State Consumer Disputes Redressal Commission
Vipan Mehra Proprietor vs United India Insurance Company Limited on 19 July, 2010
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
S.C.O. NO. 3009-10, SECTOR 22-D, CHANDIGARH.
Consumer Complaint No.90 of 2002
Date of institution : 27.12.2002
Date of decision : 19.7.2010
Vipan Mehra proprietor M/s V.M. Jewellers carrying on business at 2997/6, Ist
Floor, Mehra Building, Bazar Batti Hattan, Amritsar.
.......Complainant
Versus
United India Insurance Company Limited having its Registered Office 24, Whites
Road, Chennai and Divisional Office-I, M.M. Malviya Road, Post Box No.7,
Amritsar through its Divisional Manager.
......Respondents
Before :-
Hon'ble Mr. Justice S.N. Aggarwal President.
Mrs. Amarpreet Sharma, Member.
Present :-
For the complainant : Shri Raman Mehra, Advocate with Shri S.K. Mahajan, Advocate.
For the respondents : Shri Munish Goel, Advocate. JUSTICE S.N. AGGARWAL, PRESIDENT:
This complaint was decided by this Commission vide order dated 21.7.2004 relegating the parties to the civil court.
2. The complainant filed appeal (First Appeal No.371 of 2004) (Vipin Mehra vs. United India Insurance Co. Ltd.) which was accepted by the Hon'ble National Commission by a judgment dated 29.9.2009. The matter was remitted to this Commission for deciding the matter afresh after affording opportunity to the parties to lead further evidence in support of their respective pleas. This is how the matter is again before us. In compliance with the direction of the Hon'ble National Commission, both the parties were permitted to lead further evidence. Consumer Complaint No.90 of 2002. 2
3. The facts of the case are that the complainant was running the business under the name and style of M/s V.M. Jewellers in Amritsar. He had got the Jewellers' Block insurance policy from the respondents for the period from 15.5.2001 to 14.5.2002 for his business premises in the sum of Rs.8,00,000/-.
4. It was further pleaded that the complainant had got the order for the delivery of 1905 grams of gold ornaments/jewellery (in short "gold") from Neelam Jewellers of Jalandhar for the value of Rs.8,22,960/-. Accordingly the complainant brought 1905 grams of gold from his business premises to his house in the evening of 12.1.2002 with an intention to send this gold through his employee Ramesh Kumar to Neelam Jewellers, Jalandhar in the morning of 14.1.2002. He placed this gold in his wooden almirah at his residence which was duly locked.
5. It was further pleaded that Ramesh Kumar employee who was to leave Amritsar by taking the gold from the residence of the complainant at 8.30 A.M. got delayed as his daughter fell sick. The wife of the complainant had gone to Mata Vaishno Devi. The complainant left his house in Amritsar to attend the meeting of Rotary Club at Phagwara at 10.30 A.M. and delivered the keys of the almirah in which the gold was kept, to his father Prem Parkash Mehra with the instructions to him to deliver the gold to Ramesh Kumar who would come to their house at about 12.00 or so.
6. It was further pleaded that Prem Parkash Mehra, his son Rajesh Mehra (brother of the complainant), his wife (wife of Rajesh Mehra) and his mother (wife of Prem Parkash) also left the house at about 11.00 A.M. for going to Durgiana Mandir for worship. Thereafter Prem Parkash Mehra went to electricity office for urgent work and Rajesh Mehra left for his shop. When Ramesh Mehra (wife of Prem Parkash Mehra) and Vandana Mehra (wife of Rajesh Mehra) were returning, they found two thieves coming out of their house with naked knives on which the above mentioned mother and sister-in-law of the complainant raised the alarm "chor chor" and they found the locks broken.
Consumer Complaint No.90 of 2002. 3
6. It was further pleaded that these two ladies gave a telephonic call to Prem Parkash Mehra who reached home and found that the locks of the wooden almirah where the complainant had kept the gold locked were broken. Some gold of Prem Parkash Mehra from another almirah was also stolen on which he reported the matter to the police. The complainant also made a statement to the police of Civil Lines, Amritsar on 15.1.2002.
7. The insurance claim was lodged with the respondents. The respondents appointed the surveyor/loss assessor who had also reported that the theft in fact had taken place but still the claim was repudiated by the respondents vide their letter dated 24.10.2002. Hence the complaint for insurance claim, compensation, interest and costs.
