Award will not be revoked if no document is produced before the Court substantiating the contention which would have necessitated the interference from the Court : Srinagar High Court

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR MA No. 09 2018No. 02 2019] Dated: 6th of August 2021. Bajaj Allianz General Insurance Company Limited Through: Mr N. A. Dendroo Advocate. ….. Petitioner(s) G. M. Motors & Anr. ….. Respondent(s) Through: Mr Wajid Haseeb Advocate for R 1 and Mr A. Hanan Advocate vice Mr Z. A. Shah Senior Advocate for R 2. Per Magrey Jand in the complaint filed by the Respondent No.1. The brief facts leading to the filing of the appeal in hand as come to fore from the perusal of the award impugned are that the complainant Respondent No.1 herein was running an Automobile Service MA No. 09 2019No. 02 2019] Center at Beerwah Budgam and that the stocks in trade were insured with the appellant Insurance Company on 17th of November 2017 with the validity thereof being from 17th of June 2011 to 16th of June 2012 for insured sum of Rs.5.00 lacs. On the intervening night of 4th 5th of March 2012 when the policy was in force there was a heavy and incessant rainfall which caused inundation to the walls of the building housing the workshop of the complainant Respondent No.1 as a result thereof the rare wall and one side wall of the building collapsed and fell down on the stocks in trade. Thereafter intimation was accordingly given to the Police Station Beerwah as also to the appellant Insurance Company who deputed their Surveyor. As per the complainant Respondent No.1 herein he suffered loss to the tune of Rs.3.00 lac to the stocks in trade and Rs.2.96 lac to the building which was not insured. On rejection of the claim on part of the appellant Insurance Company the complainant Respondent No.1 filed complaint before the Commission wherein the Insurance Company repudiated the claim of the complainant Respondent No.1 on the ground that there was no loss caused to the stocks in trade. The Commission in terms of award dated 7th of December 2018 allowed the complaint and awarded compensation of Rs.2.00 lacs in favour of the complainant Respondent No.1 besides holding the complainant Respondent No.1 entitled to litigation costs of Rs.10 000 as well. This award is assailed by the appellant Insurance Company inter alia on the following grounds: A. That at the very outset the appellant denies its liability to indemnify a concern namely G.M. Motors as the said concern does not stand MA No. 09 2019No. 02 2019] insured with the appellant. Hence the award impugned has been passed in favour of a concern which is not at all insured with the appellant B. That the loss is reportedly suffered by the respondent No.1 due to subsidence of the land caused due to heavy rains on the intervening night of 4th 5th March 2012. The said loss is not covered under the policy of insurance bearing No. OG 12 1205 4001 00005845 a Standard Fire and Special Peril Policy. The said policy specifically excludes the loss caused to the insured items due to incessant rains. The Hon’ble Commission has altogether ignored the relevance of terms of contract of insurance which has no nexus with the relief that has been granted in the impugned award C. That the subject policy insures only the stocks and no building is covered therein. Thus the appellant was not liable for any loss of & or damages to the un insured building. The policy of insurance specifically mentions the sum insured for Rs. 5.00 lacs only for stocks. The plinth foundation superstructure P&M and furniture fixtures of building etc. have been specifically excluded from the coverage of policy of insurances D. That after processing the clam of respondent No. 1 the appellant found the claim not payable and the respondent was accordingly informed vide letter dated 24.05.2012 that the claim lodged by him for the loss caused to his building has been closed as no claim on the ground that the building was not covered under the policy of insurance. The policy of insurance was covering the stocks lying in the workshop. It was further made clear in the letter of no claim that the loss to the stocks claimed due to incessant rain was not covered under the policy of insurances to Rs.1 93 156. However E. That the appellant submits that the appellant had deputed a surveyor namely Abdul Irfan to conduct the survey and assessment of loss. The said surveyor did not found any loss caused to the stocks. The said surveyor also prepared an inventory of sound stock found in the workshop amounting for purpose of assessment the said surveyor has quantified the loss caused to the structure at Rs. 44 883 012. Since the structure of workshop was not covered under the policy of insurance as such the loss was not found payable to the respondent No.1 and accordingly turned down by the appellant. The report of the surveyor also demonstrate that the estimate of loss that has been made by the insured couldn’t’ withstand with actuality and that the insured had kept some old items above the debris in damaged condition as well as some new parts and some empty lubricant bottles. Thus the insured has been trying to get undue advantage from the insurers. Also in the picture it is quite evident that lubricant cans that could have been opened manually and cardboard boxes over the debris could not have been able to withstand the fury of the rains. These intricate details portray how the respondent No.1 had tried to manipulate the loss to the stocks F. That the appellant submits that the claim of the respondent was closed as no claim by the appellants on the ground that the policy does not MA No. 09 2019No. 02 2019] insure the claimant’s assets except for the stocks in accordance to the terms and conditions of insurance policy G. That the Hon’ble Commission has landed into error by not scanning the terms and conditions of policy of insurance in proper perspective. Had the policy terms and contusion been scanned in proper way the actual terms of contract would have come to surface which exonerate the appellant from any liability arisen in respect of the loss caused to the workshop H. That the law is settled on the point that the courts cannot make new contract for parties. The contract of insurance has to be read in the same way in which it has been written made leaving no scope for the courts to add something to it. The Hon’ble commission has not appreciated the terms and conditions of the insurance policy coverage granted under the policy of insurances and has erroneously held the appellant liable for compensation