Annadaneshwar vs United India Insurance Co. Ltd. & Anr.

Vakalatnama has been filed on behalf of respondents Nos. 1 & 2 which is taken on record.

The present revision petition has been filed against the order dated 4th July, 2013 whereby the appeal of the petitioner against the order dated 15.2.2013 of the District Forum in his complaint No.37/2012 was dismissed.

The case of the complainant as made out in the complaint is that he had contacted M/s Surkod & Company and M/s K.M. Kuradgi, Commission Agent, Gadag on 30.1.2012 for purchasing the cotton lint worth Rs.20 lakhs which he wanted to store in the premises of Ishwar Industries Gadag. He approached the respondent company on 30.1.2012 and sought for purchase of the policy in order to secure the said cotton lint which he wanted to purchase. He submitted his proposal form on 30.1.2012 and issued a cheque of even date of Rs.10,000/-. He has contended that his proposal was accepted by the respondent and the respondent insured the cotton lint worth Rs.20 lakhs and issued the policy on 31.1.2012. He purchased the cotton lint worth Rs.18,80,141/- on 31.1.2012 and he stored it in the open premises of M/s Ishwar Industries. The cotton caught fire on 31.1.2012 at 1.10 pm. The proprietor of M/s Ishwar Industries noticed the fire and intimated the fire brigade and to the complainant at about 1.14 pm. The fire brigade reached the spot at 1.18 pm. The information of fire was also sent to the police station. The respondent was also intimated on 31.1.2012 of the incident of fire. The approved surveyor of the respondent visited the spot on the next day. The complainant handed over all the relevant documents. His claim was not settled and he sent a registered notice on 2.4.2012 which was replied vide letter dated 20.4.2012. The complainant thereafter filed the complaint on 4.5.2012 before the District Forum.

The complaint was contested by the respondent. They have alleged that they had repudiated the claim of the complainant vide repudiation letter dated 7.5.2012. They had alleged that the fire had taken place on 31.1.2012 at 12.15 pm and that the complainant had provided false information. They had visited the office of the respondent at 12.50 pm and on 31.1.2012 and thereby obtained the policy by misinformation and misrepresentation of the fact and since the policy had been obtained by fraud, the policy was voidable and hence the claim was rejected. It is denied that the complainant had approached the Branch Manager of the respondent company on 30.1.2012 for purchasing any insurance policy. It is also denied that he had submitted his proposal form on 30.1.2012. It is submitted that the complainant had purchased the cotton lint as stated by him on 31.1.2012 and the same were insured. It is submitted that the complainant could not have purchased the cotton lint on a future date which is yet to come. It is also denied that the entire scenario of timings has been manipulated by the complainant. It is submitted that the proposal was received at 12.15 pm on 31.1.2012. Receipt of the consideration amount was prepared on 31.1.2012 at 1.13 pm. It is submitted that the complainant approached the respondent only on 31.1.2012 and handed over the proposal form hurriedly alongwith the cheque dated 30.1.2012. It is submitted that in good faith the proposal was accepted and the insurance policy was issued and was handed over to the insured at 1.15 pm. It is further submitted that the independent surveyor had stated that the fire had taken place between 12.30 to 1.00 pm. It is further submitted that even the newspapers have reported the time of fire as 12.15 pm on 31.1.2012. It is further submitted that the cheque which was issued by the complainant dated 30.1.2012 was not issued serially and serial number of the cheque shows that serial number falls after the cheques which were issued on 31.1.2012 and 1.2.2012. It is further submitted that as per his own contention the claimant had purchased the stock on 31.1.2012 but he wanted to insure the cotton lint situated at his place from 30.1.2012 which is mentioned in the proposal form and this also shows the manipulation on his part. It is further submitted that normally the offices open at 10.00 am and if the claimant has purchased the cotton lint on 31.1.2012 which were to carry to the godown it was not humanly possible for him to travel the stock at the place by the time the fire had allegedly broken out. It is submitted that the fire brigade person received the information of fire at 1.14 pm and they needed to cover a distance of 3 kms. before reaching the place of fire but it is strange that within four minutes i.e. 1.18 pm. It is submitted that the complainant has been manipulating the information at all levels. Parties have led their evidences before the District Forum and after hearing the arguments of the parties and perusing the record, the District Forum reached to the following conclusion: -

