{"id":142583,"date":"2005-12-20T00:00:00","date_gmt":"2005-12-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-oriental-insurance-co-ltd-vs-sham-lal-matoo-on-20-december-2005"},"modified":"2018-10-31T00:29:17","modified_gmt":"2018-10-30T18:59:17","slug":"ms-oriental-insurance-co-ltd-vs-sham-lal-matoo-on-20-december-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-oriental-insurance-co-ltd-vs-sham-lal-matoo-on-20-december-2005","title":{"rendered":"M\/S Oriental Insurance Co. Ltd vs Sham Lal Matoo on 20 December, 2005"},"content":{"rendered":"<div class=\"docsource_main\">Jammu High Court<\/div>\n<div class=\"doc_title\">M\/S Oriental Insurance Co. Ltd vs Sham Lal Matoo on 20 December, 2005<\/div>\n<pre>       \n\n  \n\n  \n\n \n\n \n \n  IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            \n CIMA no. 85-A of 2001 \n M\/S Oriental Insurance Co. Ltd.\nPetitioner\n Sham Lal Matoo  \nRespondent  \n\n! Mrs. Zainab Shamas Watali, Advocate for Petitioner.\n^ Mr. P. N. Raina, Advocate for  Respondent.\n\n Coram :\nHon'ble Mr. Justice B. A. Khan, Chief Justice (A)\nHon'ble Mr. Justice Nirmal Singh\n\n Dated : 20\/12\/2005\n\n: JUDGMENT :  \n<\/pre>\n<p>Khan CJ(A)):\n<\/p>\n<p>This appeal is directed against the judgment \/ order of the State Consumer Protection<br \/>\nCommission (for brief &#8220;the Commission&#8221;) allowing the respondent&#8217;s complaint and directing the<br \/>\nappellant to pay him Rs.2, 87, 775 with 12 % interest.\n<\/p>\n<p>The respondent had lodged a complaint with the Commission claiming that he owned a<br \/>\nresidential house in Degam Nagbal, Tehsil Shopian which he had insured with the Appellant<br \/>\nCompany on 25th March, 1997 under an insurance policy which was valid till 24th May, 1998.<br \/>\nHe was a migrant and while he was in Jammu he learnt about this house having been destroyed in<br \/>\nfire. So he, accordingly, lodged a claim before the Appellant Company which was not settled for<br \/>\none reason or the other and also on the objection that the house in question was jointly owned by<br \/>\nhim and his brother, Omkar Nath. His further case in the complaint was that his brother had died<br \/>\non 16th March, 1993 and he had taken his daughter in adoption. Moreover, he had taken the<br \/>\ninsurance policy much after in 1997and that there was no claim from any legal heir of his brother<br \/>\nas he had not left behind one.\n<\/p>\n<p>This complaint was resisted by the Appellant Company on several grounds and, primarily, on the<br \/>\nplea that the respondent had failed to disclose the material fact of half of the house being owned<br \/>\nby his brother, Omkar Nath, while taking the insurance policy. Therefore, it was to be deemed<br \/>\nthat he had insured only half of the building and not the full and that he would be entitled only to<br \/>\nhalf of the loss assessed.\n<\/p>\n<p>The other objections taken by the Appellant Company are not material for our purpose and no<br \/>\nreference is required to be made to these.\n<\/p>\n<p>The Commission, on this, took the view that the respondent had insurable interest in the property<br \/>\nand that his claim could not be denied on the basis that he had not full ownership of the house.<br \/>\nSince the Appellant Company accepted the premium of insurance cover of the whole property, it<br \/>\ncould not dispute that the respondent was not the sole owner.\n<\/p>\n<p>It was on this premise that the Commission allowed the respondent&#8217;s claim and directed the<br \/>\nAppellant Company to pay him Rs.2, 87, 775 with 12 % interest.\n<\/p>\n<p>The Commission held as under:\n<\/p>\n<p>&#8220;We have given deep thought to these arguments and have examined<br \/>\nsection 2 of the Insurance Act. Section 2 lays stress only on insurable interest.<br \/>\nAccording to this section it is not necessary that the insured should be wholly and<br \/>\nsolely owner of the house. It is not restricted to the ownership of the whole house<br \/>\nbut it is restricted, according to section 2, only to insurable interest. Insured must<br \/>\nhave some interest for the preservation of the property which he is going to insure<br \/>\nwith the Company. In the present case admittedly the claimant is the owner of the<br \/>\nhalf of the property. So it can definitely be said that he has got insurable interest in<br \/>\nthe property. The claim cannot be denied on the basis that the claimant is not the<br \/>\nfull owner of the house. It is exercise in futility on behalf of Insurance Company to<br \/>\nopen the Pandora box at the time of accepting the claim whether insured was sole<br \/>\nowner of the property or not. They have accepted the premium of insurance cover<br \/>\nof the whole property. They cannot, later on, dispute that the claimant is not the<br \/>\nsole owner&#8221;.