ‘the State Commission’) passed in Complaint Case No.CC/07/39.2. Brief facts of the case are that the appellant company had taken Standard Fire and Special Perils Policy from the respondents/opposite parties for sum insured of Rs.13,21,00,000/- and the policy was valid from 01.10.2004 to 30.09.2005. All the stocks of the company kept at different locations were covered. The company changed the location of their store at M/s. Om Enterprises, Mahaveer Godown, Survey No.186 & 187, Thane- Bhiwani Road, Purna, Dist. Thane and shifted their stocks to a new godown located at Shree Arihant Complex, Building No.Y-2, Kalher Village, Thane- Bhiwandi Road, Taluka- Bhiwandi, Dist. Thane on 24.04.2005. On 26.07.2005, there were torrential rains in the area and consequently the whole area was flooded and 4-5 feet of the godown was submerged in the water. The insurance claim was lodged by the complainant company with the respondent Insurance Company and the surveyor appointed by the Insurance Company assessed the damage to the tune of Rs.97,91,904/-, however, net assessed amount was only Rs.65,00,000/- as this location was insured for only Rs.65,00,000/-. The Insurance Company, however, repudiated the claim on 06.10.2005 by stating that the claim has been repudiated by the competent authority. The complainant then filed a consumer complainant before the State Commission being Complaint Case No.CC/07/39. The complaint was resisted by the Insurance Company by filing the written statement. The main reason for repudiation given in the written statement was that the location of incident was not covered in the policy and no change of location was informed by the complainant. The State Commission vide its order dated 11.03.2014 dismissed the complaint.3. Hence the present appeal.4. Heard the learned counsel for both the parties and perused the record.5. The learned counsel for the appellant stated that when the location of the godown was changed, intimation was given to the Insurance Company informing the change of location vide e-mail dated 26.04.2005. However, the State Commission has observed in its order that complainant has not been able to prove receipt of this e-mail by the Insurance Company. The learned counsel argued that no receipt is generated when an e-mail is sent. The Insurance Company has not denied the e-mail address. Hence, if an e-mail has been sent on the correct e-mail address, then it is bound to reach the addressee. The learned counsel further stated that the State Commission has observed that the surveyor did not assess the final loss as the location was not covered under the policy. The learned counsel stated that the surveyor has assessed the gross loss of Rs.97,91,904/-, however, as the sum insured for this location was only Rs.65,00,000/-, the net loss assessed by the surveyor was for Rs.65,00,000/-. Thus, the observation of the State Commission is prima facie wrong on the face of the record.6. The learned counsel for the appellant argued that the repudiation letter of Insurance Company does not mention any ground for repudiating the claim. It only says that the claim has been repudiated by the competent authority. If there is no ground mentioned in the repudiation letter for rejecting the claim, the Insurance Company cannot take any ground in the written statement or in the argument in support of repudiation of the claim. In support of his argument, the learned counsel referred to the judgment of the Hon’ble Supreme Court in M/s. Galada Power and Telecommunication Ltd. Vs. United India Insurance Co. Ltd. & Anr. Etc., Civil Appeal Nos.8884-8900 of 2010, decided on July 28, 2016 wherein it has been held that if an aspect has not been taken in the repudiation letter, the same cannot be taken as a stand in deciding the case. On the basis of this judgment, the learned counsel stated that Insurance Company cannot take any ground for rejecting the claim outside the repudiation letter. As no ground is mentioned in the repudiation letter, the Insurance Company cannot take any ground in support of repudiation. Thus, the claim would be treated as “not repudiated” and the same needs to be allowed.7. On the other hand, the learned counsel for the respondent Insurance Company stated that though the appellant is talking of e-mail dated 26.04.2005 addressed to Insurance Company, however, this e-mail was not produced before the State Commission. The e-mail filed before the State Commission is not addressed to the Insurance Company, rather, it is an internal communication. Therefore, the State Commission has rightly observed that the complainant has failed to prove the receipt of e-mail by the Insurance Company. The learned counsel for the Insurance Company further argued that this e-mail dated 26.04.2005 allegedly addressed to the Insurance Company has been filed along with appeal before this Commission, however, no permission has been taken to file this e-mail as evidence under Order XLI Rule 27 of the Code of Civil Procedure (CPC). This Commission has not given any permission to take this e-mail on record, therefore, no argument can be advanced on the basis of this e-mail. Learned counsel further argued that this e-mail has been suddenly produced at the time of filing of the appeal, though there is no reference of this e-mail either in the complaint or in the rejoinder filed by the complainant. The Insurance Company in the written statement has mentioned the following:-“5. The Opponents further submits that there is no deficiency