National Consumer Disputes Redressal
G.N. Hallmarking & Refinery Private ... vs National Insurance Company Ltd. & Anr. on 23 August, 2021
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 1439 OF 2014 (Against the Order dated 26/09/2014 in Complaint No. 57/2013 of the State Commission West Bengal) 1. G.N. HALLMARKING & REFINERY PRIVATE LIMITED REPRESENTED BY ITS DIRECTOR, UDAY GAJANAN, SHINDE, WORKING FOR GAIN AT , BANSTALA GALI, KOLKATA-700007 ...........Appellant(s) Versus 1. NATIONAL INSURANCE COMPANY LTD. & ANR. REPRESENTED THROUGH ITS DIRECTOR, HAVING ITS RESGISTERED OFFICE AT 3, MIDDLETON STREET, KOLKATA-700071 2. THE DIVISIONAL MANAGER, DIVISIONAL OFFICE AT 6A, SAMBHU CHATTERJEE STREET, 3RD FLOOR, KOLKATA-700007 ...........Respondent(s)
BEFORE: HON'BLE MR. C. VISWANATH,PRESIDING MEMBER
For the Appellant : Mr. Pawan Kumar Ray, Advocate For the Respondent : Mr. Animesh Sinha, Advocate
Dated : 23 Aug 2021 ORDER
1. The present Appeal, under Section 19 of the Consumer Protection Act, 1986 has been filed by the Appellant-Complainant against the order dated 26.09.2014 of the State Consumer Disputes Redressal Commission, West Bengal (hereinafter referred to as "the State Commission) in CC/57/2013.
2. The Appellant/Complainant is a company engaged in the business of Gold Jewellery Hallmarking and testing of jewellery, refinery and testing of gold. The Appellant took Jeweller's Block Policy for a sum of Rs.4,52,00,000/- from the Respondents/Insurance Company. The Policy was valid from 04.05.2009 to 03.05.2010. The case of the Appellant/Complainant is that on 01.12.2009, while his employee Jogesh Todkar was returning to his shop after collecting jewellery from jewellers, two unknown persons snatched and fled away with the bag containing jewellery, at Hariram Goenka Street. Thereafter, a Complaint was lodged on the same day at Posta Police Station by the Director of the Appellant Company. Appellant filed an Application under Section 156 (3) Cr. P.C. before the Additional Chief Metropolitan Magistrate, Kolkata who, vide order dated 11.12.2009, allowed the application with a direction to the Office-in-Charge of Posta Police Station to register a case and investigate into the matter. The Police submitted the final report on 18th January, 2012.
3. During the course of investigation, the Appellant filed an Insurance Claim with the Respondents/Insurance Company. Loss incurred by the Appellant was intimated to the Respondents/Insurance Company, vide letter dated 02.12.2009. The Respondents appointed Sri Subroto Banerjee as Surveyor, who interrogated Mr. Jogesh Todkar and recorded his statement. The Respondents, however, did not settle the claim, despite several reminders. When the Director of the Appellant personally visited the office of the Respondent to enquire about the status of the insurance claim, he was informed that the claim of the Complainant had already been repudiated. The Appellant, vide letter dated 30.11.2012, requested the Opposite Party to officially communicate the repudiation letter. Appellant was informed that its claim had been repudiated on 09.08.2012. Aggrieved by the repudiation of the claim, the Appellant filed a Consumer Complaint before the State Commission with the following prayer:-
"a) An order be made directing the opposite party to forthwith release an amount of Rs.42,86,293/- (Rupees forty two lakhs eighty six thousand two hundred ninety three) only along with 18% interest towards the claim lodged by the complainants.
b) An order be made directing the opposite party to pay a sum of Rs.30,000/- (Rupees Thirty lakhs) only as damages of goodwill suffered by the complainants because of wrongful action of the opposite party.
c) An order directing the opposite party to pay a sum of Rs.20,00,000/- (Rupees twenty lakhs) as compensation towards harassment mental agony suffered by the complainant due to not release the insurance claim.
d) For an order directing the opposite party to pay a sum of Rs.1,00,000/- (Rupees one lakh) to your petitioner towards litigation cot.
e) Such further and/or other orders as in these circumstances may deem fit and proper."
