State Consumer Disputes Redressal Commission
Shri. Pravin Kumar Ramani vs M/S.United India Insurance Co. Ltd. on 12 August, 2013
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE
HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Complaint
Case No. CC/06/99
Shri. Pravin Kumar Ramani
Sole proprietor of M/s. Pravin Jewellers,
Business at 37/41, 2nd floor, Vithal Mandir
Building, Office
"B", Bhuleshwar
Road,
Mumbai - 400 054.
...........Complainant(s)
Versus
M/s.United India Insurance Co. Ltd.
Business at Cama Bldg., 1st floor, 226, Dr. D. N.
Road, Fort, Mumbai - 400 020.
............Opp.Party(s)
BEFORE:
HON'BLE MR. S.R. Khanzode PRESIDING MEMBER
HON'ABLE MR. S.B.Sawarkar MEMBER
PRESENT:
Mr.S.N.Chataule-Advocate proxy for
Mr.H.H.Trivedi-Advocate
......for the Complainant
Mr.J.D.Karanjkar-Advocate
......for the Opp. Party
ORDER
Per Honble Mr.S.R.Khanzode, Presiding Judicial Member The consumer complaint pertains to alleged deficiency in service on the part of M/s.United India Insurance Co.Ltd. (herein after referred as Insurance Company) for arbitrarily repudiating an insurance claim in respect of stolen jewellary during the transit.
It is a case of the complainant that its employee Bharat Ramani was entrusted with the golden ornaments weighing about 4138.450 gms for being taken to Bangalore for the business purpose. He was travelling by a Traveller bus in a day time. When the bus halted for lunch after crossing Khed Shivpur at Natraj Hotel on Bombay Bangalore Highway, every passenger was made to alight from the bus and the bus was locked. After the passengers returned to the bus having lunch said Bharat Ramani found that his suit case in which the ornaments were kept and which was chained with a lock to his seat, was found broken and the golden ornaments kept therein were stolen. He immediately brought it to the notice of the cleaner and the bus driver.
Search of the passengers was taken but the ornaments were not found however, it was noticed that two passengers were failed to board the bus after lunch and were missing.
Intimation was given to the nearest police station. However, police officials made the complainants employee to run from one place to other for lodging the complaint and, ultimately, the bus left leaving Bharat Ramani back. Complainant in the meantime on receiving the information rushed to the spot and then ultimately the report was given at the police station Bhor and crime was registered. Simultaneously, Insurance Company was also informed. Since the goods were covered by the Jewellers Block policy issued to the complainant for the period 21/04/2004 to 20/4/2005, Insurance Company appointed surveyor P.P.Dalal and Co. The surveyor initially gave preliminary report on 17/9/2004 and, thereafter, submitted a final report dated 13/08/2005 on 13/07/2006 to the Insurance Company. Considering the same, Insurance Company, pointing out clause 8(b) of the policy, repudiated the insurance claim on 13/07/2006. In the meantime, police who were investigating the crime also found the incidence true but the culprits were not found and submitted A Summary which was eventually accepted by the Magistrate on 05/01/2005.
Aggrieved by the repudiation, this consumer complaint came to be filed on 20/07/2006, soon after the repudiation.
Insurance Company by its written version tried to justify the repudiation on the basis of clause 8(b) and asked to dismiss the complaint.
Document of the insurance policy, final report of the surveyor dated 13/08/2005 submitted on 13/07/2006 after submitting the report some clarification was sought from the surveyor which it had supplied to the Insurance Company on 08/03/2006 and, similarly, First Information Report, A Summary granted as well as the claim statement interalia including the voucher, authority letter issued on 07/08/2004 when the employee Bharat Ramani was entrusted with the jewellery for being transshipped to the Bangalore and the letter of repudiation dated 13/07/2006 are the documents referred by both the parties and, therefore, are taken into consideration.
