ORIENTAL INSURANCE CO LTD Vs. BASHIR AHMED MIR
JAMMU AND KASHMIR STATE CONSUMER DISPUTES REDRESSAL COMMISSION
ORIENTAL INSURANCE CO LTD
Bashir Ahmed Mir
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(1.) THROUGH the medium of this appeal order dated 30.11.2004 passed by the learned Divisional Forum, Srinagar (hereinafter to be referred to as the Forum) has been challenged mainly on the ground that the learned Forum has committed legal error in allowing the claim on the basis that the exclusion clause which existed in the contract of insurance was never communicated to the respondent insured. There is no dispute regarding quantum but the rate of interest has been stated to be on the higher side and it is also pleaded that the cost of the litigation in the sum of Rs. 5,000 was not to be awarded on the facts and in the circumstances of the case as there was no deficiency in service.
(2.) HEARD the arguments.
(3.) MR . Kawoosa in support of first ground of the appeal has contended that the exclusion clause was part and parcel of the contract of insurance and it was a condition in the terms and conditions of the policy. In order to buttress his contention, he has cited the case of General Assurance Society Ltd. v. Chandmull Jain and Another, 1966 AIR(SC) 1644 According to him in this case it has been held that "even if the insurance policy has not been delivered to the insured at the time of taking the insurance, even then the insured is bound by the standard terms and conditions of the policy". It is a commercial transaction and the parties are bound by the terms and conditions of the policy.
In rebuttal, it has been contended by Mr. Sami Yaqoob that the law cited by the learned Counsel of the appellant has no application to the facts and the circumstances of the case, but the dictum of the ruling given by the Hon'ble Supreme Court in the case of Modern Insulators Ltd. v. Oriental Insurance Co. Ltd., 2000 1 CPJ 1, has no bearing. The second contention raised by him is that the loss caused to the insured property was not a direct result of the cross border shelling by foreign enemies but had resulted because the shell had hit the nearby electric receiving station of the village which caused the short circuit in the supply of electricity and the loss was caused because of fire which had caused by the short circuit. This fact is established on the basis of annexure 'B' which is a report of the concerned police station. The complainant had corroborated the contents of this police finding in his evidence on oath and no evidence in rebuttal has been led by the appellant.;
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