Haryana

StateCommission

CC/60/2013

M/s Aaditya International - Complainant(s)

Versus

New India Assurance Co. Ltd - Opp.Party(s)

22 Dec 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA.

 

                                                Complaint No.60 of 2013

                                             Date of Institution: 23.07.2013

          Date of Decision: 22.12.2016

 

M/s Aaditya International, Plot NO.73, Sector-24, Faridabad-121005 (Haryana) through its proprietor Kuldeep Raj Arora. Present address: 930, Sector 28, Faridabad-121008 (Haryana).

…..Complainant

 

Versus

 

New India Assurance Co. Ltd., Aakash Theater Complex, Mohan Road, Ballabhgarh, Faridabad-121004 (Haryana) through its Branch Manager.

          …..Opposite Party

 

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                   Mr.Diwan Singh Chauhan, Member.                                      

For the parties:  Mr.Varun Chawla, Advocate counsel for the complainant.

                              Mr.R.C.Gupta, Advocate counsel for the opposite party.

 

O R D E R

 

R.K.BISHNOI, JUDICIAL MEMBER :-

As per complainant, it is running business in rented plot No.73, Sector 24, Faridabad-121005, as mentioned in para No.1 of the complaint.  It was insured by O.P. showing the location of plot No.73 Sector 24, Faridabad for entire property i.e. stocks of all type in any form (including stock held  in trust), building, plant and machinery, accessories, office furniture, fittings, equipments, electric installations etc. from any risk/ mishap including fire, burglary etc.  It was regular customer of O.P. and was getting insurance done from it.  Two insurance policies were obtained for the period  24.12.2009 to 23.12.2010 against the risk for burglary and fire as detailed in para no.3 A and B of the complaint.  For the period 24.12.2010 to 23.12.2011 one insurance policy for burglary and one for fire were obtained as detailed in Para No.5 (A) and (B) of the complaint.  In both the policies material held in trust was also included. Those policies were renewed continuously. During intervening night of 5/06.11.2011 at about 2.00 a.m. fire broke out in the insured premises and most of the goods including stock held in trust were damaged.  Intimation was given to O.P. immediately and M/s J.L.Gupta and Company Private Limited was deputed to assess the loss. Surveyors visited the premises on 07.11.2011 and collected all the papers including photographs. They also made visits on subsequent dates. Total loss suffered by it as under:-

                   “A)     Stocks                           Rs.41,55,288/-

                    B)      Plant and machinery   Rs.34,06,460/-

                                                Total           Rs.75,61,748/-“

The value of salvage was agreed to be Rs.65,000/-. Surveyor was convinced with the loss reported by him. Claim of Rs.34,06,460/- was submitted which was supported by the documents qua damage to plant and machinery. Surveyor assessed loss of plant and machinery to the tune of Rs. 29,46,966/- which was not proper. At the most Rs.2,25,000/- value of salvage, was to be deducted.  After deducting Rs.16,59,635/- already received, O.P. is liable to pay Rs.15,21,825/-.  When insuring official Mr.K.K.Garg visited the spot  error in insurance policy pertaining to the period 24.12.2010 to 23.12.2011 was pointed out as mentioned in para No.5 B, but, he asked not to worry. As it was suffering from financial constraints and forced by customers to make payment, aforesaid amount was  received.  It was wrongly alleged by OP that stock held in trust was not covered by the policy for the period 24.12.2010 to 23.12.2011 because it was continuous policy and in the previous policy pertaining to the period 24.12.2009 to 23.12.2010 this stock was covered. There was no reason to omit the same in subsequent policy. In this way there is gross deficiency in service on the part of the O.P. and it be directed to pay Rs. 41,12,113/- alongwith interest @ 18% p.a.

2.      O.ps. filed reply controverting averments of the complainant and alleged that he has concealed true facts from the commission and has not shown correct amount assessed by the surveyor.  When the  policy was renewed for the period 24.12.2010 to 23.12.2011 the ‘stock held in trust’ was not included and is to be as excluded. As per terms and conditions of insurance policy he was granted Rs.16,59,635/-  as of compensation as full and final settlement, which was accepted.  The complainant has not submitted any expert evidence contrary to surveyor and loss assessor. He never raised any objection about coverage  granted as the same was issued after his approval.  He accepted the same with open eyes.   The claim was considered as per terms and conditions agreed in between them.  Other averments were also denied and requested to dismiss the complaint.

