(Per: Mr. D.K. Tyagi, Member):
The complainant has filed this consumer complaint before this Commission under Section 12 read with Section 18 of the Consumer Protection Act, 1986, against the opposite parties for compensation of Rs. 96,00,000/- alongwith interest 18% per annum pendente lite and in future, on the basis of deficiencies in service on the part of opposite parties in repudiating the insurance claim submitted by the complainant.
2. The complainant has stated in the consumer complaint that the complainant namely Mr. Narendra Jindal is a proprietor of M/s Jindal & Co., 14th Gangotri Vihar, G.M.S. Road, Dehradun present address is D-87, Park Road, Dehradun, had taken a loan from Allahabad Bank, who is an agent of opposite party No. 1. The Chief Manager of Allahabad Bank Sh. Arun Mishra-opposite party No. 3 alongwith Sh. Ashu Bansal-opposite party No. 5 approached to the complainant with an offer to take an insurance policy from Universal Sompo General Insurance Company Limited because this insurance company has a joint venture with us and the Allahabad Bank is also an agent and intermediary of opposite party No. 1. The complainant was induced to purchase an insurance policy from the opposite party No. 1 by the Chief Manager, Allahabad Bank Sh. Arun Mishra and Executive Sh. Ashu Bansal. Accordingly they took signature of the complainant on a proposal form and promised to get his cover note/insurance policy from the opposite party No. 1. The complainant was not allowed to read the contents of the proposal form, however, he was promised by the Chief Manager that no need to worry, we are here and policy shall be issued in which all the things will be covered. The complainant disclosed all the facts regarding his property, godown, basement to the Chief Manager and the Executive of opposite party No. 1 while signing the proposal form. On 29.04.2012, Allahabad Bank debited an amount of Rs. 39,419/- from the complainant’s account for stock insurance. The complainant demanded cover note from the opposite party No. 1 and the opposite party No. 2, but there was no response from their side. The opposite party neither provide any cover note nor the insurance policy to the complainant. Due to the above mentioned reasons, the complainant could not know regarding the policy terms and conditions. Due to heavy rainfall on 03.08.2012 in Dehradun, which continued uninterrupted for hours. The godown and office of the firm/company was closed at about 07:00 p.m. When next day the premises were opened, it was found that entire basement, godown and office of the firm/company was flooded with rain water upto about 5 ft. and major portion of the stock of surgical goods got damaged. After this incidence, immediately steps were taken to throw out the water from the basement, godown and the stock was shifted to the ground and the first floor, which were under construction and the entire documents and the computers of the firm were also affected by flooded water and the insurance company/opposite party No. 1 was informed about the loss and information regarding loss had been given to the Allahabad Bank. The complainant demanded the cover note or insurance policy from the insurance company. After several demands regarding the cover note of the insurance policy, lastly the opposite party provided the cover note to the complainant on 26.12.2012. After seeing the cover note the complainant was shocked after reading the terms:-
WARRANTED THAT THEFT AND RSMD IS EXCLUDED UNDER BURGLARY POLICY;
WARRANTED THAT NO STORAGE AND UTILITY OPERATIONS IN BASEMENT OR IN OPEN;
WARRANTED THAT IS NIL CLAIM HISTORY TILL DATE;
WARRANTED THAT RISK LOCATION IS COVERED PREMISES;
WARRANTED THAT NO KUTCHA CONSTRUCTION IN THE PREMISES;
WARRANTED THAT PLINTH LEVEL OF RISK LOCATION IS ABOVE SURROUNDING ROAD LEVEL;
WARRANTED ALL EXISTING FIRE PROTECTION SYSTEM TO BE OPERATIONAL AT ALL TIMES DURING POLICY PERIOD.”
3. The complainant was also shocked to see the premium amount a sum of Rs. 29,251/-, but the bank had debited an amount of Rs. 39,419/- from his account. It clearly shows that the insurance company and the bank both have in collusion against the complainant and it is a breach of contract, breach of trust, deficiencies in services and cheating committed by the insurance company and bank. The complainant had filed an insurance claim No. CL12019168 against the policy No. 2114/51374937/01/001. The complainant provided all the necessary assistance to the bank official and surveyor and the insurance company and provide all the relevant documents regarding the valuation of loss as possible as he can. On 31.12.2012, the complainant has given an application to Police Station, Patel Nagar, Dehradun regarding theft of some goods and also gave information to the insurance company and also provide a valuation of loss from Sales Tax Office in which the Commercial Tax Officer segregate the loss and the conclusion is a loss of Rs. 70.00 lacs and the complainant estimate a loss of Rs. 80 to 85.00 lacs. The complainant vide letter dated 30.11.2012 sent an information regarding survey report of Sales Tax department alongwith the list of spoiled goods to the Branch Manager, Allahabad Bank. The complainant also provides a list of damaged stock to the surveyor of insurance company. The complainant sent several mails to the insurance company, bank and surveyor regarding the claim, but no response. Feeling aggrieved of claim by the opposite party No. 1 the complainant filed a complaint to IRDA (Consumer Affair Department) who had given a grievance application number which is 0413018056, but no action taken by the IRDA so far and the efforts of the complainant have gone in vain. The complainant also sent a letter to Allahabad Bank and insurance company on 09.04.2013 and the same had been communicated to IRDA. After that lastly the insurance company/opposite party No. 1 send a mail regarding the claim rejection and declined the complainant’s claim vide letter dated 14.03.2013. The opposite parties were fully aware regarding the basement, godown and they inspected the premises of the complainant and had taken a pre-approval survey of the complainant premises. The complainant has pleaded that the proposal form was blank at the time of signing and was not filled by the complainant. It was filled-in by the agent of the opposite party No. 1. The opposite parties never provided the copy of the proposal form which would clearly established with naked eye, the hand writing of a person who has filled-up a proposal form is different from the signature of the complainant. The survey was also conducted under the direction of insurance company and the bank official and opposite party has a collusion to decline the claim on the ground of basement. The repudiation of the claim of the complainant is a clear case of deficiency in service on the part of opposite party, therefore, the complainant is entitle for the insurance amount alongwith interest, compensation for harassment and torture cause to him and his family. The complainant sent a legal notice to the opposite party No. 1 on 27.07.2013 by registered post regarding the claim amount alongwith acknowledgment and the same has been received by the insurance company on 01.08.2013, but the insurance company has not replied the said notice. In view of the facts stated above the complainant is entitlte for a sum of Rs. 80.00 lacs on account of sum insured alongwith interest @ 18% per annum. The complainant is also entitle to get compensation of Rs. 15.00 lacs due to his harassment and torture. The complainant is entitle to get Rs. 1.00 lakh on account of litigation expenses. The cause of action to file the present complaint arose against the opposite party on 04.08.2012, when the claim was filed and further arose on 14.03.2013 when the opposite party No. 1 declined the claim and further arose on 27.07.2013, when the complainant sent a legal notice to the opposite party No. 1, who has not replied the same. This Commission has jurisdiction to entertain and try the present complaint as the insurance policy of the complainant was serviced by the opposite party No. 1 from its branch located within the jurisdiction of this Commission.
