JUDGEMENT

          ComplainantGamePlan Sports Pvt. Ltd. by filing this complaint submitted inter alia that complainant no.1 is the company and complainant nos. 2, 3 & 4 are the Directors and Share Holders and absolute beneficiaries of the activities of the said establishment and complainants are covered by the provision of the C.P. Act 1986 as per provision of 2(d) of the Act and they dealt with the advertisement in the sports events in India and abroad having their reputation, strong background and credentials as very sophisticated advertising agency in the sports related fields and events.

          Complainants always used to take coverage of indemnity for all advertisement by taking out the general insurance policy in order to protect themselves from any possible and unapprehend and unforeseen losses in investments with greater object against self-financial loss and also to take protection for the self-employed establishment and loss of assets and revenue.  The insurance cover for the investments and business prospect for complainants is, therefore an important and integral part of the self-employed commercial venture of complainants’ company and complainants having had series of transactions with the Oriental Insurance Co. Ltd. from time to time against personal loss.

          It is their specific case that during the tour of Indian Cricket team to West Indies in the year 2001, complainants had taken out Insurance Policies to cover several one day international cricket matches (ODI) for the purpose of advertisement and publicity in the said matches played between Indian Cricket team and West Indies Cricket team.  Complainants first took out one such Insurance Policy coverage No.2003/7011 which was taken on 22.04.2002 initially covering 5 ODIs for 60 Boards (12 Boards each day) and another additional cover of insurance Policy No.2003/7040 for 16 Boards (8 Boards each day) taken on 24.05.2002 in respect of first two one day International Matches scheduled to be played on 25^th and 26^th May 2002 at Jamaica West Indies for advertisement of 60 Boards in the said stadium of the matches of ODI in West Indies.

          For purchasing such policy complainants paid full premium for the said covers and the said another additional insurance policy covering the 2 cricket matehces for additional 16 Boards on 25^th and 26^th May, 2002 at Jamaica also taken out and the matches on 25^th and 26^th May, 2002 ended with a loss due to abandonment of the said 2 ODIs for unforeseen and unapprehended downpour and the said ODI Cricket matches were abandoned without a ball being bowled and complainants had lodged the claim against the loss due to abandonment of 2 games of ODIs for such unforeseen sudden downpour.  The claim of the policy No.2003/7011 for loss on 25.05.2002 was settled on 04.05.2002 for Rs.12,00,069/- and the second Insurance claim of the ODI on 25.05.2002 and 26.05.2002 was withheld by the letter dated 03.05.2002 of the op no.4 on alleged breach of warranty on second Policy No.2003/7040 with comments as under as ‘no claim’ without repudiation “At the inception of this Insurance, the insured has no knowledge or information of circumstances which maybe likely to give rise to a claim hereunder”.

          The complainants had taken out the first policy No.2003/7011 on 22.04.2002 covering the 5 numbers of one day International Matches (IDIs)  upon its proposal dated 22.04.2002.  Ops accepted the said proposal and granted policy covering the said 5 ODI matches and issued the policy No.2003/7011 for total of Rs.51,00,000/- at Rs.10,20,000/- for each day as per schedule of the matches on 25^th and 26^th May, and 1^st and 2^nd June, 2002 submitted by the complainants and upon acceptance of the premium by op. no.4, the said policy was issued as indemnity.

          On 24.05.2002 the complainants submitted additional proposal vide letter dated 24.05.2002 to the op no.4 asking for granting policy for further additional boards for the first 2 ODI matches scheduled to be held on 25^th and 26^th May, 2002 at Sabeena Park, Jamaica and op no.4 with due verification of the matter accepted the said proposal and granted the policy upon such said proposal of the complainants on the same date i.e. on 24.05.2002 for the said additional advertisement of 8 boards each day for the first 2 ODIs matches scheduled to be played at Sabeena Park, Jamaica on 25^th , 26^th  and 29^th May, 2002 each day for Rs.6,80,000/- i.e. total Rs.13,60,000/- and received the payment of premium of Rs.14,280/- and granted premium receipt No.327112 dated 24.05.2002 and issued the policy No. 2003/7040.

          Fact remains that ODI matches at Sabeena Park, Jamaica were washed out on 25.05.2002 and 26.05.2002 and complainants submitted the claim for loss of revenue under the terms and conditions of the covers/policies as granted and the op no.4 after verification the claim for the said losses on 25^th and 26^th May, 2002 paid the claim for washed out 2 ODIs dated 25^th and 26^th May, 2002 vide loss voucher/claim payment in May, 2005 and handed over an account payee cheque of Rs.12,00,069/- as part payment that has been suffered by the complainants on 25.05.2002 and 26.05.2002 for the said washed out first 2 ODIs at Sabeena Park, Jamaica upon the policy no.2003.7011.

