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2005 DIGILAW 257 (UTT)

National Insurance Co. Ltd. v. M. L. Dang

2005-07-13

LUXMI SINGH, SURENDRA KUMAR

body2005
JUDGMENT Sri Surendra Kumar, Acting President : This is an appeal against the order dated 4.1.2005 passed by the District Forum,. Dehradun whereby the complaint of the complainant was allowed and the appellant was directed to pay the premium amount of Rs. 21,881/- to the complainant along with interest @ 10% from 1.8.1997 till the date of payment and further to pay costs of Rs. 1,500/- to the complainant. 2. The brief facts of the case are hat the complainant got the building and furniture of his Hotel Inderlok insured with the opposite party No.3 and paid the amount of premium vide cheque No. 600160 dated 10.7.1997 of k 13,297/- and cheque No. 600164 fated 18.7.1997 of Rs. 8,584/- total Rs.21,881/-. It is alleged that in spite of repeated requests, neither the cover note of insurance was supplied to the complainant nor policy was issued to him where is deficiency in the services of the opposite party and therefore the complainant filed the complaint. 3. The opposite party No.1 and 2 riled written statement and admitted the receipt of premium of Rs. 21,881/-. It .s alleged that the insurance was done against fire and A.M. D. vide policy No. 31/2077/451900/52/0035 for the period from 21.7.1997 to 20.7.1998. there is no deficiency in service on the part of the opposite party. 4. Both the parties filed their affidavits and other relevant documents in support of their allegations. The Learned Forum after taking the evidence of the parties and hearing them allowed the complaint as above, against which order the present appeal has been filed. 5. We have heard the Learned Counsel for the parties and gone though the records. It is alleged that the complainant that he insured his hotel with the opposite party, for which he paid the premium of Rs. 21,881/- but he never received the cover note or policy from the opposite party. The opposite party/appellant has denied this fact that has stated that policy No. 31/2077/451900/52/0035 was issued to him and the insurance was valid from 21.7.1997 to 20.7.1998. In para 5 of the complaint, the complainant has specifically mentioned that he sent a registered letter to the insurance company on 30.12.1997, in which he asked the insurance company to refund the premium amount of Rs. 21,88l/-through bank draft. In para 5 of the complaint, the complainant has specifically mentioned that he sent a registered letter to the insurance company on 30.12.1997, in which he asked the insurance company to refund the premium amount of Rs. 21,88l/-through bank draft. In para 6, it is said that the letter dated 30.12.1997 of the complainant was not replied by the opposite party. Again he sent a registered letter on 10.3.1998 requesting for the refund of premium amount. Again repeated requests were made by the complainant for the refund of premium. The opposite party/appellant in its written statement said that the question of refund of premium does not arise after the receipt of the premium. In para 8 of the complaint, the complainant has specifically alleged that in reply to his letter dated 4.10.1998, he received a letter from Sri R. Sen, Manager (Vigilance), in which he alleged that he has referred the matter to the Regional Office, Lucknow. 6. The insurance company in the affidavit of Smt. Madhumalti has stated that the complainant informed about the damage of two T.V.s and two A.C.s in his hotel to the insurance company in October 1997 and they appointed Sri N. K. Gupta as surveyor. The surveyor visited the spot on 24.10.1997. It is alleged that the surveyor sent letter dated 14.12.1997, 5.9.1998 and 2.6.1998 to the complainant to supply certain information but the complainant did not reply. However the insurance company alleged that the surveyor sent registered letters to the complainant but no receipt was filed by the insurance company. The insurance company admitted the insurance, receipt of amount of premium through cheques but there is no proof of the issue of the cover note. Reliance has been placed on paper No. 19, which is 1 an Interim Protection Note No. 125908 dated 21.7.1997 and it is said that it is the cover note. This paper cannot be said to a cover note. 7. The insurance company pleaded that it has appointed the surveyor to assess the loss and he has also made correspondence with the complainant. But there is no evidence available on record to prove that any surveyor was appointed because if some surveyor would have been appointed, his report should have been filed by the company and surveyor should have mentioned the policy particulars of the complainant to show that policy has been issued to him. But there is no evidence available on record to prove that any surveyor was appointed because if some surveyor would have been appointed, his report should have been filed by the company and surveyor should have mentioned the policy particulars of the complainant to show that policy has been issued to him. In our view there is definitely deficiency in service on the part of the insurance company in receiving the premium and not issuing the cover note or the policy to the complainant. The cover note is the essential document between the parties. It proves the contract between the insurer and the insured. The burden of proof in the affirmative was on the insurance company but the insurance company has failed to prove their case by any positive evidence. 8. In view of what has been said above, the Learned Forum was perfectly justified in allowing the complaint. This appeal has got no force and is liable to be dismissed. ORDER The appeal is hereby dismissed. Costs easy.