of services on the part of the Opponents in respect of Standard Fire and Special Perils Policy bearing Ref.No.260800/11/04/3300000266 since the aforesaid policy was covering the risk of the Complainants goods which was kept in the complainants godown situated at M/s. Om Enterprises, Mahaveer Godown, Survey No.186 & 187, Bhiwandi, Purana, Thane. The Opponents submits that as informed by the Complainants that the Loss have occurred at the Complainants Godown situated at M/s. Go Logistic, Building No.Y-2, Godown No.3 to 7, Shree Arhiant Compound, Kalher Village, Reti Bunder Road, Bhiwandi, District Thane-421302 admittedly said godown was not covered under the aforesaid policy which is evident from the said policy. The Opponents further submits that no intimation regarding the change of address of the godown were given by the Complainants to the Opponents as alleged by the Complainants. The Opponents say that the Complainants have made feeble attempt so as to recover the loss from the public corpus taking the shelter of the existing Insurance Policy by making false, vexatious, and misleading allegation in their complaint before this Hon’ble Commission.”8. In reply to this, the complainant in their rejoinder has mentioned the following:-“(d) With reference to para 5 of the affidavit I say and submit that objection raised about said godown was not covered under the aforesaid policy. I say that the policy was issued for the total sum insured value of Rs.13,21,00,000/- in respect of goods kept in all godowns mentioned in the said policy. The sum insured in respect of purna godown Dist. Thane was Rs.65,00,000/- which is the issue involved in the present complaint.”9. From the above, learned counsel for the respondents argued that the complainant did not mention about the e-mail in its rejoinder. The complainant did not try to establish that the new location was covered on the basis of the e-mail/intimation given to the respondent Insurance Company. Thus, till filing of the rejoinder, either this e-mail dated 26.04.2005 was not in existence or the complainant purposely wanted to withhold it. The learned counsel further alleged that this e-mail has been forged later on.10. It was further pointed out by the learned counsel for the respondents that a letter in writing was sent by the complainant on 05.09.2005 after the incident for change of address of this particular location and the same was endorsed by the Insurance Company. Even this letter does not indicate that any e-mail was sent earlier for change of address.11. It was further pointed out by the learned counsel for the respondent that the complainant company itself vide its letter dated 20.09.2005 addressed to the Insurance Company intimated the following:-“However, it appears that neither of us have any official record for proof of intimation of the address. Our normal intimations are through e-mails as borne out by the enclosed intimations. Purna Godown address change too would have been intimated but as per our e-mail retention policy, any outward/inward mail gets automatically deleted unless consciously saved in the hard disk. Unfortunately it appears our above said intimation too might have got deleted, nor it appears that your company has any records of our intimation. It is also pertinent to note that all intimations for change of addresses following the same procedure have been duly recorded at your end.”12. From the above, it was argued by the learned counsel for the Insurance Company that if the e-mail was deleted, how the e-mail has resurfaced at the time of filing of the appeal.13. After hearing the argument of the learned counsel for the Insurance Company, the learned counsel for the appellant/complainant stated that the e-mail dated 26.04.2005 addressed to the Insurance Company should be taken on record and the application which was filed along with the appeal be allowed under Order XLI Rule 27 of the CPC. On the other hand, learned counsel for the respondent Insurance Company stated that no notice has been issued in respect of this application and otherwise also, at the stage of final hearing, this application cannot be considered. It was also emphasised that the appellant/complainant has not pressed for this application in six years since filing of the appeal.14. We have carefully considered the arguments advanced by both the learned counsel for the parties and examined the record. The learned counsel for the complainant has raised an issue that if no reason for repudiating the insurance claim is mentioned in the repudiation letter, then insurance company cannot take any ground in the complaint case for supporting repudiation of the claim. It is evident from the written statement filed by the insurance company before the State Commission that the main ground for repudiation is that the place of occurrence is not covered in the list of godowns insured in the policy. On the basis of the judgment of the Hon’ble Supreme Court in M/s. Galada Power and Telecommunication Ltd. Vs. United India Insurance Co. Ltd. & Anr. Etc. (supra), the learned counsel for the complainant has stressed that insurance company cannot be allowed to take any ground in its reply in support of repudiation of the claim because no ground has been taken in the repudiation letter. The relevant observation of the Hon’ble Supreme Court in M/s. Galada Power and Telecommunication Ltd. Vs. United India Insurance Co. Ltd. & Anr. Etc. (supra) is as under:-“12. The National Commission has relied