4. The opposite party Nos. 1 & 5 filed written statement (Paper Nos. 44 to 55) thereby denying the allegations made by the complainant in the consumer complaint and pleaded that there is neither deficiency in service nor negligence in providing service and neither has the opposite party No. 1 adopted any unfair trade practice. The claim of the complainant was declined on the basis of the terms of the insurance policy. The policy contained explicit warranties that it shall not cover the stock stored in the basement. As the stock of the complainant was stored in the basement, the opposite party No. 1 declined the complainant’s claim, which was in terms of the policy conditions, therefore, the opposite party No. 1 has correctly and on justifiable grounds rejected/declined the claim of the comlpainant. The answering opposite party has followed the procedure as well as guidelines issued by the IRDA for assessing the claim of the complainant. The repudiation of the insurance claim was in accordance with the policy terms and conditions. It is submitted that the insurance a subject matter of solicitation and opposite party’s executive (opposite party No. 5) had offered the insurance product explaining fully well the terms and conditions thereof, the property thereby insured, the exclusions, the warranties. The policy alongwith the applicable terms and conditions were also sent to the complainant. Moreover this policy was renewed for a further period of one year. In addition, the complainant had also opted for a Burglary Policy and its subsequent renewal. In that case also, the policy schedule alongwith the relevant terms and conditions were duly sent to the complainant. It is specifically denied that the Chief Manager of Allahabad Bank Sh. Arun Mishra-opposite party No. 3 alongwith Sh. Ashu Bansal-opposite party No. 5 approched to the complainant with an offer to take an insurance policy from Universal Sompo General Insurance Co. Ltd., because this insurance company has a joint venture with us (Allahabad Bank) and the Allahabad Bank is also an agent and intermediary of opposite party No. 1 as alleged. It is specifically denied that the complainant was induced to purchase an insurance policy from the opposite party No. 1 by Sh. Arun Mishra, Chief Manager, Allahabad Bank and executive Sh. Ashu Bansal-opposite party No. 5 as alleged. The complainant had opted to purchase the policy from the opposite party No. 1 only after going through the terms and conditions of the policy and its coverage. There was no inducement whatsoever, the complainant was made aware about the benefits of the policy and its limitations, applicable exclusions and inclusions etc. Thereafter, being fully satisfied about the nature of the product, the complainant authorized the payment of premium and consequently the policy was issued and renewed thereafter. It is vehemently denied that the opposite party Nos. 2 & 3 took signature of the complainant on a proposal form and promised to get his cover note/insurance policy from the opposite eparty No. 1 as alleged. It is also denied that the complainant was not allowed to read the contents of the proposal form or that he was promised by the Chief Manager that no need to worry as we are here and a policy shall be issued in which all things will be covered as alleged. It is submitted that the policy bearing No. 2114/51374397/01/000 (Fire Policy) and policy No. 2913/51374398/01/000 (Burglary Policy) dated 07.05.2012 are renewal policies, i.e., the earlier policy taken by the complainant in the year 2011 was renewed by the complainant in the year 2012 again. The renewal was done by the complainant with the opposite party No. 1 as he was satisfied by the services of opposite party No. 1. It is submitted that earlier the property insured was at B-10, Transport Nagar, Dehradun, Uttarakhand. Subsequenlty after the renewal of the policy, the stocks were shifted by the complainant at different location, i.e., 14, Gangotri Vihar, GMS Road, Dehradun, Uttarakhand. The complainant vide letter dated 15.06.2012 had requested the opposite party No. 1 to change the property as endorsed in the policy. In this letter no storage at basement level was mentioned or intended to be covered. Therefore, the opposite party No. 1 acted in accordance with the direction of the complainant and changed the description of the property insured, however, the rest of the terms and conditions remained the same. It is submitted that the allegations made by the complainant that the complainant had disclosed all the facts regarding his property, godown, basement to the Chief Manager and to executive/agent of the opposite party No. 1 while signing the proposal form is incorrect. It is submitted that at the time of signing the proposal form, the location was described as B-10, Transport Nagar, Dehradun, Uttarakhand, while the accident reported was at a different location, i.e., 14, Gangotri Vihar, GMS Road, Dehradun, Uttarakhand. The complainant did not fully disclose the details of the property except the address. It is difficult to fathom the educated and prudent person like the complainant would put a signature to a vital document like proposal form without even having read it. This also runs counter the stand taken by the complainant that he had disclosed all the details of the properties while signing the proposal form. All this is merely an afterthought to pass on the risk to this opposite party which is not covered under the policy and for which no premium was paid and consequently no risk assumed by the opposite party. Nothing had stopped the complainant to take insurance from other companies after the expiry of the initial policy taken in the year 2011, but the complainant continued with the opposite party No. 1 and renewed the policy in the year 2012. It is clarified that the amount of Rs. 39,419/- was towards both the policies, i.e. the Standard Fire and Special Perils Policy and the Burglary Policy. The complainant is treating the above said payment of premium towards only one policy, i.e. the Standard Fire and Special Perils Policy, which is incorrect. Para No. 7 is also wrong and baseless, hence denied. It is denied that the complainant demanded the cover note from the opposite party No. 1 and opposite party No. 2 or the Chief Manager, Allahabad Bank, but there was no response from their side, the opposite party neither provide any cover note nor the insurance policy to the complainant as alleged or at all. It is submitted that the Standard Fire and Special Perils Policy (SFSP) bearing No. 2114/51374397/01/000 for the period from 03.05.2011 to 02.05.2012 and SFSP policy bearing No. 2114/51374397/01/000 for the period from 03.05.2012 to 02.05.2013 (subsequent renewal) alongwith the applicable terms and conditions was sent vide courier to the complainant. Moreover, vide the complainant’s letter dated 15.06.2012, the opposite party No. 1 received a request to change the risk location, which was complied with by this opposite party No. 1 vide endorsement dated 18.06.2012 w.e.f. 15.06.2012. Therefore, it