\n<\/p>\n<p>The appellant is questioning this judgment \/ order passed by the Commission. Its counsel, Mrs.<br \/>\nZainab Watali, submits that a contract of insurance was a contract of faith and since the<br \/>\nrespondent had failed to furnish the requisite information and had failed to disclose the material<br \/>\nparticulars about the ownership of the house, which he was sharing with his brother, the insurance<br \/>\ncontract became voidable and so was the insurance policy vitiated. She referred to some<br \/>\nprovisions of the Contract Act to suggest that such a contract, which was tainted by<br \/>\nmisrepresentation, mis-description and non-disclosure becomes voidable which would have the<br \/>\nconsequence of  discharging the Appellant Company of  its hasility.\n<\/p>\n<p>In contra, Mr. P. N. Raina, representing the respondent, contended that Insurance cover obtained<br \/>\nby the respondent was for the property i.e. the house and that ownership of the house had nothing<br \/>\nto do with that. The Company had only mixed up the issue of insurable interest with ownership of<br \/>\nthe house when it could not compel the insured- respondent to furnish the proof of ownership of<br \/>\nthe house. All that was needed to settle the claim was whether respondent had taken the insurance<br \/>\ncover and whether he had an insurable interest in the house in question.\n<\/p>\n<p>A contract of insurance is undoubtly a contract of utmost good faith on the part of the insured. It<br \/>\nsurely enjoins upon the insured to make full disclosure of all material facts which would have a<br \/>\nbearing on the insurer&#8217;s mind to go for the contract or otherwise. It is also undisputed that in<br \/>\ninsurance contracts the principle of caveat emptor has no place and that non-disclosure of a<br \/>\nmaterial fact is regarded as vital to the validity of the transaction.\n<\/p>\n<p>Having said all this, in the present case, we are not seized of breach of any policy condition taken<br \/>\nby the respondent or any misrepresentation or suppression of material fact made by him. Because<br \/>\nit does not appear to us that it was obligatory for the respondent to disclose the ownership<br \/>\nparticulars of the house in question while taking the insurance its failure to do so could not  vitiate<br \/>\nthe insurance contract and absolve the Appellant Company of satisfying his claim. Because<br \/>\nadmitedly his brother, Omkar Nath, who is said to have owned the other part of the house had<br \/>\ndied on 16th March, 1993 without leaving  behind any legal heir when the respondent had taken<br \/>\nthe insurance policy about four years later  on 25th March, 1997.  He had, therefore, no obligation<br \/>\nto disclose the ownership particulars  at the time he took the policy, nor could his failure to do so<br \/>\ndefeat his claim arising out of the insurance cover.\n<\/p>\n<p>A contract of fire insurance as in the present case requires an insurable interest in the subject<br \/>\nmatter and the test of determination of that interest is whether the loss of property would cause a<br \/>\npecuniary loss to the insured and whether he would have attained any pecuniary benefit or<br \/>\nadvantage from preservation of the insured property. If the insured would suffer the loss or derive<br \/>\nthe benefit he would be having an insurable interest in the subject matter of the insurance contract<br \/>\nwhich was good enough to entitle him to the assessed loss. What was the extent of his interest and<br \/>\nwhether he was with full or part of the property was irrelevant for purposes of settling his claim.<br \/>\nBecause the Insurance of the subject matter and its ownership may not necessarily go together.<br \/>\nThey may be insurance to cover the interest of others and the person insuring the interest may not<br \/>\nbe the owner of the property. This finds support from the Supreme Court judgment in New India<br \/>\nAssurance Co. Ltd v G. N. Sainani, (1997) 6 SCC 383 holding:\n<\/p>\n<p>&#8221; To put it in other words, insurable interest in property would be such<br \/>\ninterest as shall make the loss of the property to cause pecuniary damage to the<br \/>\nassured. To come under the scope of the word &#8216;consumer&#8217; as defined in the Act it<br \/>\nshould be possible for the assured to assign his insurable interest in the goods<br \/>\nsubject matter of the policy for the assignee as a consumer to enjoy the benefit of<br \/>\nthe policy with reference to the goods which are insured. What has been assigned in<br \/>\nthe present case is the amount of loss suffered by the assured on account of<br \/>\nshortlanding of the goods, meaning thereby that right to recover the loss is assigned<br \/>\nto the assignee and not that any service is to be rendered under the policy by the<br \/>\ninsurer with reference to the goods. We are looking at the whole thing from the<br \/>\npoint of the consumer under the Act. Unless the assignee has some insurable<br \/>\ninterest in the property subject matter of the insurance up till the time the policy<br \/>\nterminates, he cannot be beneficiary of any service required to be rendered by the<br \/>\ninsurer under the policy&#8221;.