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Judgment
Subhash Chandra, Presiding Member
The present revision petition has been filed under section 21 (b) of the Consumer Protection Act, 1986 (in short, ‘the Act’) against the order dated 08.07.2016 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (in short, ‘the State Commission’) in First Appeal no. 838 of 2014.
The brief facts of the case, as taken from the complaint filed before the District Forum, are that the respondent/ complainant – Bank provides farmer members loans and accepts deposits as per Banking laws. The Head Office of the Bank is at Dudhondi, Tal Palus, District Sangli and its jurisdiction is Sangli, Samara, Kolhapur, Solapur and Ratnagiri Districts. The petitioner/ opposite party no.1 is a company dealing in insurance policies and providing compensation in case of loss to its customers. The branch office of the petitioner is at Islampur and OP no.3/ respondent no.2 (herein) the Development Officer who promoted the insurance business. The respondent Bank obtained an insurance policy from the petitioner / opposite party no. 1 in 25.06.2011 which was renewed without break and had the agreed premium paid on time. At the time of the issuance of the policy, the customers were not aware as to how much premium was to be paid for what purpose. The insurance premium was paid to the insurance company. Respondent no.2 is the representative of the insurance company and as per the Contract Act, Insurance Company and Respondent no.3 are jointly and severally liable to pay compensation to the complainant.
An insurance policy was obtained by the Bank from the insurance company covering risks vide policy number 151004461104000005. The Bank paid the premium for the period from 07.07.2011 to 30.06.2012 and also renewed the policy.
On 28.05.2012 between 11.30 to 11.45 A.M. due to short circuit a fire in the Bank. The Branch Manager, Palus Branch called the Kranti Sahakari Sakhar Karkhana Limited, Kundal and Tasgaon Nagarparishad, Tasgaon and the Branch Manager himself and the employees tried to put off the fire. The employees took out the cash and the computers from the Bank. The Fire Brigade also came and the fire was extinguished. The fire affected the meeting hall of the Bank where goods worth Rs.22 lakh were in place. The incident was immediately informed to the insurance company. The insurance company appointed a Surveyor, Shri Arun Patil for spot inspection and report who conducted spot inspection on 28.05.2012 and assessed the loss at Rs.12 lakh. Thereafter, the Bank made a claim for the compensation. The insurance company, however, rejected the claim vide letter dated 17.09.2012 on the ground that:
“The insurance policy obtained by you from our company is Banker’s Indemnity Policy and under the said policy the coverage for the damage to the above goods is not included and was not included. Hence, the administration of our company has taken a decision that your claim is not payable. Your claim is not payable. We regret for the same.”
The Respondent Bank, therefore, sent a legal notice to the insurance company on 27.10.2012. The insurance company replied to the notice and denied compensation on various grounds.
The respondent Bank thereafter filed Consumer Complaint no. 5 of 2013 before the District Consumer Disputes Redressal Forum, Sangli (in short, ‘District Forum’) which, vide its order dated 01.08.2014, partly allowed the complaint with the following observations:
a. It is declared that the opponents have committed deficiency in service by rejecting the compensation claim of the complainant for the loss to its property due to fire;
b. The opponent nos.1 and 2 are directly jointly and severally to pay to the complainant the fire compensation claim of Rs.12 lakh along with interest @ 9% per annum from 07.01.2013 within a period of 4 weeks from the date of receipt of the order;
c. The opponent nos.1 and 2 are directed jointly and severally to pay to the complainant Rs.5000/- for the cost of the complaint and Rs.10,000/- for the mental and physical harassment within a period of four weeks from the date of receipt of order.
Aggrieved by the order of the District Forum, the insurance company filed an appeal no. A/14/838 before the Maharashtra State Consumer Disputes Redressal Commission, Mumbai which came to be decided on 08.07.2016, wherein the State Commission dismissed the appeal as under:
We are, therefore, of the considered opinion that impugned order was passed taking into account legal and factual issues, terms and conditions of the policy first issued which continued thereafter till the incident of the fire. Therefore, we do not find merit in the appeal and invoke the appellate jurisdiction of the State Commission to entertain the first appeal. In view of this we pass the following order:
(i) Appeal stands dismissed with no order as to costs;
(ii) Amount deposited, if any, by the appellant shall not be released till appeal period is over.
