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M/s. Gulabchand Shankar v/s Oriental Insurance Co. Ltd., Rajasthan & Another


    Revision Petition No. 2152 of 2011

    Decided On, 01 July 2020

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR.JUSTICE V.K. JAIN
    By, PRESIDING MEMBER

    For the Petitioner: Nimit Mathur, Advocate. For the Respondents: Kishore Rawat, Advocate.



Judgment Text


Oral:

The facts in this matter are identical to the facts in RP No. 2151 of 2011. Two different complaints were filed by the petitioner which is engaged in trading as a commission agent and which used to sell third party goods on commission basis and used to make payment of those goods after making the sale and deducting its commission. In both the matters the goods used to be kept in cold store and separate insurance policies had been taken by way of two separate cover notes dated 04.04.2006. A fire broke out in the Cold Storage in the night of 09.06.2006 and according to the complainants goods worth Rs. 585155/- were destroyed. The insurer appointed a surveyor and based upon his report approved the claim for Rs. 174992/- on the ground that the remaining goods destroyed in the fire were third party goods held by the complainant in trust for them. Being aggrieved the complainant approached the concerned District Forum by way of a consumer complaint. The insurer contested the complaint on the ground that it was not liable to reimburse the complainant for the third party goods which were destroyed in the fire.

2. The District Forum directed the insurer to pay to the complainant a sum of Rs. 4,92,856/- along with interest @ 9% p.a.

3. Being aggrieved from the order passed by the District Forum, the insurer approached the State Commission by way of an appeal. Vide impugned order the State Commission modified the order of the District Forum and directed the insurer to pay Rs. 1,74,992/- to the complainant. Being aggrieved the complainant is before this Commission.

4. Identical grievance was made by this very petitioner in RP No. 2151 of 2011 which has been disposed of by a separate judgement. In that case also the insurer had refused to pay for the third party goods held by the petitioner in trust for them. In that case also the State Commission upheld the stand taken by the insurer and set aside the order of the District Forum which had allowed the claim.

5. The above-referred decision of this Commission, to the extent it is relevant reads as under:-

5. It is submitted by the learned counsel for the petitioner/complainant that in fact all the goods which were kept in the cold storage and got destroyed/damaged were owned by the petitioner itself. He also submits that the petitioner has already filed documents pursuant to the permission granted by this Commission which would show that the goods were owned by the petitioner. No such permission, according to Mr. Rawat was given. However, on a careful perusal of the consumer complaint, I find that the complainant has clearly and very specifically alleged therein that they were in business as commission agents and that in their business of commission agency (aadat), the goods of others used to be sold by them on the goods fetching appropriate price and thereafter they used to pay to those persons after deducting their commission from the sale proceeds. In view of the specific averments made in the consumer complaint, the petitioner/complainant cannot be allowed to take the stand that all the goods kept in the cold storage were owned by the petitioner itself.

6. The next question which arises for consideration is as to whether the goods which the petitioner was holding as a commission agent and had kept them in the cold storage were covered under the insurance cover taken by the petitioner or not. It is evident from a bare perusal of the cover note itself that the insurance coverage was obtained only in respect of the goods of the petitioner/complainant and not in respect of the goods which the petitioner/complainant did not own but was holding as a commission agent. In other words, the insurance coverage was not taken in respect of the goods held by the petitioner/complainant in trust. Though the case of the petitioner/complainant is that only the cover note and policy schedule were supplied to it, without supplying the terms and condition of the policy, the case of the insurer is that not only the cover note and policy schedule even the terms and conditions governing the policy were supplied. There is no evidence or even allegation of the petitioner/complainant having asked the insurer for the terms and conditions applicable to the policy. Since the policy schedule was received by the petitioner/complainant, it would in the ordinary course of events have asked for terms and conditions applicable to the policy, had the said terms and conditions not been attached to the policy schedule. Therefore, it would be difficult for me to accept the plea that the terms and conditions attached to the policy were not provided to the petitioner/complainant. It has to be kept in mind that the petitioner is an experienced businessman and not a lay person. The petitioner therefore is aware of the importance of the terms and conditions governing the insurance policy. Had those terms and conditions not been received along-with the policy document, the petitioner, being an experienced businessman, would certainly have asked for those terms and conditions.

