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2020 DIGILAW 668 (JK)

United India Insurance Company Ltd. v. Star Dry Fruits

2020-12-09

ALI MOHAMMAD MAGREY, VINOD CHATTERJI KOUL

body2020
Judgment Ali Mohammad Magrey, J.—By this appeal, the appellant-United India Insurance Company Ltd. has assailed the validity of judgment dated 24th of October, 2018, passed by the erstwhile Jammu and Kashmir State Consumer Redressal Commission, Srinagar (hereinafter referred to as “the learned Commission”) in complaint No.16/2014 titled ‘M/S Star Dry Fruits v. United India Insurance Company Ltd.’, whereby the learned Commission, while allowing the complaint, has directed the appellant Insurance Company to pay the loss assessed by the surveyor, being Rs.14,91,500/-, to the complainant alongwith interest @ 9 percent from the date of filing of complaint till its final payment together with litigation charges of Rs.25,000/-. 2. The facts leading to the filing of this appeal, as come to fore from the bare perusal of the pleadings on record, are that the complainant firm/ respondent No.1 herein was/is carrying on its business under the name and style of ‘M/S Star Dry Fruits’, having its principal place of business at New Colony, Shah Mohalla, Nawabazar, Srinagar. As per the complainants/ respondents herein, all the stocks in trade were/ are kept at principal place of business aforesaid and had its office at Khanyar, Srinagar, which is meant for running the affairs of the firm and is, more or less, used for purposes of placing supply orders. The complainants/ respondents also claimed to have availed cash credit facility in the J&K Bank, for which stocks were hypothecated with the bank and hypothecation deed has been executed by the complainants/ respondents with the bank which forms part of the complaint. The complainants/ respondents herein had previously insured their stocks with the Bajaj Allianz Insurance Company, but, thereafter, changed the company by insuring their stocks with the appellant insurance company for the period valid from 18th of April, 2014 to 17th of April, 2015 for an amount of Rs.16 lacs. According to the complainants/ respondents, all these stocks were stored at the principle place of business and, due to the devastating floods of 2014, all the stocks owned by the complainants/ respondents were totally damaged as a consequence of which intimation was given to the appellant insurance company about the loss caused to the stocks due to the floods. A surveyor was appointed to make spot inspection of the principal place of business at Nawabazar, who went on spot and assessed the loss. All the necessary records were produced before the surveyor. A surveyor was appointed to make spot inspection of the principal place of business at Nawabazar, who went on spot and assessed the loss. All the necessary records were produced before the surveyor. The complainants/ respondents were informed telephonically by the surveyor that he had submitted his report. The appellant insurance company, after receipt of the report from the surveyor, have not taken any steps to finalize the claim of the complainants/ respondents herein and, faced with these circumstances, the complaint was filed before the learned Commission. The complaint was resisted by the appellant insurance company mainly on the ground that the stocks which were lying at Shah Mohalla were not insured with them. The specific stand of the appellant insurance company before the learned Commission is that the stocks located at Ranger Stop, Khanyar were insured with the appellant insurance company and not those stocks which were lying at Nawabazar. They also stated that the contract of insurance with the erstwhile company Bajaj Allianz Insurance Company clearly indicates that stocks lying at Nawbazar were not insured and that the surveyor deputed by them had made an assessment of the stocks which were not insured with the appellant insurance company. The learned Commission, after hearing the learned counsel for the parties, in terms of judgment dated 24th of October, 2018, has allowed the complaint and directed the appellant insurance company to pay the loss assessed by the surveyor to the tune of Rs.14,91,500/- in favour of the complainant/ respondent herein alongwith interest @ 9 percent from the date of filing of complaint till its final payment together with litigation charges of Rs.25,000/-. 3. Ms Rifat Khalida, the learned counsel appearing on behalf of the appellants, submits that the learned Commission has passed the judgment impugned in hot haste without considering the material fact that the insurance contract between the appellant insurance company and the complainant/ respondents covered only such stocks which were lying at Ranger Stop, Khanyar and not those kept at the so-called Head Office located at Shah Mohalla, Nawabazar, Srinagar. It is contended that the liability thus, with regard to the stocks lying at Shah Mohalla, Nawabazar, Srinagar was not on the appellant insurance company, but despite this position having been made clear to the learned Commission, the learned Commission proceeded to pass the judgment impugned. 