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Judgment
Dr. Sadhna Shanker, Member
This appeal has been filed under section 19 of the Consumer Protection Act, 1986 in challenge to the Order dated 22.02.2018 of the State Commission in complaint no. 09 of 2012, whereby the complaint of the complainant was dismissed.
We have heard the learned counsel for the appellant and the learned counsel for the respondent and perused the record including the State Commission’s impugned Order dated 22.02.2018 and the memorandum of appeal.
The appeal has been filed with reported delay of 03 days.
In the interest of justice, inter alia considering the reasons given in the application for condonation of delay, the short delay in filing the appeal is condoned.
The brief facts of the case are that the complainant, a proprietor of firm, namely, K. G. Digital Plate, installed a Pre-press Unit at Lakhe Nagar, Raipur in November 2009. The said Pre-Press Unit consists of articles, namely, Plate Exposing Machine, Processor, 4 P.C. Scanner, 2 U.P.S. 30 batteries etc. Initially, in October – November 2008, A UV Setter Machine and a Plate Processor were purchased by one M/s Jai Badri Vishal Graphics, Gwalior from Monotech Systems Limited. The complainant was the partner of M/s Jai Badri Vishal Graphics. In November 2009, the said UV Setter Processor was shifted from M/s Jai Badri Vishal Graphics, Gwalior, Madhya Pradesh to “K.D. Digital Plates”, Lakhe Nagar, Raipur. On 17.05.2010 the complainant booked a transporter, namely, M/s Raipur Delhi Roadways to transport the said U.V. Setter – Processor, two computer, scanner office furniture, electrical fitting and domestic articles from Raipur to Nagpur vide bilty no. 2291 in which the complainant is consignor and consignee both. To ensure safe transit of the goods, the complainant obtained a Specific Voyage Policy dated 17.05.2010 for insured sum of Rs. 92,35,000/- by paying the premium of Rs. 17,572/-. On 18.05.2010 the truck which was carrying the aforesaid articles met with an accident, and fell in a gorge and caught fire. The complainant informed the respondent on 19.05.2010, the police on 20.05.2010 and the complainant lodged the insurance claim. On 21.05.2010, the respondent appointed a preliminary surveyor to conduct the spot survey. The spot survey was conducted on 21.05.2010. The preliminary surveyor concluded that the said claim is a doubtful one and recommended that the matter should be investigated at a high level before settling the claim. Thereafter, M/s J. Basheer & Associates Surveyors Pvt. Ltd., final surveyor was appointed, who vide its letter No. JBPL/114/10-11 dated 18.11.10 had asked the insured many questions and concluded that the complainant has no insurable interest over the insured goods and the incident appears to have taken under mysterious circumstances. This letter was never replied to. The complainant’s claim was repudiated by the insurance company vide its letter dated 25.03.2011 on the basis of surveyor’s observation that the complainant did not have insurable interest on the subject matter of insurance and the incident appears to have taken under mysterious circumstances.
Aggrieved by the repudiation by the insurance company, the complainant filed a complaint before the State Commission. The State Commission vide impugned Order dated 22.02.2018 dismissed the complaint.
Aggrieved by the said Order of the State Commission, the complainant filed the instant appeal before this Commission.
Learned counsel for the complainant has submitted that the complainant has insurable interest as the complainant booked the articles for transportation and he himself was the consignor and consignee. In support of this contention, he placed reliance on Section 7 and 16 of the Marine Insurance Act, 1963, which are reproduced below for reference:
Section 7 – Insurable interest defined.
(1) Subject to the provisions of this Act, every person has an insurable interest who is interested in a marine adventure.
(2) In particular a person is interested in a marine adventure where he stands in any legal or equitable relation to the adventure or to any insurable property at risk therein, in consequence of which he may benefit by the safety or due arrival of insurable property, or may be prejudiced by its loss, or by damage thereto, or by the detention thereof, or may incur liability in respect thereof.
Section 16 – Quantum of interest.
(1) Where the subject-matter insured is mortgaged, the mortgagor has an insurable interest in the full value thereof, and the mortagee has an insurable interest in respect of any sum due or to become due under the mortage.
(2) A mortgage, consignee, or other person having an interest in the subject-matter insured may insure on behalf and for the benefit of other persons interested as well as for his own benefit.
(3) The owner of insurable property has an insurable interest in respect of the full value thereof, notwithstanding that some third person may have agreed, or be liable to indemnify him in case of loss.
