National Consumer Disputes Redressal
Oriental Insurance Co. Ltd. vs Delhi Assam Roadways Corporation ... on 3 February, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3324 OF 2012 (Against order dated 02.05.2012 in First Appeal No. 22/2012 of the State Consumer Disputes Redressal Commission, UT, Chandigarh) Oriental Insurance Company Ltd. Through Chief Manager 88, Janpath New Delhi 110 001 ` Petitioner Versus Delhi Assam Roadways Corporation, Presently known as DRACL (DARCL), Logistics Limited, Through Authorized Rep. Office at: 19/3, Tilak Bazar, Hissar, Haryana Respondent BEFORE: HONBLE MR. JUSTICE J.M.MALIK, PRESIDING MEMBER HONBLE DR. S.M. KANTIKAR, MEMBER For the Petitioner : Ms. Manjusha Wadhwa, Advocate For the Respondent : Mr. Karan Jain, Advocate Mr. Mridul Chakravarty, Advocate PRONOUNCED ON 3rd FEBRUA RY, 2014 ORDER
PER DR. S.M. KANTIKAR, MEMBER
1. The Delhi Assam Roadways Corporation the Respondent/Complainant herein took Cash in Transit Insurance Policy, from Oriental Insurance Company Ltd., the Petitioner/Opposite Party, which was valid for the period from 11.08.2009 to 10.08.2010. Theft took place on the night intervening 06/07.10.2009., in the premises of the Complainant, at Rudrapur, Uttarakhand. 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 07.10.2009 and an FIR was registered. The matter was also reported to the local branch of the OP at Haldwani. The OP repudiated the claim of the Complainant, on the ground that there was no threat or violence involved, for obtaining the keys. The OP turned a deaf ear to the several requests made by the Complainant. Thereafter, alleging deficiency in service, the complainant on 30.08.2011, filed a complaint before the District Forum.
2. The District Forum allowed the complaint on 20.12.2011 and directed the OP/Petitioner to pay Rs.1,18,246/- along with interest @ 9% per annum, from the date of repudiation i.e. 31.03.2010, till its actual payment, along with Rs.10,000/- as litigation cost.
3. Aggrieved by the order of District Forum, the Petitioner/OP filed First Appeal (FA No 22/2012) before the State Consumer Disputes Redressal Commission (in short, State Commission), Chandigarh, on 16.1.2012. The State Commission dismissed the appeal, vide order dated 02.05.2012.
4. Hence, the Petitioner/OP preferred this revision petition.
5. We have heard Counsel for both the parties. The Counsel for the Respondent raised objections on delay of 36 days in filing this revision. We condone the delay on the basis of reasons stated in the IA for condonation of delay.
6. On merits of this case, the Counsel for the Respondent/Complainant argued that, theft had occurred and there was no delay either in filing the FIR or giving intimation to the insurance company/(OP). Police arrested three persons, but theft amount was not recovered. He also submitted that, the claim of complainant was a justified one, as per terms of policy. Even the said claim was covered under risk of burglary, house breaking, dacoity, robbery and hold up.
7. The Counsel for the Petitioner/OP argued that there was no deficiency or negligence. He further drew our attention to the said insurance policy particularly, to Condition No. 4 and the Exclusion Clause which run, as follows:
The insured shall keep a daily record of the amount of Cash contained in the safe or strong room and such record shall be deposited in a secured place other than the said sale or strong room and be produced as documentary evidence in support of a claim under this policy. The keys of the safe or strong room shall not be left on the premises out of business hours unless the premises are occupied by the insured or any authorized employee if insured in which case such keys if left on the premises shall be deposited in a secured place not in the vicinity of the safe or strong room. The insured shall keep a daily.. The policy does not cover loss of cash abstracte4d from safe/strong room or any duplicate there of belonging to the insured unless such key has been obtained by threat or violence.
8. Therefore, we are of considered view that the insured had not taken all reasonable precautions for safety of the property which was insured. In the instant case, admittedly, the keys were taken from below the pillow of the employee, without the use of any threat or violence. Thus, simply because the things were stolen, will not make the insurer liable, unless the essential ingredients i.e. use of violence and/or threat, is missing. Further, the keys were not kept at safe place and the keys lying below the pillow, were easily accessible. Thus, the keys were taken from under the pillow of the concerned employee of the Respondent and thereafter the room lock and the safe lock was opened by use of said keys. Thus, opening of the safe was done, without the use of threat or violence, and thus not covered under the policy terms and conditions. Consequently, the claim of the Complainant was repudiated.
9. Counsel for the Respondent/Complainant argued that police have already investigated the matter and arrested the thieves in the case. However, we do not find any iota of evidence on record to show that the thieves were arrested and whether investigation, if any, is pending or concluded, qua the alleged thieves. There was a delay of 31 days in filing the FIR and giving intimation to the Insurance Company. Therefore, such delay in reporting would be a violation of condition of policy, as it deprives valuable right of insurer to investigate the case.
10. Such delay is fatal to the insured, for which the counsel for OP relied upon several judgments of Honble Apex court and that of this commission. Honble Supreme Court in United India Insurance Company Limited vs. M/s Harchand Rai Chandan Lal (2004) 8 SCC 644, has held that the terms of Policy have to be construed as it is and nothing can be added or subtracted from the same. The Policy provides that in the case of theft, the matter should be reported immediately. Similar view was taken by this Commission in New India Assurance Company Limited Vs. Trilochan Jane, FA/321/2005 decided on 09/12/2009. To the similar effect, the judgment of this Commission in Aerolux India Pvt. Ltd. vs. New India Insurance Company Limited, Original Petition No.365/2002, decided on 13/4/2012, this Commission has observed, as under :-
overall, we are convinced that the Complainant has not been able to make out a case to support his claim, in as much as, he has failed to take reasonable care to protect the insured premises and the stock of raw materials kept therein and has further failed to comply with the mandatory and specific conditions of the policy relating to immediate notice of the loss to the police and to the Insurance Company. We are also not convinced that there has been any violent and forcible entry of any outsider/burglar to commit theft. Rather there is every possibility about the involvement of his own staff in the Commission of the offence.
11. On the basis of forgoing discussion, we find that the complainant was negligent, and also did not comply with the terms and conditions of the policy. Accordingly, we allow this revision petition and set aside the order passed by the State Commission and dismiss the Complaint. The parties are directed to bear their own costs.
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(J. M. MALIK, J.) PRESIDING MEMBER ..
(S. M. KANTIKAR) MEMBER Mss/11