is not possible that the complaiantn was not aware of the policy issued to him as only after receipt of the policy, he requested for a change in risk location. The complainant was well aware of the terms & conditions of the policy. He never asked the opposite party No. 1 for the policy and the terms & conditions in the interregnum as he had already in possession of the same as the opposite party No. 1 had sent the same to the complainant. The allegation of the complainant is denied that the major part of the stock was damaged. As per the servey conducted by the surveyors M/s Protocol Surveyors & Engineers Pvt. Ltd., an IRDA approved surveyors, the total loss which was assessed was only to the extent of Rs. 16,03,520/-. The policy schedule explicitly warranted “THAT NO STORAGE AND UTILITY OPERATIONS IN BASEMENT OR IN OPEN”, and “WARRANTED THAT PLINTH LEVEL OF RISK LOCATION IS ABOVE SURROUNDING ROAD LEVEL”. Thus, the complainant was very well aware that no storage was covered at basement and moreover there was a violation of policy warranty as the risk location was located below the surrounding road level. The policy documents with the applicable terms & conditions were duly sent to the compalainant and received by him. The opposite party No. 1 again handed over the copy of the cover note on 26.12.2012. The said warranties had been explicitly mentioned on the face of the policy and it was provided to the complainant well in time soon after the policy incepted. The answering opposite party cannot be held liable for the failure of the complainant to read something that is mentioned on the policy schedule explicitly and in bold capital letters. The said warranties were given in the first cover note issued in the year 2011 as well as cover not issued in the year 2012. So it is quite impossible that for two years the complainant was not aware of the policy or the cover note. The complainant had opted for two policies namely SFSP and Burglary Policy and the payment of Rs. 39,419/- is towards both the policies. The complainant failed to cooperate with the opposite parties and failed to segregate the affected materials from the goods ones so that the damage is minimized. The surveyors time and again requested the complainant to segregate, but the complainant remained complacent. The surveyors vide their mail dated 07.08.2012 requested for segregation of the materials. Thereafter, the complainant replied vide his mail dated 10.08.2012 that the segregation would be completed by 16.08.2012. Vide their mail dated 11.08.2012, the surveyors again requested for segregation of the stock. Thereafter, the surveyors visited the site on 14.08.2012 on the advice of the insured and observed that only 20% of the stock was segregated between the sound and affected stocks. Consequently, vide their mail dated 18.08.2012, the complainant was informed about the state of segregation and the fact that the complainant requested for a further time of 12 days. However, no segregation had taken place and the surveyors wrote another mail dated 15.09.2012 to the effect that the segregation was improper apart from requesting for other documents relevant to assess the cause and quantum of loss. Thereafter, the surveyors wrote a letter dated 19.10.2012 indicating no response from the complainant’s side and further reiterated the need to segregate the stocks. In this letter, the surveyors also expressed their dismay over inaction and made it clear that any aggravation in loss due to inaction by the complainant would not be payable apart from seeking clarifications and the documents. Lastly on 15.12.2012 the complainant requested the surveyors to visit the loss site and when they visited the site on 17.12.2012 and were shocked to see that no segregation had been made. Thus, there was extreme callousness on the part of the complainant with a view to aggravate his loss. No information was ever given by the complainant to the opposite party No. 1 regarding theft of some goods and or had provided a valuation of loss from Sales Tax Office in which the Commercial Tax Officer segregate the loss and the conclusion is a loss of Rs. 70.00 lacs and the complainant estimate is about a loss of Rs. 80.00 to 85.00 lacs as alleged. At no point of time any theft claim was intimated by the complainant. The complainant is fully aware that his claim would not be payable under SFSP as the stocks were lying in the basement and, therefore, excluded from the ambit of the policy. All the correspondence of the complainant was duly answered by the surveyors. IRDA was fully satisfied with the reply of the opposite party No. 1 and closed the grievance of the complainant. The claim was denied vide opposite party No.1’s letter dated 14.03.2013, which was returned unserved as the premises were locked. It is denied that the opposite parties were fully aware regarding the basement, godown and they inspect the premises of the complainant, they had taken a pre-approval survey of the complainant premises as alleged. It is submitted that the complainant later changed the location of the premises after renewal of the policy on 07.05.2012. No details of the new location were ever provided by the complainant to the opposite party No. 1. The opposite party No. 1 acted in utmost good faith as required under the laws of insurance and endorsed the new location on the policy. It is denied that the proposal form was blank at the time of signing. It is submitted that the proposal form was filled in front of the complainant by the agent of the opposite party No. 1 as per the instructions of the complainant. After filling the form, the same was read and thereafter signed by the complainant. It is vehemently denied that the opposite party never provided the copy of the proposal form. The survey was also conducted under the direction of the opposite party No. 1 as per IRDA guideline, however, it is denied that the opposite parties have colluded to decline the claim on the ground of the basement as alleged. Repudiation of the claim was on the basis of terms and conditions of the policy. The surveyor has assessed the claim and had concluded that the complainant had suffered a loss of Rs. 16,03,520/-. However, due to the embargo provided in the terms and conditions, the claim was repudiated. It is denied that the repudiation of the claim of the complainant is a clear case of deficiency in service on the part of the opposite party. It is admitted to the extent that the complainant sent a legal notice to the opposite party No. 1 on 27.07.2013 vide registered post regarding the claim amount alongwith acknowledgment and the same has been received by the insurance company on 01.08.2013. However, the contents in the legal notice are also wrong and baseless, and hence denied. No cause of action has arose in favour of the complainant or against the opposite party No. 1. There is no deficiency or negligence in providing the services by the opposite party No. 1 giving rise to any cause of action. The declination of claim was on the basis of the terms and condtions of the policy.