3.      Arguments heard. File perused.

4.      Learned counsel for the complainant vehemently argued that from the perusal of insurance policy Ex.C-1 and C-2 it is clear that stock held in trust was covered by insurance company, but, in the policy Ex.C-4, for the period 24.12.2010 to 23.12.2011, it was omitted. It was continuous policy and there was no reason to delete the same.  Premium for this policy was  equal to previous premiums. It was also argued about this omission that when amount was received on 14.09.2012, as mentioned in Ex.C-9 E-mails were sent. After the incident of fire, representation was also made. So, it was liable to pay compensation qua ‘stock held in trust’ and complainant was wrongly granted Rs.16,59,635/- only. He placed reliance upon the opinion of Hon’ble National Commission expressed in National Insurance Co. ltd. Vs. Rajnarayan Pulse Mills 2011 (2) CPJ 365 and Mahesh Chand Ghiya Vs. New India Assurance Co. Ltd. 2011 (1) CPC 489.

5.      It is opined by Hon’ble Supreme Court in  United India Insurance Co. Ltd. Vs. Harchand Rai Chandan Lal IV (2004) CPJ 15 (SC), United India Insurance Co. Ltd. and others Vs.Roshan Lal Oil Mills Ltd. and others (2000) 10 SCC 19 and Sikka Papers Ltd. Vs. National Insurance Co. Ltd. and others. AIR 2009 SC 2834 that policy is contract between the parties and both the parties are bound by the terms and conditions of the same. The contract has to be construed having reference to the stipulations contained in it and no artificial far fetched meaning could be given to the words appearing in it.  When it is settled by the Hon’ble Apex court that the parties cannot deviate from the terms and conditions settled in between them, complainant cannot allege to deviate from the same.   Ex.C-4 was handed-over at the time of insurance policy.  It is mentioned therein that goods “held in trust” are not covered by the same.  It cannot be alleged by the complainant that this fact was not brought to it’s notice because it is a business concern run by the educated people/proprietor and is supposed to know each and every item. It cannot be expected from him that he signed blank papers because he must be aware about the consequences of signing blank documents. Had he been a layman then it could have been a different matter.  Hon’ble Supreme Court  has opined in M/s Grasim Industries Ltd. & Anr. Vs. M/s Agarwal Steel 2010 (1) SCC 83 as under:-

“Evidence Act, 1872, Section 114-Document signed by  party-there is a presumption, unless there is proof of fraud, that he has read the document properly and understood-Presumption is stronger in case of businessmen they being careful people.”

           So it is to be presumed that proposal form was signed by complainant after going through the contents of the same.

6.      More so complainant submitted fire insurance claim Ex.C-5. ‘Stock held in trust’ is no-where mentioned therein. Had the ‘stocks held in trust’ been covered by insurance policy the same must have been mentioned therein. This fact was also not mentioned in the notice Ex.C-12 sent by the counsel on 20.11.2012.  When complainant Kuldeep Raj Arora entered witness box it was specifically stated by him that no complaint was ever lodged  regarding any defect in the policy. Protest was lodged with the O.P. after the incident of the fire why complainant kept mum before fire is not properly explained.  It was stated by him that nobody knows about contents of insurance policy, but, this plea cannot be accepted from him as already discussed above.  When the ‘goods held in trust’ are not covered by the insurance policy, complainant cannot ask for the compensation qua the same. At the cost of repetition it may be mentioned again that the parties cannot go beyond terms and conditions of insurance policy, as mentioned above. Surveyor has rightly assessed loss qua plant and machinery, which is already paid to the complainant as mentioned in his report Ex.R-2. So these arguments are of no avail.  Complainant cannot derive any benefit from the cited case laws because they are based on altogether different facts.  It has miserably failed to show that insurance company changed the terms and conditions unilaterally because the same was handed over to him at the very beginning and no protest was lodged. The complainant is not entitled for more compensation as mentioned above.  Hence, complaint is hereby dismissed.

 

December 22nd, 2016

Mr.Diwan Singh Chauhan Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

S.K.