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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
V.K. Jain, Presiding Member
Oriental Insurance Company Limited —Petitioner
versus
Hotel Shakunt —Respondent
Revision Petition No.1487 of 2015
(Against the Order dated 27/02/2015 in Appeal No.796/2014 of the State Commission Gujarat)
Decided on 26.10.2020
Counsel for the Parties:
For the Petitioner:Mr. Mohan Babu Agarwal, Advocate
For the Respondent:Ms. Anushree Prashit Kapadia, Advocate
IMPORTANT POINT
Insurance company cannot be directed to reimburse the complainant for loss incurred which is not covered under the policy in question.
Headnote:
Consumer Protection Act, 1986—Section 21(b) : [Consumer Protection Act, 2019—Section 58]—Machinery Breakdown Policy—Loss of lift insured due to collapse of building—Repudiation of insurance claim—Legality of—Insurance policy had been obtained in respect of a lift installed in the Building in which complainant hotel was being run—Hotel building collapsed—Claim under policy repudiated—District Forum allowed the complainant—State Commission upheld the same—Hence this revision—Terms and conditions applicable to a standard breakdown insurance policy would apply to the claim—Since the damage to the lift insured by the petitioner-company was to happen on account of the collapse of the building, the petitioner would not be liable under the policy insured by it—Loss happened directly due to collapse of the building—Since the loss to the complainant was covered under general exception 1 of the policy in question, the Insurance Company cannot be held liable to pay the loss incurred—Impugned order set aside. (Paras 5 to 7)
Result: Complaint dismissed.
ORDER (ORAL)
V.K. Jain, Presiding Member.—The complainant/respondent in this matter is hotel Shakunt care of Gaurang Gangaprasad Jani. A consumer complaint was instituted by hotel Shakunt through Sh. Gaurang Gangaprasad Jani alleging therein that the complainant is the owner and sole proprietor of hotel Shakunt at H.K. Bhawan, Reid Road, Ahmadabad. This would mean that the complaint was instituted by Gaurang Gangaprasad Jani claiming to be proprietor of hotel Shakunt. An insurance policy in the name of hotel Shakunt was issued for the period from 03.03.2007 to 29.093.2008. The policy was titled as Machinery Brakedown Policy and had been obtained in respect of a lift installed in the building in which hotel Shakunt was being run. The hotel building collapsed on 01.02.2008. A claim under the insurance policy issued by the petitioner company was lodged. A surveyor was appointed to assess the loss. The claim, however, was repudiated vide letter dated 19.06.2009 which to the extent it is relevant reads as under:-
This has reference to your above mentioned Fire Claim.
In this regard, we have taken opinion of our Surveyor M/s CP, Mehta. As per his survey report, the building was collapsed because of construction work being processed at that time in the adjoining bldg. which is much deeper than the insured premises. Thus, the foundation work of the Insured premises weakened and collapsed.
Under the circumstances, the claim is not admissible as per policy terms and conditions which please note.
2. Being aggrieved from the rejection of the claim the respondent approached the concerned District Forum by way of a consumer complaint. The complaint was resisted by the petitioner company which inter alia stated in its written version that the building was not fit for usage and the complainant having not taken any care or any steps, that resulted in the casualty and, therefore, the insurer was not liable to pay the claim. It was also the case of the insurer that the foundation of an adjoining building was dug up up to a depth of 20 feet whereas the foundation of the hotel building had been dug up only up to 15 feet and that had resulted in the collapse of the hotel building.
3. The District Forum having allowed the consumer complaint the petitioner company approached the concerned State Commission by way of an appeal. The said appeal also having been dismissed the petitioner is before this Commission.
4. It is firstly submitted by the Ld. Counsel for the petitioner that the policy was taken in the name of hotel Shakunt and there was no evidence to prove that Mr. Gaurang Gangaprasad Jani was the proprietor of hotel Shakunt. He also submitted that the building was owned by Mr. Gangaprasad Jani in whose name the insurance was being taken for many years before the building collapsed. Mr. Gaurang Gangaprasad Jani claimed to be the proprietor of hotel Shakunt. This would mean that he claimed to be proprietor of the business which was being run in the name of hotel Shakunt. No evidence was led by the insurer to rebut the claim of Mr. Gaurang Gangaprasad Jani as regards the ownership of the business of hotel Shakunt. No other person has come forward claiming to be the owner of the business of hotel Shakunt. Therefore, I have no hesitation in holding that Mr. Gaurang Gangaprasad Jani was the proprietor of hotel Shakunt.
5. Coming to the merits of the claim, as noted earlier the policy taken by the complainant was a machinery brakedown policy. Therefore, the terms and conditions applicable to a standard brakedown insurance policy would apply to the claim. A reference in this regard can be made to the decision of the Hon’ble Supreme Court in General Assurance Society Ltd. Vs. Chandumull Jain & Anr. (1966), 3 SCR 500 where the respondent had submitted two proposals to the appellant, which were accepted vide two separate letters. Two interim protection cover notes in respect of the said two proposals were then issued by the insurer. It was inter-ali