upon Clause 5 and on that basis has rejected the claim by putting the blame on the complainant. The letter of repudiation dated 20th September, 1999, which we have reproduced hereinbefore, interestingly, does not whisper a single word with regard to delay or, in fact, does not refer at all to the duration clause. What has been stated in the letter of repudiation is that the claim lodged by the complainant does not fall under the purview of transit-loss because of the subsequent investigation report. It is evincible, the insurer had taken cognizance of the communication made by the appellant and nominated a surveyor to verify the loss. Once the said exercise has been undertaken, we are disposed to think that the insurer could not have been allowed to take a stand that the claim is hit by the clause pertaining to duration. In the absence of any mention in the letter of repudiation and also from the conduct of the insurer in appointing a surveyor, it can safely be concluded that the insurer had waived the right which was in its favour under the duration clause. In this regard, Mr. Mukherjee, learned senior counsel appearing for the appellant has commended us to a decision of High Court of Delhi in Krishna Wanti v. Life Insurance Corporation of India[1], wherein the High Court has taken note of the fact that if the letter of repudiation did not mention an aspect, the same could not be taken as a stand when the matter is decided. We approve the said view.”15. A larger bench of the Hon’ble Supreme Court in M/s. Sonell Clocks and Gifts Ltd. v/s The New India Assurance Company Ltd., Civil appeal Nos.1217-1218 of 2017 has distinguished the judgment of M/s. Galada Power and Telecommunication Ltd. Vs. United India Insurance Co. Ltd. & Anr. Etc. (supra) by observing that the dictum in M/s. Galada Power and Telecommunication Ltd. Vs. United India Insurance Co. Ltd. & Anr. Etc. (supra) was in the context of peculiar facts and circumstances of that case. Recently the Hon’ble Supreme Court has given a finding in Saurashtra Chemicals Ltd. (Presently known as Saurashtra Chemicals Division of Nirma Ltd.) vs. National Insurance Co. Ltd. Civil Appeal No.2059 of 2015, decided on 13 December, 2019 that if the delay in filing the claim has not been taken as a ground in the repudiation letter, the same cannot be considered at the time of deciding the claim. In this judgment also, the Hon’ble Supreme Court has relied on the judgment of M/s. Galada Power and Telecommunication Ltd. Vs. United India Insurance Co. Ltd. & Anr. Etc. (supra) and has observed that the Hon’ble Supreme Court did not have any opportunity to review the judgment of M/s. Galada Power and Telecommunication Ltd. Vs. United India Insurance Co. Ltd. & Anr. Etc. (supra) in Sonell Clocks and Gifts Ltd. v/s New India Assurance Company Ltd. (supra) because the ground of delay was taken in the repudiation letter in Sonell Clocks and Gifts Ltd. v/s New India Assurance Company Ltd. (supra). Accordingly on the basis of the judgment of M/s. Galada Power and Telecommunication Ltd. Vs. United India Insurance Co. Ltd. & Anr. Etc. (supra), the Hon’ble Supreme Court has decided the case of Saurashtra chemicals (supra).16. It is seen that the judgment of M/s. Galada Power and Telecommunication Ltd. Vs. United India Insurance Co. Ltd. & Anr. Etc. (supra) on this aspect is based on the observation of the Hon’ble High Court of Delhi in Krishna Wanti versus LIC of India as informed by the learned senior counsel appearing on behalf of the appellant. In fact, Hon’ble High Court of Delhi in Krishna Wanti versus LIC (supra) has basically observed the following:-“20. Thus it has to be seen that repudiation is only on the ground that the deceased had been suffering from heart ailment had not been disclosed. This was the stand which had taken even in the written statement. Neither in the initial repudiation nor in the pleadings there is any case that there was mis-statement in respect of column 7B of the personal statement. This is a case being taken up by the counsel, for the first time during the arguments today. Undoubtedly this is being argued as counsel finds that the case with which the Respondent had come to the Court was not sustainable. Such a fresh case cannot be allowed to be taken up at this stage in Appeal. Even otherwise it is to be seen that non-disclosure must be of a material particular. It must be respect of something which has connection with the ultimate demise. Even if the deceased had been suffering from cough, his death was not a result of that cough or any complication arising from cough. His death was on account of heart attack.”17. From the above, it is clear that the learned senior counsel appearing for appellant in that case submitted the observation of the Hon’ble Delhi High Court in Krishna Wanti's case in a different way which perhaps did not reflect the actual observation of the Hon’ble Delhi High Court. From the above observation of the Hon’ble Delhi High Court in Krishna Wanti (supra), one would see that the Hon’ble Delhi High Court has not expressly excluded the grounds taken in the written statement though the Hon’ble Delhi High Court has not expressly examined the issue as to what will happen if a ground has not been taken in the repudiation letter but has been taken in the written statement. The observation of the Hon’ble Delhi High Court related to a situation where neither the ground was taken in the repudiation letter nor was it taken in the written statement. In