MAHENDRAKUMAR & BROS THROUGH ITS PROPRIETOR MAHENDRAKUMAR GIRDHARLAL DIXIT vs NATIONAL INSURANCE CO. LTD.

This revision petition has been filed by the petitioner against the order dated 21.03.2016 passed by Gujarat State Consumer Disputes Redressal Commission, Ahmedabad (short, "State Commission) in Appeal No.1280/2015.

The petitioner/complainant took a Fire Floater Policy from the respondent/OP for the stock/material stored in their godown since 1992 and they got renewed the said policy from time to time. On 11.10.2013 a fire occurred in the insured cold storage of the complainant due to which the goods of its customers worth Rs.5,62,745/- were totally burnt and destroyed during the policy period from 2013 to 2014. The policy for the said period is on file. The description of risk is mentioned in it as ON STOCK OF CHILI & OR KIRANA ITEMS OF ED STORED & OR LYING IN VARIOUS (7) COLD STOREGES for a total of Rs.30,00,000/-. The incident was reported to the police and the insurance company. The OP repudiated the claim on the ground that loss occurred to the stocks held in trust and hence were not covered by the insurance policy. Aggrieved by the repudiation, the petitioner filed a complaint before the District Consumer Disputes Redressal Forum, Ahmedabad (for short, ''District Forum'') seeking relief of Rs.5,62,745/- with interest @ 12% p.a. with Rs.50,000/- as compensation and Rs.25,000/- as penalty and Rs.40,000/- as cost.

The District Forum vide their order dated 27.10.2015 while dismissing the complaint passed the following order:-

"17. If we look into the present case, there is no any fact that the amendment was done in the terms and conditions of the policy. The policy given to the complainant by the opponent insurance company itself is self-explanatory and the complainant has received the policy. Accordingly, the complainant has received the policies since last seven years. During seven years, the complainant has never made representation to the opponent insurance company that in his policy Goods held in trust or on commission should be covered. The complainant has taken the policy since seven years and therein Goods held in trust or on commission are not covered and the complainant has accepted the fact that during last seven years he has not raised any such dispute. In these circumstances, now those words i.e. Goods held in trust or on commission cannot be added in the policy and by adding the words accordingly, the policy cannot be read.

Considering the above particulars following final order is passed.

ORDER

As the claim of the complainant does not required to be allowed on merits, this complaint of the complainant is dismissed.

There isno order as to costs."

Aggrieved by the order of the District Forum, the petitioner filed an appeal before the State Commission. The State Commission vide their order dated 21.03.2016 dismissed the appeal and observed as under:-

"5. I had considered the judgment of Ld. forum and policy on perusing the same it is found that, the complainant is having policies since last 7 years and in that there is no inclusion of risk of Good held in trust or on commission. The loss of goods get incurred to the complainant the ownership of that goods was not of the complainant and when in policy there is no inclusion of risk of Good held in trust or on commission and the complainant cannot be entitled for getting the claim. Moreover for the loss occurred by fire for that there is an insurable interest of the complainant firm no any such document had been produced by the complainant. Therefore, it can be believed that, the complainant cannot be entitled to get any type of claim amount. It is the clear conditions of the policy and lastly it is policy of 2013-2014. In which there is inclusion of Goods held in trust or on commission and the complainant had accepted that he had not taken any dispute personally during seven years. In these circumstances now such words in policy that is Good held in rust or on commission cannot be added or the policy cannot be read out by adding that words. The complainant had kept the goods of crush powder of the goods for sale by the commission and the same had been burnt in fire and in that regard the complainant had done the claim for getting the claim but when there was no inclusion of risk of Good held in trust or on commission in the policy then the insurance company cannot be held liable for the payment of the claim. Ld. Forum had given the conclusion that is proper. The judgment of Ld. Forum is proper, just and reasonable and it is not found necessary to do interruption in it. Therefore, following final order has been passed.

ORDER

Appeal is rejected at the admission stage.

The judgment and order is kept as it is in the order passed in the complaint No.874/2014 dated 27.10.2015 of Consumer Disputes Redressal Forum, Ahmedabad City (Addittional), Ahmedabad.

No order is made for the cost of appeal.

One copy of this judgment should be given to parties a free of cost.

Order pronounced today in open court on 21.3.2016."

Hence, the revision petition.

We have heard the learned counsel for the petitioner and perused the record carefully.

Counsel for the petitioner was asked to place on record all the policies from 14.08.2006 till 29.04.2014. He had done the same. It is seen that in all the policies the goods held in trust were not insured. First time it was done in the policy for the period from 30.04.2015 to 29.04.2016 where the description of risk has been as under:-

"Description of risk : ON STOCK OF CHILI & OR KIRANA ITEMS OF ED STORED & OR LYING IN VERIOUS (7) COLD STOREGES TOTAL Rs.3000000/- GOODS HELD IN TRUST OR ON COMMISSION BELONGING TO VERIOUS PARTY"

Counsel for the petitioner states that goods in trust were not covered due to the mistake on the part of the insurance company. However, he has not given any evidence to prove the same. He could not also explain why the petitioner/complainant did not point out the mistake and let it rectified.

The Hon''ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd., 2011 (3) Scale 654 has observed:

" Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora."

Thus, we find that no jurisdictional or legal error has been shown us in the impugned orders to call for our interference under Section 21 (b) of the Act. The order of the State Commission does not call for any interference nor does it suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Hence, we dismiss the revision petition and we uphold the order of the State Commission dated 21.03.2016 in F.A. No.1280/2015.