State Consumer Disputes Redressal Commission
The Oriental Insurance Company Ltd., vs Delhi Assam Roadways Corporation, on 2 May, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 22 of 2012 Date of Institution : 16.01.2012 Date of Decision : 02/05/2012 1] The Oriental Insurance Company Ltd., SCO 109-111, Surindera Building, Sector 17-D, Chandigarh, through its Regional Manager. 2] The Oriental Insurance Company Ltd., SCO 235 (infact 325), 2nd Floor, Sector 9, Panchkula, through its Branch Manager. Appellants/Opposite Parties V e r s u s Delhi Assam Roadways Corporation, presently known as DRACL (infact DARCL) Logistics Ltd., having its office at 19/3, Tilak Bazar, Hissar, Haryana, through its Authorized Representative. ....Respondent/complainant Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: MR. JUSTICE SHAM SUNDER, PRESIDENT. MRS. NEENA SANDHU, MEMBER.
Argued by: Sh.G.S.Ahulwalia, Advocate for the appellants.
Sh.Manish Joshi, Advocate for the respondent.
PER JUSTICE SHAM SUNDER, PRESIDENT
1. This appeal is directed against the order dated 20.12.2011, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, it accepted the complaint, and directed the Opposite Parties (now appellants), as under:-
In view of the above facts & circumstances of the case, we are of the considered opinion that the repudiation of complainants claim by the OP Company is totally unjustified. The complaint has merit. The same is accordingly allowed. The OPs are directed to pay Rs.1,18,246/-, the loss suffered by the complainant, along with interest @9% p.a. from the date of repudiation i.e. 31.3.2010 (Ann.C-5/A) till its actual payment. The OPs are also directed to pay Rs.10,000/- as litigation costs.
The order be complied with by the OPs within a period of 30 days from the date of receipt of copy of this order, failing which they shall be liable to pay interest @12% p.a. on the above said awarded amount from the date of repudiation i.e. 31.3.2010 (Ann.C-5/A) till its actual payment, besides paying litigation cost of Rs.10,000/-.
2. The facts, in brief, are that the complainant Company (now respondent), took Cash in Transit Insurance Policy, from Opposite Party No.2, bearing No.231202/48/2010/1093, which was valid for the period from 11.8.2009 to 10.8.2010. Theft took place, in the premises of the complainant, at Rudarpur, Uttarakhand, on the night intervening 6/7.10.2009. The thieves took away an amount of Rs.1,18,246/-, from the safe, by breaking open the lock of the room, in which the said safe was kept. The incident was immediately reported to the concerned Police Station, on 7.10.2009 and an FIR under Sections 457 and 380 IPC, was registered. The matter was also reported to the local Branch of the Opposite Parties (Insurance Company) at Haldwani (Uttarakhand). A Surveyor was appointed, by the Insurance Company, who submitted a detailed report dated 25.12.2009. The complainant also submitted all the requisite documents, to the Insurance Company. However, despite receipt of all the documents, and report of the Surveyor, the Opposite Parties, failed to settle the claim of the complainant, and repudiated the same, vide letter dated 31.3.2010, on the ground, that there was no threat or violence involved, for obtaining the keys. Thereafter, the complainant through various letters requested the Opposite Parties, to settle her claim, but to no avail. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed.
3. The Opposite Parties, in their written version, admitted the factual matrix of the case. It was stated that there are two adjacent rooms, one of which contained the Safe, used by the insured, to keep the cash and the other room was used for the stay of the concerned staff/employee on duty. On 6.10.2009, the concerned staff locked the safe, and went to another room to sleep. The keys were kept by the employee, under his pillow. On 7.10.2009, the employee found the room, where the safe was lying, open. The safe was also found open and the cash, in safe amounting to Rs.1,18,246/-, was found missing. It was further stated that according to the Exclusion clause of the policy, the insured was required to take all reasonable precautions, for the safety of the property. It was further stated that the loss was not covered under the policy, as the cash was abstracted from safe/strong room, by using keys, belonging to the insured and there was no evidence, of any threat having been raised, or violence committed by the thieves. It was further stated that since, there was no threat or violence, as also the concerned employee of the complainant, failed to exercise reasonable care and caution, in keeping the keys of room, and that of the safe securely, the terms and conditions of the policy, in question, were violated, on the part of the complainant. It was further stated that, thus, the claim of the complainant was legally and validly repudiated. It was further stated, that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4. The Parties led evidence, in support of their case.
5. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
6. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.
7. We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully.
8. The Counsel for the appellants/Opposite Parties submitted that, no doubt, the policy aforesaid, was purchased by the complainant, on payment of premium. He further submitted that, no reasonable care and caution, was taken by the complainant, to safeguard the property. He further submitted that, there was no evidence, to the effect that, any threat or violence was used, by the alleged thieves, while allegedly taking away the cash from the safe, but, on the other hand, the same was taken away, by using the keys, in possession of an employee of the complainant. He further submitted, that, as such, the loss was not covered under the terms and conditions of the policy, and, thus, fell under the Exclusion clause of the said policy document. He further submitted that the claim of the complainant was rightly repudiated by the Opposite Parties. He further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside.
9. On the other hand, the Counsel for the respondent/complainant, submitted that reasonable care and caution was taken, to safeguard the property, as the safe, which was lying, in the adjoining room, was duly locked. He further submitted that, in the other room, an employee of the complainant was sleeping and had kept the keys of the room, in which the safe was lying, under his pillow. He further submitted that, on the morning of 07.10.2009, the room in which the safe was lying, was found open, and the safe was also found open. He further submitted that a sum of Rs.1,18,246/-, lying in the safe, and, other articles were stolen, as a result whereof, an FIR was lodged. He further submitted that the thieves, who committed the theft were arrested, but no recovery of cash was effected from them. He further submitted that the loss fell under the insurance cover. He further submitted that the claim of the complainant was wrongly repudiated by the Opposite Parties. He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld.
10. After giving our thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, for the reasons, to be recorded hereinafter. Admittedly, the insurance policy, in question, was purchased by the complainant, from the Opposite Parties. It was also proved, that theft took place at Rudarpur, Uttarakhand, on the night intervening 6/7.10.2009, as a result whereof, a sum of Rs.1,18,246/- was stolen, from the safe, by breaking open the lock of the same as also of room, where the safe was lying. FIR under Sections 457 and 380 IPC, was got registered, by an employee of the Company. Theft was also reported to the local Branch of the Insurance Company at Haldwani, vide letter dated 05.11.2009, Annexure C-3. The Surveyor was appointed, who gave his report Annexure C-4, confirming that the theft aforesaid took place, from the safe of the Company. He further stated, in his report Annexure C-4, that even the thieves, who committed the theft, aforesaid, were arrested by the Police, though, during the course of investigation, cash could not be recovered, from them. In our considered view, it was not necessary that threat or violence should have been used against the employee, who was sleeping in the adjoining room, aforesaid. In Paresh Mohanlal Parmar Vs. New India Assurance Co. Ltd., & Ors, III (2011) CPJ 146 (NC), it was held that it was not necessary that force should be used against the complainant, or his employee, prior to the commission of theft. It was further held that it would be sufficient, if force was used, prior to entering the premises. In his report Annexure C-4, the Surveyor, in clear-cut terms, stated that the thieves, before the police, admitted that they committed theft, and, that they had spent the money, so stolen. Whereas, three mobile phones stolen were recovered from them. The Surveyor did not state, in his report, that no sign of violence was found at the spot. It, therefore, could be said that the thieves, broke open lock of the door of the room, in which the safe was lying.. The lock of the room and the safe could be opened by the thieves, by using some instrument, and, if that was so, then the question of existence of any visible sign of violence, could not be found, at the spot. The District Forum was right, in holding that the case of the complainant was covered under the terms and conditions of the policy, and did not fall under the Exclusion clause. The District Forum was, thus, right, in holding that the Opposite Parties, were deficient, in rendering service, by not settling the claim of the complainant, and, the repudiation made by them, was illegal. The findings of the District Forum, in this regard, being legal and valid, are liable to be upheld.
11. No other point, was urged, by Counsel for the parties.
12. In view of the above discussion, it is held, that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
13. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, with no order as to costs. The order of the District Forum is upheld.
14. Certified Copies of this order, be sent to the parties, free of charge.
15. The file be consigned to Record Room, after completion Pronounced.
02.05.2012 Sd/-
[JUSTICE SHAM SUNDER] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER Rg