1. Heard Mr. Amish Tandon, Advocate, for the complainant and Mr. Yogesh Malhotra, Advocate, for the opposite party. 2. Diebold Nixdorf India Private Limited has filed above complaint, for directing the opposite party to pay (i) Rs.73846948/-, with interest @18% per annum as the insurance claim; (ii) litigation costs and (iii) any other relief which is deemed fit and proper in the facts of the case. 3. The complainant stated that Diebold Nixdorf India Private Limited (formerly named as Diebold System Private Limited) was a company, registered under the Companies Act, 1956 and engaged in the business of manufacturing, selling, installing and servicing of card based, self-service transaction systems, security products, managed services solutions and comprehensive ATM solution management. ICICI Lombard General Insurance Company Limited (the OP) was a private insurance company. The complainant took Floater Declaration Insurance Policy No.251100/11/14/3400001382, for the period of 01.11.2014 to 31.10.2015, for a sum insured of Rs.80/- crores, for 204 locations, from National Insurance Company Limited. The complainant shifted its offices and warehouses from (i) No.28/3, Montieh Road, Egmore, Chennai-600008, Tamil Nadu; and (ii) main bin and (iii) depot, both located at Shop No.6, 6th Main Road, above post office, Nanganallur, Chennai-600061 (above 1, 2 and 3 are hereinafter referred to as “terminated locations” to Plot Nos.45, 46, 47, 50 and 52, Electrical and Electronics Industries, B Block, Perungudi, Chennai-600096 (hereinafter referred to as “the affected location”), in the month of July, 2014. In February, 2015, the complainant observed that the terminated locations, which it had ceased to occupy since September, 2014 were inadvertently included (as currently in occupation of the complainant) in the list of locations, proposed to be covered by the 2014-15 Policy. The complainant had no intension to take a separate insurance policy in respect of the affected locations. The complainant, through the broker, started negotiation for Standard Fire and Special Perils Policy Floater Policy for all the locations occupied by it with various insurance companies for the next year. The proposal of the opposite party was most satisfactory as such the complainant, through the broker, requested the opposite party to give invoice in respect of the premium. The opposite party gave invoices for the premium which was paid by the complainant and the opposite party issued Standard Fire and Special Perils Policy (Floater) No.1001/110230136/00/000, for the period of 01.11.2015 to 31.10.2016, for Rs.80/- crores. The proposal form was submitted on 03.11.2015 and policy was issued on 29.11.2015, in which, 4 pan offices alone were in the list of locations. The complainant intimated the broker, vide email dated 03.12.2015 and supplied the list of 204 locations and also informed about the changed locations, who assured that all the locations would be endorsed. Later on, the complainant demanded the list of the locations as covered in the policy, then the opposite party, vide email dated 04.07.2016, supplied list of 204 locations. Due to mistake, the broker while the filling up the proposal form, mentioned “terminated locations” and left “the affected location” in the list of 204 locations. There were heavy rains in Chennai during 01.12.2015 to 06.12.2015, which resulted in flood, in the area of affected locations. Flood water entered in the affected locations to the extent 2 feet in height. The complainant informed the broker on 08.12.2015 about flood and segregated undamaged goods and shifted to first floor of the affected locations. The complainant lodged insurance claim as per estimated loss on 10.12.2015. The opposite party appointed Protocol Insurance Surveyors & Loss Assessors Private Limited, Delhi as the surveyor. The surveyor inspected the affected locations on 11.12.2015. As desired by the surveyor, the complainant supplied the list of the goods, damaged in the depot and main bins of the affected locations on 16.12.2015. The surveyor again inspected the affected locations on 22.12.2015. The complainant supplied break-up of the claim i.e. Rs.42973983/- for Service Centre Stock and Rs.33865447/- for Fresh Stock to the surveyor, through email dated 23.12.2015. The broker demanded the documents of title of the affected locations, which were supplied. The broker had a meeting with the opposite party on 30.12.2015 and informed that the entire process of segregation and quantification for final assessment was being done and the opposite party had appointed a technical consultant of Technical Drying Services to conduct the process of drying, which would enable to assess the damage to the stock. Mr. Narendran, the technical consultant, inspected the affected locations on 30.12.2015, took photographs of the damaged stock and prepared an inventory. The surveyor, vide email dated 30.12.2015, informed that affected locations at Plot No.45, 46, 47, 50, 51 & 52 Electrical & Electronic Industries, Perungudi, Chennai-600096, were not mentioned in the list of locations of the policy. Mr. Vijay Kumar, from Technical Drying Services, visited the affected locations on 06.01.2016 with necessary equipment to dry up the parts. He started drying process on 07.01.2016 and completed on 12.01.2016. A sample testing was done in the presence of the team of Technical Drying Services. The team moved out on 13.01.2016, as