1.       The present Revision Petition (RP) has been filed by the Petitioner against Respondent as detailed above, under section 58 (1) (b) of Consumer Protection Act 2019, against the order dated 30.01.2021 of the State Consumer Disputes Redressal Commission Gujarat (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No.1182 of 2013 in which order dated 07.03.2013 of Banaskantha District Consumer Disputes Redressal Commission (hereinafter referred to as District Commission) in Consumer Complaint (CC) no. 74 of 2012 was challenged, inter alia praying for setting aside the order dated 30.01.2021 of the State Commission.

2.       While the Revision Petitioner(s) (hereinafter also referred to as OP) was Respondent before the State Commission and OP before the District Forum, the Respondent (hereinafter also referred to as Complainant ) was Appellant before the State Commission and Complainant before the District Forum.

3.       Notice was issued to the Respondent on 07.12.2021.  Parties filed Written Arguments/Synopsis on 06.12.2022 ( Petitioner ) and 02.011.2023 respectively.

4.       Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Commission and other case records are that Complainant has an oil factory at Plot No. 41,G.I.D.C., Deesa, wherein he runs a business of extracting oil of mustard –sarson and sells the oil and oil cake thereof.  The oil is dispatched within Gujarat and also to the regions outside the state of Gujarat.  For the oil business, the complainant had availed insurance cover of Rs.1.00 crore for the period from 16.12.2010 to 15.12.2011 under Marine Insurance Policy cover from the OP  by paying an amount of Rs.5764/- towards premium thereof.  According to the complainant, he had informed that OP that he had purchased the insurance as he dispatches oil  outside Gujarat but the policy was covering the risk of dispatching the goods at any place in India.  It is further the case of the complainant that he had informed the OP that he has marine policy, whereby he dispatches oil tankers through transport outside the Gujarat and only that business should be insured which was sent to the OP in writing  and there was no need to have insurance of the goods which he dispatched by his own oil tanker for other businesses.

5.       According to the complainant, he had dispatched 19565 kg mustard oil valuing Rs.12,33,377/- ( total Rs.12,58,045/- including tax) through truck to Mumbai from his oil mills and a declaration in this regard was sent to the OP  The tanker tossed while passing from the boundary of the village Mahuvej ( Ahmedabad – Mumbai Highway and same was informed to Kosamba Police Station and OP was also informed about the incident. on the same day.  The insurance company’s Surveyor, Parsvin N Salot, who after visiting the place submitted his report to the OP.  Insurance Company also appointed the investigator Mr. Mayank Marchant, who also sent his report to the OP but OP did not take any decision on both of their reports.  Without knowledge and consent of the complainant,  OP appointed S.P.Singh and Associates as second investigator and on the basis of the said report, insurance company repudiated the claim of the complainant.  Being aggrieved, the Complainant filed CC before the District Forum and District Forum vide order dated 07.03.2013 dismissed the complaint.  Being aggrieved, the complainant preferred an Appeal before the State Commission and State Commission vide order dated 30.1.2021 partly allowed the  Appeal of the  Complainant.  Therefore, the Petitioner ( OP) is before this Commission now in the present RP.

6.       Petitioner has challenged the said Order dated 30.01.2021 of the State Commission mainly on following grounds:

1. State Commission failed to appreciate that valid reason for appointment of M/s S.P.Singh and Associates for investigating the books of accounts of the respondent was well documented in its report.

2. State Commission failed to appreciate that facts stated by M/s S.P.Singh and Associates with regard to the turn over of the respondent beyond the coverage provided under the Marine Cargo Open Policy provided by the Petitioner was never denied or challenged by the respondent.

3. State Commission failed to appreciate that scope of investigation of second investigator i.e. M/s S.P.Singh and Associates was completely different from the scope of investigation carried out by the first investigator Mr. Mayank Merchant and the said report was also left out by the Surveyor appointed by the Petitioner.

4. State Commission failed to appreciate that M/s S.P.Singh and Associates clearly pointed out in its report that Respondent has not been declaring all the consignments under the Marine Open Cargo Policy to the Petitioner.