Besides the documents referred above, the complainant relied upon his own affidavit dated 17/04/2013 and also referred to an affidavit of Bharat Ramani dated 14/10/2002, which was produced perhaps during the investigation/enquiry by the police/surveyor while the opponent/ Insurance Company relied upon the affidavit of its official Mr.Amit Nakhare submitted by way of verification to the written version and no other evidence is adduced.
The incident as recounted earlier is not in dispute.
The complainant and Bharat Ramani in their respective statements given on oath in a form of affidavit, explained the circumstances as to how the police officials were immediately contacted but they were made to run from one police out post /police station to another and, ultimately, at police station Bhor the complaint could be lodged and FIR could be registered. Thus, there is no delay in lodging the FIR and the intimation to the Insurance Company was immediately given. The entire brief of police investigation in a form of xerox copies are referred by the surveyor P.P.Dalal & Co. and were produced on record along with report by the opponent/Insurance Company.
However, we will not refer to the police statement recorded or the police panchanama. What is relevant only is that after the investigation police found the incidence true. They ruled out the possibility of employee Bharat Ramani as an accomplice to the crime and finding that the culprits were not found, submitted A Summary which was eventually accepted by the Magistrate. These facts are relevant to interpret clause 8(b) of the policy.
Ignoring the recommendations of the surveyor which were based upon surveyors own enquiry, Insurance Company was pleased to repudiate the insurance claim referring to clause 8(b) of the policy in the following words:-
We refer to the captioned claim under our above policy for alleged loss of jewellery, reportedly, occurring on 8th August 2004 in the manner specifically described in the Police papers and the Claim Form submitted by you.
As you are aware, we appointed M/s.P.P.Dalal & Co. licensed insurance Surveyors, to investigate into and assess the loss, if any. We have received their report and on perusal thereof, and the police papers, it is observed that the loss occurred due to gross negligence of your employee who, reportedly, carried the jewellery said to have been lost.
In terms of, provision 8(b) of the policy there is no liability for the alleged loss particularly, in the circumstances in which the loss is said to have occurred.
Under the circumstances, we repudiate your captioned claim. All our rights, contentions and defences are hereby reserved.
Referring to facts of the case, the insurance company had already sought clarification from the surveyor which the surveyor was pleased to submit on 08/03/2006 mentioned as under:-
We are in receipt of your referred letter on 13/02/2006. We would like to give point wise reply as follows:
(i) The insured were maintaining stock books wherein entries were posted on day to day basis. A copy each of the insureds gold stock registers (New Gold ornaments and Standard gold/Gold Bar) for the period 01/04/2004 till the date of referred incident is enclosed herewith.
(ii) The insured were not maintaining item-wise stock register.
The records were maintained on aggregate weight basis.
We hope that the aforesaid clarifies the matter.
Possibility of negligence by the employee is dealt with by the surveyor in his final report as under:
7. According to the records of the insured, Mr.Bharat Ramani was employed with the insured since past four years. He was in receipt of remuneration of `7000/- per month.
A copy of the ledger account of Salary paid to Mr.Bharat Ramani from the books of the insured is enclosed herewith.
8. During the course of our survey/investigations, we had questioned the insured as to why leaving of suitcase containing valuables in the bus should not be construed as absence of reasonable care by the employee?
The insured have vide their letter dated nil replied as follows :
With reference to your query as to why leaving of suitcase containing valuables in the bus should not be construed as an act of negligence/absence of reasonable care by the employee, we would like to state as under:
The suitcase containing valuables was locked. Immediately after boarding the bus in the morning on 8-8-2004, the suitcase containing was placed below Mr.Bharat Ramanis seat, tied to the seat with a chain and the chain was secured with a lock. When the bus halted at Hotel Natraj at around 1.00 pm, all the passengers alighted from the bus for lunch except Mr.Bharat Ramani, one lady passenger and 2/3 other passengers on the rear side in the bus. At that point of time, the cleaner of the bus arrived and instructed all the passengers to immediately vacate the bus as it was their policy to lock the empty bus during food breaks. Since Mr.Bharat Ramani had no choice, he and one lady passenger alighted from the bus and 2/3 passengers who were seating on the rear side alighted from the bus after some time. The bus was then locked by the cleaner. At the time of alighting from the bus, Mr.Bharat Ramani had verified that the bag was locked, tied with the chain and was properly secured with a lock. Mr.Bharat Ramani had occupied a seat in Hotel Natraj in front of the bus during the food break.
