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

National Insurance Company Ltd. v/s M/s. Ess Ell Garments

    First Appeal No. 830 of 2011
    Decided On, 11 June 2014
    At, Punjab State Consumer Disputes Redressal Commission Chandigarh
    By, MEMBER
    For the Appellant: Munish Goel, Advocate. For the Respondent: R.K. Shukla, Advocate.

Judgment Text
Baldev Singh Sekhon, Member:

1. This appeal has been filed by the appellant/opposite parties against the order dated 13.4.2011 passed by the District Consumer Disputes Redressal Forum, Patiala (in short 'District Forum'), vide which the complaint filed by the respondent/complainant was allowed with Rs.5,000/- as cost of litigation and the opposite parties were directed to reimburse the claim of the complainant by making payment of Rs.2,25,917/- within a period of one month alongwith ainterest @ 9% per annum from two months after the date of filing of the report of the surveyor i.e. 6.8.2009 till final payment.

2. The facts, as stated in the complaint, are that the complainant firm is a franchisee of M/s Donear Industries Ltd. Under an agreement dated 10.6.2008, Donear Industries agreed to supply their readymade garments to the complainant firm for retail/sale. The complainant firm got insured all the stock of readymade garments with opposite party No.1, vide cover note No.400603258638 for the period 22.9.2008 to 21.9.2009 for Rs.20,00,000/- against the risk of burglary. On the intervening night of 29/30.11.2008, 252 pieces of 'D COT' manufactured by Donear Industries, worth Rs.2,51,019/- were stolen from the insured premises. An FIR was lodged with the police and opposite parties were also informed immediately. They deputed M/s J.S.Bindra for conducting preliminary spot survey and Mr.Deepak Malhotra for conducting detailed final survey. The franchisor debited the cost of the stolen goods into the account of the complainant. On 5.9.2009, opposite party No.1 refused to pay the insurance claim on the ground that the complainant firm had no insurable interest as the stock stolen belonged to M/s Donear Industries Ltd. In the complaint filed before the District Forum, the complainant firm sought directions to the opposite parties to accept their claim and to make the payment of Rs.2,51,019/- with interest @ 18% per annum from the date of loss alongwith Rs.50,000/- as compensation for harassment and Rs.22,000/- as costs of the complaint.

3. The opposite parties appeared and contested the complaint. They took preliminary objection that the complainant was stopped from filing the complaint by its own act and conduct and that the District Forum did not have the jurisdiction to entertain and try the complaint. It was pleaded that the competent authorities, after having considered the reports submitted by J.S.Bindra and Deepak Malhotra, surveyors and after having considered all the aspects of the case, closed the file of the complainant and he was informed vide letter dated 5.2.2009. In fact, the complainant firm did not have any insurable interest in the goods insured under the policy. The goods were kept by the insured as a trustee only and all purchase and sale of the goods pertained to M/s Donear Industries. Accordingly, dismissal of the complaint was prayed.

4. The parties led their evidence by way of affidavits and documents before the District Forum, which after going through the same and after hearing the learned counsel on their behalf, allowed the complaint, vide aforesaid order.

5. Aggrieved by this order, the appellant has come up in appeal on the ground that the District Forum has illegally allowed the complaint inspite of the fact that the complainant firm did not have any insurable interest in the goods stolen because the goods were kept by the insured on the Trust Basis only and all the purchase and sale were being made on the consignment belonging to M/s Donear Industries. The District Forum did not take into consideration the fact that the insurance policy did not cover the goods of third party though the same may be lying in the shop of the complainant. The opposite parties have no concern with any bilateral agreement between the complainant firm and M/s Donear Industries.

6. On the other hand, the learned counsel for the complainant submitted that there was no merit in the appeal and the same be dismissed.

7. We have thoroughly gone through the pleadings of the parties and have carefully perused the evidence on record.

8. The admitted facts of the case are that the complainant got insured all the stock of readymade garments from opposite party No.1, vide cover note No.400603258638 for the period from 22.9.2008 to 21.9.2009 for Rs.20,00,000/- against the risk of burglary. It is also not in dispute that on the intervening night of 29/30.11.2008 stock of readymade garments, worth Rs.2,51,019/- were stolen from the insured premises. Deepak Malhotra conducted the final survey who assessed the net payable loss as Rs.1,63,898/- vide Ex.R-8. However, the opposite parties, vide their letter dated 12.8.2009 (Ex.R-3), conveyed the complainant firm that the stolen goods belonged to M/s Donear Industries Limited and the complainant firm had no insurable interest in the goods insured under the policy, therefore, the claim was not admissible. The complainant firm was given 15 days’ notice to say anything in this regard, failing which, the claim was to be closed. Thereafter, vide letter dated 5.9.2009 (Ex.R-2), the claim was declared as 'NO CLAIM' on the same ground. The policy document covering the risk has been proved by the opposite parties themselves as Ex.R-4 scrutiny of which, reveals that the insured premises i.e. shop No.1, Nand Market, Rajpura, District Patiala of the complainant firm was covered under the insurance policy. The description of the items covered is defined as under:-