Point No.1 :The admitted facts of the case are that the complainant contracted to purchase the cotton lints from M/s Sunked and Company and M/s K M Kurudagi, Commission Agents on 31.02.2012 worth Rs.20,00,000/- and sought to purchase insurance policy on the same date accordingly submitted his proposal form duly filled along with cheque for Rs.10,000/- on the same date. It is definite case of the complainant that the cotton lint purchased from the above said agency on 311.01.2012 and produced necessary receipts before the Forum worth of cotton damaged for Rs.18,80,141/-. It is also the definite case of the complainant that the cotton caught the fire on 31.01.2012 at about 01.10 PM which was stored in the godown of one Sunilgouda Patil, Proprietor of Ishwar Industries. Further, the said Sunilgouda intimated the fire accident fire fight station, Gadag as also to the APMC fire brigade at 01.14 PM. The insurance policy covers the risk from 13 hours of 31.01.2012 to midnight of 30.04.2012. The receipt for having issued the policy clearly shows that it was issued at 13:13:25 ( i.e. 01:13:25). It is also not in dispute that the Proposal Form for purchasing the policy was submitted on 30.01.012. Keeping in view these admitted facts we proceed to evaluate the evidence placed on record to arrive at a positive conclusion, whether the complainant succeeded in proving the deficiency in service on the part of the Respondents?

The P.W.1 Sunilgouda Patil on behalf of complainant in his affidavit sworn to the relevant facts of contracting to purchase cotton lint from M/s Surkod Company and M/s Kuradagi Commission Agents. The Sunilgouda Patil in the next breath categorically disclosed that the cotton sale was completed on 31.01.2012. But surprisingly in the instant case the complainant submitted a proposal form from purchasing fire incident policy on 30.01.2012 even before ascertaining the value by the Respondents. No doubt, in the proposal form the worth of property to be insured is shown at Rs.20,00,000/-. It is relevant to sate here that as per the evidence of complainant the sale off cotton completed on 31.01.2012. If that is so, it is surprisingly to note here that the proposal form has been submitted on 30.01.2012 by mentioning the worth of property Rs.20,00,000/-. Along with the proposal form, no receipts or documents submitted. It is highly impossible to show the worth of cotton at Rs.20,00,000/- if the sale was completed on 31.01.2012 and in the absence of producing any receipts. The receipts produced before the Forum were issued on 31.01.2012. Here in the instant case, as per the evidence of the complainant, the fire caught the cotton at 01.10. PM whereas the policy was issued at 01.13 PM. The proposal form exhibit R2 the receipt produced by the respondent company makes it clear that the cheque issued for purchasing the policy was accepted at 01.13 PM. The Proposal form itself as per Exhibit R1 it clearly reveals that in fact it was submitted to the respondents on 31.01.2012 a 12.50 PM. The policy has been issued nearly 23 minutes thereafter. It is a mystery that the insurance policy Exhibit P8 has been issued 23 minutes soon after the submitting the proposal form Exhibit R1. The property requested to the insured worth about Rs.20,00,000/- and the policy has been issued within such a short period of 23 minutes even without visiting the property where it was said to be kept at Ishwar Industries, Gadag. In the instant case, the complainant in his evidence of course deposed that the insurance manager after submitting the proposal form on 31.01.2012 and thereafter the policy was issued. The said fats not disclosed in the complaint. The proposal form itself submitted on 31.01.2012 at 12.15 PM if that is the case within 23 minutes it is highly impossible to check the worth ( value ) of the property and then taking necessary acceptance from higher authorities for issuing the policy. In the light of cross examination of complainant Exhibit R1 Proposal Form has been submitted on 31.01.2012 it is highly impossible to issue insurance policy within such a short period as referred above.

