State Consumer Disputes Redressal Commission
United India Insurance Co Ltd vs Mr Govardhan Mannalal Verma on 20 November, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION STATE CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA, CIRCUIT BENCH, NAGPUR 5th floor, Administrative Building, Civil Lines, Nagpur-01 Appeal No.A/08/455 ( Arising out of Order dtd.29.04.2008 in Complaint No.CC/08/22 of District Forum, Washim ) United India Insurance Co Ltd Nagpur Regional Office Ambika House, 3rd Floor, 19, Dharampeth Extn. Shankar Nagar Square Nagpur- 440 010 ..Appellant(s) Versus Mr Govardhan Mannalal Verma Priprietor, Arti Jewelers Durga Chowk, Malegaon Tah. Malegaon, Dist.Washim .Respondent(s) Appeal No.A/08/479 ( Arising out of Order dtd.29.04.2008 in Complaint No.CC/08/22 of District Forum, Washim ) Mr Govardhan Mannalal Verma Priprietor, Arti Jewelers Durga Chowk, Malegaon Tah. Malegaon, Dist.Washim ..Appellant(s) Versus United India Insurance Co Ltd Nagpur Regional Office Ambika House, 3rd Floor, 19, Dharampeth Extn. Shankar Nagar Square Nagpur- 440 010 .Respondent(s) BEFORE: Honble Mr B.A. Shaikh, Presiding Member Hon'ble Smt.Jayshree Yengal, Member PRESENT: Adv.Mr B Lahiri for the Insurance Co. Adv. Mr S D Chande for Mr Govardhan M Verma ORDER
(Passed on 20.11.2013) Per Mr B A Shaikh, Honble Presiding Member
1. Both these appeals are being disposed of by this common order as they are directed against the same order dtd.29.04.2008 passed by District Consumer Forum, Washim in Consumer Complaint No. CC/08/22 by which the complaint has been partly allowed.
2. The case of the complainant as set out in the complaint in brief is that he had obtained insurance policy for the gold & silver ornaments of his shop from the opposite party (for short the O.P.).
The risk covered was for Rs.12,50,000/- and the period of policy was from 25.01.2007 to 24.01.2008. As per that policy the risk of theft of the gold & silver ornaments of that shop was covered. The theft of the gold & silver ornaments of that shop took place in the intervening night of 19.07.2007 and 20.07.2007. The thieves have stolen away ornament total worth Rs.6,84,870/-. Therefore, the complainant lodged report with the Police and gave its information to the O.P. The surveyor appointed by the O.P. paid visit to the shop of the complainant and inspected the same and recommended for settlement of the claim. However, the O.P. repudiated the claim on the ground that the stolen ornaments were not kept in locked burglar proof safe at night. The repudiation of the claim is illegal and therefore, the complainant prayed that the O.P. be directed to pay him Rs.6,84,870/- with interest @ 24% p.a. and Rs.2.00 Lacs towards mental harassment and cost of the complainant.
3. The O.P. resisted the said claim by filing Written Version. It admitted that it had issued policy covering the risk of gold & silver ornaments of the shop of the complainant for the period from 25.01.2007 to 24.01.2008 and that the theft took place in that shop in between night of 19.07.2007 and 20.07.2007 and therefore, the claim was submitted to it by the complainant. It submitted that the claim has been repudiated by it as the stolen ornaments were not kept in locked burglar proof safe at night and therefore, there is a breach of policy condition mentioned in Clause No.1 (Sec. I). It is, thus, submitted that the complainant is not entitled to the amount claimed by him.
4. The Forum below, after going through the evidence brought on record, observed under impugned order that though in Clause No.1 (Sec.I) of the policy, it is mentioned that after closing hours of the shop the ornaments were required to be kept in locked burglar proof safe, nobody keeps his ornaments in the shop to be stolen away. It is also observed that the complainant had taken proper precaution while keeping the ornaments in the shop and despite of the said fact ornaments are stolen. Therefore, it directed the O.P. to pay to the complainant Rs.3.50 Lacs as per assessment made by the surveyor and also to pay Rs.5,000/- towards loss sustained by him, within 30 days and in case of failure, the said amount shall carry interest @ 9% p.a. till its realization.
5. Feeling aggrieved by that order the original O.P. preferred appeal No.A/08/455, whereas the original complainant preferred the appeal No. A/08/479.
6. Learned advocate of both the parties filed Written Notes of Arguments. We have also heard them orally and perused the papers placed before us. The Learned advocate of the O.P. / appellant in Appeal No. A/08/455 submitted that as per clear terms of the policy the ornaments were required to be kept during night hours in locked burglar proof safe and that the FIR and other papers produced on record, show that the ornaments were not kept during the night in locked burglar proof safe. Therefore, he submitted that there is a breach of material condition of the policy and that the Forum has not properly considered the said material condition of the policy and partly allowed the complaint. Therefore, he urged that the appeal preferred by original O.P. may be allowed and impugned order may be set aside. He relied upon the observations made by the Honble Supreme Court in the case of United India Insurance Co Ltd. Vs. H Rai Chandan Lal - IV (2004) CPJ 15 (SC). It is observed by Honble Supreme Court in that case that the policy is contract between the parties and both the parties are bound by the terms of the contract.