8. The respondents filed the written reply. It was admitted that the complainant was running the business in the name and style of M/s V.M. Jewellers and the complainant had taken the insurance policy from the respondents.
9. It was however denied if the gold was to be delivered by the complainant to M/s Neelam Jewellers at Jalandhar. Even if it was so the said gold could be taken to Jalandhar from their shop itself. There was no insurance policy for the house premises and, therefore, alleged loss of gold from the house of the complainant was not covered by the insurance policy. Dismissal of the complaint was prayed.
10. The complainant filed the affidavit of Ramesh Kumar dated 17.11.2002, his own affidavit dated 17.11.2002 and his own supplementary affidavit dated 14.2.2010. He also proved documents Ex.C-1 to Ex.C-31. The respondents filed the affidavit of V.P. Kaul, Assistant Manager as Ex.R-1, affidavit of Rajiv Arora, surveyor as Ex.R-2. The report of the surveyor dated 6.7.2003 has been proved as Annexure R-1. They also filed the affidavit of O.P. Kanava, Deputy Manager dated 18.3.2010.
11. The submission of the learned counsel for the complainant was that the complaint be accepted and the respondents be directed to pay the insurance claim with interest, compensation and costs.
Consumer Complaint No.90 of 2002. 4
12. On the other hand, the submission of the learned counsel for the respondents was that there was no merit in the present complaint and the same be dismissed.
13. Record has been perused. Submissions have been considered.
14. The insurance policy has been produced on the file by the complainant as Annexure C-1. It is divided into two sections which read as under:-
"Section I : Rs.8-00 Lacs On stocks of Gold &/or Gold ornaments &/or jewellery &/or raw material &/or other allied goods including cash currency notes upto Rs.1.00 Lac pertaining to the Insured trade/business/in loss/displayed/other whilst lying/stored/contained in the office cum sale shop premises jointly used/occupied by the insured with M/s Prem Parkash Mehra Jewellers built of Ist class construction situated at the above address.
Section II : Rs.8.00 Lacs : "On property insured excluding cash whilst in business tour outstation &/or anywhere in India or vice versa whilst accompanied in person duly authorized by the insured with maximum value of Rs.7.00 lacs &/or otherwise the property insured whilst lying/entrusted with the Karigars/brokers/goldsmiths/repair/sale purchase etc./business purpose &/or job work &/or commission basis upto Rs.1.00 Lac respectively &/or otherwise. The above said are the property of the insured &/or held by them in trust/in deposit &/or belonging to the others &/or lying/entrusted for sale/purchase/repair &/or replacement purpose whilst Consumer Complaint No.90 of 2002. 5 lying/stored/contained/arranged in the above said business premises of the insured as well as otherwise as stated above."
15. This insurance policy reveals that the business premises of the complainant i.e. the shop from which he was running the business was insured with the respondents for a sum of Rs.8 lakhs. It is also admitted by the complainant that his house from which the theft had allegedly taken place was not insured with the respondents which he has specifically stated even before the police when he made the statement to ASI Baldev Singh, PS-Civil Lines, Incharge P.P. Dasonda Sahib Chowk on 15.1.2002 Ex.C-3.
16. However Section II of the insurance policy provided that the gold was also insured for a sum of Rs.7 lakhs if it was stolen while being taken on business tour outstation anywhere in India or vice-versa when it was in custody/possession of the insured or his authorized agent.
17. In the present case, the complainant had allegedly brought the gold from his shop to his house on 12.1.2002 and the alleged theft of gold had taken place from his house on 14.1.2002 at about 11.30 A.M.
18. The version of the complainant that he had received the order from M/s Neelam Jewellers, Jalandhar for the purchase of 1905 grams of gold is not supported by any such order from M/s Neelam Jewellers, Jalandhar. The complainant has also not filed any affidavit of M/s Neelam Jewellers, Jalandhar. Therefore the version of the complainant becomes doubtful for three reasons, that no such order was placed by M/s Neelam Jewellers, Jalandhar or if that order was for 1905 grams of gold or if the complainant was bound to deliver the gold to M/s Neelam Jewellers, Jalandhar on 14.1.2002 itself.
19. Even if any such order was received by the complainant he could have sent the gold directly from his shop to M/s Neelam Jewellers, Jalandhar.
20. The submission of the learned counsel for the complainant was that since the gold was to be sent to M/s Neelam Jewellers, Jalandhar by the complainant Consumer Complaint No.90 of 2002. 6 through his employee Ramesh Kumar on 14.1.2002 at 8.30 A.M., therefore, he had brought the gold to his house. It was further submitted by him that Ramesh Kumar could not come in time as his daughter fell sick for which he had received information from Ramesh Kumar.
