State Consumer Disputes Redressal Commission
M/S Raja & Company vs Niac Ltd. on 8 May, 2015
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.18 of 2011
Date of Institution: 24.02.2011.
Date of Decision: 08.05.2015.
M/s Raja & Company, 68 Railway Link Road, Amritsar, through its
Proprietor Shri Gagandeep Singh
.....Complainant.
Versus
1. The New India Assurance Company Limited, Regd. & Head
Office, 87, M.G. Road, Fort, Mumbai.
2. The New India Assurance Company Limited, 117, the Mall
Road, Amritsar, through Divisional Manager.
....Opposite parties
Consumer complaint under Section
17 of Consumer Protection Act, 1986
Quorum:-
Shri J. S. Klar, Presiding Judicial Member
Shri Vinod Kumar Gupta, Member Shri H.S. Guram, Member Present:-
For the complainant : Sh. S.K. Mahajan, Advocate For the opposite parties : Sh. Parminder Singh, Advocate .............................................. J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainant M/s Raja & Company, through its proprietor Gagandeep Singh has instituted this complaint under Section 17 of Consumer Protection Act 1986 (in short "the Act") against the OPs on the averments that the complainant, who has Consumer Complaint No.18 of 2011 2 been working under the name and style of M/s Raja & Company carrying on his shop at bazaar Lachmansar Amritsar for earning his own livelihood therefrom, got the insurance for his concern under the various head, as mentioned in the policy cover note, issued by the OPs for the period from 21.12.2007 to 20.12.2008 against premium of Rs.33,337/-. As per cover note of the policy, under Section I, the property insured on the premises was Rs.50 lakhs: i) In display windows Rs.1 lakh, ii) In locked safe Rs.40 lakhs and iii) Elsewhere = Rs.9 lakhs. Under Section IV of the cover note, the furniture, fixtures, fitting at business premises including safes Rs.50,000/-. The risk of the complainant as insured was Rs.50 lakhs, as per Section-I and Rs.50,000/-, as Section-IV of the cover note. The burglary was committed on the above shop of complainant on the intervening night of 21/22.02.2008 by unknown persons during night time through the roof of the shop of the complainant including four other shops in the locality in the same row. FIR no.31 dated 22.02.2008 was lodged at police station C-Division, Amritsar under Section 457/380 IPC. The matter was brought to the notice of general public and was also reported in the newspapers about this burglary. The complainant intimated the OPs about it, vide letter dated 22.02.2008. The complainant was making inquiry about his claim by visiting many times the office of the OPs. The OPs appointed Protocol Surveyor & Engineering Pvt. Ltd., as a surveyor for assessing the loss. The surveyor approached the complainant on 15.03.2008 and on Consumer Complaint No.18 of 2011 3
02.04.2008 and collected the documents, which were available with the complainant. The surveyor, vide letter dated 15.04.2008 asked the complainant to furnish the documents, which were supplied by the complainant. After receiving the balance sheet, gold transaction statements issued by S.B.I. and Cash Book for the period 01.07.2011 to till date and bank account statement for the period 01.07.2011 to till date and the final report of the police that the theft is untraceable. The OPs were under legal obligation to send the report, but it has not been sent. On 26.05.2009, the complainant submitted the untraced certificate issued by the SHO of police station C-division Amritsar on 22.05.2009 about this theft. OPs, vide letter dated 20.10.2009 asked the complainant to supply the copy of final report, as submitted to the illaqa Magistrate. The complainant submitted the same to the OPs. The OPs asked the complainant, vide letter dated 03.03.2010 to furnish the copy of the final police report, as submitted to the illaqa Magistrate. The complainant informed the OPs, vide letter dated 13.03.2010 that he had already submitted the copy of report dated 22.05.2009, 09.12.2009 and 27.12.2009 duly signed by the competent authorities regarding non traceability of stolen stock. The Bank furnished the copy of untraced report dated 13.07.2010 issued by the illaqa Magistrate, vide letter dated 29.07.2010, which had been submitted to insurance company. The complainant sent to the OPs the photocopy of order dated 13.07.2010 regarding untraced report of theft, vide letter dated Consumer Complaint No.18 of 2011 4 29.07.2011. Long time has been taken by the OPs, but no claim has been decided by them, despite the same. The complainant contacted the Insurance Ombudsman, vide letter dated 31.12.2919, but he refused to intervene in the matter on the ground that value of the insured articles was more than Rs.20 lakhs. The complainant has filed the complaint directing the OPs to provide the amount of Rs.27,17,024.95 paise as insurance claim to him alongwith interest @18% per annum, besides compensation of Rs.50,000/- for mental harassment and Rs.20,000/- as costs of litigation.