9. It is, thus, evident all types of readymade garments, whether owned by or under the custody of the insured, lying in insured premises were fully covered. There is no reference to the ownership of the stock that was covered under the policy. Hon’ble Supreme Court, in a similar case reported as 1996 (3) SCR 500 titled as 'General Insurance Society Limited V/s Chandumull Jain', has observed that the policy document being a contract between the parties and it has to be read strictly. It was observed as under:-

'In interpreting documents relating to a contract of insurance, the duty of the Court is to interpret the words in which the contract is expressed by the parties, because it is not for the Court to make a new contract, however, reasonable, if the parties have not made it themselves. Looking at the proposal, the letter of acceptance and the cover notes, it is clear that a contract of insurance under the standard policy for fire and extended to cover flood, cyclone, etc., had come into being.'

10. The terms of the policy have to be construed as it is and the Courts cannot add or subtract something. Howsoever liberally it may construe the policy but it cannot take liberalism to the extent of substituting the words which are not intended. Therefore, it is settled law that the terms of the contract have to be strictly read and natural meaning be given to it. No outside aid should be sought unless the meaning is ambiguous. It is proved from the survey report (Ex.R-8) that stock stolen on the intervening night of 29/30.11.2008 was stocked in the insured premises as described in the policy document. Even in the FIR No.284 dated 30.11.2008 (Ex.C-4), it is mentioned that the stock of readymade garments lying in the insured premises were stolen. Thus, it is evident that the stock stolen was fully covered by the insurance policy issued by the opposite parties.

11. Once it is proved on record that the stock stolen was stocked in the insured premises, the insurance claim cannot be denied on the ground that the same did not belong to the insured. Since the damaged stock was for sale by the complainant firm under an agreement with M/s Donear Industries Ltd., the complainant firm had full insurable interest on the stock lying in the insured premises.

12. According to the claim filed by the complainant firm, stock amounting to Rs.2,25,917/- was stolen out of the total stock of Rs.27,56,804/-lying in their premises. The surveyor, while assessing the loss, reduced this amount to Rs.1,63,898/- by applying the 'average clause' mentioned in the insurance policy because the stock of Rs.27,56,804/- was under insured for Rs.20,00,000/-. Average Clause 6 of the terms and conditions of the 'Burglary And House Keeping Policy' provides as under:-

'6. AVERAGE: If the property hereby insured shall at the time of any loss or damage be collectively of greater value than the Sum insured thereon, then the Insured shall be considered as being his own insurer for the difference, and shall bear a ratable proportion of the loss or damage accordingly. Every item, if more than one, in the policy, shall be separately subject to this condition. CONTRIBUTION: If at the time of the happening of any loss or damage covered by this Policy there shall be existing any other insurance of any nature whatsoever covering the same, whether effected by the insured or not, then the Company shall not be liable to pay or contribute more than its ratable proportion of any loss or damage.'

Admittedly, the volume of stock at the time of loss was more than the sum insured. Thus, the surveyor has rightly assessed the net loss payable to the complainant firm as Rs.1,6

Please Login To View The Full Judgment!
3,898/- by applying average clause. 13. In view of the above said discussion and findings, the appeal of the appellant is partly accepted and the impugned order of the District Forum is modified to the extent that the amount payable to the complainant by the opposite parties is reduced from 2,25,917/- to Rs.1,63,898/-. No order as to costs. 14. The appellant deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal and another sum of Rs.1,38,898/- as per the order of this Commission. The entire amount, alongwith interest, which has accrued thereon, if any, be remitted by the Registry to respondent/complainant, by way of a crossed cheque/demand draft, after expiry of 45 days under intimation to the learned District Forum. 15. The arguments in the case were heard on 10.6.2014 and the order was reserved. Now, the order be communicated to the parties. 16. The appeal could not be decided within the statutory period because of the heavy pendency of the court cases.