Punjab
StateCommission
CC/711/2018
m/s Lali Packers Pvt. Ltd - Complainant(s)
Versus
M/s Cholamandalam MS General Insurance Co. Ltd. - Opp.Party(s)
Rakesh Mohan Dutta and Sandeep
16 May 2019
ORDER
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, CHANDIGARH.
Consumer Complaint No.711 of 2018
Date of institution : 05.09.2018
Reserved on : 06.05.2019
Date of decision : 16.05.2019
M/s Lali Packers Pvt. Ltd. through its Directors Shri Hans Raj s/o Shri Sant Ram and Shri Vinod Kumar s/o Shri Chiman Lal, Bajakhana Road, Tehsil and District Barnala, Punjab.
…….Complainant
Versus
- M/s Cholamandlam MS General Insurance Company through its authorized signatory/Manager/General Manager, Ludhiana Branch, Office 1st Floor, KL Plaza, 132/3, Rani Jhansi Road, Civil Lines, Ludhiana, HO City, Ludhiana, State-Punjab.
E-mail id: Central Bank of India, Barnala Branch, District Barnala through its Chief Manager/Authorised Signatory. E-mail Barnala: Central Bank of India through its CMD, HO Chander Mukhi, Nariman Point, Mumbai-400 021, Maharashtra, India. Phone No.022-66387777. E-mail id: ……..Opposite Parties Consumer Complaint under Section 17(1)(a)(i) of the Consumer Protection Act, 1986. Mrs. Kiran Sibal, Member For the complainant : Shri R.M. Dutta, Advocate. For opposite party No.1 : Shri J.P. Nahar, Advocate. For opposite parties Nos.2&3 :Shri Naren Partap Singh, Advocate. The complainant, M/s Lali Packers Pvt. Ltd. through its Directors, has filed this complaint under Section 17(1)(a)(i) of the Consumer Protection Act, 1986 (in short, “C.P. Act”) for issuance of following directions to the opposite parties:- Facts of the complaint: “1) The policy covers the location at NEAR PNB BANK, TAPA MANDI, BARNALA S.O. BARNALA, PUNJAB, PIN-148 101 and the loss took place at VILLAGE CHEEMA, BAJAKHANA ROAD, DISTRICT BARNALA, PUNJAB. As the loss took place in a location which is not covered by the policy, the claim is not payable. 2) As per Surveyor, the possession was taken over by the bank on 30.5.2017. Later valuation of assets took place on 6.6.2017. After that said premises remains unoccupied till the loss was noticed on 17.8.2017. Hence the claim falls under the following exclusion:- “1. Exclusion No.9 of the burglary policy which says “This policy shall cease to attach if the premises shall have been left uninhabited by day and night for seven or more consecutive days and nights. 2. The above exclusion is also appearing in the Fire Policy condition 3B which is reproduced below:- “Under any of the following circumstances the insurance ceases to attach as regards the property affected unless the insured, before the occurrence of any loss or damage obtained the sanction of the company signifies by endorsement upon the policy by or on behalf of the Company (3c) if the building insured as containing property becomes unoccupied and so remain for a period of more than 30 days.” On the date of alleged occurrence the possession of the complainant-Company was with opposite party No.2-Bank. In fact the Insurance Company is liable to indemnify the loss, which has occurred to the tune of ₹45 lakh but the same was rejected, vide letter dated 15.12.2017, Ex.C-10, on the grounds mentioned above. Thereafter the complainant-Company served a legal notice, Ex.C-12, upon opposite parties Nos.1 and 2 to make the payment for the loss suffered by it. The legal notice sent to opposite party No.1-Insurance Company received back with the remarks “left”; however, opposite party No.2 sent reply to legal notice, Ex.C-16. Hence the present complaint for issuance of above mentioned directions to the opposite parties. Defence of opposite party No.1: 3. Upon notice opposite party No.1-Insurance Company appeared and filed its reply admitting the issuance of the insurance policies in question for the period from 29.6.2017 to 28.6.2018 and 25.7.2017 to 24.7.2018. The first policy was Standard Fire and Special Perils Policy and the second policy was burglary insurance policy. The Surveyor of the Insurance Company has examined and assessed the loss; however, the claim was closed as “No Claim”, vide letter dated 15.12.2017, Ex.OP-1/2. FIR was also lodged by opposite party No.2-Bank, which was in actual and physical possession of the property in question. It was denied that the complainant-Company suffered a loss of ₹45 lakh. The claim has rightly