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Judgment
Sudip Ahluwalia, Member
This Appeal has been filed by the Appellants/Opposite Parties No. 1 to 3 against the Complainant and Opposite Party No. 4 challenging the impugned Order dated 16.12.2014 passed by the State Consumer Disputes Redressal Commission-III, Lucknow, Uttar Pradesh, in Complaint Case bearing No. 141 of 2000. Vide such Order, the State Commission had partly allowed the Complaint.
The brief facts of the case are that the Complainant is the owner of Century Scientific Instruments which is engaged in chemical works and has a shop situated at Barula Market, Aligarh, and a godown at Sir Syed Nagar, Aligarh. The Complainant had insured her shop and godown with the Opposite Party No.1 for Rs.14,53,800/- from 05.06.1999 to 04.06.2000 and had deposited a premium of Rs.3,780/-. The Opposite Parties had issued the cover note only for the shop. Neither the Policy was issued nor anything was issued for the godown. The Complainant vide letter dated 17.04.2000 had informed the Opposite Party No.1 about the same. However, the Opposite Parties-Insurance Company failed to make any corrections. Thereafter, a fire broke out at the Complainant’s godown on 30.04.2000 causing a loss of Rs.7,06,797/-. The said claim was filed with the Opposite Parties- Insurance Company but the same was rejected vide letter dated 24.07.2000 by the Opposite Party No.2 as the godown was not included in the cover note. It was averred that the Opposite Parties- Insurance Company had received premium for Fire Policy of the godown but issued a shopkeeper Policy. Even, the stock at both the places was inspected but the godown was omitted in the cover note. Therefore, the Complaint was filed before the Ld. State Commission being aggrieved by the acts of the Opposite Parties in non-issuance of the Policy to the Complainant, and also in not making the corrections in the Policy alleging deficiency in services seeking settlement of claim at Rs.7,06,797/- along with interest @ 18% from the date of rejection of claim to the actual date of payment and cost of Rs.10,000/-.
The Opposite Parties No.1 to 3 appeared before the Ld. State Commission and resisted the Complaint and denied all the allegations thereby denying deficiency in service on their part. It was contended that only the shop situated at 4-B, 7-B, Barula Market, Dodhpur, Aligarh was insured, whereas the godown was never insured and because the fire took place at the place which was not insured, the claim was repudiated. The Opposite Parties had got the matter investigated by the surveyor assessor Shri Hori Lal Varshney. It was further contended that the Shopkeeper policy was issued as per the desire of the Complainant and her banker. It was averred that the Complaint is beyond the jurisdiction of the Consumer Protection Act as it requires elaborate evidence and no cause of action has arisen against the Opposite Parties. Therefore, the Opposite Parties prayed for dismissal of the Complaint with costs.
The Ld. State Commission vide its order dated 16.12.2014 partly allowed the Complaint against the Opposite Parties No. 1 to 3 and rejected the Complaint against the opposite Party No.4 while directing them to pay Rs.7,06,797/- along with interest @12% p.a., Rs.10,000/- as litigation costs and observed inter alia:
“… On going through the documents, it has been confirmed that in the present case no policy has been issued by the Insurance Company and only cover note was issued, which shows itself that the deficiency has been committed in its service. The fire incident in question was taken place on 30.04.2000 and on 17.04.2000 the Complainant had sent a letter about the mistake committed by the Insurance Company that in the cover note the godown has not been mentioned. While the shop and whole material lying in the godown were insured by the complainant. Therefore, the letter for modifying the cover note was received by the Insurance Company on 17.04.2000. Despite this also the Insurance policy was not issued by the Insurance Company. It has been seen that mostly in various cases of Insurance Company does not issue the Insurance Policy.
The Insurance Company states that the shopkeeper policy was issued in favor of the Complainant. Hence, question does not arise of making the payment of compensation amount for the godown to the complainant. The copy of shopkeeper policy has been filed on record and which is annexed as Annexure-1. On going through the same, it has been confirmed that the said policy has been issued for an amount of Rs.14,53,800.00. In this regard the learned counsel for the complainant has filed the copy of Circular issued by the Insurance Company on 24th May, 1990, in which it has been specifically indicated that in case the Shopkeeper Police has been issued more than Rs.5 Lacs, the action be taken against the concerned administrative officer and the said policy be converted into Fire Policy immediately as per the rules of the said policy. The insurance Company itself has not complied with this circular intentionally. While the complainant has aware about this mistake to the insurance company through her letter dated 17.04.2000. In this manner, it has been confirmed that the insurance company has committed an offence of deficiency in its service and not issuing the proper policy the insurance company has applied its bad trade practice and in this manner the complainant is entitled to take compensation amount for her godown from the Insurance Company…”
Aggrieved by the above order, First Appeal bearing No. 205 of 2015 has been filed by Appellants/ Opposite Parties No.1 to 3 – Insurance Company against the Respondents/ Complainant and Opposite Party No.4 before this Commission.
Heard the Ld. Counsels for Appellant and Respondent. Perused the material available on record.
In Para 3 of the original complaint, it was averred –
“That in the cover note shop was allegedly insured, while in fact the Godown was applied, in pursuance with the same intention a Letter was handed over to the Opposite Party No. 1 on 17.4.2000 a copy of the same is contained in the Annexure No. 2 to this complaint.”