The complainant in the instant case categorically admitted that the sale of cotton completed on 31.01.201 and it is not in dispute that he has purchased 163 lins of cotton. There is no cogent and convincing evidence placed on record to show that 163 lints of cotton after purchasing on 31.01.2012 same were transported to the Ishwar Industries, Gadag. No doubt, the complainant counsel has produced certain cash receipts from the bullock cart drivers stating that they have transported all the cotton lints to the place of fire incidents. Mere producing such receipts cannot be believed. The receipts sought to have been proved by examining the bullock cart driver in the absence of affidavit from the bullock cart drivers. At the cost of repetition, here it can be stated that the sale completed on 31.01.2012 the clinching evidence for having transported the same to the place of occurrence so also in the absence of convincing evidence that infact insurance authorities visited the place to ascertain the worth of cotton the evidence of complainant in our considered view is totally insufficient to hold that the fire caught the cotton at 01.10 PM and the policy was issued as deposed to by him. Here in the instant case, the complainant has not disclosed the manner of fire accident i.e. what was the reason for fire accident. In the evidence also the complainant not disclosed the reason for the fire accident. Of course, the respondent counsel not cross examined the complainant in this aspect of the matter. It is settled principle of law that complainant has to prove his case by adducing cogent and convincing evidence independently including the reasons for fire accident. At every stage after submitting the proposal form to rule out all possibilities of issuing the policy hurriedly the complainant has to prove without depending upon the evidence of respondents. From the date of purchasing the cotton on 31.01.2012 the clinching evidence is necessary to show that it was actually stored in the place of occurrence and that thereafter, ascertaining the value of the property the policy has been issued. No such evidence is placed on record. Having regard to the facts and circumstances of this case, the evidence of surveyors including the Manager of the insurance company need not be discussed at length because the complainant in the first instance has not produced legal and admissible evidence to prove that the policy was issued after verifying the worth of property. It is pertinent to state here that the respondents have totally denied the case of the complainant in regard to submission of Proposal form. We have already discussed about that it is not possible for the complainant to submit a proposal form on 31.01.2012 by 12.50 PM and thereafter the policy was issued at 01.13 PM. At every stage after completing the sale process of cotton, it is highly impossible to store the sale at the place of occurrence within 01.10 PM. Absolutely, there is no convincing evidence forthcoming to prove that the insurance manager issued the policy on 31.01.20112 covering the risk commencing from 01.00 PM when the incident allege to have been commenced at 01.10 PM.

On the basis of evidence placed on record, it appears that the Respondent - Authorities hurriedly issued the policy even without assessing the value of the property as required under law. The Exhibit R9 the check list of the HDFC Bank clearly reveals that the cheques receiving on 31.01.202 were serially entered including the cheque received on 01.02.2012. After 01.02.2012 again there is an entry of cheque issued towards insurance policy in question which was entered on 30.01.2012. The careful perusal of the Exhibit R9 abundantly makes it clear that the cheque issued towards purchase policy has been inserted subsequently after entering even the cheques or the month of February 201. Therefore, we have no hesitation to hold that the banking authorities and the respondent - Company unmindful of consequences just they have been upon to held the complainant in issuing the policy hurriedly without any valid explanation.

It has been held in the decision reported in IV (2012) CPJ 269 (NC) that it is the burden of complainant to establish reason for fire accident in support of theory advanced. Here in the instant case no such evidence forthcoming in support of complainant. The learned counsel for the complainant placing reliance upon the decision reported in AIR 2008, Patna 91, AIR 2008 NOC 386, AIR 2007 Patna 97 vehemently argued that the respondents having admitted the issue of policy they cannot deny the liability. We have carefully perused the above decisions and other comments under the insurance law and we are of the considered view that the policy has been issued hurriedly but evidence placed on record do not at all sufficient to hold that the complainant has obtained a policy by furnishing all necessary documents for acceptance of the cheque issued towards the policy. The principles laid down in the above referred decisions cannot be made applicable to the complainant's case. Under the facts and circumstances of this case and taking into consideration the evidence led by both the parties are of the considered view that the Complainant has failed to establish the deficiency in service on the part of respondents.

Point No.12. The conduct of complainant in submitting the proposal form and obtaining the insurance policy lacks bonafidies as deposed in his evidence. Therefore, the complaint deserves to be dismissed. In the result, we proceed to pass the following:

ORDER

The complaint is hereby dismissed. The parties are left to bear their respective costs.

Thereafter the District Forum dismissed the complaint.