their contract was terminated by the opposite party. The surveyor, vide email dated 26.02.2016, demanded additional documents such as Balance Sheet, Report, categorising the goods as partial working, non-working and working etc., a descriptive notes for assessing the cost of the damaged goods. A team of the surveyor visited the affected locations on 10.03.2016 and prepared inventory. The surveyor, vide email dated 14.03.2016, again demanded technical report and other papers relating to the damaged goods. Mr. Vaibhav Sharma from the surveyor visited the main bin at the affected location on 18.03.2016 and carried out verification of all the fresh stock segregated as per their requirement. All the stocks of above Rs.one lac value were verified physically as per the claim. On 19.03.2016, the stocks of above Rs.50000/- to Rs.99000/- value were verified physically as per the claim. The complainant, vide email dated 21.03.2016, informed that they were shifting the goods from ground floor to first floor of the affected locations. The opposite party, vide email dated 01.04.2016, requisitioned the rate list of the damaged goods. The opposite party, vide email dated 04.04.2016, sought for a revised claim bill and after carrying out testing of stocks, sought for more information. The complainant responded to all the queries on 10.05.2016 and provided the documents. The surveyor raised a query, vide email dated 28.06.2016 that in Chennai centre, the complainant had warehouses in two parts i.e. (i) one is meant for storage of fresh spare & components (including repaired components transferred from service centre after repairs) and (ii) another is meant for service centre, where failed/ damaged components are stored and called for an explanation of the claim of Service Centre stock. The complainant had a meeting with the opposite party on 14.07.2016 and submitted invoices on 15.07.2016 along with statement of quantity of stock received post drying to a value of Rs.2992480/-.and details of segregated new stock and refurbished stock in main bin. The opposite party assured that the surveyor would submit final survey report till 19.07.2016. The surveyor, vide email dated 20.07.2016, required Test Report in respect of Items at Sl. No.2, 3, 4, 5, 6, 7, 8 and 12 and many more. The opposite party assessed the loss to Rs.22503447/- on 01.08.2016 and revised to Rs.46034362/- on 02.08.2016. A joint meeting with the opposite party, the surveyor and the complainant was held on 08.08.2016, in which, the complainant supplied additional documents as required by the surveyor. Due to unreasonable delay, the complainant wrote an email dated 10.10.2016 to Managing Director of the opposite party, requesting for a meeting in respect of its claim. Managing Director, however, directed Mr. Gaurav Arora, (Head Corporate UW & Claims) to hold a meeting, which was held on 18.10.2016. Thereafter, the opposite party, vide email dated 22.10.2016, informed that the affected locations were not covered in the policy. The complainant, vide email dated 10.11.2016, replied that the locations were shifted in same city and there was no change in geographical risk and insured locations were also flooded. The opposite party informed that as the affected locations were not mentioned in the policy as such the claim was closed. Then the complaint was filed on 26.09.2017. 4. The opposite party filed written version on 19.01.2018 and contested the complaint. The opposite party admits negotiation in respect of premium through the broker before submitting the proposal form. The opposite party stated that admittedly the flood affected locations i.e. Plot No.45, 46, 47, 50, 51 & 52 Electrical & Electronic Industries, Perungudi, Chennai-6000096 were neither mentioned in the list of locations attached with the proposal form nor in the list of locations attached with the insurance policy. After happening of loss, the complainant wrote a letter for including the loss affected location in the policy, which was not possible. The insurance brokers are independent professionals, licenced under the Insurance Regulatory Development Authority (Insurance Brokers) Regulations, 2002 and are not an agent of the insurance companies. The complainant availed the services of the broker, as such, he was an agent of the complainant. As soon as, the complainant intimated the loss, the opposite party appointed Protocol Insurance Surveyors & Loss Assessors Private Limited, Delhi as the surveyor on 10.12.2015, who inspected the affected locations on 11.12.2015 and on subsequent dates. The surveyor submitted Final Survey Report dated 29.08.2016, mentioning therein that loss affected locations were not covered in the list of locations attached with the insurance policy. On the request of the complainant, Managing Director directed Mr. Gaurav Arora, (Head Corporate UW & Claims) to hold a meeting with the complainant, which was held on 18.10.2016. Thereafter, the opposite party, vide email dated 22.10.2016, informed that the affected locations were not covered in the policy and the claim was liable to be closed. The complainant, vide email dated 10.11.2016, gave his explanations that the locations were shifted in the same city and there was no change in geographical risk and insured locations were also flooded. The opposite party vide letter dated 01.12.2016, repudiated the claim as the affected locations were not mentioned in the policy. The complaint raises complicated issue of facts, which cannot be adjudicated in exercise of summary jurisdiction. The complainant is a company and the policy was obtained for commercial purposes as such the complainant is not a consumer. There was no deficiency in service on their part. The complaint has no merit and liable to be dismissed. 