2. Upon notice, OP nos.1 and 2 appeared and filed written reply and contested the complaint of the complainant. It was averred in preliminary objections by the OPs that the complainant deals in commercial transactions and hence the business activities of bullion and money changer are commercial in nature and hence complainant is not the consumer in this case. The complaint is not maintainable, as there is no deficiency in service on the part of the OPs. The complaint is alleged to be false and frivolous by the OPs. It was further averred that complainant obtained a Jeweller's Block Insurance Policy from the office of OP no.1 bearing no.360501/46/07/45/00000646 for a sum of Rs.50,50,000/-, which was valid from 21.12.2007 to 20.12.2008. On receipt of intimation from the complainant regarding alleged loss due to burglary of gold stocks and cash, the OPs deputed M/s Baldev Pathania & Co. Surveyors to conduct preliminary survey, who submitted their report Consumer Complaint No.18 of 2011 5 dated 28.02.2008. The OPs further deputed M/s National Detective & Consultancy Services Jalandhar to investigate the matter. The OPs also deputed M/s Protocol Surveyors and Engineers Pvt. Ltd. Noida, an IRDA approved Surveyors and Loss Assessors to conduct the final survey and to assess the alleged loss. The above said investigating agency submitted their report dated 09.08.2008. The said surveyor and investigating agency deputed by OPs conducted physical inspection of the site, taken photographs, obtained relevant documents, recorded the statements of concerned persons including employees of the insured and the proprietor of the insured. The OPs minutely scrutinized the above said documents received from the investigators and the surveyors and the claim of the complainant, they repudiated the claim by passing detailed and speaking order dated 27.06.2011. The reason for repudiating the claim in the said repudiation letter be read as part and parcel of reply to the complaint. Mr. Sumit Kumar, an employee of insured categorically confirmed in writing that he, Mr. Vasudev and Mr. Gopal Babu used to deliver gold to the customers in the market. The record collected by the investigator and surveyor reveals that there are serious discrepancies and contradictions in the statements of the insured and his employees, which clearly lead to the conclusion that the claim is false and frivolous with regard to the alleged loss of cash of Rs.5500/- reported to be in a wooden drawer. It is averred that it is not under the policy, because it was drawer of one table, which was Consumer Complaint No.18 of 2011 6 lying in the office situated at ground floor, however, the lock of the said office situated at ground floor was not broken, but were opened with a key. The complainant committed serious breach of the policy conditions. It has come on the record in the investigation that the 24 hours security guard was not deployed by the complainant. The room, in which, the safe was kept was not locked and it always used to remain open. The room was full of dust and was not cleaned for many weeks. There was no light in the room, where the safe was kept, for stocking the gold. A very old bill book was lying in the safe indicating that it might not be in use for a quite long time. The door of the room always used to remain open indicating that there was no costly items kept in the room and the room was meant only to store waste items. The above referred circumstances proved that no burglary took place. The contract of Insurance was rightly repudiated by the OPs in this case. The complainant was also resisted on the above referred ground even on merits. The OPs prayed for the dismissal of the complaint with exemplary costs.