This order is impugned by the complainant/petitioner before the State Commission. The State Commission after examining and re-appreciating and reassessing the evidences had reached to the following conclusion: -

"We have carefully examined the reasons assigned by the DF in paragraphs (1) to (10) of the order. Of course, it is the bounden duty of the appellant/complainant to prove the deficiency of service on the part of the respondents who repudiated the claim. The risk of the insurance policy covers 13 hours of 31.1.2012 to midnight of 30.4.2012. The receipt for having issued the policy clearly shows that it was issued at 1.13pm & 25 seconds. According to the appellant PW-1 Sunil Gouda Patil in the next breath categorically disclosed that the cotton sale was completed on 31.1.2012 but surprisingly in the present case the complainant submitted a proposal form for purchasing fire incident policy on 30.1.2012 even before ascertaining the value by the respondents worth of property at Rs.20,00,000/-. As per the evidence of complainant sale of cotton on 31.1.2012 and the proposal form has been submitted on 31.1.2012 mentioning worth Rs.20,00,000/- of cotton lints.

The alleged fire accident took place at about 1.10 pm whereas the policy was issued at 1.13 pm. The proposal form that is EX.R1 clearly reveals that it was submitted to the respondents on 31.1.2012 at 12.50 pm. The policy has been issued nearly 23 minutes thereafter. It is surprising that the insurance policy Ex.P-8 has been issued 23 minutes soon after the submitting the proposal form Ex. R1 and therefore the alleged fire accident said to have been taken place has not been accepted. In order to prove that there is any fire accident within the premises of Sunil Gouda Patil, the complainant has not produced any copy of FIR with whom he lodged the complaint. The alleged incident of fire took place within 23 minutes after issuance of the policy. The appellant ought to have been produced the books of accounts maintained by M/s Surkod Company and M/s K.M. Kuradagi Commission Agents and there is no cogent and convincing evidence placed before the DF to show that 163 lints of cotton after purchasing on 31.1.2012 same were transported to Ishwar Industries, Gadag. Mere producing such receipts cannot be believed. The receipts ought to have been proved by examining the bullock cart drivers in the absence of affidavit from the bullock cart drivers. Therefore, in our considered opinion, in order to make wrongful gain for himself and wrongful loss to the insurance company, the appellant created a concocted story and filed the complaint before the DF. So, in view of the law laid down by the Apex Court reported in IV (2012) CPJ 269 (NC) that it is the burden of complainant to establish reason for fire accident. Mere taking of insurance policy is not a ground to indemnify the loss on the basis of the alleged fire accident within 23 minutes after taking the policy. Therefore, considering the facts and circumstances of the case, we do not see any prima facie case to admit this appeal. Accordingly, we pass the following:

ORDER

Appeal is dismissed at the stage of admission. The order passed by the DF, Gadag in complaint No.37/12 dismissing the complaint is confirmed."

Thereafter the appeal of the complainant/petitioner was also dismissed. The order of the State Commission whereby it had concurred with the findings of the District Forum has been impugned before us. It is submitted that the findings of the Fora below are based on the conjectures and surmises and not on the evidences which were produced before the Commission. Our attention is drawn to the purchase bill and it is argued that the cotton lint was purchased on 31.1.2012 although the payment was made on 1.2.2012 and therefore it is apparent that the cotton lint was lying at the spot at the time of fire. Our attention is also drawn to the complaint of owner of the Ishwar Industries where the complainant had stored his cotton lint, dated 31.1.2012 and it is argued that the police was informed by the proprietor of the Inshwar Industries and fire brigade was also called by him. It is submitted that this would clearly show that the fire had broken at 1.10 pm on 31.1.2012 and the fire brigade was also informed at 1.15 pm. It is also argued that this document clearly shows that the cotton lint were lying at the spot when the fire had broken out at 1.10 pm and that this had happened during the existence of the insurance policy and hence the findings of the Fora below are based on the conjectures and surmises.