4. The Respondents/Opposite Parties contested the Complaint by stating that the Insurance Claim of the Appellant was rightfully repudiated, based on the conditions contained in the Insurance Policy, specifically Exclusion Clause 8. They further stated that the question of Surveyor's Report does not arise, as the repudiation of claim was made as per Exclusion Clause of the Policy. It was stated by the Respondents that the Appellant was not entitled to any relief and that the Petition was not maintainable in law and was mala fide, baseless and frivolous.
5. After hearing Learned Counsels for the Parties and perusing the record, the State Commission allowed the Complaint in part with the directions: -
"that the complaint be and the same is allowed in part. The OP insurance company is directed to pay a sum of Rs.18,57,112/- to the complainant with interest @ 12% p.a. from the date of filing of the claim form till final realization. The entire amount shall be paid by the OP within 45 days from the date of this order, failing which interest @ 10% p.a. shall be payable on the above noted amount from the date of default i.e. from the 46th day from the date of this order till full realization. There shall be no order as to costs."
6. Not satisfied with the order of the State Commission, the Complainant filed the instant First Appeal for enhancement of compensation with the following prayer: -
"a. Enhance the awarded compensation by taking into consideration the current index value of the insured gold and modify compensation amount which has been awarded taking into consideration the value of the gold as on the date of accident.
b. To allow the claim of loss of gold 397.50 gms being annexure 'C' receipt no.6689 by treating the same as reliable evidence at the current index rate of gold.
c. To award compensation towards harassment and mental agony suffered by the Appellant.
d. To allow damages for loss of goodwill of the appellant company."
7. Heard the Learned Counsels for the Parties and carefully perused the record. Brief facts of the case are that the Appellant is a company engaged in the business of Gold Jewellery Hallmarking. The Appellant took Jeweller's Block Policy for a sum of Rs.4,52,00,000/- from the Respondents/Insurance Company. The Policy was valid from 04.05.2009 to 03.05.2010. On 01.12.2009, when an employee of the Complainant Jogesh Todkar was returning to the shop of the Complainant after collecting jewellery from M/s M.P. Jewellers & Company, M/s Mandanji Meghraj & Company and M/s Kanta Jewelleries Private Limited, two unknown persons snatched the bag containing jewellery, at Hariram Goenka Street and ran away. The said fact came to the knowledge of the aforementioned jewellers and they demanded for reimbursement. Accordingly, the Appellant reimbursed 397.550 gms of gold to M/s Kanta Jewelleries Private Limited and 97.09 gms of gold to M/s M.P. Jewellers. No reimbursement, however, was made to M/s Madanji Meghraj & Company in respect of 919.67 gms of gold. The Insurance Claim of the Appellant was, however, repudiated by the Respondents on the ground that the "Cover ceased due to policy terms and conditions (As per policy Exclusion Clause No. 8)". Exclusion Clause 8 of the Policy reads as follows:
"Loss or damage occasioned by theft or dishonesty or any attempt there at committed by or where such loss or damage has been expedited or in any way sustained or brought about by:
(a) any of the insured family members.
(b) any servant or traveller or messenger in the exclusive employment of the insured.
(c) any customer or broker or there customer or angadias or cutters or goldsmiths in respect of the property hereby insured entrusted to them by the insured his or their servants or agents."
8. The Appellant/Complainant preferred the present appeal and impugned the order of the State Commission on the following grounds:
That the State Commission erred in not considering receipt No. 6689 in favour of Kanta jewellers as a reliable piece of evidence while calculating the award of compensation.
That the State Commission erred by not considering that the value of gold increases day by day and thereby refusing the prayer of Rs.42,86,293 made by the Appellant.