7. On the other hand, the learned advocate of the original complainant / appellant in appeal No. A/08/479 argued that the policy shows that the ornaments kept in display window to the extent of 3.50 Lacs and elsewhere to the extent of Rs.3.00 Lacs were also secured under that policy. He further submitted that only ornaments kept in locked burglar proof safe to the extent of Rs.5.00 Lacs were secured as per the policy. He, therefore, supported the finding of the Forum below that the complainant is entitled to the compensation as ornaments are stolen away. Further he also argued that the Forum below erred in only partly allowing the complaint. According to him the total sum assured was Rs.12,50,000/-, whereas the value of the stolen ornaments as per FIR and other documents was Rs.6,84,870/- and therefore, the complainant is entitled to the said amount. Thus, he urged that the appeal preferred by original complaint may be allowed and original O.P. may be directed to pay him Rs.6,84,870/- with interest. He also relied upon the observations made in the following cases:-
i. Oriental Insurance Co Ltd. Vs. Hasina Khatun and Ors. - (2011) 2 CPR 156 Orissa State Consumer Disputes Redressal Commission, Cuttack.
In that case the direction of the Forum below was upheld, which was relating to making payment of 75% of insured value of the vehicle, even though, there was violation of the terms & conditions of the insurance policy.
ii.
United India Insurance Co Ltd Vs. Nisha Devi 2011 (I) CPR 276 Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla. It was a case of suicide and therefore it is held that repudiation of the claim of respondent on the basis of concocted reasons amounts to deficiency in service.
iii.
Branch Manager, Oriental Insurance Co. Ltd. & Anr Vs. M K Subba & Ors. AIR (2011) Sikkim 28. It is observed that sworn testimony before Tribunal has to be given necessary weightage over unsworn unsigned statement recorded by the Policy and as breach of policy not being proved, insurer is liable to pay compensation.
8. The material question involved in the present case is as to whether there is breach of policy condition.
Admittedly, the insurance policy in question shows the following material condition:-
Warranted that all stocked whilst at the premises specified in the schedule shall be secured in locked burglar proof safe at night and at all times out of their business hours.
In the instant case, admittedly, the theft in the shop of the original complaint took place at night time when the shop was closed.
Therefore, as per aforesaid term of the policy, it was necessary for the complainant to secure his all the gold & silver ornaments in locked burglar proof safe at night time. However, FIR lodged with the Police by the complainant and the Panchanama of the shop of the complainant placed on record do not show that theft of the aforesaid ornaments took place after breaking open the locked burglar proof safe. On the contrary the said documents show that the ornaments, which were kept in the counters, almiras and the showcase, were stolen away by the thief during the night time. The complainant neither in the FIR nor in the complaint made before the Forum below stated specifically that the ornaments were kept by him in locked burglar proof safe before occurrence of the the3ft. Therefore, we are inclined the accept the plea raised by the original O.P. that as all the stolen ornaments were not kept in locked burglar proof safe at night time, there is breach of aforesaid material term & condition of the aforesaid policy and therefore, it is not liable to pay sum assured, to the complainant.
10. No doubt, in the policy it is stated that the sum assured is of Rs.3.50 Lacs towards ornaments kept in display window, Rs.5.00 Lacs is the sum assured towards the ornaments kept in locked burglar proof safe and Rs.3.00 Lacs is the sum assured for the ornaments kept elsewhere. However, the said sums are assured for the ornaments, which are kept as above during the business hours of the day. The material condition given in the said policy is that all the said ornaments should be secured in locked burglar proof safe at night and at all times out of business hours. Therefore, we find no substance in the submission of the learned advocate of the original complainant / appellant in appeal No. A/08/479.
11. The Forum below has erred in partly allowing the complaint.
The Forum below has not properly considered the aforesaid material condition of the policy which is violated by the complainant. It is not clear in the impugned order as to what precaution was taken by the complainant in terms of the aforesaid policy condition. We find that the observations made by the Forum below, while partly allowing the complaint, are not based on the proper appreciation of condition of the policy. Hence, the impugned order cannot be sustained under law.
12. We find that decision relied upon by the learned advocate of the original O.P. / appellant in appeal No. A/08/455 is applicable to present case since both the parties to the aforesaid policy are bound by terms & conditions of the said policy. The decisions relied upon by the learned advocate of the original complainant / appellant in A/08/479 are not applicable to the facts & the circumstances of the present case, since they are totally different from those of said cases.
13. Thus, we hold that the impugned order needs to be set aside. The appeal preferred by the original O.P. deserves to be allowed and the appeal preferred by the original complainant deserves to be dismissed.
ORDER i.
The appeal No. A/08/455 preferred by the original opposite party is hereby allowed and appeal No. A/08/479 preferred by the original complainant is hereby dismissed.
ii.
Impugned order dtd.29.04.2008 passed in Consumer Complaint No. CC/08/22 by District Consumer Forum is hereby set aside.
iii.
The complaint stands dismissed.
iv.
No order as to cost in this appeal.
v.
Copy of this order be supplied to the parties.
[ B. A. SHAIKH ] PRESIDING MEMBER [ SMT.JAYSHREE YENGAL] MEMBER sj