JUSTICE A.P. SAHI, PRESIDENT

1. The Insurance Company has come up assailing the order passed by the Gujarat State Consumer Disputes Redressal Commission, Ahmedabad dated 23.01.2015 in appeal No. 59 of 2009, whereby the award made by the District Consumer Disputes Redressal Commission, Surat dated 24.10.2008 has been upheld. The fora below have accepted the claim of the complainant in respect of an indemnity under a Fire Perils Insurance policy and have directed a payment of Rs.3,20,000/- with simple interest @ 9% together with Rs.10,000/- for mental harassment and other expenses as well.
2. The complaint arose out of an incident of fire dated 24.01.2003 that is stated to have been covered under a policy issued by the Insurance Company that was valid for the period 27.02.2002 to 26.02.2003. The policy covered machinery, stocks and stocks in process. The insured was a chemical manufacturing unit of pharmaceutical and toiletry products that had acquired the insurance policy for the coverage of Rs.6,50,000/- for machinery and stocks/ stocks in process coupled with earthquake (fire and shock) for insured sum of Rs.2,25,000/-. The insurance policy for the period in question is appended as annexure P-1 and it recites the address of the firm as Ayursun Pharma, 29, Dharmesh Shopping Centre, Kamrej Char Rasta, Kamrej, Dist. Surat, 395003. The policy lower down describes the location as follows:

“The property is situated at:- 29, DHARMESH SHOPPING CENTRE, KAMREJ CHAR RASTA, KAMREJ, DIST., SURAT.- 395003.”   

The aforesaid recital is clearly endorsed on the policy.

3. The fire was reported to the Insurance Company and a surveyor, M/s. C. L. Dhamija and Co. was duly appointed who carried out a survey and submitted a report dated 31.03.2004, which is extracted herein under

“REF. NO.: UIIC/FR/03-04/240                                   DATE: 31.03.2004

WITHOUT PREJUDICE,

To,

The Senior Divisional Manager,

The United India Insurance Co. Ltd.,

 Divisional Office -I,

Surat.

SUB             : Loss Caused to Stock & Machinery due to Fire On 24.01.03.

INSURED  : M/s. Ayursun Pharma  

Policy No.  : 1. 180800/11/02/00513.

    2. 180800/11/02/05713.

Date of loss : 24.01.03

Dear Sir,

With reference to the above, please note that on receipt of instructions on 25.01.03 from United India Insurance Co. Ltd., D.O. I, Surat we preceded on same day & onwards to the place of fire to survey & inspect the loss caused to the Stock & Machinery reported due to fire on 24.01.03.

During our visit, we had informed the insured to submit the required details/ documents of the claim. We had also written various letters dated 06.02.03, 01.03.03, 19.03.03, 11.06.03, 08.09.03 & 08.11.03, requesting the insured to submit the required details/documents.

The address of insured's mentioned in the policy is as under:

Ayursun Pharma

29,Dharam Shopping Centre,

Near Dharam Cenema,

Kamrej Char Road,

Surat.

The address of insured's Office is as under:

404-C, President Plaza,

Near R.T.O., Ring Road,

Surat.

The address of place of fire is as under:

133, Amrut Nagar,

N.H.No.8, Kadodara

Ta. Palsana,

Dist. Surat

The Insured has submitted the majority of the papers regarding their claim. But the endorsement in the policy regarding the change of address has not been submitted till date. Regarding the submission the same we have asked number of times to the insured. The matter has been reported to your office also.

Since to prove to the insurable interest the place of fire should be available on the face of the policy of on the endorsement (if any) during the period of policy and prior to the date of fire.

As we have not received any endorsement regarding the place of fire, we are not assessing the loss and closing the matter at our end. And request you to treat the claim accordingly.

Further, please note that if the liability of the claim arises in future, you may again refer the matter to us.

However, our Survey Fee (minimum) Bill No. UIIC/FR/03-04/240 dated 31.03.04 for Rs. 4640.00 (Rupees Four Thousand Six Hundred and Forty only) is attached for your kind consideration & early payments.

The Photographs taken by us and submitted by insured are attached herewith.

Thanking you,

Yours faithfully,

For C.L.DHAMIJA & CO.

Sd/-

Chiranji Lal Dhamija

(Surveyor & Assessir)”

4. The claim was submitted but it was repudiated on 24.01.2003 on the ground that the loss has occurred at a different location which is not covered under the policy. The repudiation letter is extracted herein under:

“To,

Date: 09.04.2004

M/s Ayursun Pharma, 29,

Dharmesh Shopping Centre, Kamrej Char Rasta,

Kamrej Dist. Surat

Ref: Loss due to fire to stock and machinery etc. on 24.01.2003 Policy No. 18088/11/02/11/00000513 and 180800/11/01/05713.

Our File Ref. No. 0043/2002 and 0042/2002.

We refer to your above loss. In this regard we write to convey that as per the policies issued by us, the address therein is as under:

“29, Dharmesh Shopping Centre, Kamrej Char-Rasta, Kamrej Dist Surat.”