5. State Commission failed to appreciate that M/s S.P.Singh unearthed a possible insurance fraud done by the respondent in execution of letter dated 20.12.2010 after the date of accident which is a criminal offence.  Further, Marine Cargo Open Policy was issued to the Respondent by the Petitioner on 16.12.2010 on the basis of proposal made by the respondent. No modification to the contract of insurance dated 16.12.2010 was made due to the alleged letter dated 20.12.2010 issued by the respondent.  Contract of insurance cannot be unilaterally modified by the respondent.

6. Letter dated 20.12.2010 was not received by the Petitioner and was fraudulently placed by the Respondent subsequent to the loss. State Commission failed to appreciate that merely a receipt of letter from the respondent by the Petitioner cannot be considered as an amendment to a contract of insurance unless an endorsement to the same effect is made by the Petitioner.  No endorsement in terms of letter dated 20.12.2010 was ever made by the Petitioner on the policy issued on 16.12.2010.

7. State Commission did not consider that respondent had already done the sales of Rs.2,68,62,705/- for the month of December 2010 to June 2011 and hence the policy coverage of Rs.1.00 crore has long lapsed.

8. State Commission misinterpreted the findings of the Hon’ble Supreme Court in Sri Venkateswara Syndicate Vs. Oriental Insurance Co. Ltd. (2009) 8 SCC as the said case is different from the case in hand. 

7.       Heard counsels of both sides.  Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.

7.1     Learned counsel for the Petitioner argued that reports of the Surveyor Mr. Parshwin N Salot and the Investigator Mr. Mayank Merchant are neither overlapping nor contradictory to each other.  The two investigators were deployed to investigate two different aspects of the matter.  Both were appointed on the same date i.e. 13.06.2011.  Further, M/s S.P. Singh and Associates was appointed to get clarification with regard to discrepancies found in the invoice number and declaration made by the respondent.  Further, it is well settled position in law that insurer can appoint a second surveyor if there exists some cogent reason to not to accept the first surveyor / investigator report.  It is argued by the learned counsel for the Petitioner that wordings of the policy are sacrosanct and cannot be unilaterally modified by the respondent.  The insurance policy taken by the respondent is a Marine Cargo Open Policy and not the Close Type-A as referred by the respondent and according to letter dated 20.12.2010 itself states that insurance policy is not a Close Type-A but is the Marine Cargo Insurance Policy.  Learned counsel further argued that claim of the respondent is based on the alleged letter dated 20.12.2010 which state the policy to be Marin Cargo Policy, where declaration of all the transaction / dispatches of the goods are to be sent to the insurance company under this policy before dispatching goods. The issue is in regard to the clause of the policy and not the type of the policy.  The Marine Cargo Insurance Policy was issued to the respondent by the Petitioner on the basis of proposal made by the respondent and no modification to the contract of insurance was made due to the alleged letter dated 20.12.2010 issued by the respondent.  The letter dated 20.12.2010 was  never received by the Petitioner.  Merely a receipt of letter from the respondent by the Petitioner cannot be considered as an amendment to a contract of insurance.  It is settled principle of insurance that an amendment to the contract of insurance cannot be made unless an endorsement to the same effect is made by the Petitioner.  No endorsement in terms of letter dated 20.12.2010 was ever made by the Petitioner on the policy issued on 16.12.2010. 

7.2     It is further argued by learned counsel for the Petitioner that no responsibility arise on the part of the Petitioner Insurance Company for compensation under the policy as the policy coverage is long elapsed before the happening of the incident and before the happening of incident, the goods valuing Rs.1.00 crore as stated in the insurance policy had been dispatched from the respondent company and no declaration of all these goods were made to the Petitioner Insurance Company.  As per the reports produced before the Investigator, the local and out of Gujarat State sales of the respondent for June 2011 in the sales register is declared to be Rs. 4,20,84,325/- and thus as per the terms and conditions of the insurance policy, the turnover of the amount being more than Rs.1.00 crore till the date of incident on 13.06.2011,  no responsibility can be attributed to the Petitioner.  Further, as per the report of the investigator, the respondent has already done sales of Rs.2,68,62,705/- for month of December 2010 to June 2011 and hence the policy coverage of Rs.1.0 crore has long elapsed.   Further, respondent has failed to disclose material facts from the Petitioner Insurance Company as respondent failed to provide the investigator the purchase register for the period 01.04.2010 to 30.01.2010,  sales register for the period 29.01.2011 to 31.11.2011, income tax return, VAT/CST return for the period 01.04.2010 to 30.06.2011.  The date as per VAT Audit report and the trading account did not tally and according to Marine Open Insurance Policy, entire Turnover / Sales of oil was required to be declared which was not done by the respondent.