The locked bus was opened at around 2.00 pm by the cleaner.
Mr.Bharat Ramani immediately boarded the bus and whilst keeping his feet over the bag felt the hollowness in the same. Sensing something amiss, he immediately checked the suitcase and noticed that though the chain was secured by a lock, the lock of the bag was broken and the small bag containing 4,138.450 gms of gold bangles was missing therefrom.
Mr.Bharat Ramani immediately informed the cleaner, got the bus stopped, checked the same and took the count of passengers in the bus. On realizing that two passengers occupying seat no.22 & 23 were missing from the bus. Mr.Bharat Ramani insisted with the Driver and Cleaner of the bus to take the bus directly to Police Station.
In the said circumstances, the question of negligence/absence of reasonable care does not arise in as much as the bag was locked, fastened with a chain and secured with a lock below the seat occupied by Mr.Bharat Ramani.
Further, Mr.Bharat Ramani was forced to alight from the bus by the conductor citing rules of the travel company to lock the empty bus during food breaks. Moreover, it is not practical to get down from the bus with suitcase during breaks, as it would invite unnecessary attention of trouble makers. We hope that the aforesaid would clarify that there was no negligence/absence of reasonable care from our side in the referred incident.
We find the observations of the surveyor referred above are well reasoned and based upon the facts and circumstances. We also endorse the same.
The main controversy revolves around the interpretation of clause 8(b) of the insurance policy and it reads as under:-
8. Loss or damage occasioned by theft or dishonesty or any attempt threat committed by or where such loss or damage has been expedited or in any way sustained or brought about by :
(a) ..
(b) any servant or traveler or messenger in the exclusive employment of the insured.
(c ) .
Simple reading of this exclusion clause would show that an involvement of the employee as an accomplice is contemplated and/or the act of commission or omission on part of the employee should have a direct nexus with the felony. If the employee gets involved in such capacity and in such form with the felony, then the case may be covered by this exclusion clause and not otherwise. In the instant case, such possibilities are already ruled out and Insurance Company did not place any material on record to infer otherwise. Under the circumstances, interpretation of this clause which favours the consumer is to be accepted, supra. Since the Insurance Company failed to discharge the onus which lies upon it to justify their repudiation, we find Insurance Company since failed to indemnify the insured for the risk covered as per section II of the Jewellers Block policy, it is deficient in service within the meaning of Consumer Protection Act, 1986.
Complainant is therefore, entitled to get compensation for the same.
The surveyor in detail considered all the aspects and submitted his final report dated 13/08/2005 to the Insurance Company on 13/07/2006.
Surveyor has assessed the loss at `23,98,331/- and we find no reason not to accept the same as a basis of compensation. Since the repudiation is arbitrary, the Insurance Company is liable to pay interest which we find just and proper to award @ 12% p.a. in the circumstances of the case, over the amount of compensation from the date of filing of the consumer complaint i.e. 20/07/2006 till its realization. We hold accordingly and pass the following order:-
ORDER Consumer complaint is partly allowed.
Opponent/Insurance Company do pay compensation of `23,98,331/- to the complainant along with interest @ 12% p.a. w.e.f. 20/07/2006 till its realization.
Opponent/Insurance Company to bear its own costs and pay `25,000/- as costs to the complainant.
Pronounced on 12th August, 2013.
[HON'BLE MR.
S.R. Khanzode] PRESIDING MEMBER [HON'ABLE MR.
S.B.Sawarkar] MEMBER Ms.