\n<\/p>\n<p>It may also be  advantageous to clarify any cobwebs in this regard by quoting the following<br \/>\npassage from Banerjee&#8217;s Law of Insurance:\n<\/p>\n<p>&#8220;Insurable interest is not synonymous with legal interest. Thus an interest<br \/>\non an agreement to purchase is an insurable interest. A warehouse man who has<br \/>\nassumed the obligation to insure the goods while in his possession has an insurable<br \/>\ninterest. Even the interest of a bailee is sufficient to establish an interest and an<br \/>\nunpaid vendor of goods as an insurable interest in the property. Similarly, a<br \/>\nhusband has an insurable interest in his wife&#8217;s property and a wife in turn has an<br \/>\ninsurable interest in the property of her husband. So also a landlord may insure his<br \/>\nrent which he may lose through the destruction of his premises, a tenant of premises<br \/>\nhas an insurable interest founded upon the beneficial enjoyment of the premises,<br \/>\nwhich he loses in the event of their destruction, so also a tenant renting a furnished<br \/>\nhouse has an insurable interest in the furniture. Likewise a creditor whose debt is<br \/>\nsecured by legal or equitable mortgage upon any specific property has an insurable<br \/>\ninterest in that property. So also a mortgagor has an insurable interest in the<br \/>\nproperty mortgaged. A bankrupt remaining in possession of his estate has an<br \/>\ninsurable interest in it. A man may also insure the profits which he expects from<br \/>\nsome undertaking or adventure or from the carrying on a business&#8221;.\n<\/p>\n<p>All this leaves no scope for doubt that the ownership issue racked up by the Appellant Company<br \/>\nwas not relevant for purposes of settling the respondent&#8217;s claim. Moreso, when there was no rival<br \/>\nclaimant to the insurance amount payable and when the respondent&#8217;s brother had not left behind<br \/>\nany legal heir. The Appellant Company also on no logic could withhold or retain the other half  of<br \/>\nthe insurance amount which according to it would have gone to the deceased brother of the<br \/>\nrespondent. This, in our view, appears to be illogical on the face of it, because the Company was<br \/>\nunder an obligation to pay to the insured who was holding the policy and who had the insurable<br \/>\ninterest in the property. It can&#8217;t be denied that  he was interested in the presentation of the insured<br \/>\nhouse and would suffer a loss for  any damage caused  to the house. He had the requisite<br \/>\ninsurable interest.  It was, therefore, duty bound to pay the assessed loss to the holder of the<br \/>\npolicy and could not retain or withhold any amount on the plea that the property was in the joint<br \/>\nownership of the respondent and his deceased brother. This, in our view, was the ipse dixit of the<br \/>\nAppellant Company which had only resulted in avoidable litigation, forcing the respondent to<br \/>\napproach the Commission and this Court.\n<\/p>\n<p>Learned counsel for Appellant made a last minute prayer for reduction of the rate of interest<br \/>\nawarded by the Commission. We find it difficult to do so, more particularly because the<br \/>\nAppellant Company had dragged the Consumer \/ respondent to litigation for all these years and<br \/>\non an irrelevant issue.\n<\/p>\n<p>On this parity of reasoning, we find ourselves in accord with the view taken by the Commission<br \/>\nand affirm its order dated 28th March, 2001.\n<\/p>\n<p>Appeal is, accordingly, dismissed.\n<\/p>\n<p><span class=\"hidden_text\">4<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"<p>Jammu High Court M\/S Oriental Insurance Co. Ltd vs Sham Lal Matoo on 20 December, 2005 IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. CIMA no. 85-A of 2001 M\/S Oriental Insurance Co. Ltd. Petitioner Sham Lal Matoo Respondent ! Mrs. Zainab Shamas Watali, Advocate for Petitioner. ^ Mr. P. N. Raina, Advocate [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,17],"tags":[],"class_list":["post-142583","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jammu-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>M\/S Oriental Insurance Co. 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