He further submits that the surveyor’s report was prepared on 25.04.2012 much after repudiation of the claim i.e. on 25.03.2011, and even in the second round of litigation, the final survey report dated 25.04.2012 was neither filed before the State Commission nor before this Commission. He furthermore submits that the State Commission has not considered the fresh evidence and material adduced by the petitioner, in compliance of the remand Order of this Commission, which clearly establishes that the said incident was genuine and the claim lodged by the owner of the truck damaged in accident has already been settled. Furthermore, he submits that the repudiation letter dated 25.03.2011 is not sustainable as it is not based on either the exclusionary clause or the terms of the insurance policy. The ground taken by the opposite party that the incident appears to have taken place under mysterious circumstances is not acceptable.
Learned counsel for the respondent submits that the complainant has no insurable interest as he was not the owner of the said insured goods at the time of accident and as per the observation of M/s J. Basheer & Associates Surveyors Pvt. Ltd., the accident had taken place under mysterious circumstances and was not a genuine claim. He further submits that the complainant had not given reply to various letters sent by the Surveyor and he gave only the lorry receipt in which the entry regarding boxes was mentioned and description regarding the articles / content, which was kept inside the boxes was not mentioned. He furthermore submits that no complaint was made by the complainant to the concerned police station on the very same day of the accident and he has not given any reasonable explanation for lodging delayed report.
The main issue in this appeal is whether the repudiation of the insurance is justified or not. The first ground of repudiation is that the insurer had no insurable interest in the subject matter of the insurance. A perusal of the said letter dated 18.11.2010 addressed by M/s Basheer & Associates Surveyors Pvt. Ltd. to the appellant shows that the following questions were raised:
‘17) We found a letter in Underwriter’s file addressed by M/s Monotech Systems Ltd., Chennai, informing them that the subject Machine was purchased by them from M/s Jai Badri Vishal Graphix, Gwalior / K. D. Digital Plates, Raipur, for an amount of Rs. 36,56,461/- in the month of April ’10, as you were unable to run your business profitably either at Gwalior under the name of M/s Jai Badri Vishal Graphix or at Raipur under the name of M/s K. D. Digital Plates and therefore, you entered into Sales Deed by a MOU with your Machine Supplier M/s Monotech Systems Ltd., Chennai.
18) For Purchase of UV Setter, Processor, Rip and Workflow as first consignment and for UPS, Batteries and Computer as a second Consignment, M/s Monotech Systems Ltd., Chennai, had entered into Memorandum of Understanding (MOU) with M/s Jai Badri Vishal Graphix, 104, Karamchari Awas Colony, Mahal Gaon, Gwalior (M.P.) for an amount of Rs. 35,84,766/- on 24/04/10 which was acknowledged as confirmed by email dt. 25/04/2010 by Mr. Divesh.
19) They had also stated that the full payment had been effected to you towards the Machinery. In this regard M/s Monotech Sytems Ltd., Letter dt. 11/05/10 addressed to M/s Jai Badri Vishal Graphix, Gwalior, has been produced to us as proof by the Buyer of the subject Machine, M/s Monotech Systems Ltd., Chennai.
20) We are also informed by M/s Monotech Systems Ltd., Chennai, that they had supplied the equipment in Oc. ’08 for an amount of about Rs. 75,00,000/- to M/s Jai Badri Vishal Graphix, Gwalior.
The OEM has issued an Installation Certificate for Machine Srl. No. CTCP-841-0024 & G&J Processor, from 14/11/08 to 16/11/08 which was found signed by Mr. M. Gupta on behalf of M/s Jai Badri Vishal Graphix.
As the Business was not successful at Gwalior, you wanted to shift the subject machine to Raipur under the Company Name M/s K. D. Digital Plates, Shankar Para, Opp. Hariom Kirana, near Lakha Nagar Chowk, Purani Basti Road, Raipur, for which you requested the OEM M/s Monotech Systems Ltd., to help shifting the Machine.
Accordingly, OEM service Engineers appeared to have dismantled the equipment from Gwalior and shifted to Raipur under the name of M/s K. D. Digital Plates and re-installed the machine on 06/12/09 in operational condition
The OEM Service Report dt. 06/12/09 indicates the Owner of the Machine as Mr. Devesh Gupta of M/s Jai Badri Vishal Graphix and the Machine Model is same CTCP 841 & G&J Processor, Srl. 024.
21) We are also given to understand that after you entering into Sales Agreement as on 25/04/10 and after receiving payment for the subject machine, not handing over the same, the Buyer M/s Monotech Systems Ltd., Chennai, had filed a Criminal Complaint in Madras High Court vide C.S. No. 715 of 2010 and the Court had Freezed your Bank Accounts (SBI Commercial Br. Gwalior and Dena Bank, Main Br., Gwalior) by a Court Order dt. 25/08/10 & 11/11/10.
