State Consumer Disputes Redressal Commission
Ridhi Gupta vs National Insurance Co. Ltd on 16 May, 2008
IN THE STATE COMMISSION:DELHI IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of The Consumer Protection Act, 1986) Date of Decision: 16.05.2008 Appeal No. 492/2005 (Arising out of Order dated 13-06-2005 passed by the District Consumer Forum, East, Convenient Shopping Centre, Saini Enclave, Delhi in Complaint Case No. 301/2005). Smt. Ridhi Gupta Appellant Proprietor of M/s Sansel, Through 485 FIE, Patparganj, Mr. K.R. Pamei, New Delhi 110092. Advocate Versus National Insurance Co. Ltd. Respondent Core II, Scope Complex, Through Laxmi Nagar, Delhi. Mr. S.K. Pandey, Advocate CORAM: Justice J.D. Kapoor President Ms. Rumnita Mittal Member
1. Whether Reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice J.D. Kapoor, President (Oral)
1. The impugned order dated 13.06.2005 is an exparte order whereby the complaint of the appellant seeking indemnification of the loss of cash of Rs. 40,000/- against Shopkeepers Policy was dismissed on the premise that the loss was not as per terms of the policy that the cash should be in hand whereas the cash that was lost was in the car.
Feeling aggrieved the appellant has preferred this appeal.
2. Relevant facts, in brief, are that the appellant obtained a shopkeepers Policy from the respondent.
The policy was effective from 17.06.2000 to 16.06.01. The policy covered money transit risk upto Rs. 50,000/-. Unfortunately the appellant suffered a cash loss of Rs. 40,000/- while in transit. The Manager of the appellant was going to bank to deposit Rs. 40,000/- but on way he stopped at a place to collect some more money.
While he was away from the vehicle for about 5 minutes, somebody stole the cash from the car. Police report was lodged vide FIR NO. 73/01. The appellant lodged the claim for the loss to the respondent but it repudiated the claim on the interpretation of wrong clauses. The appellant prayed for directions to respondent to pay a sum of Rs. 40,000/- with interest, cost and compensation.
3. The repudiation vide letter dated 27.05.01 shows that the loss was not covered under the Clauses a,b,c of Section III of the Money Insurance under Shopkeeper Policy. The repudiation letter reads as under :-
DOXV/NKM/2003 27th May, 2003 M/s Sansel, 485, FIR, Patparganj, Delhi-110092.
Dear Sirs, Re: Cash Loss Claim.
We refer to your complaint to our Regional Office and accordingly we were advised to review your claim of Cash Loss. We would like to mention here that our office issued the Shopkeeper Policy including the Money Insurance. As per the Section III covering Money Insurance under Shopkeeper Policy it is provided that :
The Company will indemnify the insured in respect of
(a) Loss of accident or misfortune whilst the insureds money is in his hands or in the hands of his employees in transit between any two places within a radius of fifteen miles from the insured premises.
(b) Loss of damage to money and/or valuables by burglary and/or house-breaking whilst contained in safe burglar resisting or otherwise steel cupboards/cash box and/or such other places under lock and key.
(c) Loss of money whilst lying in the cashers till and/or counter in the insureds premises during business hours consequent on or following assault and/or violence against the insured or any employee of the insured or any threat thereof by burglary and/or housebreaking provided always that such money are in the custody of a responsible employee entrusted with the work of handling cash.
In view of the above your claim does not fall under the purview of the Policy as the loss of cash has been reported from the abandon car in which the cash was left.
For your reference we are also enclosing the copy of the policys terms and conditions for your reference.
Thanking you, Sd/-
(N.K. Malhotra) Divisional Manager Encl: as above.
4. As is apparent the ground for repudiation of the claim was a result of interpretation of a Clause providing that the company will indemnify the insured in respect of loss of accident or misfortune whilst the insureds money is in his hands or of his employees in transit between any two places within a radius of fifteen miles from the insured premises. The District Forum interpreted this clause to the effect that unless the cash was in the physical possession of the appellant, it cannot be termed as a cash in hand in transit between any two places within a radius of fifteen miles from the insured premises.
5. The learned counsel for the appellant contends that the interpretation of the aforesaid clause making the respondent liable to indemnify the loss of cash whilst in the car should be interpreted to the effect that the cash left in the car whilst in transit was held in hand.
6. We have accorded careful consideration to the aforesaid contention of the learned counsel for the appellant. If the interpretation of counsel for the respondent is accepted that the cash being carried by the person is a cash being carried in hand, at the most the respondent can take the plea that the appellant did not take reasonable care while carrying the cash as he left the same in the car when he went to meet some one even for five minutes.
