National Consumer Disputes Redressal
Mr. Sukaran Kumar Jain vs 1. Oriental Insurance Co.Ltd. & Anr. on 10 January, 2012
NATIONAL
CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
FIRST APPEAL NO. 463 OF 2011
WITH
IA
NO.1 OF 2011 (FOR DELAY)
(From the
order dated 07.09.2011 in Appeal No.72/2007
of the State
Commission, Delhi)
MR. SUKARAN KUMAR JAIN
PROP. NEW KAILASH JEWELLERY HOUSE
2396, HARDHYAN SINGH ROAD,
KAROL BAGH,
NEW DELHI 110005 Appellant
Versus
1. ORIENTAL INSURANCE CO.LTD.
DO 12, 7678, SINGH SABHA ROAD
SHAKTI NAGAR,
NEW DELHI - 110007
2. ORIENTAL INSURANCE CO.LTD.
A-25/27, ASAF ALI ROAD,
NEW DELHI 110002 Respondents
BEFORE:
HONBLE MR.JUSTICE V.B. GUPTA,
PRESIDING MEMBER
HONBLE MR. VINAY KUMAR, MEMBER
For the Appellant : Mr.
K.R. Pamei, Advocate
Pronounced on :
10th January, 2012
ORDER
PER JUSTICE V.B. GUPTA, PRESIDING MEMBER Present appeal has been filed by the appellant against order dated 7.9.2011, passed by Delhi State Consumer Disputes Redressal Commission (for short State Commission) vide which complaint of the appellant was dismissed.
2. Being aggrieved by the order of the State Commission, appellant has filed this appeal. Along with it, an application for condonation of delay has been filed. Since, there is delay of only 12 days in filing of this appeal, for the reasons mentioned in the application, delay is condoned. Application for condonation of delay stands allowed.
3. Now coming to the merits of the case, brief facts are that appellant/complainant, a proprietor firm dealing in the jewellary, obtained a renewal of his earlier insurance policy issued by the respondent/opposite party insurance company w.e.f. 27.1.2006 to 26.1.2007. The total sum assured under the policy was Rs.40 lakhs out of which under Section 2 (C) of the policy the gold in the custody of the Goldsmith/cutter etc. was insured for Rs.25 lakhs and it is with this clause we are concerned.
4. Appellant on 22.2.2005, handed over vide invoice no.19, 3 kg of gold to his Karigar (Goldsmith) Shri Manoranjan Jana for making ornaments, which he did not return after several reminders. Appellant sent his man on 18.4.2005 to Jana for fetching the ornaments and Jana asked for two days more time. On 24.4.2005, appellants staff went again to the house of said Jana but there was no trace of him. On 28.4.2005, appellant filed a report at PS Karol Bagh, New Delhi and also sent information by fax. On 29.11.2005, appellant gave a written report again and the police lodged the FIR on 31.12.2005.
5. Appellant thereafter lodged a claim on 9.1.2006, with the respondents, annexing copies of invoice, complaints filed at Karol Bagh Police Station. Respondent, vide its letter dated 24.11.2006 rejected the claim of the appellant on various grounds mentioned therein including the inordinate delay.
6. Appellant thereafter served a legal notice on the respondent on 25.1.2007, and filed a complaint before the State Commission.
7. Respondents opposed the claim and filed written version and pleaded that clause (b) under the heading claim of the policy provides, that upon the happening of any loss, the insured should give notice to the police and to the company within 24 hours, and thereafter, a detailed statement of damages, with an estimate of the loss should be submitted to the company, within 14 days from the date of loss. While the appellant gave intimation of the incident to the respondent for the first time vide letter dated 9.1.2006 and due to this inordinate delay, the respondent could not appoint a surveyor or investigate the claim as to ascertain its bonafides. The gold was delivered on 22.2.2005 to Manoranjan Jana for making the ornaments, which Jana did not return, and appellant lodged the FIR on 30.12.2005, after 10 months of it under Section 406 IPC at PS Karol Bagh, New Delhi. Respondents have also alleged that the policy covers only the theft cases, and not an offence under criminal breach of trust.