3. The complainant tendered in evidence affidavit of Sh. Gagandeep Singh proprietor of M/s Raja & Company Ex.C-1/A and affidavit of Sh. Rajinder Singh Ex.C-2/A alongwith documents Ex.C-1 to C-27 and closed the evidence. As against it, the OPs tendered in evidence affidavit of Sh. A.L. Madan, Manager of New India Assurance Company Chandigarh Ex.OP-1/A, affidavit of Sh. B.S.Sharma, the investigator of New India Assurance Company Consumer Complaint No.18 of 2011 7 Chandigarh Ex.OP-1/B and affidavit of Sh. Vivek Johar Surveyor of New India Assurance Company Chandigarh Ex.OP-1/C alongwith documents Ex.R-1 to R-5 and closed the evidence.
4. We have heard the learned counsel for the parties and have also examined the record of the case. The evidence is required to be examined by us on the record to settle the controversy between the parties in this case. The pleadings of the complainant as well as the OPs have been duly examined by us on the record in this case. Ex.C-1 is the copy of insurance policy on the record. It has proved that New India Assurance Company has issued the policy to the complainant for assured amount of Rs.50,50,000/- and it was valid for the period 21.12.2007 to 20.12.2008. The premium of Rs.33,337/- was paid by the complainant to the OPs, as per Ex.C-1. Ex.C-2 and C-3 are the copies of the FIR on the record. This FIR has indicated that this was lodged with regard to burglary in the shop of the complainant. Ex.C-4 is the copy of the newspaper regarding above burglary in five shops. Ex.C-5 is the copy of intimation sent by the complainant to the Manager of OPs and also to the Manager of SBI SCB, Ranjit Avenue C Block regarding burglary of 2175.557 gram of gold and Rs.5500/- in his shop. Ex.C-6 is the photocopy of letter dated 15.04.2008 issued by the OPs to the complainant regarding submitting the documents. Ex.C-7 is the statement of account of the complainant. It has indicated that complainant purchased the gold and last entry dated 19-02-2008 in it. Ex.C-9 is Consumer Complaint No.18 of 2011 8 the bill issued by Classic Silver Jewellers of Rs.7,30,000/- in favour of the complainant. Similarly, Ex.C-10 has proved that complainant purchased the gold worth Rs.8,87,816/- on 21.08.2007. Ex.C-11 has further proved that complainant purchased gold worth Rs.10,18,489/- on 03.12.2007. Ex.C-12 and C-13 have further proved the purchase of gold of Rs.10,17,804/- and Rs.20,60,000/- on 16.11.2007 and on 14.12.2007. Ex.C-14 is the copy of letter addressed to Manager of OPs by complainant regarding the settlement of the claim. Ex.C-15 is the copy of untraced certificate issued by SHO of police station C-Division Amritsar. Ex.C-16 is the copy of letter dated 20.10.2009 issued by the Branch Manager of OPs to the complainant regarding furnishing of final police report, as submitted to the illaqua Magistrate. Ex.C-17 is the copy of untraced certificate to the effect that the investigation of the case has been carried out by the police. The above mentioned articles have not been recovered and case is untraced so far issued by the SHO of police station C Division Amritsar. Ex.C-18 is the copy of non-traceable report. We have also examined the document Ex.C-19 dated 03.03.2010 sent to the complainant by Branch Manager of OPs to the effect that OPs cannot keep the file open for an indefinite period of time. Ex.C-20 is the letter dated 13.03.2010 in continuation of letter dated 09.03.2010 by complainant to the Branch Manager of New India Assurance Company. Ex.C-21 is the copy of letter dated 29.07.2010 by Assistant General Manager of State Bank of India Amritsar to the Consumer Complaint No.18 of 2011 9 Branch Manager of Insurance Company to proceed further and to get the claim approved without any further delay. Ex.C-22 is the order of Judicial Magistrate Ist Class Amritsar sending the report as untraced. Ex.C-23 is the copy of letter dated 29.07.2010 of complainant to Branch Manager of Insurance Company. Ex.C-24 and C-25, are the letters, which have also been considered by us. Ex.C-25 is intimation to complainant by Insurance Ombudsman on 07.01.2011 that the claim falls outside the jurisdiction of Insurance Ombudsman. On the basis of above referred documents coupled with affidavit of the complainant, the submission of counsel for the complainant is that complainant's gold stock was duly insured with the OPs and during the period of insurance, the burglary took place and gold articles were stolen therefrom. The complainant has, thus, pressed the claim for insurance on the basis of above referred documents.