5. The complainant filed Rejoinder reply, Affidavit of Evidence, Affidavit of Admission/Denial of documents of Balmukund Karambelkar and documentary evidence. The opposite party filed Affidavit of Admission/Denial of documents of Krashanu Pundir and documentary evidence. Both the parties have filed their written arguments. 6. Admittedly the flood affected locations i.e. Plot No.45, 46, 47, 50, 51 & 52, Electrical & Electronic Industries, Perungudi, Chennai-6000096 were neither mentioned in the list of locations, attached with the proposal form nor in the list of locations attached with the insurance Policy No.1001/110230136/00/0000. The complainant took plea that they had received the policy on 03.12.2015, then only they came to know that flood affected locations were not included in the list of locations attached with the policy. The broker inadvertently mentioned “terminated locations”, although it were ceased to be occupied since July, 2014. After receiving the policy, the complainant approached the broker and informed about the mistake then he wrote a letter dated 14.12.2015, for including the flood affected locations in the list of locations, attached with the policy. The opposite party has realized premium for all the 204 locations and cannot deny insurance claim, which was verified and assessed to Rs.49641056/- by the surveyor. The opposite party stated that loss occurred during 01.12.2015 to 06.12.2015. Loss affected locations cannot be included in the list of locations attached with the policy on the letter dated 14.12.2015. The broker was not an agent of the opposite party rather the complainant availed his services as such he was an agent of the complainant. 7. We have considered the arguments of the counsel for the parties and examined the record. The preliminary objection raised by the counsel for the opposite party has no merit. Supreme Court in National Insurance Company Limited Vs. Harsolia Motors, (2023) 8 SCC 362, held that a contract of insurance is a contract of indemnity and has no nexus with profit generating activity as such it does not fall in exclusion clause of ‘commercial purpose’ in the definition of the consumer, even if, it has been obtained by a company engaged in commercial activities. Similarly the arguments of the complainant that appointment of the surveyor by the opposite party on intimation of loss operates as estoppel against the opposite party to raise the plea that flood affected locations were not covered in the policy at the subsequent stage, also has no merit. A three Judges Bench in Sonell Clocks and Gifts Limited Vs. New India Assurance Company Limited, (2018) 9 SCC 784, held that appointment of the surveyor is not an estoppel for the insurance company to repudiate the claim. 8. Admittedly the flood affected locations i.e. Plot No.45, 46, 47, 50, 51 & 52 Electrical & Electronic Industries, Perungudi, Chennai-600096 were not mentioned in the list of locations, attached with the proposal form as such it were not mentioned in the list of locations attached with the insurance Policy No.1001/110230136/00/0000. The complainant took the plea that this mistake was committed by the broker and the complainant came to know about it only on 03.12.2015, when the policy was received to it. The broker inadvertently mentioned “terminated locations”, in the proposal form, although it were ceased to be occupied since July, 2014. But in the email dated 10.11.2016 (Annexure-Z-5), the complainant has stated that the locations were shifted within the same city, hence there was no change in geographical risk for insurance company. The following locations Diebold Systems (P) Ltd. No.28/3, Monitech Road, Egmore, Chennai-600008 and Diebold Systems (P) Ltd. No.6, 6th Main Road, Above Post Office Nanganallur, Chennai-600061 were moved in the same city in the same policy year to Plot No.45, 46, 47, 50, 51 & 52, Electrical & Electronic Industries, Perungudi, Chennai-6000096 without any change in sum insured value. As per our mail, had we not moved our goods there would be still a claim in the insurance policy as the original locations were also flooded and are in the same city. From the email dated 10.11.2016, it is proved that case of mistake committed by the broker is an afterthought and is not liable to be accepted. As the affected locations were not included in the list of locations as attached to the insurance policy, the insurance claim was not maintainable. After happening of the loss, new locations cannot be included in the insurance policy. The opposite party has not committed any illegality in repudiating the claim. Supreme Court in Oriental Insurance Company Limited Vs. Sony Cheriyan (1999) 6 SCC 451,United India Insurance Company Limited Vs. Harchand Rai, (2004) 8 SCC 644, Suraj Mal Ram Niwas Oil Mill Private Limited Vs. Union of India, (2010) 10 SCC 567, Export Credit Guarantee Corporation of India Limited Vs. Garg Sons International, (2014) 1 SCC 686 held that insurance policy is a specifies of commercial contract and terms of the policy shall be construed strictly. ORDER In view of aforesaid discussions, the complaint is dismissed. |