Photocopy of such letter dated 17.4.2020 maintained on Page 7 of the record of the Ld. State Commission, and perusal of the same goes to show that it was originally delivered with the Branch Office of the Respondent No. 1/Oriental Insurance Company on the same date, and as a token of such delivery, the seal with date of the said Office, alongwith the signatures of the receiving staff on the same date was obtained.
But, in the Written Statement filed on behalf of the Appellants/Opposite Parties Nos. 1,2 & 3, it is seen that there is no reference to such letter in the relevant Para No. 3, much less any denial that such letter was not delivered in its Office on 17.4.2020. The entire contents of the relevant Para 3 in the common Written Statement of the original Opposite Parties Nos. 1,2 & 3/ Appellants are set out as below-
“3. That contents of Para no. 3 of the complaint are not admitted and are specifically denied. It is submitted that the stock of chemicals, different scrence instruments and for other similar goods in the insured shop situated at 4-B, 7-B, Barula Market, Dodhpur, Aligarh was insured with the O.P. No. 1 & 2 subject to the terms and condition as mentioned in the shopkeeper policy. The godown of the complainant was never insured with the O.P nor complainant ever showed any willingness or applied for getting insurance of godown before the insurance company, and insurance company never received any premium regarding insurance of his godown. Further detailed facts are stated in additional pleas.”
Now, as already noted by the Ld. State Commission, copy of the actual Policy, if any, issued in favour of the Complainant has not been forthcoming. While it was the specific case of the Complainant that no such Policy had actually been delivered to it at any stage, the Appellants from their side did not bother to place even their office copy of the same either before the State Commission or even before this Commission from which it would have become clear whether the godown in which the fire had taken place was actually covered in the Policy or not. The letter dated 3.5.2000 issued by the Respondent No. 2/Union Bank of India, copy of which is on Pages 72-73 of the State Commission’s record clearly goes to reveal that only the Cover Note bearing No. GZB/133757 dated 02.06.1999 had been sent to it by the Appellants/Insurance Company with reference to the proposal of the Complainant, and it was also specifically mentioned that no copy of any Policy was ever received. To that extent, it would appear to be a palpable case of misconduct/deficiency of service in as much as the actual Policy of the Complainant was never sent to it, nor copy thereof was shown to the State Commission or even this Commission in Appeal. So much so, even the Proposal Form on the basis of which such Policy had ostensibly been issued by the Insurance Company has been withheld from this Commission. Perusal of such Proposal Form, which undoubtedly, would have been in the direct custody of the Insurance Company would have gone to show exactly what would have been the description of the venue/premises where the Insured’s goods were to be stored. Such failure/suppression of not only the actual Insurance Policy, but even the Proposal Form on the basis of which the same was issued by the Insurance Company can only have the inescapable effect of leading to an adverse presumption against it under Section 114 (g) of the Indian Evidence Act, to the effect that had these documents been produced, the contents thereof would have revealed the incorrectness of the Company’s allegations and defense.
At any rate, in its Repudiation Letter dated 24.7.2000, copy of which is on record of the Ld. State Commission at Page 14, it transpires that the claim of the Complainant bears a surprisingly identical number with that of the Policy in question. While the claim has been numbered as 252805/48/2001/00002, the number of Policy has been described as 252805/48/2000/00280. This would surely mean that either the original Policy, or at least its office copy was certainly available with the Appellants/Opposite Parties. But it was consciously withheld from both the Fora alongwith copy of the Complainants’ original Proposal Form, on the basis of which the same had been purportedly issued.
Furthermore, the Cover Note in question clearly goes to show that the sum insured was Rs. 7.00 lakhs i.e. in excess of Rs. 5.00 lakhs, which would therefore automatically be covered by the Circular No. HO/MISC/SKI/90/CR-2390 dated 25th May, 1990, issued from the Head Office of the Insurance Company, by virtue of which, the insurance coverage of the Complainant could not have been merely of a Shopkeeper’s Insurance Policy but the regular Standard Fire and Perils Policy. In addition, the Complainant from its side had placed a plethora of documents in the Ld. State Commission which are available on record of the Ld. State Commission, and which overwhelmingly go to show that it is not merely a shop but manufacturer and supplier of chemicals to several customers, including the Department of Chemistry of the prestigious Aligarh Muslim University. The same would therefore leave no scope to doubt that the burnt goods of the Complainant could not have been the subject matter of the insurance coverage only at its small shop premises, but at the actual godown where the fire took place.
For the aforesaid reasons, this Commission finds no merits in the present Appeal, nor any grounds to interfere with the well-reasoned order of the Ld. State Commission.
The Appeal is, therefore, dismissed with additional litigation costs of Rs. 20,000/- in favour of the Respondent No. 1/Complainant.
The Appellants are now directed to pay the decretal amount as awarded by the Ld. State Commission alongwith accrued interest thereupon and the original as well as additional litigation charges to the Respondent/Complainant, within 02 months from the date of this Order, failing which the said Respondent will be at liberty to proceed into execution.
Pending application(s), if any, also stand disposed off as having been rendered infructuous.