National Consumer Disputes Redressal
Oriental Insurance Co. Ltd. vs S.K. Jewellers on 5 July, 2005
Equivalent citations: IV(2005)CPJ89(NC)
ORDER
M.B. Shah, J. (President)
1. Heard the learned Counsel for the parties.
2. This appeal is filed against the judgment and order dated 10.4.1995 passed in O.C. No. 43/94 by State Consumer Disputes Redressal Commission Punjab, Chandigarh. By the impugned order, the State Commission allowed the complaint and directed the insurance company to indemnify the complainant the loss of Rs. 4,12,500/- along with interest at the rate of 18%. per annum from 8th September, 1993 till its payment and in addition awarded costs of Rs. 1G;000/-.
3. In appeal, by order dated 28th August, 1995, this Commission granted interim stay of enforcement of the order passed by State Commission on the condition that appellant pays to the respondent within 6 weeks from that day one-half of the amount payable by it under the impugned order.
4. It appears that the said order was not complied with and the matter was repeatedly adjourned. Subsequently, after hearing the parties, by a detailed order dated 3rd December, 2003, negativing the contention of the insurance company that there was no insurance coverage on the date of incident, was passed and an interim direction for ad hoc payment of Rs. 3 lacs was given.
5. The relevant part of the order is as under:
"The learned Counsel appearing on behalf of the appellant Insurance Company submits that the cheque amount for insurance premium was issued on 3rd July, 1992 and, therefore, the policy would normally be from July, 1992 and particularly in the present case as there was a previous policy ending on 9th July, 1992. It is his contention that as the policy was issued in July, 1992, the period of insurance mentioned between 10th September, 1992 and 9th September, 1993 is erroneous and is on account of some typographical mistake on the part of the concerned officer. For this purpose, learned Counsel for the appellant referred to the history of previous policy issued by the Insurance Company in favour of the respondent.
Admittedly, in the present rise, the incident of theft took place on 8th September, 1993. As per the period of insurance mentioned in the insurance policy, it is between 10th September, 1992 and 9th September, 1993. It is also admitted fact that on the basis of the theft the complainant has lodged FIR before the Police Station. However, the Insurance Company by its letter dated 3rd June, 3.994 repudiated the claim by informing the complainant that correct policy period was 10th July, 1992 to 9th July, 199 3 and as the loss occurred on 8th September, 1993 the policy cover was not there at the relevant time. On the same date, the Officer In-charge of the appellant wrote letter that, the correct policy period was 10th July, 1992 to 9th July, 1993 and not 10th September, 1992 to 9th September, 1993 and the date mentioned in the policy was a typographical error. This contention was rightly rejected by the State Commission and in our view there is no reason different from the view taken by the State Commission. However, the learned Counsel for the appellant submits that in case of error or mistake, it is open to the Insurance Company to rectify the said error. In our view after the event, if Insurance Company is permitted to rectify the so-called error it would seriously prejudice the rights of the insured. The insured was all throughout under the impression that policy cover was up to 9th September, 1993. Further from the conduct of the complainant it is apparent that the complainant was all throughout interested in seeing that there is a specific insurance cover.
In this view of the matter, there is no substance in this contention. However there is no evidence to indicate that complainant has suffered a loss of Rs. 4 lakhs or more because of the theft. It is true that despite the repeated requests, Insurance Company has not appointed Surveyors to assess the loss. The learned Counsel for the appellant submit appellant be permitted to appoint Surveyor who would verify, from the record of the complainant and submit his report with regard to loss suffered because of the theft on 8th September, 1993.
Considering the fact that respondent has suffered a loss in 1993, we direct the appellant to pay Rs. 3 lakhs on ad hoc basis till the surveyor submits the report. After Surveyors' report is received, matter be placed for determination of the amount payable to the respondent. However, we make it clear that if any amount is payable/paid on the basis of the order passed by the State Commission that amount would be adjusted against the amount to be directed to be paid under this interim order.
We hope that the Surveyors' report would be exhaustive and would be based on the accounts of the respondent and for this learned Counsel for the respondent assures that appellant will fully co-operate with the Surveyors by producing the relevant documents."
6. Thereafter, repeated adjournments were given to see that complainant produces relevant record before the Surveyor. All throughout it is pointed out by the learned Counsel Mr. Mehra for the insurance company that the complainant has failed to produce the relevant books of accounts before the Surveyor. It is say of the complainant that the complainant was prepared to produce the available account books before the surveyor. It is also pointed out that Assessment Orders were produced before the Surveyor and not the books of accounts.
7. Considering the delay involved and the fact that the main contention of the insurance company was with regard to typographical error in mentioning the period of insurance coverage which was negatived by order dated 3.12.2003, without waiting for the Surveyor's report, we have heard the appeal on merits. Mr. Mehra, learned Counsel appearing on behalf of the insurance company submitted that taking the insurance policy as it is, then also it is apparent that the liability of the insurance company would be at the most Rs. 50,000/-. For this purpose, he has referred to the claim and terms of the insurance policy.
8. Admittedly, it is the case of the complainant that the complainant M/s. S. K. Jewellers, Amritsar, through its sole proprietor had taken the insurance policy for the period commencing from 10.9.1992 to 9.9.1993 covering the loss under various eventualities. It is also the case of the complainant, that on his business trip at Hyderabad on 7.9.1993, a briefcase containing the gold jewellery worth Rs. 3,75,000/- was stolen by the accused named,. Sushil Kumar. FIR was registered and on the basis of the said FIR, final report was submitted by the investigating agency to the effect that:
"During the course of investigation Notice under Section 160, Cr.P.C. was sent to the complainant Surender Kumar s/o Charanjeet Singh, age 33 years r/o Shaktinagar, Amritsar, Punjab State for producing witnesses and connected documents mentioned in the petition by him, but the complainant failed to produce the same after taking notices under Section 160, Cr.P.C. As such it has come to conclusion that the complainant is not interested in the case and he simply filed a complaint in the Honourable Court.