It is argued on behalf of the respondent that there is concurrent finding of the fact that the complainant has manipulated everything and that the findings are not based on conjectures and surmises but are based on the documents on record. Our attention is also drawn to the proposal form and it is submitted that this proposal form was prepared by the complainant on 30.1.2012 for the goods valued about Rs.20 lakhs while according to the complainant themselves they had not purchased any such goods on that date. It is submitted that this proposal form although submitted on 31.1.2012, clearly shows that when it was prepared and filled neither there was any insurable goods nor any tender for purchase of those goods had been furnished by the complainant. It is submitted that the complainant has manipulated the proposal form and the subsequent dates and timings. It is further submitted that proposal form contains the description of the stock which was not in existence on 30.1.2012. It is also submitted that the cheque which issued is also dated 30.1.2012. Our attention is also drawn to the documents issued by Agriculture Producing Marketing Committee and is annexure P-3 and it is submitted that this document clearly shows that the date of purchase of the article is 31.1.2012. It is argued that it is a gate pass and neither the lorry number nor cart number or the signature of the lorry or cart number is mentioned on it. Learned counsel has also drawn our attention to two letters dated 2.2.2012 one written by the complainant to the insurance company and the another written by the respondent to the complainant and it is argued that the complainant himself has alleged in his letter dated 2.2.2012 that he had given the cheque on 30.1.2012 in the evening at 5.00 pm to the insurance company. It is argued that the complainant has manipulated everything and hence the complaint is false and frivolous and fraudulently he had obtained the insurance policy.

We have heard the counsel for the parties and give thoughtful consideration and have also perused the original record which has been produced before us.

There is a concurrent finding of the fact of this case. The concurrent finding of the District Forum and the State Commission also find support from our following observation. The police report about the fire was made by the owner of the Ishwar Industries where the complainant had allegedly stored his stock and the copy of the same has been placed on record and his annexure-6. Following is the extract of the said letter: -

"Today afternoon at about 12.30 I went to SBI Branch in APMC Yard. About 1.15 pm one of our labourer informed me over phone that the cotton lint of Sri S.G. Bellary have caught fire then I told him to extinguish fire with the help of people. I phoned the fire fighter and we all tried hard to extinguish the fire for two hours. The estimated damage cost is Rs.45,000/- (Rs. Fourty five lakh). This happened at 1.10 in the afternoon and I have no doubt on anybody. It is an accident fire broke out. I ask you Sir to visit our factory and give your inspection report."

According to the complaint which was submitted to the police, the complainant learnt of the fact of the fire at about 1.15 pm and thereafter he informed the fire brigade but the fire brigade record shows that they have received the information at 1.15 pm. It is also apparent that the fire brigade had to cover a distance of 3 kms. and it is strange that immediately on receiving the information they reached at the spot at 1.18 pm i.e. within four minutes. We of course appreciate the promptness of the fire brigade but it is strange that within four minutes the fire brigade authorities were able to depute their person on the concerned fire brigade vehicle and have reached to the spot which was at a distance of 3 kms. We cannot fathom this fact that although the person receiving the information of fire at 1.15 pm informs the fire brigade at 1.14 pm. who approaches the police and submitted the report of fire at 8.05 pm. It is also apparent that in the complaint the complainant's case is that they had submitted their proposal form on 30.1.2012 for the stock. It is also apparent that from the evidence led by the complainant that stock which was purchased only on 31.1.2012 and this clearly shows that it submitted the proposal form of the stock which was not in existence. Despite the fact that the stock was not in existence, still in the proposal form they have shown the stock being in existence. Time of fire is not conclusive proof because considering the person who informed the police and the fire brigade of the fact of fire, he received the information of fire from some labourer. It is not known whether that labourer was working there and was present at the spot since morning or he was just passing by and noticed the fire at 1.15 pm. It is argued that the informant had stated that it was the labourer of the Ishwar Industry. On query the learned counsel submitted that the said place is godown and not an industry or a factory and the labourer might be there for loading and unloading and agreed that it could not be the labourer of Ishwar Industry. In view of this fact on the face we find no infirmity or illegality in the impugned order. Moreover, this Commission under Section 21 (b) of the Consumer Protection Act, 1986 is not required to re-appreciate and reassess the evidence on record. We can set aside the concurrent findings only when there is a miscarriage of justice or the findings are illegal. In the present case since the findings are based on the evidences on record, we find no miscarriage of justice and any illegality in the impugned order. The revision petition has no merit and the same is dismissed.