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National Insurance Company Ltd. Vs. Vedic Resorts and Hotels Pvt. Ltd. - (Supreme Court) (17 May 2023)

Insurer must give cogent and satisfactory reasons for not accepting surveyor’s report



The aggrieved Appellant-Insurance Company has filed the present appeal under Section 23 of the Consumer Protection Act, 1986 challenging the judgment passed by the National Commission in Consumer Complaint, whereby the Commission has allowed the complaint filed by the complainant (Respondent), and directed the Appellant to pay a sum of Rs. 202.216 lakhs to the complainant along with interest @ 9% per annum from six months from the date of lodgment of the claim till the date on which the said payment is made.

As per the clause, it is discernible that the loss of or visible physical damage or destruction by external violent means directly caused to the property insured was covered, but the loss, damage or destruction to the property caused by burglary, housebreaking, theft, larceny or any such attempt or any omission of any kind of any person in any malicious act was not covered. It further states that if the Insurance company alleges that the loss/damage was not caused by any malicious act, the burden of proving the contrary would be upon the insured. In the instant case, the Appellant-Insurance company had repudiated the claim of the Respondent taking recourse to the said Clause V(d) of the subject policy on the ground that the loss caused to the Respondent was an outcome of the malicious act/acts on the part of the Respondent Vedic Village management and it fell within the exclusions provided Under Clause V(d) of the Insurance Policy.

It is trite to say that wherever such an exclusionary Clause is contained in a policy, it would be for the insurer to show that the case falls within the purview of such clause. In case of ambiguity, the contract of insurance has to be construed in favour of the insured.

In the instant case, the Appellant-Insurance Company had failed to discharge its burden of bringing the case within the exclusionary Clause V(d) of the policies in question. The surveyor in the Final Survey Report had also opined that the loss had occurred due to the insured peril and the claim was admissible. Though it is true that the Surveyor's Report is not the last and final one nor is so sacrosanct as to the incapable of being departed from, however, there has to be some cogent and satisfactory reasons or grounds made out by the insurer for not accepting the Report. The Appellant-Insurance Company has failed to make out any such cogent reason for not accepting the surveyor's Report. There is no merit in the present appeal and the same is accordingly dismissed.


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