NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

(CIRCUIT BENCH AT PUNE, MAHARASHTRA)

first appeal NO. 478 OF 2003

(From the order dated 07-06-2002 in Complaint No.428/1993

of the State Commission MAHARASHTRA)

 

M/s. New Ganesh Saw Mills,

Through Partner Shri Valji Bhai Nathu Bhai Patel,

R/o Lakkad Ganj, Malipura, Akola                               …. Appellant

 

Versus

 

M/s. National Insurance Company Limited,

Represented by its Branch Manager,

M.G. Road, Akola.                                                        ….Respondent

 

BEFORE :

 

          HON’BLE MR. JUSTICE M.B. SHAH, PRESIDENT

          HON’BLE MR. JUSTICE R.C. JAIN, MEMBER

 

For the Appellant          :         Mr. S.K. Sharma, Advocate

 

For the Respondent     :         Mr. Rajvinder Singh, Advocate with

                                                Mr. S. Badade, Manager

 

Dated 2nd January, 2008

 

ORDER

 

PER JUSTICE R.C. JAIN

 

          This appeal came up for hearing on 1st January, 2008 and after hearing the counsel for the parties, the Commission dismissed the appeal leaving the parties to bear their own costs.  We now record the reasons for dismissal of the appeal.

2.      The present appeal has been filed against the order dated
7th June, 2002 passed by Maharashtra State Consumer Disputes Redressal Commission, Mumbai (in short the ‘State Commission’), thereby dismissing complaint No.428/1993 filed by the appellant herein before the State Commission.  The complaint was filed claiming a sum of Rs.4,00,000/- from the respondent-Insurance Company on account of the damage sustained to his Saw Mill situated at Akola.  According to the appellant-complainant they had obtained an insurance coverage from the respondent-Insurance Company through Dena Bank, Akola branch for a sum of Rs.4,00,000/- in respect of factory and stocks in trade etc.  When the appellant-complainant lodged the claim with the insurance company, the later repudiated the same inter alia on the premises that the policy in question obtained by Dena Bank was not in vogue at the relevant time e.g. 07.12.1992 when the alleged damage took place to the factory and stocks of the appellant the policy was got cancelled by the Bank as back as on 18.05.1992.  

3.      Further the complaint was earlier disposed of and dismissed by the State Commission vide an order dated 09.11.1994.  Aggrieved by the order of dismissal of complaint, the appellant had earlier filed First Appeal No.22/1995 before the National Commission which was disposed of by the Commission vide an order dated 8th January, 2002 thereby remanding back the matter to the State Commission with the following observations : -

          “We have heard the parties.  In fact, notwithstanding the written submissions of the Insurance Company and also the written statement, all the pleas raised by the Petitioner were not taken into account in the ex-parte order passed.  The State Commission has also not considered whether the Dena Bank was a necessary party and what is the effect of it not being impleaded by the Complainant.  This matter is, therefore, remanded back to the State Commission where both the parties should appear and be heard before final order is passed.  One of the questions mentioned by the Complainant’s Counsel is that the letter which is purported to have been written by the Bank is not adjournment letter and the State Commission will look into the evidence which the Complainant may have already placed on record.  The parties are directed to appear before the State Commission on 18th March, 2002.”

 

4.      Pursuant to the above directions of the Commission, the State Commission dealt with the complaint and again dismissed the same mainly on two premises – firstly, that the insurance coverage obtained by the Dena Bank which Bank was not made a party in the complaint; and secondly the policy which was obtained by the Bank was cancelled much before the incident of 07.12.1992 in which the appellant claimed damage to his factory and stocks.  It is important to notice that the State Commission after making enquires from the counsel representing the appellant-complainant has observed that besides the policy taken by Dena Bank which was got cancelled on 18.05.1992, the appellant-complainant had directly taken another policy covering the stocks and building of its Saw Mill of the appellant and he had lodged claim against the concerned Insurance Company under the said policy taken by the appellant.

5.      We have heard learned counsel Mr. S.K. Sharma representing the appellant and Mr. Rajvinder Singh representing the respondent-Insurance Company at pretty length.  Mr. Sharma on behalf of the appellant, has made an attempt to show that the insurance coverage taken by Dena Bank was still in force at the time of incident and had not been cancelled.  In this connection he has invited our attention to some correspondence exchanged between the Bank and Insurance Company, more particularly the communication dated 16.12.1992 by which the Bank had taken up the cause of the appellant-complainant for sanctioning the claim of the appellant as they had suffered loss to the tune of Rs.12,00,000/- approximately.  On the strength of above communication Mr. Sharma contended that had the policy taken by Dena Bank on account of the appellant-complainant been cancelled in May 1992, there was no question of the Bank making the above referred communication to the Insurance Company for settling the claim of the appellant. 

6.      In our view, this letter does not advance the case of the complainant in any way because there is ample material on record which would show that the insurance coverage taken by Dena Bank on account of the appellant-complainant was infact cancelled in May 1992 itself.  This is manifest from the letter of the Bank dated 18.05.1992 duly reproduced in the order of the State Commission as well as from the certificate dated 28.05.1992 cancelling the policy as also the receipt dated 28.05.1992 for a sum of Rs.4,426/- only refunding the premium on account of the cancellation of the policy in question issued by the Bank in favour of the respondent-Insurance Company. We have, therefore, no doubt in our mind that there was no subsisting insurance coverage by the respondent-Insurance Company after 18.05.1992 or 28.05.1992 and consequently we hold that the Insurance Company was legally justified in repudiating the claim of the claimant-appellant on the ground that there was no policy in vogue at the relevant time of the incident of fire which took place on
7th December, 1992, in which the appellant suffered damage to his Mill and stocks. 

7.      Mr. Sharma, then contended that the State Commission has erred in observing that the appellant wanted to take double/ unfair advantage in as much as he had also lodged his claim with the other Insurance Company from whom it had taken a direct coverage vide another policy in the sum of Rs.3,00,000/-.  In this connection, he submitted that the second insurance coverage taken directly by the appellant from the United India Insurance Company for the period 24.07.1992 to 23.07.1992 was different than the coverage taken by Dena Bank from the respondent-Insurance Company.  He pointed out that the insurance coverage taken by the appellant was on stock of all kinds of woods pertaining to the insured’s trade only on or lying in second class construction building situated at Lakkad Ganj, Akola.  While insurance coverage taken by Dena Bank on account of complainant-appellant was for on stock of all kinds of woods and Saw Mill, Machinery and other goods pertaining to insured’s trade only.    Even this plea does no cut much ice because the coverage under both the policy is more or less the same and in any case it is now an academic question because we have held that the insurance coverage taken by the Dena Bank was no longer subsisting on the date of alleged incident in which the complainant suffered damage.  Further, the said policy was taken subsequent to cancellation of policy in May, 1992.  The letter written by the Dena Bank specifically states that the insured has taken another policy, which means, that at the relevant time some other policy was in vogue.

8.      Consequently, for the above stated reasons we see no merits in the present appeal and dismiss the same leaving the parties to bear their own costs throughout.

 

…………………J.

(M.B. SHAH)

PRESIDENT

 

 

…………………J.

(R.C. JAIN)

MEMBER

Aks