SUNIL KUMAR GARG,PRESIDENT -
(1.) THIS complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as "the Act of 1986") has been filed by the complainant against the opposite party, which are three in number, on 5.5.2006 with the prayer that the opposite party be directed to make the payment of Rs. 36,78,729.00 to the complainant.
(2.) THE case of the complainant as put forward by him in the complaint is as follows: The complainant -M/s. Rigid Global (India) is dealing in the office furniture exclusively of imported quality having its offices -cum -godown at different locations and its head office is situated at Jaipur and the business is being carried out through Mr. Subash Vasvani, who is Principal Officer as well as duly constituted attorney for handling all sort of business activities.
The opposite party No. 1 is an Insurance Company having its head office at New Delhi and also having one of the branches at Jaipur (opposite party No. 2) and also having one of the agents/brokers at Jaipur (opposite party No. 3).
The case of the complainant is that the complainant had taken insurance policy from the opposite party No. 1 Insurance Company known as 'Trade Protector Policy' for a sum of Rs. 75,00,000 for the period from 25.7.2005 to 24.7.2006 for insuring the furnitures kept at following different five locations in India:
"(i) H -181 Malviya Nagar Industrial Area, Jaipur.
(ii) 843/1 Ghitorni Mehrauli -Gurgaon Road, New Delhi.
(iii) 17, 4th Block, 80 ft. Road, Koramangala, Bangalore.
(iv) 3 Town Centre, Saki Naka, Andheri Kurla Road, Andheri East, Mumbai -59.
(v) Building No. 16, Licence Premises No. 3, Ground Floor, Shree Compound, Kooper Bhiwandi."
The further case of the complainant is that opposite party No. 3 after taking premium from the complainant had issued a cover note along with proposal form sheet dated 23.7.2005 (Annex. A/1A from pages 22 to 25 of complaint) and in pursuance of that cover note Annex. A/1A, the opposite party No. 1 Insurance Company had issued the Trade Protector Policy (Annex. A/1B from pages 26 to 32 of complaint) bearing No. 47020187 on 1.8.2005 in favour of the complainant for the period from 25.7.2005 to 24.7.2006 and for the five places as mentioned above and the sum insured was Rs. 75 lacs.
The further case of the complainant is that on 26.7.2005 there was unpredicted heavy rain in Mumbai and nearby areas, as a result of which, the godown situated at building No. 16 licence premises No. 3, ground floor, Shree Compound, Kooper Bhiwandi (location No. 5 in the policy in question) was fully drowned in flood water and the entire furnitures of the complainant stored in that godown were damaged and information about the said damages was given by the complainant to the opposite party No. 1 -Insurance Company and upon this, the opposite party No. 1 -Insurance Company had appointed Parimal R. Shah and Company, Mumbai as surveyor to assess the loss, who inspected the site so many times and the loss suffered by the complainant was shown to him. Thereafter, a claim was preferred by the complainant before the opposite party No. 1 -Insurance Company, but that claim was repudiated by the opposite party No. 1 through letter dated 30.3.2006 (Annex. A/8 at page 52 of complaint) in the following manner:
" . With reference to your captioned claim, we wish to inform you that the insurance policy which was granted to you for the period 25th July, 2005 to 24th July, 2006 as a renewal of the earlier Policy of Bajaj Allianz for the period 25th July, 2004 to 24th July, 2005 provided coverage for property stored at only 4 locations at Jaipur, Mumbai, Bangalore and New Delhi.
The alleged damages suffered by you were in respect of property located at Building No. 16, Premises No. 3, Ground Floor, Shree Arihant Compound, Vill. Kooper, Bhiwandi, which was not insured under the aforesaid policy on the date of loss. Accordingly, we regret to state that the claim is not tenable under the policy and we are closing our file as No Claim."
The further case of the complainant is that since the godown at Bhiwandi where the furnitures were damaged was insured with the opposite party No. 1 Insurance Company under the policy in question at fifth place of location of risk, therefore, the opposite party No. 1 Insurance Company was liable to indemnify the loss suffered by the complainant and repudiation of claim of the complainant through letter dated 30.3.2006 (Annex. A/8) amounted to deficiency in service on the part of the opposite party No. 1 -Insurance Company. Hence, the present complaint was filed with the prayer as stated above.
A reply was filed by the opposite party No. 1 Insurance Company on 6.1.2006 and in the reply, a preliminary objection was taken that since the complainant was involved in commercial activities and the policy in question was taken for commercial purposes, therefore, complainant was not a consumer within the meaning of Section 2(1)(d) of the Act of 1986.
On merits, it was submitted by the opposite party No. 1 that the claim of the complainant was based on fabricated documents of policy in respect to the coverage of the godown at Bhiwandi where the loss had occurred. The opposite party No. 1 had not issued any such policy to the complainant covering the risk to the goods lying at godown Bhiwandi as shown in the fabricated documents of policy.
It was further replied that the complainant in collusion and connivance with one of the employees of the opposite party No. 1 had managed to obtain an endorsement showing the additional location of godown at Bhiwandi in addition to the four locations of godown covered under the policy on a Proposal Forum of the policy with the mala fide intention and ulterior motive to project the said endorsement as a policy in order to obtain a false claim in respect of the damage to the stocks lying at Bhiwandi godown of complainant which was not covered under the policy issued by the opposite party No. 1 in favour of the complainant.
It was further replied that in fact the policy known as "Trade Protector Policy" was covering the risk at four places at Jaipur, Mumbai, Bangalore and Delhi and not at Bhiwandi. It was further replied that the earlier policy, which was for the period from 25.7.2004 to 24.7.2005, had covered the risk of four locations at Jaipur, Mumbai, Bangalore and Delhi and the present policy was renewed and it was also renewed for the same four locations as mentioned in earlier policy, namely, Jaipur, Mumbai, Bangalore and Delhi. Thus, since the goods lying at Bhiwandi godown were not covered and insured under the policy in question, therefore, claim of the complainant was rightly repudiated by the opposite party No. 1 through letter dated 30.3.2006 (Annex. A/8) and the present complaint deserves to be dismissed.
A separate reply was also filed by the opposite party No. 3 and in that reply, it was submitted that the opposite party No. 3 has acted as mere agent of the opposite party No. 1 Insurance Company and since the policy in question covering the risk of five locations was issued by the opposite party No. 1 Insurance Company, therefore, only the opposite party No. 1 was liable to reimburse and repay the loss caused to the complainant. Hence, it was prayed that the complaint against the opposite party No. 3 be dismissed.
(3.) WE have heard the learned Counsel appearing for the complainant and the learned Counsel appearing for the opposite party and gone through the entire materials available on record.
So far as the preliminary objection raised by the opposite party No. 1 that the complainant is not a consumer within the meaning of Section 2(1)(d) of the Act of 1986 is concerned, the same is wholly untenable as when the policy in question was taken, that may be for commercial purposes, but risk is covered as per policy and therefore, for all purposes complainant is consumer and the present complaint is maintainable. Hence, preliminary objection stands rejected.;