been repudiated on the grounds mentioned in the repudiation letter dated 15.12.2017. Denying all other averments made in the complaint and denying any deficiency in service on its part a prayer for dismissal of the complaint was made. Defence of Opposite Parties Nos.2 & 3: 4. In their separate reply opposite parties Nos.2 and 3 took preliminary objections to the effect that the complainant-Company has no locus standi to file the present complaint against them. If this Commission reaches to any conclusion adverse to opposite parties Nos.2 and 3 in that event also no relief is payable by them since the vital parts of plant and machinery in question stood comprehensively insured with opposite party No.1-Insurance Company covering the risk of burglary, earthquake and STFI. If any liability is fastened upon opposite parties Nos.2 and 3, the same is to be indemnified by opposite party No.1-Insurance Company. Opposite parties Nos.2 and 3 have been impleaded by the complainant Company intentionally and deliberately. There is no deficiency in service on their part. A prayer for dismissal of the complaint qua them has been made. Rejoinder to reply of opposite party No.1-Insurance Company: 5. The complainant-Company filed rejoinder to the reply filed by opposite party No.1-Insurance Company controverting the averments made in the reply and reiterating the averments made in the complaint. Rejoinder to reply of opposite parties Nos.2 & 3: 6. The complainant-Company also filed separate rejoinder to the reply filed by opposite parties Nos.2 and 3-Bank controverting the averments made in the reply and reiterating the averments made in the complaint. Evidence of the Parties: 7. In support of its case the complainant-Company annexed with the complaint affidavit of its Director Hans Raj and documents Ex.C1 to Ex.C-16. The complainant-Company also placed on record bank statement of account depicting deduction of insurance premium of policy from its account, vide MA No.2173 of 2018, which was allowed on 24.9.2018. On the other hand, opposite party No.1-Insurance Company annexed with its reply affidavit of its Deputy Manager Claims (Legal) Vikash Kumar Goyal and documents Ex.OP1/1 to Ex.OP1/3 and the affidavit of Ravinder Dhingra, Surveyor dated 18.1.2019, Ex.OP1/4. Opposite parties Nos.2 and 3 annexed with their reply the self-attested affidavit of their Branch Manager Ishwar Singh dated 3.12.2018 and documents Ex.R-2/1 and Ex.R-2/2. 8. We have carefully gone through the averments of the parties and the evidence produced by them in support of those averments. We have also heard learned counsel for the parties. Contentions of the Parties: 9. The parties argued on the same lines as they have pleaded in their complaint and replies, respectively. 10. It was argued by the learned counsel for the complainant-Company that though the actual and physical possession of the property was with opposite parties Nos.2 and 3-Bank but the insurance policy was taken from opposite party No.1-Insurance Company in the name of the complainant-Company and the premium was paid by the Bank from the sundry charges, though added to the loan account of the complainant-Company. It is an admitted fact that during the subsistence of the insurance policy in the name of the complainant-Company the theft had occurred and the loss suffered by it has been assessed to the tune of ₹45 lakh; rather more. In view of this the complainant-Company has a right to claim the loss suffered, as the property in question was insured one i.e. specifically the machinery installed in it. It was further argued by the learned counsel that the claim has been wrongly repudiated, vide letter dated 15.12.2017, Ex.C-10, on the ground of location of the insured premises and the other ground mentioned in it. Hence it was prayed that this complaint be allowed and all the reliefs claimed in it may be granted to the complainant-Company. 