M/S. Balaji Graphics vs New India Assurance Co. Ltd. & 2 Ors

This revision petition has been filed by the petitioner M/s. Balaji Graphics against the order dated 24.09.2012 of the State Consumer Disputes Redressal Commission, Haryana, (in short 'the State Commission') passed in First Appeal No.480/2011.

Brief facts of the case are that on 15.10.2007 petitioner firm purchased Shanghai Wit Colour Digital Printer from Sh.Khasnood Khan Hazi, proprietor, Indian Plastic, Gali No.2 Pahar ganj, Delhi. On 21.12.2007, pre-inspection by Sh. Bhavnesh Babbar regarding insurance of Wit Digital Colour Printer and other electrical equipments of M/s. Balaji Graphics was done. On 31.12.2007, Insurance Policy No.360/602/44/07/58/30000043 commences with validity till 30.12.2008. In the month of February and March, 2008, damage to printer and electrical equipments due to voltage fluctuation occurs. The complainant then submitted the Insurance claim and the Insurance Company appointed a surveyor. On 03.08.2008 report of Sh. M.S.Makkar the surveyor is submitted wherein it has been reported that description of Printer machine is different from that in pre-insurance inspection report and that petitioner is not the owner of the machine. On 19.09.2008, claim of the petitioner was repudiated by the respondent Insurance Company. On 28.12.2008 letter was sent by Sh. Bhavnesh Babbar to Sr. Manager, New India Assurance Co. Ltd. clarifying the inspection report dated 21.12.2007. On 09.04.2009 legal notice was served upon the respondent Insurance Company regarding the claim of Rs.3,50,000/-. On 18.08.2009, consumer complaint No.311/2009 was instituted in District Consumer Dispute Redressal Forum, Panipat, (in short 'the District Forum'). On 14.02.2011, CC No.311 of 2009 was allowed by the District Forum and the District Forum directed the Insurance Company to pay Rs.1,81,125/- to the complainant within a period of 30 days from the date of order of the District Forum, failing which the amount shall carry interest @8% from the date of filing of the complaint.

Aggrieved by the order of the District Forum, on 24.03.2011, respondent instituted appeal in State Commission being FA No.480 of 2011. On 24.09.2012, FA No.480 of 2011 was allowed by the learned State Commission setting aside the order dated 14.02.2011 of the District Forum.

Hence the present revision petition.

Heard the learned counsel for both the parties and perused the record. It is argued by the learned counsel for the petitioner that the appeal of the respondent has been allowed by the State Commission by accepting two major arguments of the Insurance Company. The first being that there were lot of discrepancies in the details of the machine provided by the surveyor in his pre-inspection report and the description given by the final surveyor in his report dated 03.08.2008 and the second being that the complainant did not have any insurable interest in the insured machine as the complainant did not have the ownership of the insured machine. It was argued by the learned counsel for the complainant that in the pre-inspection report dated 21.12.2007, the surveyor had inadvertently mentioned the make of the machine as 'Samsung' and the mistake has been admitted by the surveyor Mr. Bhavenesh Babbar and he has sent a clarification vide his letter dated 28.12.2008 wherein he has accepted the mistake and has mentioned the make of the machine as 'Solvent'. The counsel further mentioned that in this letter the surveyor Mr.Bhavenesh Babbar has accepted that he has again inspected the machine and he has found that this is the same machine which was pre-inspected by him. Thus, the assertion of the Insurance Company that the machine showed to the surveyor after damage was not the same machine which was pre-inspected, does not hold good.

Learned counsel for the petitioner/complainant further submitted that with regard to the ownership of the machine, there is no doubt that the petitioner M/s. Balaji Graphics has purchased this printer from Sh. Khasnood Khan Hazi, proprietor, Indian Plastic. As the machine was not under warranty, the insurance was taken and the proposal was accepted by the Insurance Company only after the pre-inspection of the machine. The insurance has been given in the name of M/s. Balaji Graphics. Neither the Insurance Company nor the surveyor who visited for pre-inspection raised any objection with regard to the ownership of the machine or in respect of any insufficiency with regard to the papers of the machine. Hence when the claim has arisen, the Insurance Company cannot raise the issue of ownership or the issue of insurable interest. It was further mentioned by the learned counsel that there is an agreement of sale between the complainant and the proprietor of Indian Plastic Mr. Hazi and the same was presented before the State Commission, however, the State Commission did not give any importance to this document though this was a clear proof that the complainant had the ownership of the machine. Thus, both the grounds on which the State Commission has accepted the appeal of the Insurance Company and has set aside the order dated 14.02.2011passed by the District Forum are not valid.