5. The opposite party Nos. 2 & 3, Allahabad Bank and its Chief Manager, have filed written statement (Paper Nos. 30 to 39) and pleaded that it is admitted that the complainant took loan from objector bank. But it is denied that the Chief Manager of the Bank told to the complainant that Universal Sompo General Insurance Company Ltd., and Allahabad Bank are a joint venture or Bank is an agent of the Insurance Company. It has been wrongly stated by the complainant that he was induced by Chief Manager of the Bank to purchase the alleged Insurance Policy and also it is wrong to say that the Chief Manager of the objector bank obtained signatures of the complainant on a proposal form or the complainant was not allowed to read the contents of the proposal form, or the Chief Manager of the Bank promised for providing coverage in respect of the insurance policy. It is wrongly stated by the complainant that the complainant demanded cover note from the objector bank. In fact insurance was made by the Insurance Compnay –opposite party No. 1and the insurance company was responsible to provide the cover note or copy thereof to the insurer. Copy of the cover note availbale to the bank was again provided to the insurer/complainant by the Bank in response to his request. Copy of the cover note was given to the complainant on the pretext that it’s copy made available to them by the Insurance Company has since been misplaced. It is wrong to say that the complainant did not know the term and conditions in respect of insurance policy. The cover note/insurance policy was provided by the insurance company to the complainant and the bank also provided the copy of the cover note in response to its demand by the complainant. It is absolutely false to allege that the objector bank and insurance company are in collusion. It is also wrong to say that the amount of Rs. 39,419/- instead of premium amount of Rs. 29,251/- was debited from the account of complainant. It is to be stated that there were two insurance policies and amount of Rs. 39,419/- was debited in total towards both the policies. The complainant made insurance claim against one policy and left the second policy for the reasons best known to him. The correct number of policy is 2114/51374397/01/000. Only the insurance company is liable to settle the insurance claim and the answering objector bank has nothing to do with it. The objector bank provided credit facilities to the complainant. To make survey and inspect the premises for determination of insurance policy, was the concern of the officials of insurance company and they alone are responsible for short comings of claim, if any. It is submitted that filling of proposal form is the concern of the complainant and that of insurance company. It is pertinent to note that the goods stock insured by the Insurance Company was hypothecated to objector Bank. The answering objector bank is entitled to make recovery of its dues from the claimant as per books of the Bank. The answering bank is not liable to pay any amount to the claimant under any circumstances. In additional pleas the bank has pleaded that the claimant seeking credit facilities (working capital) and offered that all goods stock shall be hypothecated to the answering branch of Allahabad Bank and same shall be insured with an insurance company. On 02.05.2011, the bank sanctioned the CC limit of Rs. 65,00,000/- to the borrower concern and on 24.12.2012 working capital Term Loan of Rs. 6,00,000/- was also sanctioned. The borrower M/s Jindal & Co. availed the same and utilized the loan amount and accordingly hypothecated the entire stock of the goods. The loan account become sticky and turned NPA in the month of April, 2013. The borrower Sh. Narendra Jindal approached the Insurance Company for providing the insurance coverage to the stock of hypothecated goods and he requested the Bank to pay the premium amount to the insurance company for the two insurance policies. The bank paid the sum of Rs. 29,251/- and Rs. 10,167/- in total amount of Rs. 39,418/- and debit the said amount to the account of borrower. The insurance company issued two insurance policies in the name of M/s Jindal & Co.: Standard Fire and Special Perils Policy and Burglary Policy. In the month of August, 2012 Sh. Narendra Jindal informed the Bank about the damage of stock due to flooding of rain water in the accommodation where goods of the claimant were placed. Sh. Narendra Jindal also informed the answering Bank about his information given to the insurance company. The Bank officials advised Sh. Narendra Jindal to claim the said amount from insurance company in as much as the company is liable to settle the claim appropriately and make the payment of money for the loss having been caused to him and his company.