5. The OPs placed reliance on affidavit of A.L. Madan Manager of Insurance Company Ex.OP-1/A. He has stated in this affidavit on oath that complainant deals in commercial activities or earning profits, which is evident from the averments made in the complainant. He admitted this fact in affidavit that complainant obtained a Jeweller's Block Insurance Policy Annexure R-1 from OP no.1. He further stated that on receipt of intimation from complainant regarding theft, the OPs deputed M/s Baldev Pathania & Co. Consumer Complaint No.18 of 2011 10 Surveyors to conduct preliminary survey, who submitted their report dated 28.02.2008 Annexure R-2. He further stated in his affidavit that the OPs deputed M/s National Detective & Consultancy Services Jalandhar to investigate the matter and OPs also deputed M/s Protocol Surveyors and Engineers Pvt. Ltd. Noida, an IRDA approved Surveyors and Loss Assessors to conduct the final survey and to assess the alleged loss, who submitted their report dated 09.08.2008 Annexure R-3. He further stated in his affidavit that the said surveyor and investigating agency deputed by OPs conducted physical inspection of the site, taken photographs, obtained relevant documents, recorded the statements of concerned persons including employees of the insured and the proprietor of the insured. He further stated that the Insurance Company minutely scrutinized the above said documents received from the investigators and the surveyors and the claim of the complainant, they repudiated the claim by passing detailed and speaking order dated 27.06.2011 Annexure R-5. This witness has further stated in his affidavit that no theft of gold stock was actually found to have taken place. The insured had not taken the proper precaution required from him under the contract of insurance and it was found in survey that no watchman was employed on the security by the insured. As per condition no.2 of the contract of insurance, the insured shall take all reasonable precautions for the safety of the property as regards, selection and supervision of employees securing all doors and Consumer Complaint No.18 of 2011 11 windows and other means of entrance or exit otherwise and shall not withdraw or vary the protection and/or safeguard, as are referred to in the proposal form to the detriment of the interest of the company without its consent. The complainant has breached this condition no.2 of the contract of insurance. As per condition no.6 of the contract of insurance, the insured shall keep proper stock and account books, in which all sales and purchases are recorded. The insured shall also maintain a separate register for the deposit and withdrawals of stock from bank/private lockers. Similarly, the complainant violated the condition no.9, 22 and 24 of contract of insurance. OPs placed reliance on copy of insurance policy Ex.R-1 on the record. The terms and conditions are part of Ex.R-1. Ex.R-2 is the copy of preliminary survey report dated 28.02.2008. It was observed in this report that front shutter was intact and all the table drawers have been broken. No light in the room and waste material was kept and steel safe was kept there. The lock of the same was found to have been broken and it was empty except one bill book. This room is not locked and is just closed. From there goes stairs to the terrace. This door is also closed. On the terrace, it was found that all the wall are adjoined by the premises of other persons. Entry to the insured's place has been made by climbing to the adjoining premises from the next to next house.
