This complaint has been filed by the complainant M/s. Kalakriti Cultural and Convention Centre against the opposite parties Oriental Insurance Co. Ltd. & anr. Brief facts of the case are that the complainant is engaged in organizing helium balloon rides 2. for the tourists in Agra, UP. They purchased helium balloon with invoice for USD 7,50,000. The balloon was insured under Standard Fire and Special Perils policy with validity from

22.2.2013 to 21.2.2014 and further renewed from 22.2.2014 to 21.2.2015. During the currency of the policy, there was a huge storm on 30.5.2014 and the balloon got busted and there was a total loss of balloon. The insurance claim was filed with the Insurance Company, and the insurance company appointed a surveyor to assess the loss. On the basis of the surveyors report dated 18.03.2015, the insurance company made payment of Rs.1,54,69,333/-. This complaint has been filed for enhancement of the compensation as per the claim submitted which was for Rs.2,63,84,536/-. The complaint has been resisted by the opposite party insurance company by filing the written statement. The main prayer in the complaint is that the claim should be accepted on reinstatement basis whereas, the Insurance Company has stated in the written statement that there is no reinstatement value clause in the policy and therefore, claim cannot be allowed on -1- reinstatement basis rather, it has been allowed on normal depreciation basis. It has been requested by the Insurance Company to dismiss the complaint on these grounds. Both the parties have filed their evidence by way of affidavits, which have been taken on record. Heard the learned counsel for the parties and perused the record. Learned counsel for the 3. complainant stated that in the proposal form there was a clear request that the insurance should be made on reinstatement value basis. However, the policy was issued without any reinstatement value clause. Tundla division of the opposite party has sent an e-mail dated 19.08.2014 admitting mistake to the higher authorities of the opposite party that the insured is a big client and the mistake of not inserting the reinstatement value clause should be rectified. Thus, it is clear that the policy issuing order of the insurance company was convinced that the mistake had occurred in the issuance of the policy due to non-inclusion of the reinstatement clause in the policy. The surveyor has assessed the loss on the basis of the depreciated value as on the date of accident. Learned counsel for the complainant further referred to the IRDA Regulations dated 24.09.2015 wherein it has been advised to the Insurance Companies that after signing the discharge voucher, the claim is not necessarily foreclosed and the insured can move to the consumer court or any other court for enhancement of the compensation under the insurance policy. Thus, the Insurance Company cannot take the ground that the complainant is not entitled to file the consumer complaint because the discharge voucher has been signed without any protest as full and final settlement of the claim. It has been further argued by the learned counsel for the complainant that, if the insurer 4. does not issue the policy in accordance with the proposal form, then definitely, the Insurance Company is guilty of deficiency in service and the insured can demand the claim to be settled as per the proposal form. Learned counsel for the complainant mentioned that the opposite party/ Insurance Company 5. has stated that for reinstatement value clause the premium would have been higher and as the policy has been issued without reinstatement clause, the normal premium has been charged. In this regard, learned counsel for the complainant stated that in written statement, this point has not been stated and therefore, it is only an afterthought as no proof has been given for the same. On the other hand, learned counsel for the opposite party/Insurance Company stated that 6. first policy was issued in 2013-2014 and the second policy was a sort of renewal and was issued for 2014-2015. The accident happened during the currency of the policy 2014-2015. There was no reinstatement value clause even in the policy of 2013-2014. The complainant never objected to this policy and the full one year of the policy passed. Even for the second years policy, no representation was made by the complainant for inserting reinstatement clause in the policy before the accident. After the accident, on 30.05.2014, the complainant represented before the local office and the local office was influenced to write to the higher authorities for making correction in the policy admitting their mistake. It was not possible to accept the suggestion of the local office on the representation of the insured after the date of accident because the claim is to be settled on the basis of the policy existing on the date of the accident. Learned counsel for the Insurance Company further stated that the less premium has been charged for the policy as there was no reinstatement clause in the policy. The inclusion of reinstatement clause would have required more premium to be paid by the complainant. As the premium for reinstatement clause has not been paid by the complainant, the complainant is not entitled to value under the reinstatement clause which, in any case, is not there in the policy. Learned counsel further argued that the complainant has signed the discharge voucher as full 7. and final settlement of the insurance claim. The question of filing the consumer complaint even after signing the discharge voucher has been considered by the Honble Supreme Court in United and it India Insurance Vs. Ajmer Singh Cotton & General Mills & Ors., AIR 1999 SC 3027 [LQ/SC/1999/725] has been observed by the Honble Apex Court that the complaint can only be filed if alleged discharge voucher has been signed under coercion fraud, under influence or misrepresentation. None of these aspects have been alleged in the complaint and therefore, the complaint is not maintainable. I have carefully considered the arguments advanced by the learned counsel for the parties 8. and have examined the record. On the basis of the proposal submitted by the complainant, the first policy was issued in 2013-2014 without reinstatement clause. No representation was submitted by the complainant to the insurance company for incorporating the reinstatement clause as per the proposal form. The second policy for 2014-2015 was also issued on the same lines without the reinstatement value clause. During the currency of even this policy before the accident, no representation was given by the complainant for making correction in the policy by adding the reinstatement clause. After the accident on 30.05.2014, the local office of the insurance policy recommended for correction in the policy for incorporation of the reinstatement clause and also admitted their mistake vide their e-mail dated 19.08.2014. Clearly higher authorities of the Insurance Company did not accept this recommendation as no purpose would have been served by correcting the policy after the accident as the claim was already generated. The claim is to be decided as per the terms and conditions of the policy existing at the time of the accident. The terms and conditions of a policy are to be interpreted as they are as held by the Honble Supreme Court in the following judgments: ( it has been a) In General Assurance Society Ltd. Vs.Chandmull Jain, [1966 ] 3 SCR 500 [LQ/SC/2009/475 ;] , held as under :- 17.