7. The perusal of the repudiation letter shows that no such ground was taken for rejecting the claim. The ground taken was that the loss of the cash was not loss of cash in his hand or his employees in transit between any two places within a radius of fifteen miles from the insured premises. The respondent has interpreted the clause in such a manner that it should not benefit the consumer.
8. A person carrying a cash in the car between two places has to be deemed to be carrying a cash in hand. If the interpretation as provided by the counsel for the respondent is accepted then no person would get the benefit of its policy until he carries the cash in hand and walks for miles together. As per this clause one has to suffer such a loss within a radius of 15 miles from the insured premises, which means a person carrying cash should go on foot by walking 15 miles if he wants to avail the benefit of this term of the clause that loss should occur while the cash should be in hand. Cash in hand means physical possession of cash if a person is carrying a cash in the car, by no stretch of imagination one can interpret that such a possession of cash is not a physical possession.
9. It is a rule of universal interpretation that every beneficial law like the Consumer Protection Act and for that purpose every beneficial contract like the insurance contract should be provided and receive a beneficial interpretation. There is an unvarying judicial unanimity of foreign courts and the Supreme Court of India that wherever two or more constructions or interpretation of any term of contract or a provision of a statute are possible, the interpretation or the construction which goes in favour of the consumer, should invariably be accepted and acted upon. Any other course adopted by the service provider is neither permissible nor is consumer friendly nor in consonance with the aims and objects of the contract or the welfare statute or beneficial statute.
10. Our experience shows that the Insurance Companies interpret every clause in such a manner that a consumer should suffer and the service provider should become unjustly rich and gain undue advantage. This is not a happy approach and has to be deprecated.
11. Foregoing reasons persuade us to allow the appeal as the interpretation provided by the respondent while rejecting the claim is unjustified and not consumer friendly and is against the aims and objects of the contract. There is no provision nor do we find anything from the records produced by the respondent, the onus was heavily upon it that the appellant had not exercised due care and caution while leaving cash in the car. Every situation has to be assessed in the light of its own facts and circumstance and no rule of thumb can be applied in every given situation.
12. Though these pleas were raised in the reply, however, the contention of the counsel for the respondent that the loss of cash is shrouded in mystery inasmuch as that theft took place in transit, an FIR was lodged with the police. It is the police which is the statutory authority to give finding of fact that whether the occurrence of theft had taken place or not.
13. In our view FIR is not a requirement for adjudicating the insurance claim.
Whenever vehicle or any cash or goods are stolen insured takes some time to search for the vehicle and the goods and does not lodge the report immediately. It is the discretion of the Police Officer to convert the complaint of the insured into the FIR or not. Information to the Police in any form including the DD report is sufficient requirement and the insurance company only is concerned whether the theft has taken place or not. Once the report is lodged with the police may be in any form, the insurance company is barred from appointing any Investigator to investigate into the fact whether the theft has taken place or not. It may appoint surveyor for the purpose of assessing the loss. If the police finds that a person has lodged a false report he can be prosecuted for the offence punishable u/s 182 of the IPC but in any way the insurance company cannot indulge in such exercise and enter into such an arena that does not belong to it.
14. On the concept of compensating a consumer as to the unfair trade practice or deficiency in service or the sale of defective goods, the Supreme Court has given a wide connotation to the word compensation appearing in the provisions of Section 14 of the Consumer Protection Act by taking in its fold each and every element of sufferings a consumer suffers at the hands of service providers and traders. The observations of Supreme Court made in Ghaziabad Development Authority Vs Balbir Singh-(2004) 5 SCC 65 are quoteworthy and pithy and need to be reproduced. These are as under :-
The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The Commission/ Forum must determine that such sufferance is due to malafide or capricious or oppressive act. It can then determine amount for which the authority is liable to compensate the consumer for his sufferance due to misfeasance in public office by the officers. Such compensation is for vindicating the strength of law.
15. Foregoing reasons persuade us to allow the appeal with the direction to the respondent to pay Rs. 40,000/- with additional compensation of Rs. 25,000/- which shall include the cost of litigation also for the mental agony, harassment, emotional suffering, physical discomfort and forcing him to engage a lawyer to seek redressal from a legal forum.
17. The impugned order shall be complied with within one month from the date of receipt of this order.
18. Bank Guarantee/FDR, if any, furnished by the appellant be returned forthwith.
19. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record room.
20. Announced on 16th day of May, 2008.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member ysc