7.3.    Learned counsel relied on the following judgments of the Hon’ble Supreme Court :

a.       Sri Venkateshwara Syndicate Vs. Oriental Insurance Company Ltd. and Anr. Manu / SC /1500/2009

b.       National Insurance Co. Ltd. Vs. Harjeet Rice Mill Manu / SC/0428/2005

c.       Bajaj Allianz General Insurance Co. Ltd. and Ors. Vs. State of Madhya Pradesh Manu/SC/0410/2020

d.       Export Credit Guarantee Corporation of India Ltd. Vs. Garg Sons International Manu/SC/0039/2013

e.       Suraj Mal Ram Niwas Oils Mills P. Ltd. Vs. United India Insurance Co. Ltd. andOrs. Manu/SC/0814/2010

f.        Oriental Insurance Company Ltd. Vs. Sony Cheriyan Manu/SC/0495/1999

g.       Vikram Greentech Ltd. and Anr. Vs. New India Assurance Co. ltd. Manu/SC/0519/2009

h.       General Assurance Society Ltd. Co. Vs. Chandumull Jain Manu/SC/0180/1966

i.        United India Insurance Co. Ltd. Vs. M K J Corporation Manu /SC/2396/1996

j.        Polymat India P. Ltd. and Ors. Vs. National Insurance Co. Ltd. and Ors. Manu /SC/1019/2004

7.4.    Learned counsel for the respondent argued that Petitioner has not considered the letter dated 20.12.2010 issued by the respondent to the Petitioner wherein it has been specifically stated the business to be covered for outside Gujarat and the supply which was specifically stated in the declaration book for commencement of the insurance.  Further, it was also stated that there is no need to have insurance of the goods dispatched by the respondent through its own oil tanker, which letter has been accepted by the petitioner on the same day.  State Commission has given due weightage on the said letter and held that the respondent has declared the goods worth Rs.53,37,802/- before the dispatch of the goods.  Further, it is argued that Petitioner ought to have filed the criminal litigation if the letter dated 20.12.2010 was created after the incident but except the false allegation, Petitioner has done nothing to disprove the said letter.  Counsel further argued that Mr. Mayank Merchant Investigator was appointed to investigate the genuineness of the claim as well as the detailed information related to the loss of consignment of the edible oil / mustard oil.  State Commission relying on the report of the said investigator held the Petitioner responsible to pay the claim. It is further argued that State Commission has also considered the report of Parshvin Salot who assessed the loss to the tune of Rs.12,33,377/-.  The surveyor has not made any adverse remark as raised by the Petitioner in the repudiation letter. The appointment of Mr. S.P. Singh, the second surveyor was on 26.03.2012, after almost 5 months from the report of the first investigator Mr. Mayank Merchant.  Lastly, it is argued that State Commission has rightly considered the provision of Section 64 UM about the appointment of second surveyor and has also rightly relied upon the judgment of the Hon’ble Supreme Court regarding appointment of second surveyor / investigator. 

8.       The issue concerns claims under the Marine Cargo Open Policy under which transport of goods from anywhere within the country from and to of the actual premises of the complainant were covered. Total sum insured under the policy was Rs.1 crore, with limit per transit and limit per location of Rs.20 lakhs. As per terms and conditions of the policy, all dispatches are to be individually declared to the insurers’ office in the order of dispatch in the prescribed format and at prescribed periodicity. The declarations made shall reduce the sum insured to the extent of the value declared and the policy shall cease on expiry of policy period or exhaustion of sum insured, originally agreed or enhanced subsequently whichever shall first occur.