          As regards the washed out 2 ODI matches on 25^th and 26^th May, 2002 at Sabeena Park, Jamaica the claim was lodged which was payable assessing at Rs.10,20,000/- + Rs.13,60,000/- i.e. total Rs.23,80,000/- taking into account 1^st and 2^nd cover but additional was refused on the said alleged and purported breach of conditions of warranty alleging that the complainants were aware of that the said ODIs matches on 25^th and 26^th May, 2002 could be washed out for rain/downpour and such alleged purported prior knowledge of the complainants were stated to have been covered by some newspaper on or before 24.05.2002 about possible rain on 25^th and 26^th May, 2002 at Sabeena Park, Jamaica as per the said purported news in the said newspaper known to the complainants and so the said warranty was breached of condition as alleged and it is alleged by the ops on 24.05.2002 that additional coverage with prior knowledge of rain/downpour to take place at Sabeena Park, Jamaica on 25^th and 26^th May, 2002.  Had it been so that the complainants were aware or came to know about the said possible rain to take place on 25^th and 26^th May, 2002 as on 24.05.2002 the date of taking the cover, then the complainants claimed of loss on 25^th and 26^th May, 2002 was also invalid for the same reason since the day before the game, the said policy was taken out.  Had there been such knowledge of the complainants about rain/downpour to take place on 25^th and 26^th May, 2002 and that news purportedly published in any newspaper without mentioning any such possible incidence of rain to take place on 25^th and 26^th May, 2002 and such allegation has to be proved by the ops.  However, no newspaper or other agency could indicate that both days ODI would be washed out considering the fact that Jamaica is 9.5 hours behind Kolkata/India and any rain/downpour on 24.05.2002 could have been reported in Jamaica papers only on the 23.05.2002 and on the subsequent day i.e. 25^th in Indian Newspaper nobody could predict about such washout of the matches on 25^th and 26^th May, 2002 based on the reported downpour on 23.05.2002 as purportedly and baselessly alleged only for withholding the portion and part of the claim.

          That the claim for first washed out ODI on 25.05.2002 which was actually a cover for Rs.10,20,000/- against policy No.2003/7011 for each day taken for 5 ODIs and with the additional cover/policy No.2003/7040 for first 2 ODI each for Rs.6,80,000/- which comes to total cover for each day Rs.17,00,000/- for first day and at the time of settlemet of the claim of the 1^st ODI on 25.05.2002 or 26.05.2002 both days and on 25.05.2002 only taking into consideration all aspects, the op no.4 had accepted the full validity and effect and force of the 2^nd policy no.2003/7040  on 25^th and 26^th May 2002 and at the same time of settling the claim, the ops made over a paymet of claim at Rs.12,00,069/- with necessary deduction which proved that the first policy no.2003/7011 and the second policy no. 2003/7040 both were taken into account jointly and collectively and as such the op no.4 had accepted the 2^nd policy no.2003/7040 in letter and spirit passed the claim regarding the washed out first ODI on 25.05.2002 was originally for Rs.10,20,000/- only but the op no.4 had considered the first policy no.2003/7011 together and along with the 2^nd policy no. 2003/7040 for Rs.23,80,000/-.  So, paid the claim more than Rs.10,20,000/- and that was paid at Rs.12,00,069/- after necessary deduction and so the claim for the said 2 washed out ODIs on 25.05.2002 and 26.05.2002 must be paid for and against the said additional cover of Rs.6,80,000/- each day i.e. Rs.17,00,000/-.

          In view of the said consideration and acceptance of policy and granting the cover and payment of first claim of the complainant for the first washed out ODI and virtually taken into account both the policies and claims. The op no.4 had no room and scope to withhold and to decline the said genuine second policy and claim for said 2 washed out ODI on 25^th and 26^th May, 2002 at Sabeena Park, Jamaica for Rs.13,60,000/- was a pretext based on unfounded and baseless allegation ad to withhold to pay the claim with ulterior motive as communicated vide ops letter dated 03.05.2002.  Thereafter further negotiation held between the parties and even up to the Head Office at New Delhi and the ops virtually agreed upon the contentions of the complainants and took enough time to repudiate the claim on 04.10.2002 and even thereafter the ops again admitted about their wrong conception about the liability of the ops wanted to further time to consider the genuine claim sympathetically but failed to do so.

