State Consumer Disputes Redressal Commission
The New India Assurance Co. Ltd vs Praveen Kumar Sharma on 13 February, 2008
IN THE STATE COMMISSION: DELHI IN THE STATE COMMISSION: DELHI (Constituted under section 9 clause (b) of the Consumer Protection Act, 1986) Date of decision: 13.02.2008 First Appeal No.08/19 (Arising from the order dated 28.11.2007 passed by District Forum(Central) Kashmere Gate, Delhi in Complaint Case No.566/2006) The New India Assurance Co. Ltd., Appellant Delhi Regional Office -1 through Mr. R.K. Tripathi, 124, Jeevan Bharati, advocate. Connaught Place, New Delhi. Versus Sh. Praveen Kumar Sharma Respondent WZ-1554, Rani Bagh, Delhi CORAM: Justice J.D. Kapoor, ... President Ms. Rumnita Mittal Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice J.D. Kapoor, President(ORAL)
1. Against the house hold policy, the appellant company has been vide impugned order dated 28.11.2007 directed to pay a sum of Rs.35,000/- towards loss by way of theft from inside the car, as assessed by its surveyor and also to pay Rs.5,000/- as compensation and Rs.2,000/- as cost of litigation.
2. Feeling aggrieved the appellant has preferred this appeal.
3. Case of the respondent in brief was that on 04.01.2004 the respondent alongwith his family members went to the house of his sister in law at Rohini at about 2.00 PM. He was returning to his house at about 6.00 PM. While the respondent and his family were sitting in the car for the return journey, wife of the respondent put his gold chain weighing 70 gms in her purse. The purse was containing Rs.5,000/- in cash and NSCs worth Rs.5000/-. In the meantime the host came out and was given a farewell. As a matter of courtesy the respondent and his wife came out of the car. During the short span, purse containing gold chain worth Rs.50000/- and NSC Certificates were stolen by someone. FIR No19 dated 04.01.2001 under 379 IPC at PS Prashant Vihar was lodged. The respondent filed the claim with the appellant on 12.01.2004. The appellant rejected the claim on 20.09.2004 on the ground of gross negligence and lack of exercise of reasonable care and caution by the respondent.
4. While justifying the repudiation of the claim the appellant company invoked the special exception of section III of the terms and condition of the policy providing that the company shall not be liable in respect of theft from car except from a fully enclosed saloon type car having all the doors, windows and other openings securely locked and properly fastened.
5. We have perused the impugned order and find that the District Forum arrived at finding of fact that the sequence of events as explained by the respondent are natural and do not show that the respondent did not take reasonable care. District Forum also observed that the appellant itself admitted in letter dated 03.08.2004 that there was no measure or device available with it to decide reasonable care and caution though measuring device is not applicable.
6. We have taken a view that whenever any criminal offence takes place and a report is lodged with the police, the statutory authority to investigate into the offence of theft and other aspects as prescribed by Code of Criminal Procedure is police and no other authority including the investigator to be appointed by the insurance company. No parallel investigation into the criminal offence can be allowed nor any authority can be allowed to arrogate the jurisdiction or the arena which does not belong to it.
7. It is well settled law that the parties are governed by the terms of the contract and as per Special exception of section III of the terms and condition of the policy, the company shall not be liable in respect of theft from car except a fully enclosed saloon type car having all the doors, windows and other openings security locked and properly fastened and also require the insured to exercise all reasonable care and prudence to ensure the safety of the goods insured.
8. Now the question arises on whom the onus to prove to take advantage of the aforesaid section or clause lies. The obvious answer is upon the insurance company. If the circumstance and the contents of the report lodged with the police prima facie make out a case of theft the onus immediately shifts upon the insurance company to prove that the theft of the goods took place from car which was not fully enclosed saloon type having all the doors, windows and other openings securely locked and properly fastened and the insured having taken or exercised all reasonable care and prudence to ensure safety of the goods as the appellant has itself admitted that there is no such device or measure to raise the inference or come to the conclusion that the insured has not taken care or have not complied with the terms and condition of the special exception of Section III of the policy. If it is so then the appellant company has to believe and act upon the version of the insured and if the version of the insured is found to be false during the investigation by the police, the appellant will be entitled to take benefit of the special exception of section III of the policy and other terms of the contract, as any person who lodges false report with the police is liable to be prosecuted for an offence as prescribed under section 182 of the Indian Penal Code.
9. We can also not be oblivious of the fact that every beneficial legislation or the contract has to be provided and receive beneficial interpretation. Contract of the insurance is for the benefit of the insured person and not for the insurance companies who are not only surviving but thriving on the consumer.
10. It is also settled universal rule of interpretation that wherever there are more than two interpretations of any contract or statute particularly the beneficial contract or statute the possible interpretation which goes in favour of the interest of the consumer has to be accepted and acted upon and no other interpretation.
11. The Supreme Court has called the Consumer Fora and Commission to take each and every component of suffering suffered by the consumer while awarding compensation which means the component of mental agony, harassment, physical discomfort, emotional sufferings, insult, humiliation, injustice and other sufferings. The observations of the Supreme Court are quote worthy for the benefit of the service providers, these are as under: -
The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The Commission/ Forum must determine that such sufferance is due to malafide or capricious or oppressive act. It can then determine amount for which the authority is liable to compensate the consumer for his sufferance due to misfeasance in public office by the officers. Such compensation is for vindicating the strength of law.
12. Proceeding on the aforesaid premise, we do not find any infirmity in the finding of fact returned by the District Forum and dismiss the appeal being devoid of merit. The order shall be complied with within one month from the date of receipt of this order.
13. Bank Guarantee/FDR, if any, furnished by the appellant be returned forthwith.
14. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
Announced today on 13th day of February 2008.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member Tri