However the location /premises address at which the loss is reported occurred is

"133, Amrut Nagar, N.H. No. 8, Kadodara, Taluka Palsana, Dist. Surat”

Which is not covered /insured under policies and hence there is no liability attaching upon me under the policies which kindly note.

Please acknowledge receipt.

Sd/-

Authorised Signatory”

5. Aggrieved, the complainant approached the District Commission in CC/224/2004 was allowed awarding Rs.3,20,000/- together with interest @ 9% as well as Rs.10,000//- for harassment and costs.
6. The Insurance Company went up in appeal no. 59 of 2009 that was dismissed by the State Commission and the order of the District Commission was affirmed.
7. The revision petition has been filed by the Insurance Company urging that there was no occasion to have indemnified the claim as the fire that was reported, occurred at a different place which was far away from the address mentioned in the policy.
8. To understand this controversy one can refer to the report of the surveyor quoted hereinabove, where it has been mentioned that the address of the insured and the location of the property are both mentioned as “29, Dharmesh Shopping Centre, Kamrej Char Rasta, Kamrej, Dist. Surat, 395003”. This has nowhere been disputed. The place where the fire has occurred is "133, Amrut Nagar, N.H. No. 8, Kadodara, Taluka Palsana, Dist. Surat”. Undoubtedly they are two different places even if it is the same factory with same manufacturing unit and buildings that has been insured.
9. However, while filing the complaint the complainant has taken a plea that this change of location had been duly intimated to Mr. Madhukarbhai Dwivedi, the Development Officer of the Insurance Company. Apart from this the intimation was also given to the Banker, namely, the Surat District Cooperative Bank as well as the concerned government department and the office of the Sales Tax. These facts are clearly asserted in the paragraph 2 of the complaint which is extracted herein under:
10. (2) IN the year 2002-2003 the said insure was renewed on 2/5/2002. The insurance of the machinery at Rs.2,50,000/- and of stock at Rs.4,00,000/- in this way total 6,50,000/- was taken. The said Insurance was under the implementation with effect from 2/5/2002 to 1/5/2003. With reference to the said insurance the opponents has given us the schedule of the insurance policy. During the time when the said insurance was under implementation on dated 8/11/2003 or so, I had taken my factory at 133, Amrut Nagar, National Highway No.8, Kadodara Four Road, Moje village Kadodara Taluka Palsana, District Surat. The changes which had been brought in the address of the factory, I had given to the Insurance company of the change of the same vide one letter dated 31/10/2002. I have given the said letter written by me to the Development Officer of the opponent Company's Office Shri Madhukarbhai Dwivedi. In the said letter, I missed to write some of   the information and particulars, and Madhukarbhai Dwivedi had written the same in his hand writing and thereafter it was stated that the Officer looking after Fire Insurance Department is not present and when he comes by obtaining his signature will send the acknowledgement receipt of receiving the letter. But thereafter the Development Officer Shri Madhukarbhai Dwivedi of the opponent Company did not send the acknowledgment. The change of the said address, I had given to my Banker the Surat District Cooperative Bank, and the Prohibition Department of the Government of Gujarat as well as the Office of the Sales Tax.”
10. In support of this contention the complainant has relied on the intimation dated 31.10.2002, which is transcribed by the complainant in Gujarati vernacular and is at page 88 of the paper book. The English translation thereof is extracted herein under:

“Ayursun PHARMA

Research for Ayurveda

Ref.No.                                                                      Date: 31.10.02

To

Sahebshri

United India Insurance Co.

Ringroad, Surat.

Respected Sir,

Sub:                 Change of address of the factory

Policy 180800/11/02/00513 and

180800/11/02/05713

With due respect, from the place shown in the above mentioned policies, we are going to change the above mentioned address of our factory from 8.11.03. Therefore, you are requested to change the address in both of the above mentioned policies.

New Address:    AYURSUN PHARMA

133, Amrutnagar, N.H.No.8

Kadodara Char Rasta. Kadodara

Tal. Palsana, Dist. Surat

for Ayursun Pharma.

Sd/-Illegible

------------------------------------------------------------------------------------------

29, Dharam Shopping Centre, Kamrej Char Rasta, Dist. Surat, India

Ph. (0261) 3470876 Tele Fax (0261) 3463604 Email: niramay2001@rediffmail.com”

11.  In response to the aforesaid averment and the document referred to above the written version in paragraph 7 states as under:

 “(7)There is no dispute with regard to the fact that the on behalf of the opponent the Insurance Police was given for the tenure from dated 2/5/2002 to 1/5/2003. According to the say of the applicant himself the   Schedule of the Insurance Police was supplied to the applicant. In the period dated 8/11/2002 no intimation is given to the opponent by the complainant regarding the change of address of the factory shifted to 133, Amrutnagar National Highway Road No.8, Katodara Cross Road, Moje Vilage Kadodara, Taluka Palsana, District Surat. The complainant has not given any letter to the Insurance Company on dated 31/10/2002 as well as the fact and statement that the said is given to the Development Officer Shri Madhukarbhai Dwivedi of the opponent Company is totally false and wrong. Madhukarbhai has no authority or power to accept the so called letter or is not there. Madhukarbhai himself has not send any acknowledgment to the complainant. I have no personal information regarding making intimation by the complainant of changing the address to any establishment or the Government or Semi Government office.