6. The opposite party No. 6 has filed the written statement and pleaded that the complainant is not a consumer of the opposite party No. 6, as such the complaint is not legally maintainable against the answering opposite party. It is only admitted that as per the intimation received by the company that the incident in the premises of the complainant occurred on 03.08.2012 and the entire basement, where the stock was stored damaged due to rain water. The answering opposite party deputed the surveyor in this case and after several reminders the complainant has segregated the damaged and saved items and assessed the loss, but at the time of survey it was found that the premises, where the stock was kept was not insured as per the terms and conditions of the policy. It is not admitted that the complainant has provided total list of damaged stock. The fact is that he has failed to provide the exact purchased and sale list of the stock. The answering opposite party has physically verified the stock and assessed the loss according to the norms. It is not admitted that the complainant has sent several mails to the answering opposite party, whereas the fact is that the answering opposite party has sent many mails to the complainant for the assessment of the damaged stock. It is not admitted that the answering opposite party has carry out the survey against any norms. The answering opposite party is IRDA approved surveyor and the company has only deputed them to assess the losses, but the work was always done according to the terms and conditions of the policy. The insurance company and any other authorities cannot interfere in the work of the answering opposite party, because the answering opposite party is an independent authority and worked under the guidelines of the IRDA, as per the terms and conditions of the policy. The repudiation made by the company is according to the terms and conditions of the policy and there is no harrasement and torture caused by the answering opposite party to the complainant. There is no deficiency on the part of the answering oppsoite party. The answering opposite party has assessed and filed its report according to the norms and guidelines. The answering opposite party is an independent authority and after physical verification of the premises, stocks and other documents during its survey have filed its comprehensive report before the insurance company’s office and as per the terms and conditions of the policy, the claim of the complainant was not covered. The answering opposite party is made party without any basis because the complainant is not consumer of the answering opposite party and there is also no allegation proved against the answering opposite party on the basis of which the complainant can say that there is any deficiency on the part of the answering opposite party.
7. The complainant has filed replication against the written statement filed by the opposite party Nos. 1 & 5, 2 & 3 and opposite party No. 6 (Paper Nos. 172 to 189, Paper Nos. 190 to 200 and Paper Nos. 201 to 208). The complainant has denied the preliminary submissions and objections filed by the opposite parties. The complainant has stated in the replications that the opposite parties had not followed the procedure as well as the guidelines issued by the IRDA for assessing the claim of the complainant. It is denied by the complainant that the policy alongwith the applicable terms and conditions were sent to the complainant. The opposite parties neither provided any cover note nor the insurance policies to the complainant. The complainant was induced to purchase the insurance policy from the opposite party No. 1 by the Chief Manager of Bank Sh. Arun Mishra-opposite party No. 3 and executive Mr. Ashu Bansal-opposite party No. 5. They took the signature of the complainant on a blank proposal form and promised to get his cover note/insurance policy from the opposite party No. 1. The complainant was not allowed to read the contents of the proposal form. The complainant disclosed all the facts regarding his property, godown, basement to the Chief Manager of Bank and executive of opposite party No. 5. The complainant demanded the cover note from the opposite party No. 1 and opposite party No. 2 and also from the opposite party No. 3, but there was no response from their side. They neither provide any cover note nor insurance policy. Due to the above mentioned reasons the complainant could not know regarding the policy terms and conditions. The complainant has also stated in the replications about the heavy rainfall in Dehradun on 03.08.2012 and about the basement, godown and office of the complainant, where his goods were kept, was flooded with rain water up to about 5 feet and major portion of the stock of surgical goods got damaged. It is submitted by the complainant that he got insurance cover note only on 26.12.2012 and was shocked after reading the terms and conditions of the insurance policy. Neither the opposite party Nos. 2 & 3 had given any information regarding two policies, nor the opposite party Nos. 1 & 5 submitted any copy of the second policy before this Commission with the written statement. The insurance company and the bank both have the collusion against the complainant. The complainant had provided all the necessary assistance to the bank officials and surveyor of the insurance company and provided all the relevant documents regarding the valuation of the loss as possible as he can. The opposite parties have never provided copy of the proposal form to the complainant, which was filled in handwriting of a person which is different from the signature of the complainant. The complainant had never written a letter in his own handwriting, which is filed as annexure “D” by the opposite party Nos. 1 & 5. In replication against the written statement of opposite party Nos. 2 & 3, the complainant has stated that he had never requested to the bank to pay the premium amount to the insurance company for two insurance policies and the bank deducted the excess amount without the consent of the complainant. The complainant never received any policy/cover note from the insurance company or bank. In replication against the written statement filed by the opposite party No. 6 the complainant has stated that the surveyor did not work as per the terms and conditions of IRDA and the survey was conducted under the direction of the insurance company and bank officials and opposite party has a collusion to decline the claim.
8. The complainant has filed an affidavit of Sh. Narendra Jindal, which is at paper Nos. 210 to 219 alongwith the certain documents like photocopy of complainant’s bank account statement, photocopy of Standard Fire and Special Perils Policy Schedule, complaint to Police Station, letter dated 05.12.2012 sent by the complainant to the Insurance Company, list of damaged stocks, Form No. 3CB & Form No. 3CD prepared by the Chartered Accountant, Trading and Profit & Loss Account, list of damaged stocks and photocopies of letters to the Chief Manager of Allahabad Bank and certain photocopies of e-mails. (Paper Nos. 220 to 352)
9. The opposite party Nos. 1 & 5 have filed a Vakalatnama of Sh. Piyush Shankar, Manager (Legal) (Paper Nos. 363 to 372). The opposite party No. 6 has filed an affidavit of Sh. Sunil Arora, Protocol Surveyor’s and Engineer’s Pvt. Ltd. (Paper No. 373). The oppsotie party No. 2 has filed an affidavit of Sh. Shailender Kumar Singh, Chief Manager of Allahabad Bank (Paper Nos. 416 to 426).
10. The opposite party Nos. 1 & 5 have filed certain documents on 28.01.2014 which are photocopies of insurance policies, copy of proposal form, letter of the complainant to the insurance company dated 15.06.2012, endorsement schedule of fire large risk policy and change of risk location, surveyor report and certain copies of e-mails, letter of the complainant to the surveyor, letter of surveyor to the complainant, photocopy of registered post receipts and photocopy of envelope returned by the postal department. (Paper Nos. 63 to 123). The opposite party Nos. 1 & 5 have also filed certain papers on 15.04.2014 which are photocopy of courier receipt, copy of policy Standard Fire and Special Perils Policy booklet, one other copy of courier receipt alongwith Burglary Policy schedule and booklet of Burglary Insurnace Policy and certain copies of e-mails and letter of surveyor to the complainant, letter to insurance company to the complainant dated 06.06.2013 and letter dated 03.09.2013, letter of insurance company to the complainant dated 14.03.2014, photocopy of envelope and copy of registered post receipt (Paper Nos. 126 to 171).