4. It is contended that the liability thus, with regard to the stocks lying at Shah Mohalla, Nawabazar, Srinagar was not on the appellant insurance company, but despite this position having been made clear to the learned Commission, the learned Commission proceeded to pass the judgment impugned. 4. Per contra, Mr J. H. Reshi, the learned counsel representing the complainants/ respondents herein, submits that the policy in question clearly envisages that the insured is S. Star Dry Fruits with head office at Nawabazar and branch office at Khanyar and that S/A denotes situated at Khanyar, therefore, there is no confusion as to where the stocks are stocked. If the stocks were lying only at Ranger Stop there was no necessity to mention the firms head office is at Nawabazar. It is necessary in the policy to mention the premises where the stocks are stocked. There is no necessity to mention the location of Head Office in such circumstances. 5. We have heard learned counsel for the parties and have considered the matter. We have also gone through the record of the learned Commission. 6. The moot question that arises for our consideration is: whether the insurance policy issued by the appellant Insurance Company to the insured-complainant/ respondent herein covered the stocks lying at Shah Mohalla, Nawabazar, Srinagar? 7. An insurance contract is a species of commercial transactions and must be construed like any other contract to its own terms and by itself. In a contract of insurance, there is requirement of uberimma fides, i.e., good faith on the part of the insured. Except that, in other respects, there is no difference between a contract of insurance and any other contract. 8. The four essentials of a contract of insurance are, (i) the definition of the risk; (ii) the duration of the risk; (iii) the premium; and (iv) the amount of insurance. Since, upon issuance of insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risks covered by the insurance policy, its terms have to be strictly construed to determine the extent of liability of the insurer. 9. The endeavour of the Court must always be to interpret the words in which the contract is expressed by the parties. 9. The endeavour of the Court must always be to interpret the words in which the contract is expressed by the parties. The Court, while construing the terms of the policy, is not expected to venture into extra liberalism that may result in re-writing the contract or substituting the terms which were not intended by the parties. The insured cannot claim anything more than what is covered by the insurance policy. 10. Although, Mr Reshi, the learned counsel for the complainant/ respondent herein, strenuously submitted that the insurance contract between the appellant insurance company and the complainant/ respondents covered not only those stocks which were lying at Ranger Stop, Khanyar, but also the ones kept at Shah Mohalla, Nawabazar, Srinagar, as per the Proposal Form, but, we are afraid, we could not find any material placed, either before the learned Commission or before this Court, to accept the aforesaid submission of the learned counsel. The Proposal Form does not clearly specify the stocks lying at Shah Mohalla, Nawabazar. 11. A careful consideration of the Proposal Form that sets out the particulars of the components which were to be covered and the inventory of the property insured, mentioned in the policy, leaves no manner of doubt that what was insured were the stocks which were lying at Ranger Stop, Khanyar only and not those kept at Shah Mohalla, Nawabazar, Srinagar. It is clear from the proposal and the policy. The two documents admit of no ambiguity and it is clear that only such stocks that were lying at Ranger Stop, Khanyar were in fact covered by the policy. 12. This question, as involved herein this appeal, came up before Hon’ble the Supreme Court in case titled ‘Vikram Greentech India Limited & Anr. v. New India Assurance Company Ltd.’; (2009) 5 Supreme Court Cases 599’, wherein the Hon’ble Apex Court, while answering the question in the negative, dismissed the complaint by holding that the insured cannot claim anything more than what is covered by the insurance policy. 13. For what we have discussed hereinabove, We feel that there was no material before the learned Commission to take the view as taken by it in the judgment impugned. That being so, the impugned judgment cannot withstand the test of judicial scrutiny and is, thus, liable to be set aside. 13. For what we have discussed hereinabove, We feel that there was no material before the learned Commission to take the view as taken by it in the judgment impugned. That being so, the impugned judgment cannot withstand the test of judicial scrutiny and is, thus, liable to be set aside. Accordingly, we allow this appeal and set aside the impugned judgment dated 24th of October, 2018 passed by the learned Commission. 14. Registry to send down the records of the Commission alongwith a copy of this judgment. The appellant insurance company is at liberty to make an appropriate motion before the concerned authority for seeking release of the deposited amount, if any, before the erstwhile Commission, which stands wound up with the coming into force of the Jammu and Kashmir Reorganization Act, 2019. 15. Disposed of as above, alongwith all connected CMs.