          Thereafter series of exchange of correspondence between the complainants has been made in respect of the 2^nd policy no. 2003/7040.  But ultimately ops confirmed to their earlier decision for repudiation of the claim on 04.10.2002 and by that act practically ops neglected to render any service and also they failed to act as per contract and practically by that act they have adopted unfair trade practice and for which the complainants have prayed for compensation including payment of Rs.13,60,000/- including other relief.

          On the other hand the Oriental Insurance Co. Pvt. Ltd. by filing the present written version has mentioned that the complaint is not maintainable because they are not consumer.  Particularly it is mentioned that complainant took out only one policy at the first ODI match in West Indies for Rs.10,20,000/- for each of 5 ODIs.  Bu the second policy was taken out only on 24.05.2002 which was repudiated for breach of warranty as to breach of utmost good faith as on the same morning in the Bengali Daily there was going to be postponed which insured should reasonably be taken to have the knowledge as they were in the advertisement line with international connectivity all the time for their nature of business as it happens in case of new media.  Moreover the op emphatically denied that the washed out 2^nd ODI on 25^th and 26^th May, 2002 at Sabeena Park, Jamaica the claim was assessed and loss for payment by Rs.10,20,000/- and Rs.13,60,000/- totaling to Rs.23,80,000/- taking into account the both the policy as one which were taken on 22.04.2002 and then on 24.05.2002 and surprisingly the claim on policy no.2003/7040 was mentioned as no claim by letter dated 03.05.2005 of the op no.4.  But that has not been denied by the complainant.

          Fact remains that some newspapers on or before 24.05.2002 flashed about possible rain on 25^th and 26^th May, 2002 at Sabeena Park, Jamaica and as per said newspaper known to the complainant, complainant suppressing all fact and only for grabbing more insured money without declaring any apprehension purchased it.  Though there was coverage of those days weather in respect of other ODI which was purchased long prior to that.

          Op specifically denied that they have considered the first policy but only policy no.2003/7011 along with 2^nd policy no. 2003/7040 but subsequent 2^nd additional policy was never considered.  But in respect of first policy there was no such expression.  But fact remains that 2^nd policy was issued on 24.05.2002 and half day before the match scheduled to be played on 25.05.2002 and 26.05.2002 when there was no indication of rain/downpour by any media and practically the complainant with full knowledge purchased the said additional 2^nd policy keeping the ops in darkness about the weather and subsequent events if any. 

          Ops further submitted that first policy was taken long prior to date fixed for ODI but 2^nd additional policy was taken just one day before date fixed for match taking the advantage of the climate known through mobile phone through their agent in Kolkata knowing fully well circulated by different paper and electronic medias like T.V. channels forcasting the weather reports every hours from time to time.  Therefore, the ops declined the claim of the complainants against the 2^nd policy since the 2^nd policy was taken without disclosing the facts and material particulars including the weather reports so that the ODI will be abandoned and that was after thought knowing fully the entire situation and confirmed news through the gamblers that the proposed ODI will be cancelled.

          So, the complainants are not entitled to any claim, moreover the present complainants practically suppressed the fact and keeping the ops in darkness though knowing fully well about the fate of the 2^nd games purchased it.  So, the 2^nd policy No.2003/7040 which was taken on 24.05.2002 just day before ODI on payment of premium by cheque No.984078 dated 24.05.2002 which was encashed on 28.05.2002.  Therefore, as per Appex Court judgement the liability renders from the date of encashment of cheque i.e. on 28.05.2002 after 3 days of washed out of ODI and for which the present complaint is not maintainable.  Lastly the ops submitted that the entire claim is uncalled for and they are not entitled to any claim and present claim should be dismissed.

Decision with reasons

          Practically in this case lengthy argument was heard from the Ld. Lawyers of both the parties and we have minutely read the entire complaint and the written version and thereafter assessed the vital allegation that practically the 2^nd policy being No. 2003/7040 was purchased on 24.05.2002 by paying the premium by cheque bearing No.984078dated 24.05.2002 which was encashed by the op on 28.05.2002 and as per said policy runs from 24.05.2002 to 23.05.2003 and in respect of that policy practically complainant has made allegation.  But fact remains that complainant also purchased another 1^st policy bearing no.2003/7011 on 22.04.2002 and it was valid from 22.04.2002 to 21.04.2003.