fact, the Hon’ble Supreme Court in M/s. Galada Power and Telecommunication Ltd. Vs. United India Insurance Co. Ltd. & Anr. Etc. (supra) has mentioned the judgment of Hon’ble Delhi High Court in Krishna Wanti (supra) to reinforce their decision that the Insurance Company had waived off the ground of delay by appointing the surveyor and by not mentioning it in the repudiation letter. As the learned Senior Counsel appearing for appellant in M/s. Galada Power and Telecommunication Ltd. Vs. United India Insurance Co. Ltd. & Anr. Etc. (supra) did not correctly submit the observation of Hon’ble Delhi High Court in Krishna Wanti (supra), the judgment in M/s. Galada Power and Telecommunication Ltd. Vs. United India Insurance Co. Ltd. & Anr. Etc. (supra) cannot be taken to mean that the grounds taken by the Insurance Company in the written statement are not to be considered.18. Consumer Protection Act 1986 is an Act where the complainant alleges deficiency in service on the part of the opposite party. The deficiency has been defined as under:-2(1)(g) “deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;”19. A complaint has to be replied by the opposite party by filing the written statement and the opposite party is actually at liberty to take all the grounds to deny deficiency in service. The consumer forum has to decide the complaint on the basis of the pleadings and evidence. Otherwise also, in a case where there is no opposition, a consumer forum has to examine the contract of service and if the conditions of contract of service are fulfilled in favor of the compliment, the complaint may be allowed. The issue of coverage of place of incident under the policy is an important and an intrinsic issue to be decided for the acceptance or otherwise of the claim.20. Both the parties agree that the alleged e-mail dated 26.04.2005 addressed to the Insurance Company was not filed before the State Commission. The e-mail filed before the State Commission was an internal e-mail, which would not have any bearing on the case. The disputed e-mail was not filed before the State Commission and that is why an application was filed before this Commission to take this e-mail on record under Order XLI Rule 27 of the CPC, though the application was never pressed by the complainant before the final hearing. Even though the opposite parties have not been given any opportunity to oppose this application, and the matter has been finally heard, it is incumbent upon this Commission to decide this application. Order XLI Rule 27 of the Code of Civil Procedure, 1908 (CPC) reads as under:-“27 . Production of additional evidence in Appellate Court— (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if—(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or[(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or](b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause,the Appellate Court may allow such evidence or document to be produced, or witness to be examined.”21. From the above, it is clear that normally no new evidence will be permitted at the appellate stage, however, in spec

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ial conditions mentioned in Rule 27, additional evidence can be allowed. In the present case, it is not the case of the appellant that the appellant was not allowed to file this e-mail before the State Commission. Thus, Rule 27 (a) does not apply in the present case. Moreover, this e-mail was always in the knowledge and possession of the appellant/complainant and therefore, even Rule 27(aa) is also not attracted in the present case. Clearly Rule 27 (b) is also not attracted to the present case as this Commission does not require this e-mail for adjudication of the appeal. This Commission would decide the appeal on the basis of the pleadings and evidence filed before the State Commission. Thus, this e-mail dated 26.04.2005 allegedly addressed to the Insurance Company cannot be taken on record at the appellate stage under Order XLI Rule 27 of the CPC as the requirements of this rule are not satisfied.22. The Insurance Company has clearly stated in its written statement that they did not receive any intimation regarding change of address of the said location. The complainant has not disputed this in its rejoinder. Moreover, there is no mention of the said e-mail in the complaint as well. As per e-mail retention policy of the complainant company, the e-mails get deleted if not specifically saved. In its letter dated 20.09.2005, the complainant has admitted that neither the complainant nor the Insurance Company have any proof regarding intimation in respect of change of address of the said location. All these facts and non-submission of this e-mail before the State Commission clearly strengthen the doubt regarding genuinity of this e-mail. From this aspect also, we do not find any justification under inherent powers of the court (even against the provision of Order XLI Rule 27) to consider this e-mail as evidence at the appellate stage.23. Clearly, we find no infirmity in the order of the State Commission when the complainant chose not to file the alleged e-mail dated 26.04.2005 addressed to the Insurance Company before the State Commission.24. Based on the above discussion, we do not find any infirmity in the order dated 11.03.2014 of the State Commission requiring any interference from this Commission in appeal. Consequently, First Appeal No.286 of 2014 is dismissed.
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