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Judgment
This appeal is directed against the order of the State Commission, Gujarat dated 29.11.2017 whereby the State Commission partly allowed the complaint filed by the respondent/insured and directed the appellant as under: -
"Complaint is partly allowed.
The opponents shall pay Rs.17,50,000/- (Rupees seventy lakhs fifty thousand only) to the complainant with running interest thereon at the rate of 7% per annum from the date of complaint till realization.
The opponents shall also pay Rs.5,000/- (Rupees five thousand only) as compensation for mental agony and harassment and also pay Rs.5,000/- (Rupees five thousand only) as a cost of this complaint to the complainant.
The copy of this judgment be supplied to the parties free of cost.
Pronounced in open court today on 25th day of November, 2017."
Briefly stated, facts relevant for the disposal of the appeal are that the complainant insured one excavator registration No.GJ-03-CL-9344 with the appellant insurance company for IDV 22,50,000/-. On 2.11.2012 the excavator got damaged because of fire due to sudden spark. The intimation was given to the insurance company and other authorities. The insurance claim filed by the respondent/complainant was repudiated by the petitioner/opposite party on the ground that he had obtained the insurance cover pertaining to the excavator by concealment of material fact.
The State Commission on completion of pleadings and taking evidence on behalf of the parties allowed the consumer complaint and directed the petitioner as noted above. Being aggrieved the appellant has approached this Commission in appeal.
Learned counsel for the appellant has taken me through the insurance policy schedule and submitted that perusal of the policy schedule would show that against the column "Address of insured" it is recorded District Porbandar, Gujarat Pin Code 360575 and in the bracket it is mentioned "IFFCO-TOKYO-76489588-11/07/2011-10/07/2012." It is submitted that from this it is evident that respondent/complainant obtained the insurance cover pertaining to the subject excavator by representing that earlier said excavator was insured with IFFCO Tokyo Insurance Co. vide policy No.76480588. Learned counsel for the appellant has drawn my attention to the copy of the actual insurance cover-note issued by IFFCO Tokio General Insurance Co. Ltd. pertaining to policy No.76480588 and submitted that from this it is evident that the aforesaid policy was issued by IFFCO Tokio General Insurance Co. Ltd. in favour of one Sarpanch R/o Pasunia Gam, TA-Dehgam, District Gandhinagar and the said policy is in respect of different vehicle Tata 407. It is submitted that from this it is evident that the respondent obtained the insurance policy by giving misleading and untrue facts pertaining to earlier policy of the vehicle.
On careful perusal of record, I do not find merit in the contention of learned counsel for the petitioner.
It cannot be disputed that the insurance contract is uberrimae fidei. In the matter of Satwant Kaur Sandhu vs. New India Assurance Co. Ltd. (2009) 8 SCC 316 and P.C. Chako vs. & Anr. vs. Chairman, LIC of India (2008) 1 SSC 321 Hon'ble Supreme Court has held that the insurance company is justified in repudiating the insurance claim if the insurance cover has been obtained by fraud and/or misrepresentation of material facts.
Only question which needs consideration in this appeal is whether or not the respondent had obtained the insurance cover pertaining to excavator by concealment of material fact. In order to find answer to the aforesaid question I have perused the proposal form wherein there is no mention of any previous insurance policy pertaining to the excavator. Therefore, I find it difficult to accept that the endorsement pertaining to the previous insurance policy issued by IFFCO Tokio General Insurance policy on the insurance schedule is on the basis of information furnished by the respondent/complainant. Learned counsel for the petitioner contended that the insurance agent has categorically stated in his affidavit that aforesaid information about the previous insurance policy taken from IFFCO Tokio General Insurance Co. was given by the insured. I am not inclined to believe aforesaid version of the insurance agent because no such information is recorded in the proposal form. Had said information been given by the respondent/complainant to the insurance agent, he would obviously have ensured recording of said information in the proposal form. Thus, it is a clear that this is not a case of concealment of fact on the part of the complainant.
In view of the reason recorded above, I find no reason to interfere in the impugned order in exercise of revisional jurisdiction. Revision petition is therefore dismissed.