          Both the policies were purchased for covering the risk in respect of the advertisement of the boards at the stadium at Sabeena Park, Jamaica where 5 days International Cricket match was fixed to be played in between the India and West Indies.  Initially 2 ODIs International matches were scheduled to be played on 25^th and 26^th May, 2002 at Jamaica West Indies and for 60 boards (12 boards each day) they purchased first policy being No.2003/7011 on 22.04.2002 i.e. 1month prior to fixed date of match on 25^th and 26^th May, 2002.

          But peculiar fact is that additional 2^nd policy being No.2003/7040 for 16 boards (8 boards each day) was taken on 24.05.2002.  But after considering the entire materials particularly the letter dated 04.05.2002 issued by the op Insurance Company and also the condition of the policy it is found that it is the condition of the Insurance Policy for the insured to observe and fulfill all the terms and conditions of the policy and disclosed the truth in their proposal form.  But after considering the entire fact it is found that on the very day of taking additional coverage policy no.2003/7040 it was raining heavily for more than 3 days prior to 24.05.2002 including 24.05.2002 and on that particular date 24.05.2002 this company an authority suppressing the weather condition of Jamaica paid premium by cheaue on 24.05.2002 and the cheque was encahsed on 28.05.2002.  So, it is apparent that it was within the knowledge of the complainant that at Jamaica it was raining heavily on that day on 24.05.2002 and prior to that.  So, there was knowledge of the complainant that there was every chance of abandonment of matches on 25^th and 26^th May, 2002 and only for that purpose suppressing the fact of heavy raining on 24.05.2002 and also prior to 24.05.2002 for 2 days they purchased it. 

          Another factor is that in respect of the claim of the complainant against policy No.2003/7040 in this case surveyor was appointed who after making due enquiry found that there were several newspapers report about incessant rain for 3 days immediately before the scheduled date of match and they were aware about fact that every chanceno match would be held.  But complainant has not denied or challenged the surveyor’s report and fact remains and practically it is apparently proved that complainant was aware of the fact that prior to schedule date of match it was raining heavily for 3 days but that was suppressed.  But as per condition of the policy in particularly in respect of such policy it is the duty of the insured to file application form for insurance coverage or risk coverage faithfully by declaration what is the position of the weather report in the field or in the newspaper etc but that had not been mentioned.

          Considering the present fact and circumstances it is clear in respect of purchased of the first policy on 22.04.2002 there was no rain.  So, that policy was considered and complainant got such insurance coverage and it was also covered up to 26.05.2002.  but it is no doubt very suspicious act of the complainant which is proved from the conduct of the complainant that complainant when found that it was raining heavily and weather report was in their favourand practically in the International Cricket match weather reports are continuously advertised in the newspapers or T.V. Channels of the field etc. wherefrom all the companies who are engaged in that field for several type of business are well aware of the future of the match etc.  So, complainants company when they was in West Indies during that period were keeping watch about weather report about the chance of the abandonment of the play.  But anyhow the complainant tried to convince the fact that such a plea cannot be believed under any circumstances when on 24.05.2002 it was raining heavily the complainant must have to note it in the application form that today it was raining heavily at Jamaica.  But that was not disclosed; it indicates that complainant had their knowledge about the fate of the subsequent matches on 25^th and 26^th May, 2002.  So, considering that fact it is clear that complainant did not disclose the incessant rain for more than 3 days immediately before the scheduled dates of the game and 25^th and 26^th May, 2002 but that material circumstances are fact specially known to the complainants which was not disclosed in the application form for purchasing additional 2^nd policy no. 2003/7040 on 24.05.2002 which is no doubt breach of trust and on account of good faith and complainant knowing fully well about the probabilities of the match being abandoned complainant purchased from the op for issuance of the said policy and another factor is that complainant purchased the present disputed policy which is on the very date on 24.05.2002 on which date it was raining heavily, which is before the scheduled date of match on 25^th and 26^th May, 2002 and if the above materials are minutely considered by any reasonable and prudent man he must have to come to draw a conclusion that complainants with malafide intention suppressing the fact of incessant rain for more than 3 days prior to 25^th and 26^th May, 2002 even the rain which was continuing on 24.05.2002 they purchased it and it is no doubt against the terms and conditions of the policy and practically complainants did not disclose the truth.  Though it was their good knowledge that on the very date of purchasing the policy it was raining incessant.