11. The opposite party No. 2 has filed certain papers as annexures of Affidavit of Sh. S.K. Singh, Chief Manager of Bank which are certified copy of Burglary Policy schedule, copy of Standard Fire and Special Perils Policy schedule, letter of bank to the insurance company, statement of account of the complainant, notice by the bank to Sh. Saroj Bala and Neena Jindal, possession notice, letter of bank to Sh. Narendra Jindal, letter of bank to the insurance company and copies of certain e-mails. (Paper Nos. 427 to 449).
11. The opposite party No. 6-Protocol Surveyors and Engineers Pvt. Ltd. has filed survey report which is at Paper Nos. 374 to 394.
12. The complainant has also filed counter affidavit of Sh. Narendra Jindal against the evidence filed by the opposite party No. 1 & 5, which is at Paper Nos. 400 to 413. The complainant has also filed counter affidavit/rebuttal of evidence filed by the opposite party No. 2 which is at Paper Nos. 451 to 457 with certain annexures and an application under RTI Act, 2005. Letter of the bank to the insurance company, reply of notice, letter of Central Public Information Officer, Department of Posts to the complainant, photocopy of envelope and registered receipt etc. (Paper Nos. 458 to 475).
13. The opposite party Nos. 1 & 5 have filed short reply affidavit against the counter affidavit/rebuttal of evidence filed by the complainant at Paper Nos. 476 to 478 alongwith certain papers which are letter of authority (Paper No. 479) and power of attorney dated 02.04.2014 (Paper No. 480 to 486).
14. The complainant has filed written arguments at Paper Nos. 487 to 502 and the opposite party Nos. 1 & 5 have filed written submissions at Paper Nos. 503 to 515. The opposite party No. 2-Allahabad Bank has filed written arguments at Paper Nos. 517 to 524.
15. Sh. Nadeem Quereshi, learned counsel for the complainant, Sh. Suresh Gautam, learned counsel for the opposite party Nos. 1 & 5, Sh. V.K. Arora, learned counsel for the opposite party Nos. 2 & 3 appeared before the Commission.
16. We have heard learned counsel for the complainant and opposite parties and also gone through the entire record and also perused the written submissions filed by the parties.
17. Learned counsel for the complainant has submitted that the Chief Manager of the opposite party-Bank and opposite party No. 3 alongwith the opposite party No. 5 approached to the complainant with an offer to take an insurance policy from the opposite party No. 1 because the insurance company has a joint venture with the opposite party No. 2 and induced to purchase the insurance policy and accordingly they took the signature of the complainant on a blank proposal form and promised to get his insurance policy/cover note from the opposite party No. 1. Learned counsel also submitted that the complainant was not allowed to read the contents of the proposal form. The complainant had disclosed all the facts regarding his property, godown, basement to opposite party Nos. 2 & 5, while signing the proposal form. The opposite party No. 1 conducted a pre-insurance survey of complainant’s business place at B-10, Transport Nagar, Dehradun which was basement where the complainant was doing his business at the time of purchased the insurance policy. Learned counsel also submitted that the complainant had disclosed the facts that he is doing business in basement and purchased the insurance policy for covering the risk in the basement. The complainant had demanded the cover note/insurance policy from the opposite party Nos. 1 & 2, but there was no response from their side. After several demands, the opposite party provided a cover note on 26.12.2012 and after seeing the cover note the complainant was shocked reading the terms of the insurance policy. The bank had also debited an amount of Rs. 39,419/- instead of sum of Rs. 29,251/-. Therefore, the opposite party Nos. 1 & 2 are in collusion and there is deficiency in service on their part. Learned counsel argued that the opposite party No. 1 has declined the claim on 14.03.2013 with the remark that the basement was not covered and rejected without considering the facts that the business place of the complainant comes under the definition of the basement or not? In the written statement filed by the opposite party No. 1 it is stated that the copy of the insurance policy along with applicable terms and conditions were sent to the complainant, but in additional affidavit filed by the opposite party it is admitted that these receipts does not pertain to the consignment/package by way of which the policy were dispatched by the opposite party No. 1 to the complainant. The complainant was induced to purchase the policy from the opposite party No. 1. It is not possible that a person who is doing business in the basement can purchase an insurance policy in which the basement is not covered. The opposite party knew very well that this insurance policy was for covering the risk in the basement and intentionally they did not issue/provide any cover note or policy with the terms and conditions. In the proposal form, it is clearly mentioned that there is any basement “Yes”, then how the opposite party can state that they were never aware regarding the basement and they never inspected the premises or they never had taken a pre-approval survey of the complainant’s premises.