8. It is contended by learned counsel for the appellant that State Commission gravely erred in overlooking the facts that respondents repudiated the claim of the appellant contrary to the terms and conditions of the contract of insurance entered between the parties. Further, it is contended that State Commission has wrongly erred in holding that there was delay in intimating of the claim to the respondent. Such a finding was neither factually nor legally warranted. The disappearance of the goldsmith came to the knowledge of the appellant on 24.4.2005, on which day itself an information was passed on to the respondent, together with information to the police.
A fax confirmation was placed on record.
It is therefore incorrect on the part of the State Commission to say that the insurance contract postulated that information be forwarded to insurance company within 24 hours. No such condition is stated in the documents made available to the appellant.
9. It is further contended that the State Commission was wrong in holding that the claim suffers from deficiency since the FIR was of 4 days late. Mere four days delay, in such a case, especially when initial whereabouts of the culprit need to be ascertained, is of no material consequence.
10. State Commission, in its impugned order has observed ;
We have no hesitation in coming to the conclusion that the claim of the complainant is unsustainable. The first reason is that, the Insurance agreement postulates information being forwarded to the insurance company about the loss within 24 hours. The complainant gave the information to the insurance company about 10 months of the occurrence. The contention from the side of the complainant is that he sent a fax to the opposite party insurance company about the incident within the stipulated period of 24 hours, but no receipt of the fax message has been filed and a mere oral statement that such a fax was sent cannot be accepted. Even the FIR was lodged 4 days after the occurrence as appears from the receipt of report given by the police to the complainant.
The other shortcoming is that despite the fact that three kilos of gold was given to the goldsmith for making ornaments, no time seems to have been fixed for preparation of the ornaments. It has not been mentioned from the side of the complainant, as to when the goldsmith was to supply the jewellery. The indefinite nature of the contract of supply of jewellery mitigates against the bonafides of the complainant. According to the complainant, it was after three months of supply of gold that the complainant woke up to the circumstance that the jewellery had not been supplied despite so much lapse of time. This indifferent attitude provides grant of legitimate suspicion, about the malafide of the complainants averment.
One of the conditions in the agreement of the insurance company was that in case of loss, the policy holder should give a notice to the opposite party within 14 days. No such information within the aforesaid prescribed period was given by the complainant. There has been as such, the violation of the agreement on this ground also by the complainant.
It is also to be noticed that the complainant has not furnished any information to this Commission, as to what happened to the FIR lodged by the complainant in the police and what was the result of the investigation. This was an important information, which should have been furnished to the Commission so that necessary inference could be drawn. We do not know whether the police found the FIR of the complainant as genuine or whether they were of the view, no such incident took place, and the whole case is fake forged.
11. As per averments made in the complaint, on 22.2.2005 petitioner has handed over 3 kg of gold to one Manoranjan Jana for making ornaments but the goldsmith did not return the ornaments, out of 3 kg gold sent to him by the appellant. It was the first time as per appellants own case, matter was reported to the local Police on 24.4.2005 i.e. after more than two months from the date of incidence. Admittedly, no First Information Report was lodged by the complainant with the Police.
The complainant has relied upon his compliant dated 24.4.2005 sent to the Police by way of fax, which is two months after the incident. Moreover, as per appellants own case, he lodged the FIR on 31.12.2005 i.e. after about 10 months of the incident. There is no explanation as to why there has been delay of eight months in lodging of the FIR with the police by the appellant. Further, appellant has nowhere stated in his entire complaint as to what happened after lodging of the FIR, whether the case is still under investigation or the same has been closed.
12. As per terms of the policy, in case of loss the policy-holder had to give information to the respondent within 14 days but no such information has been given within the prescribed period by the appellant in this case. Thus, there has been violation of the terms of the policy by the appellant.
13. We find no merit in the present appeal and we fully concur with the reasonings given by the State Commission. The present appeal is devoid any merits and the same is hereby dismissed.
J. (V.B. GUPTA) PRESIDING MEMBER ...
(VINAY KUMAR) MEMBER Sonia/