21. This story is totally unbelievable. However even if these submissions are accepted still there is a big lacuna in the case of the complainant which makes it totally unbelievable for the reason given below.
22. The complainant alleges in the complaint that on 14.1.2002 he himself left for Phagwara to attend a meeting of the Rotary Club and left his house at 10.30 A.M. The house of the complainant is admittedly in Amritsar from where the alleged theft had taken place. If he was going to Phagwara to attend a meeting of the Rotary Club then he could have taken the gold with him to deliver the same to M/s Neelam Jewellers, Jalandhar which was on the way particularly when he had received the information from Ramesh Kumar prior to his leaving for Phagwara that he (Ramesh Kumar) would not come at 8.30 A.M. and in fact he had not come at 8.30 A.M.. For that reason the complainant alleges that he had handed over the keys of the almirah in which the gold was lying to his father so that his father could deliver the gold to Ramesh Kumar when Ramesh Kumar was to come to his house for this purpose. When the complainant knew that Ramesh Kumar was not going to Jalandhar at 8.30 A.M. on 14.1.2002 as was originally planned and particularly when he himself was proceeding to Phagwara through Jalandhar, there was no bar for the complainant to take the gold himself for delivering the same to M/s Neelam Jewellers, Jalandhar. The complainant has also not given any reason why he himself could not take it to Jalandhar for delivery to his customer.
23. Therefore the story of the complainant of brining the gold from his shop on 12.1.2002 to his house for sending it to M/s Neelam Jewellers on 14.1.2002 through Ramesh Kumar at 8.30 A.M. and the story of sickness of the daughter of Ramesh Kumar are totally imaginary and unbelievable. In order to make it Consumer Complaint No.90 of 2002. 7 believable the complainant has forged his account books of his shop and got the false affidavit of Ramesh Kumar.
23. As per the version of the complainant his wife Komal Mehra had already gone to Mata Vaishno Devi. At about 11.00 A.M. on 14.1.2002 Prem Parkash Mehra (father of the complainant) along with his wife Ramesh Mehra, his son Rajesh Mehra and daughter-in-law Vandana Mehra (wife of Rajesh Mehra) went to Durgiana Mandir at about 11.00 A.M. leaving the house locked. Who can believe this version that the complainant and his family members left the house free when the gold in kilograms was lying in the house particularly when there was no emergency for leaving the house locked as alleged. It is a film style story which is always artificial.
24. Moreover it is really surprising that Prem Parkash Mehra (father of the complainant) who had the keys of the almirah in which the gold was kept by the complainant and when he (Prem Parkash Mehra) had instructions specifically from the complainant to wait for Ramesh Kumar to whom he (Prem Parkash Mehra) was to handover the gold for being delivered to M/s Neelam Jewellers, Jalandhar, would have left his house. Rather he would have remained in the house if not for security reason at least for waiting for Ramesh Kumar so as to deliver the gold to him for being taken to Jalandhar. Therefore this version of the complainant that Prem Parkash also left the house is totally unbelievable.
25. Then at another place it is pleaded by the complainant that Prem Parkash Mehra had gone to the electricity office for his personal work. The father of the complainant who was given the keys of the almirah for delivering the gold to Ramesh Kumar employee of the complainant would have remained in his house for becoming available to Ramesh Kumar on his arrival. It has not been explained by the complainant as to what was the emergency for which Prem Parkash Mehra (father of the complainant) also left the house for going to electricity office.
Consumer Complaint No.90 of 2002. 8
26. It is further pleaded by the complainant that Ramesh Mehra wife of Prem Parkash Mehra and his daughter-in-law Vandana Mehra were returning to the house after worshipping in the temple and they had found lock of the main gate broken and two Hindu persons having naked knives in their hands coming out of their house. They started crying "chor chor (thieves thieves)".
27. This version is again totally unbelievable for the reasons that if Ramesh Mehra and her daughter-in-law Vandana Mehra had gone for worshipping in the temple along with Prem Parkash Mehra and his son Rajesh Mehra, when did Prem Parkash Mehra and his son Rajesh Mehra return from the temple? It has not been explained at all. Prem Parkash Mehra allegedly went to electricity office for his personal work while his son Rajesh Mehra left for the shop while the two ladies allegedly noticed the two thieves when they had reached near their house. This version is totally imaginary.