          Moreover from Aajkal Daily Newpaperon 23.05.2002 it is found that it was raining.  So, it is confirmed that incessant rain was in continuation from 23.04.2002 and so it is proved that it was not a sudden rain on 25^th and 26^th May, 2002.  But incessant rain was in existence from 23.05.2002.  So, there was sufficient ground to believe that complainants suppressed the truth at the time of submitting their application form for purchasing the present disputed policy.

          Not only that it is settled principal of law that liability of the Insurance Companystarts from the date of encashment of the cheque and in the present case cheque was encashedon 28.05.2002 and that cheque was handed on 24.05.2002.  Another factor is that complainant is always guided by the terms and conditions of the policy and policy is issued by the Administrative Authority after considering all facts and that policy was issued in favour of the complainants with specific discount/loading cancellation benefits of 2 matches at Jamaica on 25^th and 26^th May, 2002 and then complainants are barred for the clause for abandonment matches at Jamaica on 25^th and 26^th May, 2002 and it is noted in the policy document.

          In this case it is clear that the policy document supports that the complainants are not entitled to any loss for damages or abandonment of matches dated 25^th and 26^th May, 2002.  Then how the complainants can claim loss when documents itself shows.

          Another factor is that it is settled principal of law that if any insured deposited any premium along with application form for purchasing policy for any risk coverage and thereafter before encashment of the said cheque this policy holder dies and he cannot get any benefit of the policy and that is settled principle of law and if we rely upon such principal laid down in so many judgement in the Apex Court we are confirmed that the present case in respect of disputed policy No. 2003/7040 cheque was handed on 24.05.2002 but it was encashed on 28.05.2002 whereas the Cricket Match scheduled to be held on 25^th and 26^th May, 2002 had been abandoned.  Then it is clear under any circumstances complainants are not entitled to any benefit of the present Insurance Policy in respect of the loss if any caused to the complainant due to abandonment of the match on 25^th and 26^th May, 2002 and fact remains insurance policy itself is against the complainant for getting any benefit and as per policy term, it is the duty of the insured at the time of filing application form for purchasing any policy to disclose the situation and circumstances etc.  But in the present case complainant did not submit the truth of the weather reports etc. and the position of the weather at Jamaica on 24^th or 23^rd May, 2002 but fact remains on 23^rd and 24^th May, 2002 incessant rain was continuing and on 24.05.2002 also play was abandoned partly but that was not disclosed.  Considering all the above fact and circumstances materials including the entire conduct of the complainant and particularly the condition of the policy of the document and also the circumstances and weather of Jamaica from 23.05.2002 to 24.05.2002 and also weather broadcasting at the relevant time act we are convinced to hold that this complainant by practicing fraud submitted application form for purchasing additional risk coverage for their business in the field at advertisement concerned knowing fully well that there was no chance of any play to be played on 25^th and 26^th May, 2002 on account of 23^rd and 24^th May 2002 incessant rain was continuing on the very particular date 24.05.2002 and it was raining heavily and play was partly abandoned.  That is evident from the newspaper publication AajkalPatrika dated 24.05.2002.  So, it is clear that it was a malpractice on the part of the complainant for getting some benefit when they purchased it by suppressing weather condition and declaration of Jamaica Government in respect of weather report in the field and the declaration of the Jamaica Cricket Board about subsequent days event and fate of the subsequent matches and also considering encashment of the cheque on 28.05.2002 by the op and also the complainants own particular document the insurance policy we are convinced to hold that as per policy document they are not entitled to any claim in respect of any loss for abandonment of the matches on 25^th and 26^thMay, 2002 and in this regard we have gathered after considering the totality of the entire events and the policy condition including the disputed policy document we are confirmed that parties are guided strictly by the policy condition and no exception and relaxation can be made on account of equity and for which we are convinced to hold that we may rely upon the ruling reported in 2013 (4) CPR 165 NC and also particular term of the deposited document or policy that as per that policy complainants are not entitled to get any benefit of loss on risk coverage for the abandonment of matches on 25^th and 26^th May, 2002.

          In the light of the above findings the present complaint fails considering the conduct of the complainant and their typical type of business and for adopting unfair path to grab public money through such insurance policy complainant should be imposed penalty.

          Accordingly the complaint fails and as same is vexatious and frivolous and at the same time complainant appeared before this Forum with black hands.

          Hence, it is

ORDERED

          That the complaint be and the same is dismissed against the ops and for adopting unfair path for appearing before this Forum with black hands to get relief so complainant is imposeda penalty of Rs.10,000/- which shall be paid to the Forum within one month from the date of this order failing which for each day’s delay complainant shall have to pay additional damages of Rs.200/- per day till full payment of the same.