NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Ram Surat Ram Maurya, Presiding Member
M/s. Maruti Suzuki India Ltd. – Complainant
versus
National Insurance Co. Ltd. and Ors. – Opp. Parties
Consumer Case No.266 of 2011
Decided on 10.9.2021

IMPORTANT POINTS
(1) Claim of Insured not been repudiated rather it has been accepted, as such various grounds raised in written reply/arguments for repudiation of the claim have to be ignored.
(2) It is well settled that the authority cannot be permitted to raise a different ground, which was not a ground for passing the impugned order.
(3) Under Regulation-9 of Insurance Regulatory and Development Authority Regulation, 2002, after expiry of 6 months of the loss, if payment under the policy is not made, then the is entitled for interest on the amt. of loss.

Headnote:

Consumer Protection Act 1986, Section 2(1)(r) – Unfair Trade Practice (Consumer Protection Act 2019, Section 2(28) – Section 2(1)(d) – Consumer (Consumer Protection Act 2019, Section 2(1)(7) - Complainant Insured placed various purchase orders to the vendors in Japan, for purchasing capital equipment (machinery) and accessories - Goods were securely packed in 31 consignments, dispatched through vessel in Japan against separate Bills of Lading to Kandla Seaport Gujarat, India in May 2008 - Insured obtained Marine Cargo Open Declaration Policy - Total sum assured Rs.4,47,00,34,858/, total premium of Rs.8,94,007/- + Service tax of Rs.1,10,499/- total Rs.10,04,507/- charged - Fixing Limit per transit as Rs.60 crores – Consignments unloaded at Kandla port – Due to heavy rainfall in and around Kandla Port, there was heavy water logging - Various packages submerged in the water, as water entered inside the packages and extensively damaged machineries and accessories - In the present case insurance policy was obtained for personal use and not for trade or commerce or for deriving any profit from it - Claim of Insured not been repudiated rather it has been accepted, as such various grounds raised in written reply/arguments for repudiation of the claim have to be ignored - Well settled that the authority cannot be permitted to raise a different ground, which was not a ground for passing the impugned order - Joint Surveyor, in their report dated 13.01.2010, assessed the loss of Rs.16,65,95,843.74/- relating to this policy and Rs.7,30,21,318.34 relating to other policy (Total Rs.23,96,17,162/-) - None of the parties have raised any dispute relating to aforesaid amt. of loss, assessed by Joint Surveyor - Fixing Limit per transit as Rs.60 crores was subsequent clause, repugnant to earlier clause – Opp. Party Insurer has no right to fix limit of the transit as the transit has to be done by a third party, i.e., shipping company - Later clause has to be ignored - Calculation of settlement on proportionate value was illegal - Under Regulation-9 of Insurance Regulatory and Development Authority Regulation, 2002, after expiry of 6 months of the loss, if payment under the policy is not made, then the Complainant Insured is entitled for interest on the amt. of loss.

Held: I have considered the arguments of the counsel for the parties and examined the record. In present case, the claim of the Insured has not been repudiated rather it has been accepted as such the various grounds, raised in written reply/arguments for repudiation of the claim, have to be ignored. It is well settled that the authority cannot be permitted to raise a different ground, which was not a ground for passing the impugned order. Supreme Court in Galada Power and Telecommunication Ltd. Vs. United Insurance Company Ltd., (2016) 14 SCC 161, has held that the Insurer cannot be permitted to raise the grounds other than a ground taken for repudiation of the claim, in the complaint. As such I am not required to go in the new grounds/allegations, which have been raised by the Insurer, for repudiation of the claim. So far as the preliminary objection that the Insured is not a consumer, as the insured property was imported for commercial purpose, is concerned, in the present case, the Insured has purchased insurance service. The term “service” is defined under Section 2 (o) of the Consumer Protection Act, 1986, in which insurance service falls within inclusive clause as such the complaint is maintainable on the allegation that there was deficiency in service while settlement of the claim. Supreme Court in Lilavati Kirtilal Mehta Medical Trust Vs. Unique Shanti Developer (2020) 2 SCC 265 has held that a person engaged in commercial activity can avail service for his personal use. In the present case insurance policy was obtained for personal use and not for trade or commerce or for deriving any profit from it.

The Joint Surveyor, in their report dated 13.01.2010, assessed the loss of Rs.16,65,95,843.74/- relating to this policy and Rs.7,30,21,318.34 relating to Policy No. 361401/21/08/4200000055 (Total Rs. 23,96,17,162/-). Loss has been assessed for repairs on the basis of actual procurement cost, after the date of loss, service charges and landed costs of the material required for repairs, deducting salvage cost. None of the parties have raised any dispute relating to aforesaid amount of the loss, assessed by Joint Surveyor.

In the present case, Total sum assured was Rs. 4,47,00,34,858/, on which total premium of Rs. 8,94,007/- + Service tax of Rs.1,10,499 total Rs.10,04,507/- was charged. Fixing Limit per transit as Rs. 60 crores was subsequent clause and repugnant to earlier clause. Insurer has no right to fix limit of the transit as the transit has to be done by a third party i.e. shipping company. These two clauses cannot be reconciled. In such circumstances, the later clause has to be ignored. Calculation of settlement on proportionate value was illegal.

Under Regulation-9 of Insurance Regulatory and Development Authority (Protection of Policy Holders Interest) Regulation, 2002, after expiry of six month of the loss, if payment under the policy is not made, then the Insured is entitled for interest on the amount of loss. As such the Insured is entitled to interest @ 9% per annum, from 01.01.2009, on the amount of loss. (Paras 8, 9, 13 & 14)

Result: Complaint allowed. Opp. Party/Insurer directed to reimburse the loss amt. of Rs.16,65,95,843.74/- with interest @9% p.a. from 01.01.2009 till the date of its payment with cost of Rs. 1 lakh to be paid to the Complainant.