28. Moreover as discussed above Prem Parkash Mehra being an old man would not have left the house particularly when he was deputed to give the gold to Ramesh Kumar and he (Prem Parkash Mehra) would have remained at home waiting for him.
29. It is also unbelievable if the thieves who had already committed the theft and had come out of the house, they would have naked knives in their hands.
30. As per the version of the complainant both the ladies, namely, Ramesh Mehra and Vandana Mehra had given a telephonic call to Prem Parkash Mehra who returned home but he reported the matter to the police only on 15.1.2002. If the occurrence had taken place on 14.1.2002 at about 11.30 A.M. then the occurrence could have been reported to the police by Prem Parkash Mehra on the same day. The delay in reporting the matter to the police also reveals that the story of the complainant is absolutely improbable.
31. The complainant also reported the matter to the police on 15.1.2002. He had allegedly gone to Phagwara to attend a Rotary Club meeting on 14.1.2002 at about 10.30 A.M. It is not explained by him if he returned from Phagwara to Consumer Complaint No.90 of 2002. 9 Amritsar on the same day i.e. on 14.1.2002 or he stayed at Phagwara for the night of 14.1.2002 but he had also made his statement to the police only on 15.1.2002. If such a big theft had taken place in his house he would not have delayed making statement to the police on the same day.
32. Moreover while reporting the matter to the police Prem Parkash Mehra did not give the details of the gold belonging to the complainant which was allegedly stolen by the thieves and stated that only Vipan Mehra complainant could say about the gold stolen by the thieves. Vipan Mehra complainant also made his statement to the police (Ex.C3). He also did not give any details of 1905 grams of gold which was allegedly stolen by the thieves.
33. If the complainant had brought 1905 grams of gold from his shop on 12.1.2002 for being delivered to M/s Neelam Jewellers, Jalandhar he would have the details of that gold and he would have given the details to the police when he allegedly made his statement on 15.1.2002. He only stated that some gold consisting of necklace, hand wears, rings and without giving the details about the number of ornaments or weight of each ornament or value of each ornament to the police he made the statement. This also shows that the story made out by the complainant is totally false and unbelievable.
34. Moreover, even according to the complainant, the thieves had taken away all the gold of the complainant from one almirah. They also committed theft of some gold ornaments from the other almirah of his father Prem Parkash Mehra but some of the gold ornaments belonging to the father of the complainant were left by the thieves. This again makes the story of the complainant totally unbelievable.
35. If the mother and sister-in-law of the complainant had come in the house while the thieves were in the process of committing the theft, one can believe that the thieves had to run hurriedly and they took away whatever came in their hands but in the present case the thieves were already leaving the house after committing the theft. The thieves had ample time to take away the remaining gold ornaments from the almirah of the father of the complainant but they still left some gold Consumer Complaint No.90 of 2002. 10 ornaments/jewellery in the almirah of the father of the complainant as if the thieves were sympathetic to the father of the complainant. This is totally unbelievable.
36. About 2 kilograms of gold ornaments were lying in the house of the complainant besides the gold of the family and other valuable articles the complainant allegedly went to Phagwara, his wife went to Mata Vaishno Devi, his father, his mother, his brother, his brother's wife all went to Durgiana Mandir and later on his father went to electricity office leaving free field for the thieves. It is totally unbelievable if it could happen like this. When such valuable articles were lying in the house at least somebody of them would have remained in the house and everybody would not have given free access to the thieves to commit theft. Therefore the story set-up by the complainant is full of improbabilities and discrepancies and, therefore, is totally unbelievable.
37. Learned counsel for the complainant relied upon the judgment of this Commission reported as "Prem Nath vs. United India Insurance Co. Ltd." III (1997)CPJ 208. The facts of this case were different. The employee of the complainant had actually gone on business trip with gold ornaments when the theft had taken place when the gold was in the transit. The terms and conditions of the insurance policy were different. The same judgment had come up in revision before the Hon'ble National Commission and is reported as "UNITED INDIA INSURANCE CO. LTD. vs. PREMNATH, PREMNATH & SONS" II(2001) CPJ 29 (NC). Therefore the facts of both these judgments were different from the facts of the present case.
38. Following judgments have also been relied upon by the learned counsel for the complainant:-
(i) "KUMAR AGENCY vs. ORIENTAL INSURANCE CO. LTD."
III(1999) CPJ 49.