11. On the other hand, it was vehemently contended by the learned counsel for opposite party No.1-Insurance Company that the premises in question remained unattended for continuous 7 days. Moreover, the premises, which were insured, were different where theft had actually taken place. It was against the terms of the insurance policy. Thus, the complainant-Company is not entitled to any insurance claim. The policy covered the articles lying in the premises situated at Near PNB Bank, Tapa Mandi, Barnala, whereas the loss took place at Village Cheema, Bajakhana Road, District Barnala. It was further averred that since the loss took place in a location which was not covered by the insurance policy, therefore, the claim is not payable. Moreover, the premises were left unattended for consecutive days and nights i.e. for 76 days and as such, as per clause 9 of the burglary policy also the claim is not payable. The claim has rightly been repudiated on the grounds mentioned in the repudiation letter dated 15.12.2017, Ex.C-10. There is no merit in the present complaint and the same is liable to be dismissed with costs. 12. It was vehemently argued by the learned counsel for opposite parties Nos.2 and 3 that the complainant-Company has no locus standi to file the present complaint against opposite parties Nos.2 and 3. The claim is payable by opposite party No.1-Insurance Company only and there is no deficiency in service on the part of opposite parties Nos.2 and 3. Thus, the complaint is liable to be dismissed qua them. Consideration of Contentions: 13. We have given our thoughtful consideration to the contentions raised before us by the learned counsel for the parties. 14. Admittedly when the insurance was done the premises in question were in actual and physical possession of opposite party No.2-Bank. The insurance policies in question were taken by opposite party No.2-Bank, which were valid for the period from 29.6.2017 to 28.6.2018, Ex.C-7 and for the period from 25.7.2017 to 24.7.2018, Ex.C-8. In view of this all the rights under the SARFAESI Act have vested in opposite party No.2-Bank. The complainant-Company had already been declared NPA and, as such, it has no insurable interest in the insurance policies in question. The premium has been paid from the sundry account of opposite party No.2-Bank and not from the account of the complainant-Company because it was already NPA. In these circumstances there is no privity of contract between opposite party No.1-Insurance Company and the complainant-Company. The rights have been vested in opposite party No.2-Bank only at that point of time. In view of the provisions of SARFAESI Act since the property/premises has vested in opposite party No.2-Bank, therefore, the rights remained vested in its name. It does not mean that the rights have vested in the complainant-Company and its Directors. All the rights stood vested in the Bank. In these circumstances there was no privity of contract between the Directors of the complainant-Company, through which the present complaint has been filed. Rather opposite party No.2-Bank, which was the wholly and solely incharge and the owner of the property/premises under the provisions of the SARFAESI Act at that point of time. In these circumstances the complainant-Company has no right to file the present complaint as there was no privity of contract between opposite party No.1-Insurance Company and the complainant-Company. Furthermore even if it is presumed that there is some relationship of the complainant-Company with opposite party No.1-Insurance Company as some amounts have been deducted from the account of the complainant-Company, even then the complainant-Company is not entitled to the claim since the policy covered the articles lying in the premises situated near PNB Bank, Tapa Mandi, Barnala, whereas the loss/theft has occurred at Village Cheema, Bajakhana Road, District Barnala. As per the Surveyor’s report also the location of the premises where theft had actually taken place is different than the insured premises. Moreover, the insured premises remained unattended and inhabited for consecutive 76 days and nights and there was no Chowkidar at that point of time. As such, as per exclusion clause 9 of the said insurance policies, the claim is not payable. The terms and conditions of the insurance policies are binding upon the parties to the contract. 15. In view of our above discussion, we do not find any merit in the present complaint and the same is hereby dismissed. (JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (MRS. KIRAN SIBAL) MEMBER May 16, 2019 Bansal Quorum:-
Hon’ble Mr. Justice Paramjeet Singh Dhaliwal, President
Present:-
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT:
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