The present revision petition impugns this order and prays that the order of the State Commission be set aside.
We have heard the learned counsel for the petitioner as well as the respondent no.1 and have carefully perused the records.
The learned counsel for the petitioner in his written synopsis has stated that a proposal form for Banker’s Indemnity Insurance Policy was submitted by the respondent Bank and the petitioner insurance company, accordingly, issued the Banker’s indemnity Insurance Policy, covering the risk as requested by the Bank in the proposal form. The learned counsel further submits that under the said policy, the Bank was indemnified for losses to the money and securities, if any, caused on account of various risks specified in the proposal form/ policy including that from fire, riot and strike etc. Since there was a fire in the Palus Branch of the Bank as a result of which the furniture, fixture, computer etc., were burnt, on receipt of information of the incident of fire, the insurance company appointed a surveyor to survey and assess the loss. The surveyor assessed the net loss at Rs.9,56,300/-.
On receipt of the report of the surveyor, it was noticed by the petitioner insurance company that there was no loss to money/ currency/ securities and the loss was only to furniture and fixtures etc. Therefore, the claim was found not payable under the policy in question. Learned counsel further submits that the matter was taken up with the respondent Bank to apprise them that the claim was not payable. However, the Bank informed that while renewing the policy, respondent no. 2. Mr. Shabbir Dangare, Development officer was called for discussions in the Bank and on specific enquiry whether the building, furniture, computer etc. are covered under the said policy, respondent no.2 had orally informed that the same would be covered; and hence no separate policy covering fire risk was taken. Based on this letter from the Bank, the matter was taken up with the Development Officer who has stated that building, furniture etc., are covered, however, due to oversight the cover for building, furniture etc., was left out while renewing the policy. Learned counsel for the petitioner further states that respondent no.2 in his letter stated that although he had informed the Bank that the claim is not payable, the respondent Bank was pressurizing him. After examining the case, the insurance company came to the conclusion that the claim filed by the respondent Bank was not covered under the policy in question as the policy does not cover loss of furniture, fixture etc. by fire and therefore, repudiated the claim. Petitioner has justified the repudiation of the claim on the grounds mentioned in the letter of repudiation. Learned counsel for the petitioner has also stated that the policy was taken for Dudhondi Branch and the fire had taken place at Palus Branch and therefore, the claim is not payable. He further states that while respondent no.2 was impleaded as a respondent, he has categorically denied having informed the Bank that the policy would cover fire risk of the building, furniture etc. and that the policy was issued according to the proposal form submitted by the Bank and covers the loss of money, securities only and does not cover loss to building, furniture etc.
It was further submitted by the petitioner that respondent no.2 had categorically denied before the District Forum that he had informed the Bank that the risk of fire to the building, furniture etc. would be covered under the Banker’s Indemnity Insurance Policy. In view of the categorical denial by the Development Officer, the fora below should not have accepted the allegations made. He has further stated that the fora below have failed to appreciate that the proposal form of the Banker’s Indemnity Insurance Policy, admittedly signed by the respondent Bank, categorically mentions the perils which can be covered under the policy and that the policy covers risk to money and securities only. In view of this, the Bank was well aware that the loss on account of fire to the building, furniture etc. was not covered under the policy in question. He further submits that the policy was issued on 01.07.2011 and the fire had taken place on 28.05.2012 after nearly a year of the issuance of the policy. No issues with regard to coverage under the policy were raised during this period. The learned counsel for the petitioner submits that the petitioner insurance company concluded that the claim filed by the Bank was not covered under the policy in question and accordingly, vide letters dated 17.09.2012 and 18.09.2012, the Bank was informed that the claim was not payable and was being repudiated. The learned counsel further submits that the fora below has erred in holding that the respondent Bank had been continuously renewing the policy from 2002 and the loss/ damage due to fire has been provided in all the previous policies. It is averred that the State Commission has wrongly observed that the surveyor appointed by the insurance company recommended payment of Rs.12 lakh as the loss was covered under the policy. He further submits that as per policy verification undertaken the policy issued by the insurer to the insured was a Banker’s Indemnity Policy whereas the loss within the premises of the bank is due to a fire incident. The surveyor has assessed the loss for a sum of Rs.9,56,300/- and not Rs.12 lakh as claimed. However, this claim is not admissible under the Banker’s Indemnity Policy and was therefore, repudiated after the Surveyor’s report.
