This is a complaint u/s 12 of the Consumer Protection Act 1986 ant the rules framed there under.
Succinctly the complainant’s case is that the petitioner Bikash Chandra Saha, proprietor of M/S Nirmala Enterprise, Iskon Mandir Road, Second Mile, Jalpaiguri carries on wholesale business of puffed rice(muri) for earning his livelihood for self-employment with financial assistance from bank and thus is a “consumer” under the C.P. Act 1986 (herein after referred as the said Act). The said business pertains to stock and selling of the puffed rice and in order to secure the risk of untoward incident and/or uneventful accident, allied perils of natural calamities the complainant insured the said business which includes all stocks-in-trade, furnitures, fixtures, shop premises etc. by obtaining “Shopkeeper’s Insurance Policy” from the O.P. that is the New India Assurance Company Ltd. On payment of premium to the tune of Rs.9265/- and the sum insured against risk of allied perils of stock of “puffed rice” was to the extent of Rs.24 lacs. The Policy No. was 512/48/10/34/00000238 which covered the risk of the said non-traditional business for the period from 11-01 hrs. on 04/10/2010 till midnight of 03/10/2011. The complainant had developed this said business of selling muri and also started business of manufacturing muri from a separate premises adjacent to the said shop and the factory is adjacent to the muri shop. Due to torrential rain on 15/08/2011 the complainant’s said shop was badly damaged and huge quantity of rice and 50 quintals of puffed rice and the computer weighing machine, and gunny bags, plastic were all got damaged and on the following day complainant informed about the said loss to the O.P. in writing amounting to Rs.3,50,000/- and the O.P. even after accepting the claim by registering the same as Claim No. 512301/48/11/06/90000003 illegally denied the said claim by practicing Unfair Trade Practice, by issuing a letter dt. 03/10/12 by repudiating the claim of the complainant holding that the said shop was used as a factory without any investigation or enquiry. Hence the complaint.
The O.P. namely New India Assurance Company Ltd. Contested the case by filing written version. The O.P. has categorically denied and disputed with the basic contentions of the complaint. The denials are specific, para wise and categoric.
The keynote of the defense consists of the fact that the business of the Insured sustained damage of puffed rice (muri) in the factory of the complainant and not in the shop as alleged. On engaging licensed surveyor as well as Loss Assessor as per procedure it emerged into limelight that due to the above reasons the “Shopkeeper Insurance Policy” doesn’t cover the factory and thus due to violation of the Policy the claim of the complainant was repudiated and the petition of the complaint is liable to be dismissed with cost.
On the basis of the above pleadings the points for consideration in this case are:-
- Is the complainant entitled to get the relief(s) as claimed?
- To what other relief(s) the complainant/insured is entitled to?
DECISION WITH REASONS
Admittedly the Insured obtained “Shopkeeper’s Insurance Policy” from the Insurer on payment of premiums for a fixed sum of Rs. 24 lacs. It is also undisputed that there was damage of puffed rice (muri) under torrential rains as alleged. The crux of the dispute arises when the O.P. Insurer raised the question that the Insured complainant started business of muri from his shop and accordingly Policy was issued as “Shopkeeper’s Insurance Policy” but subsequently the Insured/ complainant converted his shop from muri selling into factory for manufacturing muri without intimating the O.P. Insurer and as such at the time of the alleged incident on 15/08/2011 there was no existence of muri selling shop and thus the said Policy is inapplicable for manufacturing business in factory.
On relying upon a decision reported 2007[CPJ489] that “Exclusion Clause of Policy” must be read to serve main purpose of policy which is to indemnify loss. In breach of condition of Policy is not so fundamental to cause of accident, then repudiation is unjustified. Moreover, at the time of execution of the “Shopkeeper’s Insurance Policy” both Insurer and Insured must have been satisfied and the Policy was a Concluded Contract and is binding upon both the parties. Needless to mention that the Insurer complained of conversion of shop into factory but he couldn’t discharge the onus of proof lying upon the Insurer. It is well settled that the burden lay on the Insurer to establish that the policy holder has made a statement fraudulently knowing that the statement was false or there was a deliberate suppression of material facts. The Insurer has not discharged the burden and the act of repudiation is not bonafied. Each expression in this policy has to be given the meaning in the context where it occurs, with other conditions which appear in the policy document. A careful reading of the policy shows what was sought to be insured was the storing place and not the factory. Therefore, the document has to be construed in the manner it is presented and we cannot give a different interpretation dehors the context. Therefore, the terms of the contract have to construed without affecting the interest of the complainant adversely as the intention between the parties was to cover the storing house of puffed rice(muri) and not the factory.
After completion of the contract, no material alteration can be made in its terms except by mutual consent.
Thus the case succeeds.
Hence it is,
O R D E R E D
That the CC no. 07/13 u/s 12 of C.P.Act 1986 be and the same is decreed on contest against the O.P. with cost of Rs.1,000. The O.P. is further directed to pay Rs. 3,50,000/-(Rupees three lacs fifty thousand)only to the complainant on account of compensation. The O.P. is directed to pay the entire above decretal amount within one month from the date of this order failing which the complainant is at liberty to recover the said entire decretal amount alongwith interest @ 10% p.a.to be calculated on and from the date of filing of this case till liquidation as per provision of law.