12.  A perusal of the response  of the Insurance Company indicates a complete denial of  any such intimation having been received by them through Mr. Madhukarbhai Dwivedi, the Development Officer in any manner whatsoever.
13. The dispute therefore rests on this allegation made by the complainant about the intimation of change of location risk. Needless, to point out that if a change in the location of the insured premises takes place, then in order to secure the risk coverage, it is an obligation on the insured to intimate the same to the Insurance Company, the reason being that an assessment of the risk of the location has to be made for the purpose of executing a policy or even defining the premium thereon. This is necessary as has been held in several cases including the latest decision of this Commission in the case of Balamurugan Automobiles Vs. United India Insurance Co. Ltd. & Anr, CC/881/2015, decided on 09.10.2023.
14. However this has to be indicated that in such cases, where the Insurance company has been intimated or otherwise communicated and there is an understanding between the insurer and the insured, the situation might be otherwise.
15. Nonetheless, in the present case, it is the specific claim of the complainant that they had sent the intimation of change of location which has been denied by the Insurance Company. Mr. De, learned counsel for the petitioner submits that apart from the aforesaid denial, when such a change does take place and duly intimated, the Insurance Company makes an endorsement specific to the policy about the change of location. In the instant case there is no such change of location endorsed on the policy and hence these aspects have been completely overlooked by the District Commission as well as by the State Commission.
16.  It has also been pointed out by Mr. De that the said letter dated 31.10.2002 does not bear any receipt or endorsement of receipt or any stamp of the Insurance Company. It is not addressed to Mr. Madhukarbhai Dwivedi and it is not known as to whom it was addressed. Not only this, it does not bear the signature of Mr. Madhukarbhai Dwivedi, accepting any such receipt of the aforesaid letter. He further substantiates this by contending that the letter is also phrased in a manner which raises serious doubts, namely, it states that the complainants are going to change the address/ location of the factory w.e.f., 08.11.2003, which is a date almost 10 months after the date of incident. He therefore submits that these factual errors have led to perversity in the findings recorded by the District Commission as well as the State Commission. He submits that the finding recorded in paragraph 3 of the order of the District Commission, it has been presumed as if the information tendered by the complainant was admitted. It is urged that paragraph 3 of the impugned order is perverse as it ignores relevant material as discussed above and therefore was liable to be set aside in appeal but unfortunately, the appellate order also fails to appreciate this vital aspect of the matter.
17. The assumption of the State Commission that the Insurance Company did not get the statement of Mr. Madhukarbhai Dwivedi recorded or get him examined is yet another fallacy in the impugned order, in as much as, the complainant who had to prove the delivery of the letter to Mr. Dwivedi, failed to discharge this burden as the document dated 31.10.2002 itself was bereft of any such endorsement by Mr. Dwivedi. Consequently, it was for the complainant to have established the service of any such intimation on the Insurance Company and having failed to do so, the State Commission erroneously drew an adverse inference that is unsustainable.
18. We have considered the submissions raised and having assessed the arguments advanced and the findings recorded, we are of the opinion that the District Commission proceeded to record a finding with regard to the intimation of change of address without there being any corroborating proof of the service of the letter dated 31.10.2002 and hence the same is a material irregularity and a patent illegality. This aspect has also not been appreciated in appeal and the reason given by the State Commission for not having led the evidence of Mr. Madhukarbhair Dwivedi is also an erroneous approach, in as much as, the letter dated 31.10.2002 was the evidence of the complainant and ought to have been proved by them, and hence shifting the onus on the Insurance Company without the complainant’s burden having been  discharged, could not have been made the basis for drawing any adverse inference. This was more essential, when the Insurance Company in its written version has completely denied the service of any such document through Mr. Dwivedi or any endorsement existing thereon, so as to remotely establish the receipt of such document by the Insurance Company. It is not the case of the complainant that it was sent by registered post  or courier or by any other mode. In such circumstances and more so when the change of address was being proposed from 08.11.2003, with no endorsement of the Insurance Company or receipt thereof, the document is grossly suspect and ought not to have been relied on. The letter seems to suffer from incoherence in as much as the proposed date of change is long after the incident.
19. The appreciation of evidence therefore has been made contrary to the facts on records and law, and is therefore a material irregularity. Consequently, for all the reasons  recorded hereinabove, the revision deserves to be allowed and the complaint deserves to be dismissed. Accordingly, the impugned order of the State Commission dated 23.01.2015 and that of the District Commission dated 24.10.2008 are set aside and the complaint stands dismissed. The revision petition is allowed.