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



M/s. Maitri Chem Through Its Proprietor, Bhavik K. Vora & Another v/s New India Assurance Co. Ltd. Through Its Sr. Divisional Manager, Mumabi

    First Appeal No. 1279, 1280 of 2016

    Decided On, 05 January 2022

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. JUSTICE R.K. AGRAWAL
    By, PRESIDENT

    For the Appellants: Shantha Devi Raman, Shakya Sen, Advocates. For the Respondent: Kishore Rawat, Prashant Bhardwaj, Advocates.



Judgment Text

1. The present Appeals have been filed against the Order dated 22.08.2016 passed by the Maharashtra State Consumer Disputes Redressal Commission Mumbai (hereinafter referred to as State Commission), whereby the Complaints filed by M/s. Maitri Chem and M/s. Vora Petrochem (hereinafter referred to as the Complainant Company) before the State Commission were dismissed.

2. Since the facts and questions of law involved in both the Appeals are similar, these Appeals are being disposed off through this common Order. However, for the sake of convenience, FA No. 1279 of 2016 is treated as the lead case and the facts enumerated hereinafter are taken from Consumer Complaint No. CC/11/57.

3. Brief facts of the case as narrated in the Complaint are that the Complainant is a proprietary concern doing business of chemicals for self employment and earning their livelihood. They hired godowns at different locations for storing the chemicals. They obtained Floater Insurance Policy bearing No. 140600/11/08/13/00003507 from the New India Assurance Co. Ltd. (hereinafter referred to as the OP Insurance Company) on 23.03.2003 and had been renewing it from time to time on payment of the premium as per demand of the OP Insurance Company. The Policy was having validity from 23.03.2009 to 22.03.2010 for total sum insured of Rs.25 lakh. It is averred by the Complainant they had taken new godown at Niti Wrehouse Gala No. L-1, Bhamre Compound, Bhiwandi, Thane. On 01.10.2009 they informed Mr. Tejas Harshardrai Shah, insurance broker to include the new godown in the existing Floater Policy. Accordingly, Mr. Tejas informed the OP Insurance Company who deputed Surveyor Mr. Rahul Deshpande for pre-risk inspection of the new Godown. Mr. Rahul Deshpande visited the site and submitted the Risk Inspection Report to the OP Insurance Company. Subsequently, OP insurance Company included the new godown, i.e., Niti Wrehouse Gala No. L-1, Bhamre Compound, Bhiwandi, Thane in the said Policy on 05.10.2009 vide Endorsement No. 140600/11/09/13/82000244. It is further stated that unfortunately on 05.10.2009 at around 7:00 PM fire broke out at the other end of Niti Warehouse and spread to all other Galas including Gala No. L-1. Fire Brigade, Police and the OP Insurance Company were informed. OP Insurance Company appointed M/s. Bhatwadekar & Co. as surveyor to assess the loss. The Complainant lodged a claim of Rs.22,43,363/- towards actual loss suffered due to fire with the OP Insurance Company. It is the case of the Complainant that despite providing all the required information and documents the OP Insurance Company vide letter dated 28.05.2010 repudiated the claim of the Complainant on the ground that the above-mentioned Gala was not included in the Policy. Alleging Deficiency in Service on the part of the OP Insurance Company, the Complainant filed a Consumer Complaint seeking following reliefs:-

"a) To allow the complaint

b) To hold and declare that the Opposite Parties are guilty of deficiency in service and unfair trade practices as per the provisions of the Consumer Protection Act,1986;

c) To direct the O.P. to pay the Complainant their claim of Rs. 22,43,363/-(Rupees Twenty Two Lakhs Forty Three Thousand Three Hundred Sixty Three Only) being the actual loss suffered by Complainant due to the fire and covered under the policy along with interest at the rate of 18% p.a. from the date of claim;

d) To direct the O.P. to pay sum of Rs.2,00,000/-(Rupees Two Lakhs Only) towards mental agony suffered by the Complainant;

e) Cost of this complaint be provided to the Complainant;

f) Any other just and reasonable order to meet the ends of justice."

4. The Opposite Party Insurance Company contested the Complaints before the State Commission by submitting that the OP Insurance Company received telephonic instructions from Mr. Tejas Shah Broker for passing endorsement for addition of new location, i.e., M/s. Niti Warehose Gala No. L-1 Bhamre Compound, Bhiwandi, Thane, at 8:30 PM on 05.10.2009. The new location was added in the said Policy at 9:02 pm on 05.10.2009 on telephonic intimation in good faith without any letter from the insured. Mr. Tejas Shah concealed the fact that the fire incidence had already taken place. It was also stated that although the Pre-risk inspection was carried out by Mr. Rahul Deshpande on 1st Oct. 2009 yet he furnished the Pre-risk Inspection Report only on 13.10.2009 after the incident of fire. It was also stated that the Complainant is making false submission as the copy of endorsement copy of the Policy clearly mentions the date of generating the Policy to be 6th October 2009 and not 5th October 2009. The fire broke out at 6.30 p.m. on 05.10.2009 as per fire brigade report and the alleged endorsement to cover the affected location was incorporated at 9.03 p.m. (on the same day) by the office of opponent on the day of incidence of fire since it was not disclosed to the concerned officer either by the broker or by the Complainant. Therefore, there is no deficiency in service on their part and it was prayed that the Complaint be dismissed.

