BEFORE THE HON’BLE NATIONAL CONSUMER DISPUTES REDRESSAL

COMMISSION, NEW DELHI

FA NO. 1581 OF 2019

IN RE:
UNITED INDIA INSURANCE CO. LTD … APPELLANT

VERSUS

BHARTIBEN SUDHIRBHAI JOSHI & ANR. … RESPONDENTS

N.D.O.H.

INDEX

S.NO. PARTICULARS PAGES

1. WRITTEN ARGUMENTS/BRIEF SYNOPSIS ON
BEHALF OF THE PETITIONER (UNITED INDIA
INSURANCE CO. LTD) 01----06
NEW DELHI APPELLANT

THROUGH

DATED:- .2021 (PRADEEP GAUR & ASSOCIATES)

ADVOCATES & LEGAL CONSULTANTS,
CHAMBER NO. 322,
PATIALA HOUSE COURTS
NEW DELHI-110001
MOB: 9810081811, 9350890202

BEFORE THE HON’BLE NATIONAL CONSUMER DISPUTES REDRESSAL

COMMISSION, NEW DELHI

FA NO. 1581 OF 2019

IN RE:
UNITED INDIA INSURANCE CO. LTD … APPELLANT

VERSUS

BHARTIBEN SUDHIRBHAI JOSHI & ANR. … RESPONDENTS

WRITTEN ARGUMENTS/BRIEF SYNOPSIS ON BEHALF OF THE

PETITIONER (UNITED INDIA INSURANCE CO. LTD)

1) That the respondent no. 1 complainant and respondent no. 2 obtained a Hull

and Machinery Policy from the appellant for MSV Zulelal for the period

29.11.2011 to 28.11.2012 for a total value of Rs. 98,01,759/- and a copy of

the policy is filed. On 18.02.2012 the said vessel was burnt in a fire incident

at Dubai Port and on receipt of the intimation the appellant company

appointed surveyor and sought documents from the insured from time to

time. While the claim was under process, a legal notice was received by the

appellant insurance company on behalf of respondent no. 2 from Mr. Mayur

S. Dholakiya dated 09.05.2013 wherein the appellant was instructed not to

release the claim amount until further instruction. In view of the notice

received from one of the insured i.e. respondent no. 2, the matter was taken

up with both the insured and clarification was sought. It was further stated

that the said notice be withdrawn so as to enable the appellant to process the

claim further. It may be submitted here that the claim was already under

process and the appellant company was agreeable to settle the claim on CTL

for Rs. 93,51,823/- after deducting the salvage value of Rs. 4,49,927/- i.e.

( Rs. 98,01,750 (s.i) (-) Rs. 4,49,927/-).

2) That the complainant vide letter dated 15.09.2014 stated that she has

completed all the formalities and the company can legally pay the entire

amount to her. It was further stated that as an abundant precaution the

appellant may pay 50% to her and 50% to the partner, respondent no. 2 as
 both the partners have 50% share in the partnership firm. The appellant vide

letter dated 20.01.2015 informed the complainant that they have sought

clarification from her partner, respondent no. 2 vide letter dated 09.12.2014

and after receipt of the clarifications the claim would be further processed.

The appellant vide letter dated 21.04.2015 again requested the complainant

to settle the dispute with the partner who is one of the insured under the

policy and submit unconditional consent letter for settlement of the claim to

enable the appellant company to process the claim. This was followed by

reminder dated 16.06.2015. The respondent complainant rather than

complying with the letter of the appellant dated 21.04.2015 once again made

the same request of releasing the 50 % of the payment to her and 50% to

respondent no. 2, her partner.

3) That the appellant insurance company vide letter dated 14.07.2015 once

again reiterated that unless both the partners do not settle the dispute and

submit unconditional consent for the settlement, the claim cannot be

processed further. The respondent complainant was once again requested to

settle the dispute. The complainant rather than complying with the above

said letter got served a legal notice dated 27.07.2015 through Mr. Versal M.

Pancholi. Before the appellant could respond to the legal notice

aforementioned, the respondent/complainant filed a complaint before the

State Commission.