7. Even if I presume that the terms and conditions attached to the policy were not supplied to the petitioner/complainant, the policy taken by it being a standard policy all the terms and conditions applicable to a standard fire policy would apply and would bind the parties. A reference in this regard can be made to the decision of the Hon’ble Supreme Court in General Assurance Society Ltd.Vs. Chandumull Jain & Anr. (1966), 3 SCR 500, where the respondent had submitted two proposals to the appellant, which were accepted vide two separate letters. Two interim protection cover notes in respect of the said two proposals were then issued by the insurer. It was inter-alia stated in the cover notes that the property was insured subject to the terms of the applicant’s proposal and to the usual conditions of the Society’s policies. The case of the appellant society was that the insurance policy was cancelled by it as per condition No.10 of the said policy. The suit filed by the insured was dismissed by the trial Court holding that the protection available to the plaintiff was as per the usual terms and subject to the conditions of the policy. In an appeal, filed by the plaintiff, the Division Bench of the High Court held that as the cover note was only for a month and had ceased to be operative. Condition No.10 of the insurance policy, which permitted its cancellation, was held not to be applicable. The Hon’ble Supreme Court felt that the application of Condition No.10 was dependent on how far the terms and conditions could be said to be incorporated in the contract of insurance between the parties. Dealing with the issue the Hon’ble Supreme Court inter-alia held as under:

“11. …… A cover note is a temporary and limited agreement. It may be self-contained or it may incorporate by reference the terms and conditions of the future policy. When the cover note incorporates the policy in this manner, it does not have to recite the term and conditions, but merely to refer to a particular standard policy. If the proposal is for a standard policy and the cover note refers to it, the assured is taken to have accepted the terms of that policy. The reference to the policy and its terms and conditions may be expressed in the proposal or the cover note or even in the letter of acceptance including the cover note. The incorporation of the terms and conditions of the policy may also arise from a combination of references in two or more documents passing between the parties.

12. …… The policy not only defines the risk and its duration but also lays down the special terms and conditions under which the policy may be enforced on either side. Even if the letter of acceptance went beyond the cover notes in the mater of duration, the terms and conditions of the proposed policy would govern the case because when a contract of insuring property is complete, it is immaterial whether the policy is actually delivered after the loss and for the same reason the rights of the parties are governed by the policy to be, between acceptance and delivery of the policy. Even if no terms are specified the terms contained in a policy customarily issued in such cases, would apply. There is ample authority for the proposition.” Emphasis supplied.

8. From a bare perusal of the cover note it is evident that the petitioner had taken insurance cover in respect of its own goods and not in respect of the third party goods. If the petitioner wanted insurance coverage in respect of third party goods which it was holding as a commission agent, it ought to have disclosed so while seeking the insurance cover. That having not been done, there is no escape from the conclusion that the insurance coverage was taken by it only in respect of the goods which were owned by it.

9. The learned counsel for the petitioner/complainant refers to the recent decision of the Hon’ble Supreme Court in Civil Appeal No. 1042/2020 Canara Bank Vs. United India Insruance Co. Ltd. & Ors. dated 06.02.2020. A perusal of the afore-said judgement would show that the consumer complaints in that case were filed by the farmers whose goods had been kept in the cold storage and had got destroyed. The farmers were paying rents to the cold storage for keeping their goods. It was in these circumstances that the Hon’ble Supreme Court declined the plea taken by the insurer that the said goods being the gods held in trust, the exclusion clause contained in the standard policy was applicable. In fact, the Hon’ble Supreme Court while rejecting the plea taken by the insurer specifically stated that the cold storage was not a commission agent of the farmers and was taking rent from them. This would mean that the case of insurance coverage taken by a commission agent, in respect of the third party goods without disclosing the ownership of those goods to the insurer would not be covered.

10. For the reasons stated hereinabove the view taken by the State Commission does not call for any interference by this Commission in exercise of its revisional jurisdiction, except as regards the interest, the State Commission having not awarded any interest on the principal sum awarded to the petitioner/complainant. The learned counsel for the insurer submits that interest should not be awarded to the petitioner/complainant since they declined to accept the cheque of Rs.4,11,231/-. which the insurer had sent to them. However, the fact remains that even the amou

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nt of Rs.4,11,231/- continued to be utilized by the insurer, the complainant having not accepted the cheque. Therefore, if interest is declined to the complainants, this, in my opinion, would amount to unjust enrichment of the insurer. In terms of the Regulation 9 of the Insurance Regulatory and Development Authority (Protection of Policyholders' Interests) Regulations 2002, the insurer gets a maximum period of six months for settlement of the claim. Therefore, the insurer, in my opinion should pay interest to the petitioner/complainant on the awarded amount of Rs.4,11,231/- w.e.f. six months from the lodgement of the claim. 6. For the reasons stated hereinabove, the revision petition is disposed of with the directions that the insurer shall pay to the petitioner a sum of Rs.1,74,992/- along-with simple interest on that amount @ 9% p.a. w.e.f. six months from the lodgement of the claim till the date of payment. 7. However, it is made clear that this order will not come in the way of a third party which owned the goods for which re-imbursement has not been granted from availing such remedy against the insurer as may be available to them in law.
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