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



New India Assurance Co. Ltd. & Others v/s M/s. Himachal Valley Products Pvt. Ltd. & Others

    Appeal Nos. 766 of 2007, 767 of 2007, 768 of 2007 & First Appeal No. 217 of 2008

    Decided On, 21 April 2016

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. JUSTICE K.S. CHAUDHARI
    By, PRESIDING MEMBER & THE HONOURABLE MR. PREM NARAIN
    By, MEMBER

    For the Appellants: J.P.N. Shahi, Kishore Rawat, Advocates. For the Respondents: R1, B.B. Bagga, R.S. Kalra, R2, Kishore Rawat, J.P.N. Shahi, Advocates, R3, Ex-parte.



Judgment Text

K.S. Chaudhari, Presiding Member

All these appeals arise out of single order of State Commission passed in 3 different complaints; hence, decided by common order.

2. Appeal No. 766/2007, 767/2007 and 768/2007 have been filed by OP – New India Assurance Co. Ltd. and Appeal No. 217/2008 has been filed by OP – National Insurance Co. Ltd. against order dated 7.11.2007 passed by learned State Commission in Complaint No. 4/2006 - M/s. Shubh Timb Steels Ltd. Vs. New India Assurance Co. Ltd., in Complaint No. 5/06 – M/s. Himachal Valley Products Pvt. Ltd. Vs. New India Assurance Co. Ltd. and Complaint No. 6/2006 – M/s. Supreme Lumbers Pvt. New India Assurance Co. Ltd. by which complaints were partly allowed.

3. Brief facts of the cases in all the complaints are that all complainant units are located at Plot No. 20B-22, 23, 24, Sector 1, Parwanoo, Himachal Pradesh with no internal or physical demarcation and having one/common boundary wall and gate. Complainants/respondents building, plant, machinery, accessories, stocks were insured by OP/appellant – New India Assurance Co. Ltd. and in Complaint No. 6/2006 machinery was insured by appellant, National Insurance Co. On 17.4.2005, fire broke out at 2.30 a.m. in the insured premises of the complainant due to which, plant, machinery, stock, buildings of all the three units suffered extensive damage. Intimation was given to OP who deputed surveyor to whom required documents were supplied. Surveyors assessed loss. In Complaint No. 4/06, part payment was sent by OP and rest of the claims were repudiated by OPs in all the complainants. Alleging deficiency on the part of OP, complainants filed separate three complaints before learned State Commission. OP resisted complaints and submitted that as fire did not occur at insured place, claim was rightly repudiated. In Complaint No.4/06 it was further pleaded that complaint was not maintainable for want of pecuniary jurisdiction and complainant had already received payment in full and final satisfaction of the claim; so, complaint was not maintainable and prayed for dismissal of all complaints. Learned State Commission after hearing all the parties allowed complaint partly and directed OP in Complaint No.4/06 to pay Rs.11,23,584/- with 12% p.a. interest along with compensation of Rs.25,000/-. In Complaint No.5/2006 to pay Rs.10,64,984/- with 12% p.a. interest along with compensation of Rs.25,000/- and in Complaint No.6/2006 to pay Rs.30,20,297/- with 12% p.a. interest along with Rs.50,000/- as compensation and consolidated cost of Rs.75,000/- for all three cases was allowed against which these appeals have been filed and Appeal No. 217/2008 has been filed along with application for condonation of delay.

4. None appeared for Respondent No. 3 in Appeal No. 217/08 and he was proceeded ex-parte.

5. As far delay in filing Appeal No. 217/08, delay was condoned by order dated 15.1.2009.

6. Heard learned Counsel for the parties and perused record.

7. Learned Counsel for the appellant submitted that inspite of no insurance coverage of plot where fire occurred and inspite of receiving amount by complainant as full and final satisfaction in Complaint No. 4/06 and inspite of objection regarding pecuniary jurisdiction, learned State Commission has committed error in allowing complaints without assigning any reason for discarding surveyors report; hence, appeals be allowed and impugned orders be set aside. Learned Counsel for the National Insurance Co. submitted that inspite of claiming loss of only Rs.4,44,731/- in respect of plant and machinery, learned State Commission committed error in allowing complaint to the tune of Rs.30,20,297/- against appellant also; hence, appeals be allowed and impugned order be set aside. On the other hand, learned Counsel for the complainant submitted that order passed by learned State Commission is in accordance with law and have been passed after considering surveyors report and after considering part payment; hence, appeals be dismissed.

