RUPAK vs NATIONAL INSURANCE COMPANY

This revision petition has been filed by the Petitioner, Rupak against the order dated 11.3.2015 passed by the State Consumer Disputes Redressal Commission, Maharashtra (Circuit Bench Nagpur), (for short, ''State Commission'') in First Appeal No.FA/11/491.

Brief facts of the case are that the petitioner/complainant had taken an insurance policy of Rs.12,50,000/- for a shop for stock, furniture, fittings etc. Another policy was taken for Rs.3 lakhs for the building of the shop. The shop was burnt in fire on 21.2.2009. The insurance company appointed the surveyor who assessed the loss to the tune of Rs.10,90,828/-. The insurance company vide letter dated 9.9.2009 paid Rs.9,49,491/-. However, the complainant filed the complaint for remaining amount of Rs.1,47,337/- before the District Forum, Yavatmal bearing Consumer Complaint No. 244/2010.

The complaint was resisted by the insurance company. However, the District Forum after considering the submissions of both the parties ordered as under vide order dated: "1) Complaint of applicant is partly allowed.

2) Non-applicant shall pay Rs.1,47,337/- (Rs. One lac forty seven thousand three hundred thirty seven only) towards arrears of claim on account of damages caused to stock, and Rs.3,00,000/- (Rs. Three lac only) within 30 days from the date of receipt of copy of this judgment. Non-applicant shall also pay interest @ 6% p.a. on above amounts from 09/02/2010 till the date of actual payment. Otherwise non-applicant will be liable to pay penal interest @ 9% p.a. on Rs.1,47,337/- and Rs.3,00,000/- from 09/02/2010 till the date of actual payment.

3) Non-applicant shall pay Rs.2,000/- (Rs. Two thousand only) towards mental and physical harassment and Rs.1500/- (Rs. One thousand five hundred only) towards cost of this complaint to applicant within 30 days from the date of receipt of copy of judgment."

The insurance company preferred appeal before the State Commission bearing FA No.11/491 which was partly allowed vide its order dated 11.3.2015 which read as under: "In the result, the appeal deserves to be partly allowed.

The appeal is partly allowed.

Impugned order is modified and substituted as under:-

The appellant /original opposite party shall pay to the respondent/original complainant Rs.1,40,509/- with interest @ 9% p.a. from 9.9.2010 till its realization by the respondent. They shall also pay to the respondent the compensation of Rs.2,000/- towards physical &mental harassment and Rs.1,500/- towards cost of complaint.

No order as to cost in this appeal.

Copy of this order be furnished to both the parties free of cost."

Hence, the present revision petition.

Heard the learned counsel for the parties and perused the record.

The learned counsel for the petitioner stated that there is a mistake in the calculation by the surveyor in his report and the total claim for total assessment would have been Rs.10,96,828/- which has been wrongly calculated as Rs.10,90,828/- by the surveyor. The District Forum has allowed the total amount of Rs.10,96,828/- whereas the State Commission has overlooked this totaling mistake and has allowed only Rs.10,90,828/- . Thus, Rs.6,000/- has been ordered to be paid less by the State Commission. This needs to be rectified in this revision petition. The learned counsel for the petitioner further stated that the State Commission has wrongly dismissed the insurance claim in respect of the policy relating to the building for Rs.3 lakhs. The District Forum had allowed this claim of Rs.3 lakhs whereas the State Commission has rejected this claim on the ground that the surveyor had stated in his report that the shop was on rent and not owned by the petitioner, hence the petitioner does not have any insurable interest in the building of the shop.

The learned counsel argued that the policy document does not state anything on this subject whether the building is owned or it is on rent. Though the surveyor has stated in his report that this claim is not admissible as per terms and conditions of the policy, but the terms and conditions of the policy nowhere mentions that the claim is not allowable on the rented premises. The learned counsel for the petitioner also drew my attention to the Lesson VI of the General Insurance (Study Course for Inspectors) where it mentions that " where a house is let on lease, either the lessor or the lessee or both may insure it." The learned counsel argued that if the insurance company is mentioning in their training material that even a person taking the property on lease can have the insurable interest, then there should be no basis for the surveyor to deny the claim against the building of the shop. It was further mentioned that the revision petition may be allowed and claim of Rs.3 lakhs in respect of the building of the shop be allowed.

On the other hand, learned counsel for the respondent insurance company stated that the petitioner has clearly stated in the proposal form dated 18.5.2007 that "building of class A construction shall be owned by insured solely occupied/partially occupied". This clearly shows that the complainant had agreed that this shop was owned by him and the correct fact that the shop being on rent has not been mentioned in the proposal form. Thus, the complainant concealed the real information in respect of the shop in the proposal form. Consequently, the insurance policy itself has become vitiated and no claim is permissible against the insurance policy for the building. On the contrary, learned counsel for the petitioner disputed this argument of the learned counsel for the respondent by stating that the proposal form does not relate to the year of policy in question but is for a previous year. The learned counsel for the respondent clarified that as this was the renewal policy no new proposal form was filled by the petitioner and therefore, the same proposal form will be valid for the renewal of the policy. The learned counsel for the respondent also stated that the complainant had stated in his letter dated 9.9.2009 that he is ready to accept Rs.10,90,828/- as assessed by the surveyor as full and final payment and therefore, no new claim can be admitted or agreed upon. The learned counsel for the petitioner also disputed this letter, stating that it was not possible to write on 9.9.2009 when the surveyor finalized his report only on 9.9.2009 and submitted it on 20.9.2009 to the insurance company.

I have carefully considered the arguments advanced by both the parties and have examined the material on record.

As both the parties agree that there is some totaling mistake in the report of the surveyor and therefore the petitioner/complainant is definitely entitled to a sum of Rs.6,000/- to be paid by the insurance company. Learned counsel for the insurance company accept that there is a totaling mistake in the report of the surveyor. As per the recalculated surveyor''s report, the total claim becomes Rs.10,96,828/-.

So far as the question of insurance claim for the building of the shop is concerned, the policy documents are silent on this issue. However, the proposal form filled by the petitioner clearly states that this insurance is for the shop owned and occupied by the insured. In such circumstances, the insurable cover of the petitioner on the rented shop cannot be established and therefore cannot be claimed. Thus, the State Commission has rightly disallowed the insurance claim for the building of the shop.

Based on the above discussion, I do not find any illegality, material irregularity or jurisdictional error in the order dated 11.3.2015 of the State Commission except for the fact that the State Commission should have allowed Rs.6,000/- more to be paid to the complainant by the insurance company. The insurance company is directed to pay Rs.6,000/- more to the complainant/petitioner within a period of 45 days . The Revision Petition No.2388 of 2015 stand disposed of accordingly.