ORIENTAL INSURANCE CO. LTD. Vs. ATHENS LABS LIMITED

JUDGEMENT

(1.) This appeal has been filed by appellant against the order dated 2.8.22013 passed by State Commission in Complaint No. 07 of 2011 - M/s. Athens Labs Limited Vs. The Oriental Insurance Co. Ltd. & Anr; by which complaint was allowed.

(2.) Brief facts of the case are that complainant/respondent is engaged in manufacture of pharmaceutical products at Kala Amb. It has constructed a building for its factory, which was insured with the opposite parties/appellant for the period from 18.10.2007 to 17.10.2008 for the sum of Rs. 2,00,00,000/ - (Rs. 1,70,00,000/ - for the factory building and Rs. 30,00,000/ - for boundary wall). In the months of July and August, 2008, there were continuous heavy rains in the area, where factory building is located and because of such rains, cracks developed in the building, causing huge loss. Opposite parties were apprised of the damage telephonically, on 26.08.2008, but when there was no response, a communication was addressed on 01.09.2008 in response to which a surveyor deputed by opposite parties visited the spot on 03.09.2008. The name of that surveyor was Pankaj Goel. Thereafter, a regular Surveyor -cum -Loss Assessor was deputed on 12.01.2009. He sought some information from the complainant, vide letter dated 20.01.2009, which was made available on 17.02.2009 together with various documents, which are marked Annexures A -4 to A -9. The documents included estimate, indicating the amount of money that was required for reconstruction of the building and the money so required, as per that estimate was Rs. 3,02,78,000/ -. The said Surveyor -cum -Loss Assessor then asked for estimated loss on repair basis. Accordingly, Annexure A -11 repair -based estimate was submitted. The Surveyor -cum ­ Loss Assessor informed its functionaries that the loss had been assessed at Rs. 86,00,000/ -. When nothing was heard from the opposite parties for quite some time, the complainant addressed a couple of letters to the opposite parties, calling upon them to settle the claim and to pay the insurance money, without loss of further time. Opposite parties repudiated the claim, vide communication dated 12.01.2010. Complainant made a representation to the opposite parties, explaining that the repudiation was not justified and explanation with respect to every ground of repudiation was submitted, in writing, through letter dated 03.12.2010, (Annexure A -14). Opposite parties did not respond to the aforesaid representation. Alleging deficiency on the part of the opposite parties, complainant filed complaint before State Commission. Opposite party resisted complaint and submitted that complainant being a Company and as such engaged in commercial activity, is not a consumer. On merits, it was stated that while filling in proposal form, the complainant suppressed material fact with regard to previous insurance claim, which the complainant had lodged with another Insurance Company, who had insured the building earlier and thus it had committed breach of a condition of policy. It was further alleged that building was already damaged and cracks etc. had been filled by cosmetic repairs at the time, when pre -insurance inspection was carried out and this amounted to an act of deception, on the part of complainant and denying any deficiency on their part, prayed for dismissal of complaint. Learned State Commission after hearing both the parties allowed complaint and directed Opposite Party to pay Rs. 79,07,909/ - with 9% p.a. interest and further directed to pay Rs. 1.00 lakh as compensation and Rs. 20,000/ - as litigation expenses, against which this appeal has been filed.

(3.) Heard Learned Counsel for the parties finally at admission stage and perused record. Learned Counsel for appellant submitted that inspite of suppression of material information in proposal form and inspite of exclusion clause in the policy, Learned State Commission has committed error in allowing complaint, hence, appeal be allowed and impugned order be set aside. On the other hand, Learned Counsel for respondent submitted that order passed by Learned State Commission is in accordance with law, hence, appeal be dismissed.