Learned counsel for the respondent Bank in his submission has urged that the Banker’s indemnity policy was for the period from 01.07.2011 to 30.06.2012. He further states that respondent no.1 was assured by the agent of the petitioner that the policy covers the furniture, fixtures etc., at the branch of respondent no.1. The fire took place on 28.05.2012 in the premises of the Branch at Palus, Maharashtra and a claim was made for the loss cause. The surveyor has assessed the loss at Rs.9,56,300/- but the surveyor has pointed out that the policy does not cover the loss of furniture, fixtures etc. at the Branch. He further states that the agent in his letter dated 23.07.2012 intimated the petitioner that it was due to over sight the furniture and fixtures were left out at the branch and, therefore, the claim should be honored. Despite the admission by respondent no.2 of over sigh, the petitioner rejected the claim on 17.09.2022 and on the same date, i.e. 17.09.2022 retracted from his earlier admission made in the letter dated 23.07.2022. Thereafter they approached the District Forum and the District Forum awarded Rs.12 lakh as claimed by respondent no.1 by relying on the judgment of the Hon’ble Supreme Court in the case of New India Assurance vs Pradeep Kumar in Civil Appeal No. 3253 of 2002 decided on 09.04.2009. Aggrieved by the order of the District Forum, the petitioner filed an appeal before the State Commission. He further states that though there are concurrent findings on facts by the fora below, this Commission has reiterated the same issues without pointing out any material irregularity. He states that the revision petition be dismissed on the ground that loss caused to respondent no.1 is liable to indemnified by the petitioner being the principal of the agent.
The petitioner’s case, in sum, is that the insurance policy in question was a Banker’s Indemnity Insurance Policy which did not cover the loss to furniture and fixtures due to fire and therefore, the claim was rightfully repudiated. The respondent no. 1, on the other hand, has stated that the policy, which was a continuing policy, covered both issues and that the petitioner insurance company had erred in not mentioning this as in previous years. The arguments of the petitioner are similar to his arguments before the lower fora. It is not denied that policies of the previous years covered all risks of fire. No material irregularity in the order of the lower fora has been brought out.
In the present revision petition both the lower fora have arrived at concurrent findings and have ordered in favour of the respondent. This Commission, in exercise of its revisional jurisdiction, is not required to re-assess and re-appreciate the evidence on record when the findings of the lower fora are concurrent on facts. It can interfere with the concurrent findings of the fora below only on the grounds that the findings are either perverse or that the fora below have acted without jurisdiction. Findings can be concluded to be perverse only when they are based on either evidence that have not been produced or based on conjecture or surmises i.e. evidence which are either not part of the record or when material evidence on record is not considered. The power of this Commission to review under section 21 of the Act is therefore, limited to cases where some prima facie error appears in the impugned order. Different interpretation of same sets of facts has been held to be not permissible by the Hon’ble Supreme Court.
The Hon’ble Supreme Court in Rubi (Chandra) Dutta vs United India Insurance Company (2011) 11 SCC 269, in Lourdes Society Snehanjali Girls Hostel and Ors vs H & R Johnson (India) Ltd., and Ors (2016) 8 SCC 286 and T Ramalingeswara Rao (Dead) Through LRs and Ors vs N Madhava Rao and Ors. in Civil Appeal No. 3408 of 2019 decided on 05.04.2019 held as under:
“12. When the two Courts below have recorded concurrent findings of fact against the Plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the High court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be perverse, a case for interference may call for by the High Court in its second appellate jurisdiction.”
From the records it is apparent that the present revision petition is an attempt by the petitioner to urge this Commission to re-assess and re-appreciate the evidence which cannot be done in revisional jurisdiction. Learned counsel for the petitioner has failed to show that the findings in the impugned order are perverse. Fora below have pronounced orders which are detailed and have dealt with all the contentions of the petitioner. It is seen that the orders of these fora are based on evidence on record. In view of the settled proposition of law that where two interpretations of evidence are possible, concurrent findings based on evidence have to be accepted and such findings cannot be substituted in revisional jurisdiction. Accordingly, this petition is liable to fail.
I therefore, find no illegality or infirmity or perversity in the impugned order warranting interference of this Commission. The present revision petition is, therefore, found to be without merits and is accordingly dismissed.