State Consumer Disputes Redressal Commission
Branch Manager,The United India ... vs Rakesh Roshan, on 14 January, 2011
Daily Order
STATE CONSUMER DISPUTES REDRESSAL COMMISSION BIHAR, PATNA First Appeal No. A/494/2007 (Arisen out of Order Dated 11/07/2007 in Case No. CC/197/2006 of District Patna) 1. Branch Manager, The United India Insurance Company Ltd Patna BEFORE: HONABLE MR. JUSTICE SUBHASH CHANDRA JHA PRESIDENT HONABLE MRS. RENU SINHA MEMBER PRESENT: ORDER
Date of order: 14-01-2011
RENU SINHA, MEMBER
The present appeal is directed against the order dated 11-07-2007 passed by the District Consumer Disputes Redressal Forum, Patna (hereinafter to be referred to as District Forum) in Consumer Complaint No. 197/2006 wherein it was directed to the appellant to pay the insured amount of Rs. 50,000/- (Rs. fifty thousand only) with interest @ 5% per annum w.e.f. 25-01-2005 within two months from the date of the order, besides cost of Rs. 1000/- (Rs. one thousand only) to the respondent.
2. The case, in brief, is that the respondent Rakesh Roshan is the Proprietor of M/S Om Sai Indian Sewa at Bari Path, Naya Tola, Patna and Firm was insured under LPG Dealers Package Policy under various risks by the appellant-United India Insurance Company Ltd. for the period from 13-02-2004 to 12-02-2005 including money in transit in custody of an authorized employee/insured to/from Bank for Rs. 50,000/-.
3. On 29-08-2004, the Manager, Pramod Kumar was carrying the day sale proceed from business shop to the insured. The money was snatched away by some miscreants on the way including cash book and the scooter. The incident was intimated to the appellant-Insurance Company and on the same day FIR was lodged with the concerned Police Station vide Case No. 665/2004 U/S 392 of IPC. The concerned Police Station investigated the incident and found it true but no clue. It was accepted by the CJM, Patna on 06-02-2006.
4. The appellant-Insurance Company deputed a surveyor to enquire the incident and assess the loss. The surveyor inspected the same and confirmed the loss and assessed loss to the tune of Rs. 50,000/- to the extent that the respondent was covered under the policy vide its report dated 25-01-2005. The respondent furnished all the relevant documents asked for by the appellant for the payment of the claim. Thereafter, the appellant repudiated the claim of the respondent after keeping it pending for two years, i.e., on 03-03-2006 on the ground that the loss of money, which was carried from the insured business premises to the insured residence was not covered under the said policy issued to the respondent by the appellant.
5. After the denial of the claim, the respondent filed a complaint case No. 197/2006 for deficiency in service in the District Forum and claimed for the insured amount under the said policy with interest @ 18% with other cost and Rs. 15,200/- as cost of litigation.
6. The appellant appeared and contested the complaint case in the District Forum and confirmed the repudiation valid with an explanation that according to the terms of policy, the money under transit was to/from Bank but it was being carried from insured premises to the insured residence. It was also mentioned that the day, it happened was Sunday and Bank was closed and such transaction was not covered under the terms and conditions of the said policy issued to the respondent.
7. After considering the facts, circumstances and law produced by both the parties, the learned District Forum held the appellant deficient in providing service and directed to pay the respondent the insured amount of Rs. 50,000/- under the clause-4 of money in transit with interest @ 5% per annum from the date, the survey report was submitted, i.e., 25-01-2005 within two months of the order with cost of Rs. 1000/-.
8. Being aggrieved by the order of the District Forum, the appellant has come in appeal mainly on the ground that the money looted was not covered under the terms and conditions of the policy and secondly, as per the decision reported in III (1999) CPJ 49 by the respondent is not related to the present facts of the case and therefore, it is not applicable. So, the appellant has prayed to set-aside the impugned order of the District Forum.
9. The respondent has submitted various judgements of Hon'ble Supreme Court, National Commission and State Commission and High Court, Patna as follows:- (1) 2007 (4) PLJR United India Insurance Company Ltd. Vs M/S Great Estern Shipping Company Ltd. (2) Maharashtra State commission, Mumbai III (1999) CPJ Page-49 Kumar Agency Vs. Oriental Insurance Company Ltd. (3) 2007 (1) PLJR Patna High Court (4) 2007 (D) PLJR Jagmato Devi Vs. State of Bihar & others, (5) I (2005) CPJ (NC) Harsolia Motors Vs. National Insurance Company Ltd. ,(6) IV (2005) CPJ HMM Coaches Ltd. Vs. New India Insurance Company Ltd. (7) IV (2005) IV (2005) CPJ Sanjeev Tewary Vs. New India Insurance Company (8) AIR 1966 (SC) General Assurance Society Vs. Chandar Mall Jain, (9) V (2005) CPJ Godawari Gramin Bank & another Vs. Teza Poultry Farm and another, (10) IV (2003) CPJ New India Assurance Company Ltd. Vs. Ashraf Bee Patel (11) III (1995) CPJ Chandra Shekhar Singh Vs. New India Assurance Company Ltd. (12) II (2006) CPJ Banglore City Corporation Vs. Dr. Shankarappa and (13) I (2007) CPJ Universal Paper Mills Vs. Oriental Insurance Company Ltd.