In view of the above, no further action can be taken and finally the case is referred as LACK OF EVIDENCE. In this case accused is also not traced. Hence the property, i.e. gold jewellery could not be recovered. Final report is submitted to the Hon'ble Court herewith, with a prayer to treat this case as LACK OF EVIDENCE and issue proceedings accordingly. "
It is the say of the complainant that repeatedly he was asked to go to Hyderabad from Amritsar by the investigating agency and the investigating agency was not prepared to trace out the accused. Hence, there was no alternative for him.
9. In the present case, insurance coverage for various eventualities is as per the policy on certain terms and conditions. The said terms are required to be referred which are hereinafter reproduced:
"Section I : Loss or damage to property insured under items 1 to 5 under Section 1 of the Schedule whilst contained in the premises where the insured's business is carried on or at other premises where the insured property is deposited as specified in the Schedule, by FIRE, EXPLOSION, LIGHTNING, RIOT AND STRIKE, MALICIOUS DAMAGE, BURGLARY, HOUSE BREAKING, THEFT, ROBBERY AND HOLD-up RISKS Only.
Section II: Loss of or damage to property insured under items 1 and 2 of Section II of the Schedule and carried/ conveyed outside the specified premises for purpose of insured's business by any cause whatsoever except as hereinafter provided.
Section III : Loss of or damage to the property insured whilst in transit as Specified in items 1, 2 and 3 of Section III of the schedule within the geographical area specified in the Schedule by any cause whatsoever except as hereinafter provided.
Section IV : Loss of or damage to office furniture, fixtures fittings the property of the insured being used in connection with the insured's business whilst contained in the premises where the insured's business is carried on by FIRE, EXPLOSION, LIGHTENING, RIOT AND STRIKE, MALICIOUS DAMAGE, BURGLARY, HOUSE-BREAKING, THEFT, ROBBERY AND HOLD-UP RISKS ONLY."
Sections I, II and III of the schedule gives insurance coverage as under:
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"Section I:
Property insured on the premises. : Rs. 5,00,000/- Section II: 1. Property insured whilst in the custody of the insured, his partners, directors, duly constituted attorneys, his employees or sorters of diamonds. : Rs. 2,50,000/- 2. Property insured excluding cash and currency notes whilst in the custody of persons not in regular employ- ment of the insured such as brokers or agents or cutters or goldsmiths. : Rs. 2,50,000/- Section III : Limit for anyone loss The property insured excluding cash and currency notes whilst in transit within India by 1. Registered insured parcel post (Rs. 5 lacs or 10% of the sum insured under Section 1 whichever is less) : Rs. 50,000/- 2. Air Freight (Minimum 20% of value to be declared to the Airlines) 3. Angadia
WARRANTED THAT PROPERTY IN TRANSIT BY MEANS OTHER THAN DESCRIBED ABOVE IS NOT COVERED.
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10. Thereafter, the relevant Condition No. 6 reads thus:
"6. The insured shall keep proper stock and account books in which all sales and purchases are recorded. The insured shall also maintain a separate register for deposits and withdrawals of stocks from Bank lockers."
11. From the aforesaid sections, it is apparent that with regard to the alleged theft, (a) if it has taken place in the premises of the complainant, the insurance coverage is up to Rs. 5 lakhs, and (b) in case of other than insured premises, if the property insured was in custody of the insured, his partners, etc., the insurance coverage was for a sum of Rs. 2,50,000/-. Further, Section III is not applicable as, admittedly, it is not the case of the complainant or the insurance company that the property was in transit as contemplated under the said section. Hence, it is apparent that the case of the complainant is covered by Section II as the theft of the jewellery/ornaments took place while the same was in his custody at Hyderabad and, therefore, the insurance coverage would be up to the sum of Rs. 2,50,000/-. Therefore, there is no substance in the contention raised by Mr. Mehra, learned Counsel for the insurance company, that the limit of the insurance company is up to Rs. 50,000- or in the contention of learned Counsel for the complainant that the limit is for a sum of Rs. 5 lakhs. In this view of the matter, the order passed by the State Commission directing the insurance company to pay Rs. 4 lakhs and odd cannot be justified, as the maximum insurance coverage was for a sum of Rs. 2,50,000/-.
12. It was further contended by the learned Counsel for the insurance company that the complainant has failed to produce the books of accounts. As against this, learned Counsel for the complainant submitted that the complainant has produced all the necessary relevant Assessment Orders passed by the Income Tax Department and those orders are much more relevant for deciding the case.
13. Considering that the matter is pending since years and the Surveyor was not appointed by the insurance company at the relevant time, there is no reason not to believe the say of the complainant that the loss suffered by him was for more than Rs. 4 lakhs. Hence, in our view, it would be just and proper to direct that insurance company to pay a sum of Rs. 2,50,000/- to the complainant with 9% interest from 1.1.1994. Order accordingly. The amount shall be paid after adjusting the amount of Rs. 3 lakhs paid by it as per our order dated 3.12.2003 stated above.
The appeal stands disposed of accordingly. There shall be no order as to costs.