On the other hand, learned counsel for the respondent Insurance Company stated that the machine is in the name of Indian Plastic and the same fact has been observed by the State Commission. Thus, clearly the insured lacks insurable interest in the machine as the machine has not been transferred in the name of M/s. Balaji Graphics by way of a proper sale. It is true that when the pre-inspection was made, this aspect was not looked at by the surveyor or the Insurance Company, however, that may be an oversight, but the fact is that at the time of insurance claim, everything has to be properly examined and no insurance claim is payable if the insured does not have an insurable interest in the subject matter. Moreover, the learned counsel for the Insurance Company further submitted that as due precaution, the Insurance Company got the machine pre-inspected by surveyor Mr. Bhavnesh Babbar, who has in his report dated 21.12.2007 given the make of the machine as 'Samsung', whereas the actual make of the machine was 'Solvent'. Though the surveyor Mr. Bhavnesh Babbar has written letter on 28.12.2008 that he could not clearly see the make of the machine at the time of pre-inspection and on the information given by the complainant, he is writing the make of the machine in this letter as 'Solvent'. There is not only the discrepancy in the make of the machine, rather, surveyor in his report dated 03.08.2008 has mentioned the difference between the details of the machine as given in the pre-inspection report and as observed by the surveyor. These differences are listed below:-

"As per my inspection the Print Heads are 12, Make, Model, Length are also different.

The Detail of the Machine does not Tally with the Machine inspected by me as above.

As per the Policy

Make Solvent

Intex No. 05041255R114B3

The Policy Detail do not tally with the Machine inspected by me."

I have given a thoughtful consideration to the arguments advanced by the parties and examined record. From the reports of the two surveyors i.e. the first surveyor Mr. Babbar who carried on the pre-inspection of the machine and the final surveyor Mr. Makkar, it is clear that there are various discrepancies in the details of the machine as mentioned in their two reports dated 21.12.2007 and 03.08.2008. Even the make of the machine has been found to be different. There is difference in the number of print heads. This clearly gives rise to a genuine doubt that the insured machine may be different than the one which was shown as damaged to the final surveyor.

Even if we take the letter of the surveyor Mr. Babbar dated 28.12.2008. It is seen that only the discrepancy in make of the machine is clarified. However, other discrepancies which the surveyor Mr. Makkar has pointed out in his report dated 03.08.2008 are not reconciled.

Clearly the ownership is not in the name of the complainant and there is no bill of either import or purchase in the name of the complainant. The State Commission has mentioned in its order that the learned counsel for the complainant placed on the file photocopy of document purporting the same to be an agreement executed by one Yashnood Khan Haji with complainant. The State Commission has further observed that no document in support of this is placed on the file. Moreover, it is seen that the complainant has not mentioned this document either in the complaint or the same is mentioned by the District Forum in its order. It seems that the complainant has not relied on this document before the District Forum. The surveyor has also observed that the bills that were submitted by the complainant were the bills of the purchaser of the machine by Indian Plastic from the manufacturer and there was no bill in the name of the complainant.

Moreover, the claim has mainly been repudiated on the ground that the specification and details of the machine mentioned in the pre-inspection report do not match the details and specification given in the surveyor's report, who inspected the machine for finalising the claim. The repudiation letter is dated 19.09.2008 and the complaint has been filed on 18.08.2009. Clearly, the complainant was fully aware of the ground taken by the Insurance Company for repudiating the claim. It is surprising that the complainant in his complaint has not dealt with this aspect or has not even denied the assertion of the Insurance Company that the specifications and details of the machine as given in the pre-inspection report do not match with the actual specifications and details of the machine noted by the final surveyor.

From the above examination, it is clear that the petitioner / complainant did not have the ownership of the printer and even after knowing the main ground of repudiation the complainant has not tried to rebut the same in his complaint. This clearly implies that complainant does not have much material to rebut the ground of repudiation that the specifications and details of the machine noted at the time of pre-inspection do not match with actual specifications and details of the machine noted by the surveyor after the claim was filed. Clearly, this creates the doubt that the damaged machine may not be the insured machine. Clearly, the complainant did not have the insurable interest in the machine. The State Commission has rightly dismissed the complaint on these grounds.

Based on the above discussion, I do not find any illegality, material irregularity or jurisdictional error in the order dated 24.09.2012 of the State Commission which calls for any interference from this Commission. Accordingly, the revision petition No.140 of 2013 is dismissed.