18. Per contra, the learned counsel for the opposite party Nos. 1 & 5 has submitted that the terms and conditions of the insurance contract are binding between the parties and no relief outside the insurance contract can be granted. The opposite parties have been fair in their dealing with the complainant and had in detail, explained to the complainant verbally and in writing what risks the opposite parties agreed to undertake and what they excluded to undertake. In the proposal form dated 02.05.2011 and the quotation dated 03.05.2011, it was clearly specified the risk it undertook and what were excluded from coverage. It was specifically warranted in the quotation form that “That no storage and utility operations in basement or in open” and also “Warranted that plinth level of risk location is above surrounding road level”. Learned counsel argued that after the acceptance of such conditions, the opposite parties issued two policies No. 2114/51374397/00/000 (Fire Policy) and Policy No. 2913/51374398/00/000 (Burglary Policy) in the year 2011 and the payment of Rs. 39,419/- was made towards both the policies. The conditions/warranty were specifically mentioned in capital letters in the insurance coverage and no insurance coverage was accorded to the storage in basement or in the risk location which is below surrounding road level. The above policy was sent to the complainant. Learned counsel argued that these policies were taken by the complainant in the year 2011 and were renewed by the complainant in the year 2012 again with the opposite party No. 1. The complainant was satisfied by the services of the opposite party No. 1. Learned counsel also argued that the complainant had at no material time informed the opposite party that he was not in receipt of the policy and the applicable terms and conditions and the fact that the policy was subsequently renewed goes on to show that the complainant was satisfied with the exclusions and inclusions under the policy. The property insured was at B-10, Transport Nager, Dehradun. The renewal of the policy was done on 07.05.2012 subsequently after the renewal of the policy in 2012, the stocks were shifted by the complainant at different location, i.e. 14, Gangotari Vihar, GMS Road, Dehradun. Learned counsel argued that the complainant vide its letter dated 15.06.2012 had requested the opposite party No. 1 to change the property as endorsed in the policy to 14, Gangotari Vihar, GMS Road, Dehradun. In the said letter no storage at basement level was mentioned or intended to be covered. Therefore, the opposite party No. 1 acted in accordance with the direction of the complainant and changed the description of the property insured. However, the terms and conditions remained the same. Learned counsel also argued that while signing the proposal form, the complainant had not disclosed all the facts regarding his property, godown and basement to the Chief Manager and Executive of opposite party No. 1. The change of risk location was doen on the basis of the letter dated 15.06.2012 issued by the complainant and not based on any proposal form. At the time of signing the proposal form in the year 2011, the location was described as B-10, Transport Nagar, Dehradun while the accident reported was at a different location, i.e. 14, Gangotari Vihar, GMS Road, Dehradun. The complainant did not fully disclose the details of the property except the address. Since the change of location was done subsequently to the renewal of the policy, therefore, there was no question of submission of proposal form by the complainant. Learned counsel argued that the allegations leveled by the complainant that the opposite party Nos. 2 & 3 took signature of the complainant on a proposal form and the complainant was not allowed to read the contents of the proposal form are false, baseless and a mere afterthought. The complainant was induced by the Chief Manager of Allahabad Bank and Executive of opposite party No. 5 are also false and baseless. In case, the policy was issued based on inducement, then why did the complainant choose to renew the insurance policy with the opposite party No. 1 again in the year 2012. There is no communication or document filed by the complainant regarding the non-supply of the policy. The allegation of the complainant that he had not received any policy is belied from the fact that the complainant himself requested for change in risk location. If the complainant did not have the policy, how he could have asked for the change in risk location without being aware of the terms for change in risk location. The complainant had opted to purchase the policy from the opposite party No. 1 only after going through the terms and conditions of the policy and its coverage. There was no inducement, coercion, pressure what so ever. Being fully satisfied about the nature of the product, the complainant authorized the payment of premium and consequently the policy was issued and renewed thereafter. Learned counsel also argued that it is difficult to fathom an educated and prudent person like the complainant would put a signature to a vital document like proposal form without even having read it. At the time of incident, the materials were being stored in the basement, which was in clear contradiction of the terms of the policy. The initial survey was conducted on 05.08.2012. The complainant was very well aware that no storage at basement was covered under the policy and more over there was a violation of the policy warranty as the risk location was located below surrounding road level. On the basis of the survey report and the terms and conditions of the policy, the claim of the complainant was repudiated vide letter dated 14.03.2013. The repudiation of the claim on the basis of the explicit terms of the policy cannot be called as deficiency in service.
19. Learned counsel for the opposite party No. 2-Allahabad Bank has submitted that the bank on 02.05.2011 sanctioned a CC limit of Rs. 65,00,000/- and on 24.12.2012 additional loan accommodation as working capital of Rs. 6,00,000/- was also sanctioned. In the year 2011 Sh. Narendra Jindal got two insurance policy(s) from Universal Sompo General Insurance Company Limited in respect of goods and stock by completing the formalities regarding the execution of documents including application. These insurance policies were renewed in the year 2012. Learned counsel argued that in response to the request of the complainant, the bank paid to the insurance company a sum of Rs. 39,418/- as amount for above stated two policies (Rs. 29,251/- plus Rs. 10,167/-) and the said amount was debited to the account of M/s Jindal & Company. The insurance company completed the relevant documents, undertook survey etc. and provided insurance coverage to the complainant. The bank has no role to play in completion of the documents or survey or settlement of claim. M/s Jindal & Co. failed to comply with the terms and conditions of grant of the loan and became defaulter in the repayment of Bank dues, therefore, recovery proceedings were initiated by the Bank under Section 13(2) and 13(4) of SARFEASI Act. Learned counsel also argued that the complainant did not pay premium in cash to the insurance company. The premium amount was paid by the bank to the insurance company in accordance to the request made by the complainant. The complainant Sh. Narendra Jindal is a well educated person and handling a big business of turnover to the tune of Crore(s) of Rupees. It cannot be believed that he signed the blank papers or did not read the documents of proposal. In fact Sh. Narendra Jindal discussed the proposal with the persons of insurance company and thereafter he filled the application form and executed other documents personally. The then Chief Manager of Allahabad Bank did not advice the complainant that Universal Sompo General Insurance Company Pvt. Ltd. and Allahabad Bank work under any joint venture or Bank is an agent of the said insurance company. Learned counsel has also argued that the bank had also provided a copy of cover note to the complainant on demand. There is no deficiency in service on the part of the opposite party No. 2–Allahabad Bank.