9.       It is the case of the petitioner Insurance company that all dispatches from the factory premises of the respondent, whether within the State of Gujarat or outside the State are covered and each such dispatch shall exhaust the limit. The policy in question was issued on 16.12.2010, the respondent on the other hand contended that immediately after the issuance of the policy, on 20.12.2010 i.e. within four days, he informed the Insurance Company in writing that he wishes to cover only the dispatches to outside Gujarat and not within Gujarat. Hence he did not declare any dispatch done within Gujarat. Subsequently, a claim arose for the loss dated 13.06.2011, which was repudiated by the Insurance Company vide letter dated 21.05.2012  on the ground that the limit was already exhausted prior to the said consignment as their total sales/turnover was observed as Rs.2.68 crores. It is admitted that if dispatches within Gujarat are excluded, the limit of Rs.1 crore had not been exceeded by the time of the claim in question.

10.       It is the contention of the Insurance Company that when a policy is issued, it is a concluded contract between the two parties and all the terms and conditions are binding on the insured, who cannot unilaterally change any term and condition. The respondent on the other hand contends that as he immediately wrote to the Insurance Company for not including the dispatches within the State, if such request for change of the terms and conditions was not acceptable, the Insurance Company ought to have intimated him about decline of his request. Although the Insurance Company did not admit having received the said letter dated 20.12.2010, a bare perusal of the said letter, shows that it bears the receipt stamp of the Insurance Company dated 20.12.2010.

11.       During the hearing on 15.04.2024, a specific query was posed to the learned counsel for the Insurance Company that if the complainant had asked for an insurance policy for dispatches outside Gujarat only at the initial stage itself, was there any restriction on issuance of such a policy which covers dispatches outside the State only and excluding the dispatches within the State as per the specific request of the claimant. As the learned counsel did not have a ready answer for that, he was granted one week’s time to file reply to this question on affidavit, along with copy of relevant guidelines of the Insurance Company.

12.       During the hearing, the learned counsel for the Insurance Company also referred to an earlier letter dated 16.12.2010 sent by the complainant, on the basis of which the policy was issued and which state that he wanted to cover all the dispatches, within as well as outside State of Gujarat. However, this letter is not on record. The learned counsel for the respondent stated that this letter dated 16.12.2010 was not on record either of District Forum or State Commission, hence at this stage no new document can be introduced. Hence, the Insurance Company, while submitting the response on affidavit as above,  was also directed to enclose a copy of the said letter (with English translation in case the letter is in local language) only if it was part of the District record/ State Commission otherwise the same will not be accepted/taken on record.

13.     In compliance of the order dated 15.04.2024, the Petitioner / Insurance Company filed an affidavit on 07.06.2024 responding to the query of the Commission as follows :

“Specific voyage are insured by the Petitioner, Oriental Insurance Co. Ltd. but in the present case as the factory lies at Gujarat boundary and the Insured Respondent proposed to exclude Gujarat and to include outside Gujarat State.  The proposal specific excluding Gujarat is acceptable but with in limitation of some underwriting condition i.e. declaration of voyage should  be reach to underwriting office before consignment start etc.”

14.     We have carefully gone through the order of the State Commission, District Forum, other relevant records.  As the complainant / respondent has immediately after the issuance of the policy, within 4 days i.e. on 20.12.2010 informed the insurance company in writing that he wishes to cover only the dispatches to outside Gujarat and not within Gujarat, hence he did not declare any dispatch done within Gujarat.  Although the Insurance Company did not admit having received this letter dated 20.12.2010 but a bare perusal of the said letter on record shows that it bears the receipt stamp of the insurance company dated 20.12.2016.  Hence, the contention of the Insurance Company of not having received such a request is not acceptable.  Further, keeping in view the response to this Commission’s inquiry, as stated in the preceding paras, it is clear that there was no bar in Complainant / respondent seeking insurance cover only for dispatches outside Gujarat under the said policy.  Hence, even if as per the policy issued on 16.12.2010, all dispatches were covered, the complainant having specifically sought exclusion within just 4 days of dispatch outside Gujarat and this request having been received and not being specifically rejected, the insurance company was not justified in repudiating the claim on the ground that sum assured limit has been exhausted.  It is admitted that if dispatches within Gujarat are excluded , the sum assured limit had not been exceeded by the time of the claim in question.  Hence, keeping in view the entire facts and circumstances, we are of the view that Insurance Company was not justified in repudiating the claim.  State Commission has given a well reasoned order and we do not find any reason to interfere with its findings, hence the same is upheld.  Accordingly, RP is dismissed.

 15.    The pending IAs in the case, if any, also stand disposed off.