New India Assurance Co. Ltd vs Sishilaben Chamanlal Parmar & Anr

The present Revision Petition, under Section 21 (b) of the Consumer Protection Act, 1986 (for short "the Act") has been filed by the Petitioner (hereinafter referred to as "the Insurance Company") against the order dated 12.09.2019 of the State Consumer Disputes Redressal Commission, Gujarat (for short "the State Commission") in their Appeal No.516 of 2014. Vide the impugned order, the Appeal of the Insurance Company filed against the order dated 18.10.2013 of the District Consumer Disputes Redressal Forum-Ahmedabad (for short "the District Forum") in Complaint No.179 of 2011 of the Respondent (hereinafter referred to as "the Complainant") was dismissed.

The brief facts of the case are that the Complainant/Respondent had hypothecated her property Ward No.3, S.No.1846 A and 18 A-1 Municipal Sr. No.871-871/1 to 4 Ground First, Second Floor, Panchabhai Ni Pol, Opp. Fellowship High School, Ghee Kanta Road, Ahmedabad against a loan secured by her from the State Bank of India, respondent no.2. Under the terms and conditions of the said loan, the hypothecated property of the Complainant was insured vide policy in dispute. A fire broke out in the property and the property got damaged. The Complainant filed the claim. Surveyor was appointed who submitted his report. The claim of the Complainant was, however, rejected on the ground that the insured property was residential but was being used for  "commercial purposes" and thus, it amounts to violation of the terms and conditions of the policy. Aggrieved the Complainant filed the Complaint.

Parties led their evidences before the District Forum. After hearing the learned Counsel for the parties and perusing the evidences on record, the District Forum allowed the Complaint and rejected the contention of the Insurance Company. The District Forum has held as under:

"13. According to us, the insurance company has produced the policy of the property of the complainant, in which the type of the property, the residence has been written, but the property of the complainant is three-storey building and the said property is used for residence and the top two storeys are used for the manufacturing of the clothes and the insurance company has not produced any such condition of the policy that if the property of the residence of the complainant is used for the manufacturing of the clothes, they are not entitled to get the amount of the damage of the house or the property, therefore, according to us, the complainant is entitled to get the amount of the damage of his property.

The complainant has produced the report of A. Y. Chhaya, the civil Engineer, regarding the damage to his property. In it, the approximate cost of 8,06,140/-of the damage has been assessed but there are no evidence son record that the complainant has made any such expenses, while the insurance company has appointed Aditya Associates as the surveyor, who conducted the visit of the place and the property of the complainant has suffered the damage of 4,38,750/-, and after deducting 39,488/- at the rate of 9% of depreciation from it, the damage of 3,99,262/- has occurred, and after deducting the salvage value of 5,000/- and the under insurance of 46,523/- and the amount of 10,000/- of the assess, the property of the Complainant has suffered the damage of 3,37,739/-, that is the damage of 3,38,000/- has occurred, therefore, according to us, the Complainant is entitled to get the said amount with interest.

On the basis of the above discussion, the following order is passed.

ORDER

The complaint no.177/11 of the complainant Me. Chamanlal Hemchand and Company, and the complaint no.178/11 of Me. Rudra are rejected.

The complaint no.179/11 of Sushilaben C. Parmar is partly allowed.

The respondent no.1 New India Assurance Company Ltd., SG Highway Branch, will pay the amount of 3,38,000/- (rupees three lacs thirty-eight thousand) of the damage caused to the property of the complainant Sushilaben C. Parmar, with the annual interest of 8% from the date 8/4/10 i.e. the date of the rejection of the claim.

The respondent insurance company will pay 10,000/- (rupees ten thousand) for the mental harassment and 5,000/- for the cost of the complaint (rupees five thousand) to the complainant Sushilaben Parmar."

This order was impugned before the State Commission and the same contentions had been raised by the Petitioner. After re-appreciating and re-assessing the evidences on record and hearing the learned Counsel for the parties, the State Commission dismissed the Appeal and has held as under:

We have taken into account the arguments of both the parties, the evidences that have been produced and also the judgment of learned forum. The complainant Sushilaben Parmar has filed the complaint no.179/11 to get the amount of 8,06,140/- regarding the damage caused on the ground floor, first floor, second floor and third floor of her property Survey NO.1846/A and 1846/A/1, Municipal Surveyor No.871-871/1 to 4. But the insurance company has rejected her claim because the complainant has taken the insurance of her property for the residential purpose, while it was used for manufacturing the clothes, therefore, there is the breach of the terms and conditions of the policy, therefore, the claim of the complainant has been rejected.

The insurance company has produced the policy of the property of the complainant, in which the type of the property; residence or residential has been written. But the property of the complainant is three storey building. The said property is used for residence and the tope two storeys are used for the manufacturing of the clothes. Besides, the insurance company has not produced any terms of the policy that if the complainant is suing the residential property for manufacturing the clothes, she is not entitled to get the amount of the damage of the property or the house. Therefore, the complainant is entitled to get the amount of the damage of her property.

The complainant has produced the report of A.Y. Chhaya, the Civil Engineer, regarding the damage to his property. In it, the approximate cost of 8,06,140/- of the damage has been assessed but there are no evidences on record that the complainant has made any such expenses, while the insurance company has appointed Aditya Associates as the surveyor, who conducted the visit of the place and the property of the complainant has suffered the damage of 4,38,750/-, and after deducting 39,488/- at the rate of 9% of depreciation from it, the damage of 3,99,262/- has occurred, and after deducting the salvage value of 5,000/-and the under insurance of 46,523/-, and the amount of 10,000/- of the assess, the property of the complainant has suffered the damage of 3,37,739/-, that is, the damage of 3,38,000/- has occurred to the complainant. Therefore, we come to the conclusion and opinion that the judgment given by the learned Forum is proper and legitimate, and there is no need to interfere in it. Hence, the following order:

The Appeal is rejected.

The judgment and order of Learned Forum is upheld.

No order as to cost.

The office of this Commission is hereby directed that whatever amount has been deposited by the Appellant in connection with the Appeal in this Commission, be verified properly and the amount with its interest that has accrued, its account payee cheque in the name of the Appellant be made out and be given to the Appellant through the advocate of the Appellant, and an acknowledgement receipt of it be received from the Appellant."

This order is impugned before us on the same ground.It is settled proposition of law that this Commission has a limited revisional jurisdiction. It is not required to re-assess and re-appreciate the evidences on record and substitute the findings of the Fora below with its own conclusion on facts, especially when the findings on facts are concurrent. The Fora below have rejected the contentions of the Insurance Company on the ground that no terms and conditions of the policy showing any exclusion clause has been produced on record by the Complainant. It is not in dispute that the nature of the property was residential and since the Petitioner has not placed on record the exclusion clause showing that the use of residential property for commercial purposes nullifies the insurance policy, we found no illegality or perversity in the impugned order. The present Revision Petition has no merit and the same is dismissed in limine with no order as to costs.