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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Anup K Thakur, Presiding Member and C. Viswanath, Member
Oriental Insurance Co. Ltd. —Petitioner
versus
M/s. Shraddha Traders —Respondent
Revision Petition No.2033 of 2010
(Against the Order dated 21/01/2010 in Appeal No. 654/2006 of the State Commission Gujarat)
Decided on 10.4.2019
For the Petitioner:Mr. Mohan Babu Agarwal, Advocate with Ms. Celeste Aggarwal, Advocate
For the Respondent:Mr. Akhil Hasiza, Advocate with Mr. Yash Mishra and Ms. Nidhi Saswal, Advocates
IMPORTANT POINT
The Insurance Company should give the complete Policy Document containing detail Terms and Condition. If the Policy document is not given, terms and conditions mentioned in it are not binding on the insured.
Headnote:
Consumer Protection Act, 1986—Section 21(b)—The complainant was the sole proprietor of the respondent—Earthquake—Shopkeeper’s Insurance Policy-claim repudiated on the ground that the respondent had suppressed material facts—The respondent had repudiated policy with valid reasons, and hence there is no deficiency. District Forum allowed the complaint. State Commission confirmed the order. Hence, revision.
held: When the insured person is not provided any terms and conditions of the policy and not given any guidance to this effect, under that circumstances, if the insurance company repudiate the insurance claim taking base of this definition, then it would be considered as lapse in service. In view of all these facts and taking into account the judgments quoted, the Complainant becomes entitled to get the insurance claim under Shop Keepers Insurance Policy. (Para 2)
The District Forum allowed the Complaint and ordered the Respondent to pay a sum of Rs.4,68,881/- to Complainant alongwith interest @9% w.e.f. 16.04.2003.A sum of Rs.3,000/- was also awarded for mental agony and a sum of Rs.2,000/- was awarded for expenses to the Complainant by Respondent. Order confirmed.
Held, Surveyor had not performed his duty.
Result: Revision dismissed.
ORDER
C. Viswanath, Member—The present Revision Petition is filed by the Petitioner under Section 21(b) of the Consumer Protection Act, 1986 against the Order passed by the State Consumer Disputes Redressal Commission, Gujarat (hereinafter referred to as the “State Commission”) in Appeal No. 654/2006 dated 21.01.2010.
2. In the Complaint Case, it was stated that the Respondent/Complainant was a Sole Proprietor Registered firm doing business at Bhid Bazar in Bhuj in the name of M/s Shraddha Traders as General Merchant and Commission Agent. The Respondent took an insurance policy from the Petitioner/Opposite Party which covered risk of Public Liability, fire and allied perils, burglary, house breaking etc. On 26.01.2001 disastrous earthquake occurred in Kutch-Bhuj in Gujarat, which caused severe damages to properties and lives. All Govt. and Semi-Govt. organizations, Schools, Colleges were closed. It was further stated that on the day of incident, packs of edible oil worth Rs.4,68,881/- were stolen. The Respondent lodged a complaint regarding the theft with the city Police Station, Bhuj, which registered a case under section 379, 380,114 of I.P.C. It was noted that in spite of investigation, no stolen goods were recovered. The Respondent claimed a compensation of Rs.4,68,881/- as per shopkeeper’s policy. The Respondent was maintaining books of account regularly. He did not violate any terms or condition of policy, rather submitted all the relevant papers to the Head Office of the Insurance Company. Despite lapse of several months, the insurance company had not paid damages to the Respondent under the Shopkeeper’s Insurance Policy. This was considered as a deficiency in service and an unfair trade practice. The Complaint was, thus, filed by the Respondent alleging deficiency in service on the part of the Petitioner.
3. The Complaint was contested by the Petitioner in the District Forum, contending that the Respondent suppressed true and material facts that the insurance company had given reasons for rejection of claim, vide letter dated 26.03.2002. As per General Exclusion No.12 of sections 1-B of the Shopkeeper’s Policy under All India Fire Policy, the Respondent was not entitled to get the claim. The scheme of Provisional All India Fire Tariff of General Insurance Company was similar throughout India in all subsidiary Companies. The said condition was lawful and entire evidence was required to be produced. The issue of interpretation of Policy lies only with the civil court. The Respondent withdrew the Complaint filed before the State Commission and he was permitted to do so and nothing was brought on record regarding the same. The Complaint was suffering from the principle of Res-judicator and Waiver-Estoppels. The Complaint was, therefore, liable to be dismissed. The Respondent suppressed the material fact before the Forum that in his case, examination was done by the Surveyor and held that the case of the Respondent did not fall in the ambit of the Policy and his claim was rejected accordingly. Thus, it cannot be said to be a case of deficiency in service. It was further reiterated that no theft had occurred by forcible entry into the shop of the Respondent. Theft does not fall under the definition of burglary or house breaking and therefore the Respondent was not entitled to get the claim. Form the facts and circumstances of the instant case, it was clear that due to earthquake the house was left open and goods were stolen and these type of damages were not covered in the policy. Hence, the Petitioner prayed to dismiss the Complaint with cost.
4. District Forum, vide order 30.05.2006, allowed the Complaint on the ground that the appointment of Surveyor was made for assessment of damages, and the Insurance Company should have decided on the admissibility of the claim under the Policy. The Surveyor had not mentioned in his report the time of his visit. Moreover, he had not assessed the stock on 26.01.2001 alongwith the Complainan