6. From hearing the respective submissions of counsel for the parties and from perusal of record, we find that Ex.R-3, the report Consumer Complaint No.18 of 2011 12 of National Detective & Consultancy Services dated 09.08.2008, is quite material document on the record. This is the report by the investigator in this matter. The investigator had reached the conclusion in this report that the claim of the complainant stood falsified regarding the theft of gold stock. It was concluded in this report of investigation that Gagandeep Singh was working as money changer and wholesale trading of gold business and he had shifted his business from Lachmansar Market to Shop no.68 Railway Link Road Amritsar singe long. Only one worker of Sh. Gagandeep comes to the shop off and on. The lock of the office was not broken, but opened. The iron safe from which gold was alleged to have been stolen was lying near room of the first floor and bathroom is also at the first floor, which remains open always and access to all their employees and visitors coming to their office. The room was also used for old unserviceable items and scrap. Room was full of dust and had not been cleaned for many days and there was no light in that room. Gagandeep Singh stated that gold was lying in the safe for the last 12-15 days, which he had purchased about 15 days earlier on 7/8 February. He had not kept the gold in the bank, but kept it there on the pretext of increasing price of gold. On safety precautions, he stated that gold was insured and he checked the gold about a week earlier, the day of theft, whereas he stated to the surveyor that he used to check the gold daily, which is contradictory in itself. Even the investigator discussed with concerned SHO and Consumer Complaint No.18 of 2011 13 Investigation Officer about this theft. No recovery was effected in this case of the complainant and police sent the case as untraced. There is similar affidavit of the complainant on the record. There is report of investigator, as discussed above, which makes a dent in the genuineness of the case of the complainant. The final survey report is Ex.R-4 on the record. In this report, it was found that liability was not admissible as all evidences collected by us lead to only one conclusion that there was no stock of gold in the said iron safe preserved by the complainant. Affidavit of B.S. Sharma Independent Investigator of National Detective & Consultancy Services Jalandhar Ex.OP-1/B is on record and has also been examined by us. We have also examined the affidavit of Vivek Johar, surveyor and loss assessors of M/s Protocol Surveyors and Engineers Pvt. Ltd. Ex.OP-1/C, who found the claim not admissible, vide Ex.R-4.
7. The counsel for the complainant argued that since terms and conditions of the policy document were not supplied, hence complainant is not bound by them. We do not find any substance in it. The complainant placed reliance on the law laid down in "ICICI Lombard General Insurance Company Ltd. Vs. Gurmeet and another" reported in 2009(3) CLT184-185. This authority would not help the complainant. The Constitution Bench of the Apex Court has held in "General Assurance Society Limited Vs. Chandmull Jain" reported in 1996(7) CPSC44 that the beginning of a statute is Consumer Complaint No.18 of 2011 14 called deed of construction. There is a doubtfulness in the contract Proferentem against Insurance Company- A contract of insurance is a species of commercial transactions and there is a Well-Established commercial practice to hand cover notes even prior to the completion of a proper proposal- Looking at the proposal, the letter of acceptance and the cover notes, it is clear that a contract of insurance under the standard policy for fire and extended to cover flood cyclone etc. Had come into being- the reason of the rule is that where parties agree upon certain terms, which are to regulate their relationship, it is not for the court to make a new contract, however reasonable, if the parties have not made it for themselves- the assurers were therefore within their right under condition 10 of the policy to cancel it- As the policy was not ready, they were justified in executing it and cancelling it. The counsel for the complainant also referred to law down in "National Insurance Company Limited Vs. Neelam Rana" reported in 2004(IV) CPJ 494 by Union Territory Consumer Disputes Redressal Commission Chandigarh and judgment of the National Commission titled as "Mono Industries Vs. New India Assurance Co. Ltd." reported in 2008(3)CLT-4. The counsel for the complainant further submitted that second surveyor could not be appointed. We find that investigator could be appointed by the OPs to look into the genuineness of the case of such a magnitude. The report of National Detective & Consultancy Services Jalandhar Ex.R-3 has been Consumer Complaint No.18 of 2011 15 proved on record by its investigator Sh. B.S. Sharma, the independent investigator; vide Ex.OP-1/B on the record.
8. In view of our above referred discussion, we have come to the conclusion that the OPs are justified in repudiating the contract of insurance, because the complainant has not followed the terms and conditions of the contract of insurance and violated them. For reasons recorded above, we do not find any merit in the complaint of the complainant and dismiss the same without costs.
9. Arguments in this complaint were heard on 05.05.2015 and the order was reserved. Now the order be communicated to the parties.
10. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (VINOD KUMAR GUPTA) MEMBER (H.S. GURAM) MEMBER May 8, 2015.
(MM)