and litigation costs I. That the appellant 1ad not rendered its services under the policy of insurance in a deficient manner. The decision of appellant in closing the claim of respondent as no claim on genuine grounds would not amount to deficiency of service on the part of the appellant. The Hon’b1e Commission has committed an error in allowing the complaint. The impugned award as such is bad in law and J. That the complaint filed by the respondent No.1 was liable to be dismissed. Contrary to this the same has been allowed erroneously. We have heard learned counsel for the parties perused the pleadings on record and considered the matter. The main and primary contention raised in this appeal seeking setting aside of the impugned award passed by the Commission has reference to the fact that the loss suffered by the complainant Respondent No.1 was due to subsiding of the land caused due to heavy and incessant rainfall which as per the appellant Insurance Company is not covered under the insurance policy governing the relationship of the parties. The contention so raised we are afraid has no substance as perusal of the condition of the insurance policy placed on record by the appellant Insurance Company makes it abundantly clear that the insurance is extended to cover the loss or MA No. 09 2019No. 02 2019] damageto any of the property insured by the policy occasioned by or through or in consequence of earthquake including flood or overflow of the sea lakes reservoirs and rivers and or landslides rockslides resulting thereto. The relevant extract of the policy is extracted hereinbelow verbatim: “Extension cover shall be granted only if the entire property in one Complex Compound location covered under the policy is extended to cover this risk and sum insured for this extension is identical to the sum insured against the risk covered under main policy expect for the value of the plinth and foundation of the building(s). If option to delete STFI peril is not exercised “in consideration of the payment by the Insured Company of the sum of __________ additional premium it is hereby agreed and declared that notwithstanding anything stated in the printed exclusions of this policy to the contrary this insurance is extended to cover loss or damageto any of the property Insured by this policy occasioned by or through or in consequence of earthquake including flood or overflow of the sea lakes reservoirs and rivers and or Landslide Rockslide resulting therefrom.” In view of the aforesaid clear mandate of the policy governing the relationship between the parties there thus is no substance in the aforesaid contention raised on behalf of the appellant Insurance Company that the complainant Respondent No.1 has no claim on the ground that the loss suffered was not covered by the insurance cover. Apart from the above the aforesaid contention though raised was not at all established before the Commission with the support of evidence constraining the Commission to allow the complaint. The appellant Insurance Company has also not produced any document before this Court substantiating this contention which would have necessitated interference from this Court with the impugned award. MA No. 09 2019No. 02 2019] In the above background we do not find any merit in this appeal which is accordingly dismissed. Interim directions if any subsisting as on date shall stand vacated. Pending applications if any shall also stand disposed of accordingly. August 6th 2021 Judge Judge Whether the Judgment is reportable Yes No. Yes No. Whether the Judgment is speaking TAHIR MANZOOR BHAT2021.08.06 15:32I attest to the accuracy andintegrity of this document 

Summary: Insurance coverage guarantee is an essential part of an insurance policy. One relies on the guarantee of the insurance company and the company should not try to evade it. This was held in the judgment passed by a two-bench judge comprising Hon’ble Mr Justice Ali Mohammad Magrey, Judge Hon’ble Mr Justice Sanjay Dhar, Judge, in the matter Bajaj Allianz General Insurance Company Limited V. G. M. Motors &amp; Anr. (FAO (D) No. 02/2019), dealt with an issue where the petitioner filed for an against the award dated 7th of December, 2018 passed by the Jammu and Kashmir State Consumer Disputes Redressal Commission, Srinagar in the complaint filed by the Respondent. Respondent was running an Automobile Service Center at Beerwah, Budgam and that the stocks in trade were insured with the appellant Insurance Company on 17th of November, 2017 with the validity thereof being from 17th of June, 2011 to 16th of June, 2012 for insured sum of Rs.5.00 lacs. On the intervening night of 4th/ 5th of March, 2012, when the policy was in force, there was a heavy and incessant rainfall which caused inundation to the walls of the building housing the workshop of the complainant/ Respondent No.1, as a result thereof, the rare wall and one side wall of the building collapsed and fell down on the stocks in trade. Thereafter, intimation was, accordingly, given to the Police Station, Beerwah as also to the appellant Insurance Company who deputed their Surveyor. As per the complainant/ Respondent No.1 herein, he suffered loss to the tune of Rs.3.00 lac to the stocks in trade and Rs.2.96 lac to the building which was not insured. The Commission, in terms of award dated 7th of December, 2018, allowed the complaint and awarded compensation of Rs.2.00 lacs in favour of the complainant/ Respondent No.1, besides holding the complainant/ Respondent No.1 entitled to litigation costs of Rs.10,000/- as well. After hearing both the parties, the Hon’ble Srinagar High Court dismissed the petition and held that The main and primary contention raised in this appeal seeking setting aside of the impugned award passed by the Commission has reference to the fact that the loss suffered by the complainant/ Respondent was due to subsiding of the land caused due to heavy and incessant rainfall which, as per the appellant Insurance Company, is not covered under the insurance policy governing the relationship of the parties. The contention so raised, we are afraid, has no substance as perusal of the condition of the insurance policy placed on record by the appellant Insurance Company makes it abundantly clear that the insurance is extended to cover the loss or damage (including loss or damage by fire) to any of the property insured by the policy occasioned by or through or in consequence of earthquake including flood or overflow of the sea, lakes, reservoirs and rivers and/ or landslides/ rockslides. Click here to view judgement