In interpreting documents relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract, however reasonable, if the parties have not made it themselves. it has been (b) in Vs. II(1999 )CPJ 13 (SC ), Oriental Insurance Co. Ltd. Sony Cherian observed as follows:-

16. The insurance policy between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy. That being so, the insured has also to act strictly in accordance with the statutory limitations or terms of the policy expressly set out therein.

the (c) United India Insurance Co. Ltd. Vs. Harchand Rai Chandan Lal, (2004) 8 SCC 644 [LQ/SC/2004/1086] , Honble Apex Court held as follows:-

6. .The terms of the policy have to be construed as it is and we cannot add or subtract something: Howsoever liberally we may construe the policy but we cannot take liberalism to the extent of substituting the words which are not intended.

9. It is settled law that terms of the policy shall govern the contract between the parties, they have to abide by the definition given therein and all those expressions appearing in the policy should be interpreted with reference to the terms of policy and not with reference to the definition given in other laws. It is a matter of contract and in terms of the contract the relation of the parties shall abide and it is presumed that when the parties have entered into a contract of insurance with their eyes wide open, they cannot rely on definition given in other enactment.

14. Therefore, it is settled law that the terms of the contract has to be strictly read and natural meaning be given to it. No outside aid should be sought unless the meaning is ambiguous.

Moreover, it is also an accepted principle of law that surveyors are appointed under the 9. provisions of the Insurance Act, 1938 and their report is to be given due consideration for deciding the insurance claim. Their report cannot be rejected without any cogent reasons. In the present case, it has been stated by the complainant that the surveyor has assessed the loss on depreciation basis and not on reinstatement value basis. Clearly surveyor was not to assess the loss on the basis of reinstatement value clause as there was no such clause in the policy. Therefore, the surveyor was to assess the loss on the depreciation basis as the policy provides as under:-

IN CONSIDERATION OF the Insured named in the Schedule hereto having paid to the ORIENTAL INSURANCE COMPANY LIMITED [hereinafter called the Company] the premium mentioned in the said schedule. THE COMPANY AGREES [subject to the Conditions and Exclusions contained herein or endorsed or otherwise expressed hereon] that if after payment of the premium the Property insured described in the said Schedule or any part of such Property be directly destroyed or damaged by any of the perils specified hereunder during the period of insurance named in the said schedule or of any subsequent period in respect of which the insured shall have paid and the Company shall have accepted the premium required for the renewal of the policy, the Company shall pay to the Insured the value of the Property at the time of the happening of its destruction or the amount of such damage or at its option reinstate or replace

such property or any part thereof. From the above, it is clear that the Insurance Company has an option to reinstate the 10. property, however, the Insurance Company does not seem to be interested in this and the complainant cannot insist on the compensation on reinstatement basis as the reinstatement clause is not available in the policy. Thus, the Insurance Company is to indemnify the value of the property as on the date of the accident and this value would definitely be the depreciated value of the insured property at the time of the accident. The surveyor has assessed the loss in compliance of this clause. The complainant has not made any allegation that the discharge voucher has been signed on 11. account of any misrepresentation or coercion by the insurer or on account of any fraud having been played upon the complainant. Therefore, there is no challenge to the surveyors report by the complainant either on the basis of misrepresentation, coercion or fraud or otherwise. Thus, relying on the judgment of Honble Supreme Court in United India Insurance Vs. Ajmer Singh (supra), it is clear that any challenge to the discharge voucher is Cotton & General Mills & Ors. not sustainable. Now coming to the alleged deficiency on the part of the Insurance Company that they failed 12. to issue policy in accordance with the proposal form, it is clear that the complainant did not object to the policy document which may be considered as a counter proposal from the Insurance Company. Hence, the same shall be treated as concluded contract of insurance between the insured and the insurer as observed by the Honble Supreme Court in Deokar Exports Pvt. Ltd. Vs. New India Assurance Company Ltd., Civil Appeal No.5103 of 2002, decided on as follows:- 23.09.2008 (SC)

11. A policy of insurance is a contract based on an offer (proposal) and an acceptance. The appellant made a proposal. The respondent accepted the proposal with a modification. Therefore, it was a counter proposal. The appellant had three choices. The first was to refuse to accept the counter-proposal, in which event there would have been no contract. The second was to accept either 10expressly or impliedly, the counter-proposal of the respondent (that is respondents acceptance with modification) which would result in a concluded contract in terms of the counter proposal. The third was to make a counter proposal to the counter-proposal of the respondent in which event there would have been no concluded contract unless the respondent agreed to such counter-counter- proposal. But the appellant definitely did not have the fourth choice of propounding a concluded contract with a modification neither proposed nor agreed to by either party. If the appellant did not agree to the policy covering the period 26.8.1988 to

25.8.1989 instead of the period 12.3.1988 to 12.9.1989, the result would never create an insurance contract effective from 30.6.1989 or any other date.

From the above observations of the Honble Supreme Court, it is clear that the concluded 13. contract in respect of the insurance between the parties did not have any specific clause relating to reinstatement value clause and both parties have agreed for the same. Thus, even if the reinstatement value clause was asked in the proposal form, it will have no repercussion on the settlement of the insurance claim as the concluded contract of the policy did not have any reinstatement clause in the policy. Thus, there is no deficiency on the part of the Insurance Company and they have only settled the claim as per the provisions of the policy. Based on the above discussion, I do not find any merit in the complaint and accordingly, 14. consumer complaint no.639 of 2016 is dismissed. ...................... PREM NARAIN PRESIDING MEMBER