(ii) "ORIENTAL INSURANCE CO. LTD. vs. PRAKASH JEWELLERS (SOUTH END)" I(2002)CPJ 57.
Consumer Complaint No.90 of 2002. 11
(iii) "SANTOSH KUMAR DIXIT vs. THE ORIENTAL INSURANCE COMPANY LIMITED & ANR." I(2002) CPJ 488.
(iv) "ORIENTAL INSURANCE COMPANY LTD. vs. LEO EARTHMOVER (P) LTD." II(1997) CPJ 373.
(v) "M/S GOPAL JI AMBICA PRASAD vs. NEW INDIA ASSURANCE COMPANY" III(2002) CPJ 120.
(vi) "NEW INDIA ASSURANCE CO. LTD. vs. MURTI ENTERPRISES" III (2006) CPJ 112 (NC).
(vii) "LIFE INSURANCE CORPORATION OF INDIA vs. MRS.
KAILASHI DEVI CHAUDHARY" II(2004) CPJ 82.
(viii) "RAMESH KHAITAN vs. NATIONAL INSURANCE COMPANY LTD. & ORS." II(2007)CPJ 193 (NC).
(ix) "PRATAP SINGH vs. NATIONAL INSURANE COMPANY LTD." II (2007) CPJ 312.
(x) "RIDHI GUPTA vs. NATIONAL INSURANCE CO. LTD."
III(2008) CPJ 459.
(xi) "UNITED INDIA INSURANCE CO. LTD. vs. CH. RASOOL BHAT" I(2009) CPJ 222.
39. We have gone through all these judgments. The facts of all these cases are far away from the facts of the present case.
40. It was held by the Hon'ble Supreme Court in the judgment reported as "BIHAR SCHOOL EXAMINATION BOARD vs. SURESH PRASAD SINHA"
IV (2009) CPJ 34 (SC) as under:-
"14. The Courts should guard against the danger of mechanical application of an observation without ascertaining the context in which it was made. In C.I.T. v. Sun Engg. Works (P) Ltd., 1992 (4) SCC 363 (vide para 39) this Court observed:
"It is neither desirable nor permissible to pick out a word or a sentence from the judgment of Consumer Complaint No.90 of 2002. 12 this Court, divorced from the context of the question under consideration and treat it to be complete 'law' declared by this Court. The judgment must be read as a whole and the observation from the judgment have to be considered in the light of the questions which were before this Court. A decision of this Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the Courts must carefully try to ascertain the true principle laid down by the decision of this Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by this Court, to support their reasonings."
41. It was also approvingly quoted by the Hon'ble Supreme Court in Suresh Parsad Sinha's case (supra) as under:-
"A decision is a precedent on its own facts.
Each case presents its own features. It is not everything said by a Judge while giving a judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi.
According to the well-settled theory of precedents, every decision contains three basic postulates, (i) findings of material facts, direct Consumer Complaint No.90 of 2002. 13 and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a Court has been decided is alone binding as a precedent. (See: State of Orissa v. Sudhansu Sekhar Misra and Ors., AIR 1968 SC 647 and Union of India and Ors. v. Dhanwanti Devi and Ors., 1996(6) SCC
44. A case is a precedent and binding for what it explicitly decides and no more. The words used by Judges in their judgments are not to be read as if they are words in an Act of Parliament. In Quinn v. Leathem, (1901) AC 495 (H.L.), Earl of Halsbury LC observed that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which are found there are not intended to be exposition of the whole law but governed and qualified by the particular facts of the case in which such Consumer Complaint No.90 of 2002. 14 expressions are found and a case is only an authority for what it actually decides. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes."
42. Their Lordships of the Hon'ble Supreme Court also approvingly quoted in Suresh Parsad Sinha's case (supra) as under:-
"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases. One should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
43. After discussing the whole law, Their Lordships of the Hon'ble Supreme Court were further pleased to quote approvingly in Suresh Parsad Sinha's case (supra) as under:-
Consumer Complaint No.90 of 2002. 15
"It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision."
44. It is, therefore, held that the judgments relied upon by the learned counsel for the complainant have different facts and have no bearing to the facts of the present case.
45. In view of the discussion held above this complaint is dismissed with costs of Rs.20,000/-.
46. The arguments in this case were heard on 12.7.2010 and the order was reserved. Now, the order be communicated to the parties.
(JUSTICE S.N. AGGARWAL)
PRESIDENT
July 19 , 2010 (MRS. AMARPREET SHARMA)
Bansal MEMBER