5. After hearing both the Parties and perusal of material on record, the State Commission dismissed the Complaints by observing as under:-

"8. It was for the complainants to take steps for extension of locations to cover under the policies as per the well laid down procedure in advance. There is no evidence to show that such a step was initiated by the complainants well in advance. Even the police report vouch that the fire broke out at about 6.30 p.m. on 05/10/2009 and the telephonic call received by the opponent clearly demonstrate that the last call was received by the opponent at about 9.12 p.m. on 05/10/2009.

9. Considering the consumer complaints in totality, we do not find any merit, hence, liable for dismissal for want of merit."

6. Aggrieved by the Order passed by the State Commission, the Complainants have filed the present Appeals.

7. Ms. Shantha Devi Raman, learned Counsel appearing on behalf of the Complainants/Appellants submitted that admittedly the pre-risk inspection was conducted on 01.10.2009 but the said report was submitted by Surveyor on 13.10.2009 to the OP Insurance Company. It is their internal matter and the Complainant cannot be made victim for the same. This does not invalidate the contract, i.e., the Policy, which had already been established between the Parties, more so, the addition of premises does not warrant payment of additional premium. Therefore, the State Commission wrongly dismissed the Complaints filed by the Complainants. It was prayed that the Complaint be allowed and the Order passed by the State Commission be set aside.

8. Per Contra, Mr. Kishore Rawat, learned Counsel appearing on behalf of the OP Insurance Company supported the Order passed by the State Commission as according to him the State Commission has passed a well-reasoned order which is based on a correct and rightful appreciation of evidence and material available on record and does not call for any interference.

9. I have heard the learned Counsel for the Parties and given a thoughtful consideration to the various pleas raised by them.

10. As far as the contention of the Complainant that the Surveyor appointed by the OP Insurance Company visited the site for pre-risk inspection on 01.10.2009 and the report was received by the OP Insurance Company on 13.10.2009, is concerned, I am of the considered view that the risk would be covered from the time of accepting the risk by the OP Insurance Company by doing endorsement on the Policy and not from the time of pre-risk inspection or pre-risk inspection report.

11. The Hon'ble Supreme Court in Judgment dated 29.10.2021 passed in 'Special Leave Petition (Civil) No. 13868 of 2019 entitled 'Life Insurance Corporation of India & Anr. Vs. Sunita' held that the terms of the insurance policy have to be strictly construed, and it is not permissible to rewrite the contract while interpreting the terms of the Policy, by observing as under:-

"9. From the afore-stated legal position, it is clear that the terms of insurance policy have to be strictly construed, and it is not permissible to rewrite the contract while interpreting the terms of the Policy. In the instant case, condition no. 11 of the Policy clearly stipulated that the policy has to be in force when the accident takes place. In the instant case, the policy had lapsed on 14.10.2011 and was not in force on the date of accident i.e. on 06.03.2012. It was sought to be revived on 09.03.2012 after the accident in question, and that too without disclosing the fact of accident which had taken place on 06.03.2012. Thus, apart from the fact that the respondent-complainant had not come with clean hands to claim the add on/extra Accident benefit of the policy, the policy in question being not in force on the date of accident as per the condition no. 11 of the policy, the claim for extra Accident benefit was rightly rejected by the appellant-Corporation. Since, clause 3 of the said terms and conditions of the policy permitted the renewal of discontinued policy, the appellant-Corporation had revived the policy of the respondent-complainant by accepting the payment of premium after the due date and paid Rs. 3,75,000/- as assured under the policy, nonetheless for the Accident benefit, the policy had to be in force for the full sum assured on the date of accident as per the said condition no. 11. The said Accident benefit could have been claimed and availed of only if the accident had taken place subsequent to the renewal of the policy. The policy in the instant case was lying in a lapsed condition since 14th October, 2011 and, therefore, was not in force as on 06.03.2012, resultantly, the claim over Accident benefit was not payable to the respondent as per the conditions of the contract of insurance."

12. In the instant case, from the perusal of the material available on record it is evident that the endorsement for addition of the new location in both the Policies was done by the OP Insur

Please Login To View The Full Judgment!

ance Company on telephonic instructions received on behalf of the Complainant only at 9.02p.m. on 05.10.2009, whereas as per report of the Fire Brigade, the fire broke out at 06:45 p.m. on 05.10.2009. Therefore, I agree with the findings recorded by the State Commission, which reads as under:- "8. It was for the complainants to take steps for extension of locations to cover under the policies as per the well laid down procedure in advance. There is no evidence to show that such a step was initiated by the complainants well in advance. Even the police report vouch that the fire broke out at about 6.30 p.m. on 05/10/2009 and the telephonic call received by the opponent clearly demonstrate that the last call was received by the opponent at about 9.12 p.m. on 05/10/2009. 9. Considering the consumer complaints in totality, we do not find any merit, hence, liable for dismissal for want of merit." 13. For the afore-noted reasons, I do not find any merit in the present Appeals. Consequently, the impugned Order dated 22.08.2016 passed by the State Commission is upheld and both the Appeals are dismissed.
O R