20. There is no dispute that the complainant had purchased the insurance policies from the opposite party No. 1-Universal Sompo General Insurance Co. Ltd. for which a proposal form (Paper No. 67) was prepared and filled, which was signed by the complainant Sh. Narendra Jindal. From the perusal of the proposal form, it is evident that the complainant had applied on 02.05.2011 for the insurance of his stock of surgical and pharmaceuticals items. Two types of insurance policies, one for fire coverage and other for burglary coverage for sum assured Rs. 90,50,000/- for which separate premium of Rs. 27,163/- and Rs. 13,575/- were to be paid. The complainant has never denied his signature on this proposal form, rather he has stated in the consumer complaint and in evidence that the opposite party No. 1 and opposite party No. 2, i.e. Bank Manager as well Executive of insurance company took his signature on the blank proposal form. The complainant is an educated person, who deals with big business of turnover to the tune of crores of rupees as per the submissions of the bank. Therefore, it cannot be believed that he signed the blank paper or did not read the proposal form before put signature on it. In the proposal form period of insurance is mentioned as from 03.05.2011 to 02.05.2012. The complainant had applied for the renewal of policy(s) in the month of May, 2012. Thereafter, policies were renewed from 03.05.2012 to 02.05.2013 as shown in Paper No. 64. On 15.06.2012, the complainant applied to the insurance company for the change of risk location and for the endorsement of the risk location in the policy(s). The insurance company had changed the address of risk location as 14 Gangotari Vihar, GMS Road, Dehradun w.e.f. 15.06.2012, which is evident from paper No. 67 dated 18.06.2012. Learned counsel for the complainant has submitted that the complainant had never received insurance cover note or policy from the end of insurance company, whereas the opposite parties-insurance company as well as bank have categorically stated in their written statement as well as in the affidavit of evidence and written arguments that the insurance company had supplied the copy of the insurance to the complainant and the bank had also supplied the copy of insurance policy to the complainant on his demand. The quotation for Standard Fire and Special Perils Policy and Burglary Insurance (Paper No. 65) itself reveals the special terms and conditions of the policy such as Warranted that no kutcha construction in the premises, Warranted that no storage and utility operations in basement or in open, Warranted that plinth level of risk location is above surrounding road level etc. These terms and conditions are also written on the policy(s) (Paper No. 63 and 64). Onus to prove that the complainant has never received any policy from the insurance company was on the complainant. The insurance company as well as Allahabad Bank have already stated in their written statement and affidavits that the insurance company had sent insurance policy to the complainant soon after policy was purchased by the complainant. The bank had also supplied a copy of the insurance policy(s) to the complainant on demand. It cannot be believed that an educated and a prudent man like complainant (Sh. Narendra Jindal) will never sent a letter and ask the insurance company for obtaining the insurance policy. There is no letter or correspondence that the complainant ever demanded the insurance policy(s) from the insurance company. Furthermore, the bank had also supplied a copy of insurance policy to the complainant as per his demand. Therefore, the complainant was fully aware about the terms and conditions of the insurance policy(s) purchased by him from the opposite party No. 1 in the year 2011 and these insurance policies were renewed in the month of May, 2012. In the renewed policy, there was an endorsement of the change of risk location from B-10, Transport Nagar, Dehradun to 14 Gangotari Vihar, GMS Road, Dehradun. Both the insurance policies available on the record at Paper Nos. 63 and 64 clearly indicate the terms and conditions, in which it is specifically written that “Warranted that risk location is covered premises, Warranted that no kutcha construction in the premises, Warranted that plinth level of risk location is above surrounding road level, Warranted that no storage and utility operations in basement or in open”. The survey of the risk location and the stock of the complainant was done by the opposite party No. 6 –Protocol Surveyros and Engineers Pvt. Ltd.. The report of surveyor is at Paper Nos. 70 to 93 on record, who had found that the insured premises where inundation of water took place is situated at 14-Gangotri Vihar, GMS Road, Dehradun. The insured is operating on this premises since March, 2012 and the premises was consisting of basement, ground floor and first floor. The basement was used as office and godown, whereas the ground floor and first floor are under construction. On page No. 4 of the survey report, it is mentioned that the insured stored various type of stocks pertaining to insured’s trade at basement at the time of loss. On page No. 5 of the survey report it is mentioned that it was found that the entire basement, godown and office of the firm was flooded with rain water upto about 5 ft. the major portion of the stock of Surgical Goods kept in the basement got damaged due to flooding of rain water, as per insured statement. Therefore, it is clear from the survey report also that the complainant had stored surgical goods and pharmaceuticals goods in the basement of 14-Gangotri Vihar, GMS Road, Dehradun, which is clear cut in contravention to the terms and conditions of the insurance policy(s).
21. Learned counsel for the opposite party No. 1 has cited a decision in the case of IV (2010) CPJ 38 (SC); Suraj Mal Ram Niwas Oil Mills (P) Ltd. vs. United India Insurance Co. Ltd. & Anr. In this case, the Hon’ble Apex Court has observed that the terms of a contract of insurance have to be strictly construed and no exception can be made on the ground of equity. Learned counsel also relied on a case III (2014) CPJ 182 (NC); V.K. Kariyana Store vs. Oriental Insurance Co. Ltd. & Anr. In this case the Hon’ble National Commission has observed that the terms of the policy have to be stricltly construed to determine the extent of liability of the insurer. Therefore, the endeavor of the Court should always be to interpret the words in which the contract is expressed by the parties. These citiations are fully applicable in the instant case also. The terms and conditions written on the policy(s) of contract of insurance are to be seen in strict sense. It is specifically mentioned on the policy(s) that no storage and utility operations in the basement or in open and that risk location is covered premises, no kutcha construction in the premises and warranted that plinth level of risk location is above surrounding road level. In this case, the risk location was a basement of a house, which was under construction and the plinth level of that house was not above the surrounding road level. There is no evidence on record that there was any contract between the complainant and the insurance company that the complainant is doing his business of surgical and pharmaceuticals goods in the basement of the risk location. Therefore, the complainant has not proved any deficiency on the part of the opposite parties. The consumer complaint filed by the complainant is liable to be dismissed.
22. The consumer complaint is dismissed. No order as to costs.
(MRS. VEENA SHARMA) (D.K. TYAGI) (JUSTICE B.C. KANDPAL)