22) From the documents, we observed that Mr. Devesh Gupta, Mr. Manish Gupta, Mr. Sujeet Jain, Mr. Prabhat Jain and Mrs. Anita Gupta are the Partners of M/s Jai Badri Vishal Graphix, Gwalior.
23) We also noticed from the documents we have gathered from supposed to be Buyer of the Machine M/s Monotech Systems Ltd., Chennai, that Mr. Manish Gupta, S/o Shri R. G. Gupta, one of the Partners of M/s Jai Badri Vishal Graphix, Gwalior had filed a Petition in the Court of Vth Additional District Judge, Gwalior M.P., against M/s Monotech Systems Ltd., Chennai & Ors. vide Case No. A/2010. The Court vide their Show Cause Notice dt. 29/10/10 ordered Mr. N. Krishnan from New Delhi Br., of M/s Monotech Systems Ltd., Chennai, to be present by 29/11/10 for hearing.’
It is seen that the repudiation is based on a letter dated 18.11.2010 of M/s J. Basheer & Associates Surveyors Pvt. Ltd. and not on the finding of surveyor’s report.
It is also seen that the trail of transactions that were questioned by the surveyor vide this letter was not answered by the appellant either to the Surveyor or before the State Commission or this Commission. No evidence has been brought on record to rebut the submissions that the ownership of the goods in question had already passed to the buyer as indicated in the questions. The appellant submitted many letters wherein he has asked for the final survey report. However, he has not answered the questions put to him by the surveyor through the letter dated 18.10.2010. The lack of insurable interest in the subject matter of insurance as indicated by the surveyor has not been rebutted by the appellant.
The second ground of repudiation is that the ‘incident appears to have taken place under mysterious circumstances and purposeful motives’.
It appears from the question no. 7 of M/s J. Basheer & Associates Surveyors Pvt. Ltd. that there are total 9 packages in the consignment declaration dated 17/05/10 while in the lorry receipt, only three boxes machine are mentioned. The question no. 7 of the letter dated 18.11.10 reads as under:
‘7) From the Consignment Declaration dt. 17/05/10 of yours, there are totally 9 packages, declared to the Underwriter, as under:
1) U.V. Setter Machine Rs. 85,00,000/-
2) 1 Plate Processor, Inter Platter Rs. 5,00,000/-
3) 2 Computer with Monitor Rs. 1,00,000/-
4) 1 Scanner HP Company, No. 8200 Rs. 75,000/-
5) Office Furniture
(3 Computer Tables
3 Computer Chairs,
1 Office Table
3 Office Chairs
1 Wooden Bench) Rs. 10,000/-
6) Electrical Fittings Rs. 10,000/-
Rs. 91,95,000/-
Household Goods
2 Wooden Beds with Mattress
& Blanket and 1 Wooden Box
(Showcase type) Rs. 15,000/-
1 Scooter Rs. 10,000/-
1 Cooler Rs. 5,000/-
Gross Total : Rs. 92,35,000/-
Note: Total of Household Items works out to only
30,000/- and not Rs. 40,000/- as declared.
However, in the Lorry Receipt, it has been shown the Number of Packages as only 3.
Kindly explain about the discrepancy in number of packages in L/R as against the Packages / Units, in your declaration?’
During the course of arguments the learned counsel for the appellant relied on the lorry receipt submitted by him which clearly indicates 3 boxes machine and loose part and material and household goods. However, it is seen that the insurance policy was specifically taken for ‘UV Setter – Processor etc. The appellant has not explained the discrepancy between the list submitted to the insurer and the details mentioned in the lorry receipt at any stage. He has not produced any evidence to show the exact content of the packages that were packed inside the boxes. It is also to be noted that the spot surveyor in his report dated 24.05.2010 has stated “No any salvage of Burnt Computer and Scanner, furniture etc. visible as declared in Policy.” The fact that the truck was insured with another company, which has settled the claim for the truck cannot prove the existence of the contents that were being carried in the truck, which were insured separately.
In view of the above, it is clear that the insurable interest on the subject matter of insurance has not been proved as no documentary evidence is on record to contradict the claim that the insurable interest had passed to another party before the insurance was taken. Further, the contents that were in the truck, which met with an accident, have not been proved as being the same goods which are the subject matter of insurance.
In view of the foregoing, we find no reason to interfere with the impugned Order dated 22.02.2018 of the State Commission. Therefore, the Order passed by the State Commission is upheld and the appeal is dismissed.