8. As far Appeal No. 217/08 pertaining to Complaint No. 6/06, perusal of complaint reveals that complainant claimed Rs.4,44,731/- on account of loss of plant and machinery and he claimed Rs.25,70,766/- for loss to stock due to fire and National Insurance Co. has only insured plant and machinery, learned State Commission committed error in allowing sum of Rs.30,20,297/- against both Insurance Companies whereas, prima facie, National Insurance Co. should not have been saddled with liability more than the amount claimed in the complaint for loss to the machinery due to fire. In such circumstances, aforesaid appeal is to be allowed and matter is to be remanded back to the learned State Commission for deciding complaint afresh. Learned Counsel for the complainant submitted that amount awarded by learned State Commission will be apportioned between two Insurance Companies as per their insurance coverage, but this argument is devoid of force because learned State Commission has not apportioned liability of Insurance Co. and direction for making payment of Rs.30,20,297/- has been passed against both Insurance Companies. As Appeal No. 768/07 has also been filed against order o learned State Commission in Complaint No.6/06 and as order of learned State Commission is liable to set aside, as observed above, Appeal No.768/07 is also to be allowed and matter is to be remanded back to the learned State Commission.

9. As far Appeal No. 767/07 arising out of Complaint No.4/06 is concerned, OP had taken specific plea that complainant received payment on 25.1.2006 and 12.6.2006 as full and final settlement of the claim. OP specifically took objection in written statement that complaint was not maintainable for want of pecuniary jurisdiction. Learned State Commission in impugned order has not discussed aforesaid both objections and in such circumstances, impugned order in Complaint No. 4/2006 cannot be sustained and matter has to be remanded back to learned State Commission.

10. Perusal of impugned order reveals that learned State Commission was of the view that on account of non-supply of terms and conditions of insurance policy by Insurance Co. to the complainant, Insurance Co. cannot be allowed to take advantage of any exclusions thereof for rejecting claim. Learned State Commission has not discussed any reason in the impugned order for discarding surveyors report regarding loss to the stock and machinery and has also not discussed contents of documents C-22 to C-32 for awarding compensation as claimed in the complaints. Learned State Commission further observed in its order that on what basis 40% depreciation on plant and machinery has been allowed by surveyor whereas perusal of surveyors report reveals that he has allowed 5% depreciation per year. As no cogent reason has been given by learned State Commission for discarding surveyors report in all the three complaints, we deem it appropriate to allow all appeals including Appeal No. 766/07 and remand the matter back to the learned State Commission to decide all complaints afresh after considering observations made above.

11. Consequently, Appeal No. 766/2007, 767/2007 and 768/2007 filed b

Please Login To View The Full Judgment!

y OP – New India Assurance Co. Ltd. and Appeal No. 217/2008 filed by OP – National Insurance Co. Ltd. are allowed and order dated 7.11.2007 passed by learned State Commission in Complaint No. 4/2006 - M/s. Shubh Timb Steels Ltd. Vs. New India Assurance Co. Ltd. in Complaint No. 5/06 – M/s. Himachal Valley Products Pvt. Ltd. Vs. New India Assurance Co. Ltd. and Complaint No. 6/2006 – M/s. Supreme Lumbers Pvt. New India Assurance Co. Ltd. is set aside and matter is remanded back to the learned State Commission to decide complaints afresh after giving an opportunity of being heard to the parties after considering observations made in the order at the earliest as complaints are 10 years old. 12. Parties are directed to appear before learned State Commission on 2.5.2016.
O R