10. The appellant has produced a judgement of Hon'ble Supreme (2004) 8 United India Ltd. Vs. Hari Chand Rai Chandar Lal in its support.
11. The facts and circumstances of the case law produced by both the parties are not similar to the facts of the present case but the definition of certain terms related to insurance disputes has been explained comprehensively by the Apex Court and the National Commission, which guides the Courts to understand it in right perspective in dealing such insurance disputes and are applicable and can be considered.
12. Heard the learned counsel of both the parties and perused the materials on record. Both the counsels argued on the same line, which has been taken in the ground of appeal as well as the points raised in the rejoinder.
13. It is admitted fact that the respondent was given LPG Dealer Package Policy by the appellant covering different risks of the profession including money in transit for Rs. 50,000/-.
14. It is admitted fact that the incident took place on that very day, i.e., 29-08-2004 during the validity of the policy and was accepted by the appellant and assessed the loss to the tune of Rs. 50,000/-.
15. Now, the main contention raised by the appellant is that the looted money was not insured under the terms and conditions of clause-4 of the said policy, which is read as "Money whilst in transit in the custody of an authorized employee/insured to/from the Bank.". So as per the contention of the counsel, the respondent has violated the terms of the policy by not taking the money to the Bank but the insured premises, therefore, the appellant cannot be made liable for the loss.
16. The learned counsel for the appellant has referred a judgement of S.C. in 2004 (8) United India Insurance Company Vs. Harichand Rai Chandar Lal, where it is held that 'the term of the policy shall govern the contract between the parties and they have to abide by definition given therein and all those expression appearing in the policy have to be construed as it is and something cannot be added, subtracted or substituted. Therefore, the counsel for the appellant vehemently contended that the claim of the respondent could not be considered, as clause-4 of the said policy deals with the money in transit between the insured shop premises to/from Bank and the Bank being closed on Sunday, no such transaction be covered under the policy.
17. Relying on the decision rendered by the Apex Court reported in 2007 PLJR 1997 United India Insurance Company Vs. M/S Great Eastern Shipping Company Ltd. relating to the decision the learned counsel for the respondent has relied upon where it was held that " transit means anything is supposed to be in transit until and unless it reaches to its destination for where it is being carried. It is also held that while interpreting the term of the policy, the Court should keep in views of the intension of the parties as well as the words used in the policy on reading of the clause and the coverage. The facts of the case is squarely covered in the aforesaid verdict of the Hon'ble Apex Court.
18. It was a comprehensive package policy provided by the appellant to safeguard the money from such eventualities in which there was no provision or explanation or classification was mentioned for the day, when Bank is closed on Sunday or under N.I. Act and the business premises was opened. The Insurance Company did not disclose or mention in the policy any provision for 'Exclusion Clause'.
19. Having considered the instant case and the judgement of the Apex Court cited, we are of the opinion that the respondent destination to carry the cash was to the Bank and the cash, which was carried with an authorized employee from the shop premises to the insured, which could not be deposited being Sunday, was in transit till the Bank opens at 10.30 AM next morning. The cash, which was carried with an authorized employee from the insured premises and in absence of the exclusion clause it could not be deposited and the employee chose the option to proceed towards the insured for the safeguard to keep it in safe custody of the insured instead of keeping the same in the shop overnight. It is clear that the intention and the destination of the respondent was Bank.
20. It is true that in construing the terms of a contract of an Insurance, the words used therein must be given paramount importance and it is not open for the Court to add/ delete or substitute any words but it is also well settled that if a claim fails on such ground, which suffers from ambiguity or doubt in the condition in the cover note of the policy and since upon issuance of an insurance policy, the Insurance Company undertakes to indemnify the loss of the insured, it should be dealt in right perspective as per the judgement of the Apex Court. In the matter of ambiguity or doubt in the term of the policy it is also held by both, the Supreme Court and the National Commission that it will be in favour of insured.
21. The Insurance Company was duty bound to give details of the policy coverage to the policy holder, so that consumer should have been conscious about his conduct and know what to do and what not to do. The Insurance Company has not followed the provisions contained in Consumer Protection Act.
22. Since the policy is not clear of those exclusion clause and it suffers from ambiguity and doubt on its part, which were required to declare by the Insurance Company. We find serious deficiency in service on the part of the appellant.
23. In the circumstances and facts and in the light of decision of the Supreme Court, we are of the view that the lost money of the respondent was covered under the 'Money in transit' clause-4 of the said LPG Dealer Package Policy issued to the respondent by the appellant-Insurance Company and the respondent is entitled to get the insured amount with interest as directed by the order of the District Forum.
24. In view of the aforesaid discussion, we do not find any infirmity in the impugned order of the District Forum. Thus, the appeal stands dismissed. However, there shall be no order as to cost. in appeal [HONABLE MR. JUSTICE SUBHASH CHANDRA JHA] PRESIDENT [HONABLE MRS. RENU SINHA] MEMBER