That the State Commission erred in not considering the prayer of the Appellant on account of mental agony and harassment as well as cost of litigation.
9. Learned Counsel for the Respondents, on the other hand, contended that the claim of the Appellant was rightfully repudiated as the said claim fell under Exclusion Clause 8 of the Insurance Policy and that the State Commission had erred in not considering the same while passing the impugned order. Though a Surveyor was engaged by the Respondents/Insurance Company, the Report of the Surveyor had not been disclosed. From the Final Report of the Police, it was evident that the incident of theft took place but the case could not be detected. The Respondents failed to adduce any evidence in support of their contention that the alleged loss was caused by any of the reasons noted under Exclusion Clause 8 of the Insurance Policy, that there was any fraud/mischief on part of the employee of the Appellant, among others leading to the alleged loss. We, therefore, are of the view that the State Commission rightly dismissed the contention of the Respondents that the Appellant's claim fell under the Exclusion Clause 8 of the Policy.
9. The Appellant relied on Receipt No. 6689 issued in respect of gold received from M/s Kanta Jewellers, since it had been proved in evidence before the State Commission. The Appellant stated that the mistake in the date on the receipt, based on which it was disregarded by the State Commission, was merely an inadvertent typographical error. State Commission merely stated in vague terms that "it appears that the jewelleries were receive on 01.12.09 at about 1.15 p.m., but the expected date of delivery (after hallmarking) was recorded as 02.11.09 which is but absurd and hence not treated as a reliable piece of evidence". However, a perusal of the documents on record supports the contention of the Appellant. In the Appellant's letter dated 09.02.2010, addressed to Kanta Jewellers, it was stated that the Appellant was issued 397.550 gms of jewellery for hallmarking, vide Receipt Voucher No. GNHR/JRD/E/6689 dated 01.12.2009 and that the same was lost in transit and that the same quantity of jewellery in the same purity was being reimbursed. In response to the said letter, Kanta Jewellers acknowledged that they had received 22 ct. pure hallmarked jewellery weighing 397.550 gms as reimbursement as against the loss which occurred on the jewellery received, vide receipt voucher dated GNHR/JRD/E/6689 dated 01.12.2009. In the light of clear proof that 397.550 gms of gold was in fact received by the Appellant, that the said quantity of gold was lost in transit and thereafter the said quantity of gold was reimbursed, I accept the contention of the Appellant that the discrepancy noted by the State Commission with regards to the date, is unfounded and there is no basis to disregard the claim of the Appellant in respect of 397.550 gms. of gold. In any case, the Respondents/Opposite Parties had not raised any dispute/objection with regard to the veracity of the said receipt and the claim of the Appellant was rejected on a different ground, i.e. based on a clause in the Insurance Policy.
10. The Appellant submitted that the value of gold increases day by day and therefore, the State Commission erred in law by disregarding the prayer of the Appellant for a sum of Rs.42,86,293/-. I am unable to accept the contention of the Appellant in this regard, since the award of compensation must be restricted to the amount that had been claimed by the Appellant under the Insurance Policy. A perusal of the Insurance Claim form shows that the Appellant had only claimed Rs.25,78,680/- from the Insurance Company. If valuation of the lost gold is determined as on date when reimbursement is made, it would open a Pandora's box where the beneficiaries of such Policies may seek undue benefit by deliberately delaying reimbursements. The State Commission had in fact considered the Claim Form submitted by the Appellant while awarding compensation to the Appellant. I, therefore, find no reason to enhance the claim of the Appellant beyond Rs.25,78,680/-.
11. For the foregoing reasons, the instant Appeal is partly allowed and the impugned order of the State Commission is set aside. The Respondent Insurance Company is directed to pay a sum of Rs.25,78,680/- towards the claim of the Complainant alongwith interest @ 9% p.a. from the date of repudiation of the claim till realisation, within 8 weeks from the date of passing of this order. There shall be no order as to costs.
...................... C. VISWANATH PRESIDING MEMBER