4) That the Ld. State Commission vide its order dated 12.06.2019 allowed the
complaint of the respondent no.1 and 2/complainant and directed the
opposite party i.e. appellant insurance company herein to pay 50% of the
amount Rs 93,51,823/-, the amount assessed by the surveyor to the
respondent complainant alongwith interest @ 9% p.a. from the date of filing
of the complaint and further directed the appellant to pay 50% of the amount
Rs. 93,51,823/-, the amount assessed by the surveyor to the respondent no. 2
alongwith interest@ 9% from the date of filing of the complaint.
5) That therefore, the present first appeal was filed to set aside the order dt.

12/06/2019 passed by the State Commission Gujarat State, Ahmedabad.

6) That the Ld. State Commission erred in not taking into consideration the

reply filed by the appellant insurance company stating therein that the

respondent no. 2 her partner were time and again requested to settle their

inter se dispute and send the joint discharge to the appellant so as to process

the claim further. It was also submitted that since the policy was in their

joint names, discharge only from respondent complainant would not be

sufficient. It was further submitted that appellant company from inception is

ready to settle claim in question and advised both insured to settle down

dispute amongst each other but it seems that none of insured is ready to

settle down dispute between them which ultimately led to closing of file.

The State Commission was requested to pass appropriate order whereby

appellant company be discharged from its liability under policy in question

towards claim in question and appellant company is ready & willing to abide

by any such condition which may be imposed.

7) That the Ld. State Commission erred in not taking into consideration that

there was no any deficiency of service on the part of the appellant insurance

company the State Commission could not have awarded in interest on the

principal amount. It is submitted that as per Section 14 of the Consumer

Protection Act, Interest could have been awarded only once there is finding

of negligence or deficiency of service on the part of the service provider. As

submitted above, the amount was already agreed upon by the appellant prior

to the filing of the complaint, but could not be released because of the inter

se dispute between the co-insured i.e. the respondents.

8) That the Ld. State Commission erred in not taking into consideration the fact

that the approved amount could not be released to the insured in view of the
 inter se dispute between the two partners as one of the partners had

categorically instructed the appellant not to release the claim amount.

Therefore, the release of the claim amount by the appellant would not

amount to deficiency of service or delay in settlement of the claim. As such,

the interest was not payable.

9) That the Ld. State Commission also erred in not taking into consideration

the fact that the policy was in the joint names of the two respondents herein

and one of the respondent insured namely, respondent no. 2 had given the

instructions for not releasing the payment, the appellant could not have

released the payment to the respondent/complainant without the consent of

respondent no.2. It is submitted that the appellant had written several letters

to the respondent to settle the inter se dispute between the partners so as to

enable the company to release the payment but the dispute was not settled,

nor respondent no. 2 agreed to the release of 50% amount to the respondent

complainant. In these circumstances, when the payment could not have been

made to the respondent complainant, no deficiency of service or delay could

be attributed on the part of the appellant.

10) That the State Commission failed to appreciate that the appellant on

receiving the notice of the complaint filed by the complainant before the

state commission at the very first opportunity brought this fact to the notice

of the Hon’ble State Commission in the written statement filed and the State

Commission was requested to pass appropriate orders so that the appellant

insurance company can be discharged from its liability under the policy in

question and further that the appellant company would be ready and willing

to abide any such condition imposed by the State Commission. Once the

appellant had offered to pay the amount at the very first instance, the State

Commission could not have awarded interest on the claim amount.

11) That the Ld. State Commission failed to appreciate that respondent no. 2 in any

case was not entitled to the interest for the reason that it was the respondent no. 2

who had instructed the appellant company not to release the claim amount and

further chose not to appear before the State Commission, though he had been

impleaded as one of the respondents.

It is, therefore, most respectfully submitted that this Hon’ble commission on the

basis of the above mentioned written arguments and the order passed by the State

Commission is not sustainable in the facts and circumstances of the case as it is

not based on proper appreciation of facts and circumstances of the case and is

liable to be set aside. May be pleased to allow the fist appeal by setting aside the

order dated 12.06.2019 passed by the Hon’ble State Commission, Gujarat State,

Ahmedabad.

It is prayed accordingly.

NEW DELHI APPELLANT

THROUGH

DATED / /2021 (PRADEEP GAUR & ASSOCIATES)

ADVOCATES & LEGAL CONSULTANTS,
CHAMBER NO. 322,
PATIALA HOUSE COURTS
NEW DELHI-110001
MOB: 9810081811, 9871980203