Ashik Jitendra Bhuta vs ORIENTAL INSURANCE CO LTD

THIS order shall decide the above said four revision petitions, which arise out of the same order passed by the State Commission, dated 09.08.2010.

SH . Ashik Jitendra Bhuta and Sh. Mehul Himmatlal Bhuta, the complainants, are the partners of Colorants, 222, Sagar Building, Prabhat Industrial Building, 102, W.E. Highway, Dahisar (W), Mumbai. They obtained a policy from the Oriental Insurance Co. Ltd., the OP. During the subsistence of the said policy, in the month of July, 2005, there were torrential rains in Mumbai and Suburb. The godown of the complainant was flooded with water and it damaged the stock of goods stored in it, worth the sum of Rs.7,51,952/ -. The surveyor assessed the loss at Rs.6,60,982/ - vide his survey report dated 06.07.2005. However, the Insurance Co. repudiated the claim of the complainant on the ground that godown was different from the actual location of the unit / factory, as stated in the insurance policy.

ALTHOUGH , the complainant claimed a sum of Rs.7,15,952/ - along with interest @ 18% p.a., compensation in the sum of Rs.1,00,000/ - and legal costs in the sum of Rs.50,000/ - before the District Forum, yet, the District Forum partly allowed the complaint and awarded a sum of Rs.6,60,982/ - with interest @ 9% p.a., Rs.7,000/ - as compensation and Rs.3,000/ - as costs. Aggrieved by that order, appeal was filed before the State Commission. The State Commission accepted the appeal filed by OP and dismissed the complaint. It also dismissed the appeal filed by the complainant, for enhancement of the claim.

WE have heard the counsel for the complainant/petitioner. He argued that the petitioner had obtained two policies from the OP, one is against Burglary and the other is fire and special peril policy. The complainant shifted the premises from originally recorded location in the policy to the present premises, i.e., the godown and requested the Op to change the address of the insured premises. Accordingly, the OP affected the change of the shifted premises in Burglary policy. However, they failed to change the address in the fire and special peril policy. The complainant has also produced another copy of the letter which was given by the complainant to the OP for change of address in the location. However, this letter is the bone of the contention. The OP submits that they had never received this letter. There is not even an iota of evidence which may go to show that this letter was received by the OP.

COUNSEL for the petitioner further contended that the Surveyor had come to the shifted premises and surveyed the damages and, therefore, it is a sufficient proof that OP was aware of the change in the address. He argued that even surveyor''s report supports the case of the complainant.

DURING the pendency of this revision petition, for the first time, the complainant/ petitioner moved an affidavit of Sh. L.K. Savlani, Ex. Assistant Divisional Manager of the OP -insurance company. He stated that he was employed with M/s. Oriental Insurance Co. Ltd., in the concerned Branch of the OP in Mumbai. He took VRS during the year 2004. He contended that the complainant disclosed recently, about the date of their meeting. He remembered that there were floods in the year 2005 and that the complainant''s claim was rejected. He admitted that he has studied this file, provided to him, by the complainant. He has supported the case of the complainant. He explained that in the end of October, 2003, the OP had received two letters, i.e., one letter for each type of policy, i.e., burglary and fire and special peril, from the OP for effecting the change of locations of addresses. In the said policy from Kashmira Indl. Estate, Kashmira, Thane District to Vasai (E), District Thane and those letters were forwarded to the concerned departments to make necessary amendments. He was summoned by this Commission for cross -examination and clarification. To a court question, as to how he could remember, after a period of 7 years, he replied that the complainant was Client of the OP company and he was serving the OP/respondent from the year 1999 onwards with regard to their policies. He admitted that he had dealt with 1000s of such like policies but he remembers the complainant''s case because he was one of the corporate client of the OP. He explained that there were 11 -14 corporate clients in his portfolio. He further explained that the complainant had written about the change of address in the month of October, 2003. He also stated that the address was renewed in the month of July, 2003, but the address was not changed. He admitted taking no objection to that. The witness was confronted with the policy, but it transpired that the same was renewed on 09.11.20013. He admitted that it was not his official duty to check the applications of transfer of location at working place.

COUNSEL for the complainant/petitioner vehemently argued that this witness has no guiles against the OP. He is an innocent witness. There is no reason for him to depose untruth. The counsel for the complainant / petitioner further contended that he could not produce the AD Card or the copy of the acknowledgment/ signature received in token of the receipt of the original letter.

WE are unable to locate any substance in these arguments. It is rudimentary principle of jurisprudence that the documentary evidence will always get preponderance over the oral evidence because it is the well -known axiom of law that men may tell lies, but the documents cannot. There is not even an iota of evidence which may go to show that the letter dated 30.10.2003 regarding the change of address was ever served upon the OP. It appears that the complainant, in vain, desired to kill two birds, with one stone.

COUNSEL for the complainant / petitioner has placed reliance on the report of the Surveyor, but the Surveyor has clearly, specifically and unequivocally mentioned that the address where the incident had occurred and shown to the Surveyor for survey was different and not as per the policy. The Surveyor had advised the OP to check the record and only thereafter they should sanction the claim.

IT is also difficult to fathom, whenever an application for change of address is made, it is not to be assumed that it will be automatically sanctioned/approved. The insurance company will visit the spot, allow the same and the necessary amendment would be made in the record of the OP and in the insurance policy. Even if it is assumed that a letter was sent for change of address, it was not replied by the OP. Alarm bells should have rung and the effort should have been made by the complainant to further process the matter. A reply from OP would have done the trick.

NOW , in the end, the entire case of the complainant hinges upon the statement / affidavit of Sh. L.K. Savlani. It appears that when the complainant came to know that ''Sword of Damocles'' was hanging over his head, as both the fora below have dismissed his claim, the only way of survival was to produce such like niddle noddle witness. No value can be attached with such like witness, who left ''no stone unturned'' in showing his disloyalty to his previous department. He remembers only one thing. He does not remember when the policy of the complainant was renewed. He admits that he has no business to check the application of transfer at working place. He did not explain, how he came to know about this application. Such like evidence can be created at any time. This witness appears to be a false witness, upon whom, no reliance can be placed by this Commission. The production of documentary evidence like AD Card, copy of receipt or acknowledgement stamp on the original letter, would have gone a long way to bring this Commission face to face with the reality. In absence of such documents, any story can be made to pull the wool in the eyes of the law.

THE petitioner has made a vain attempt to tilt at the windmills. The revision petitions are without any substance. Hence, the same are dismissed. No costs.