State Consumer Disputes Redressal Commission
Royal Sundaram Alliance Insurance ... vs Emami Frank Ross on 29 January, 2013
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO- FA/298/2012 DATE OF FILING : 11.06.2012 DATE OF ORDER:
29.01.2013 APPELLANTS : 1. Royal Sundaram Alliance Insurnace Co. Ltd.
At 21, Patullos Road, Chennai-600002 and having its Branch/City Office at Branch Office at Millenium City Information Technology Park, Unit Nos:T-2-2A Tower-IT Plot Nos. DN-62, Sector-V, Salt Lake, Kolkata-700091.
P.S. Electronics Complex.
RESPONDENT : 1. Emami Frank Ross Ltd., 7-Jawaharlal Neheru Road, P.S. New Market, Kolkata-700013.
BEFORE HONBLE MEMBER : MR. DEBASIS BHATTACHARYA MEMBER : :
MR. J. BAG FOR THE APPELLANTS :
Mr Debajit Dutta, Advocate FOR THE RESPONDENTS : Mr. Anirban Tarafdar, Advocate Sri Debasis Bhattacharya , Member Being aggrieved and dissatisfied with the judgment and order dated 16.05.2012 in C.C. No. 90/11 by the Ld. District Forum, 24-Parganas(North), the OP thereof has preferred this appeal.
The case of the Respondent/Complainant in its petition of complaint is that on 18.04.2010, the complainant took out an Insurance Policy being No. 770000 2055000101 from the OP in respect of the complainants retail outlet shop situate at 225, Rajdanga, Nabapally, Kolkata 700078 against Fire, Burglary, Money in Transit and Money in Safe, and Fidelity Guarantee which was signed by one Mahua Chatterjee, an authorized representative of the OP at their city office at Sector V, Salt Lake, Kolkata, valid from 00.00 hrs of 09.04.2010 till the midnight of 08.04.2011 and the sum insured for Fire was Rs.40,36,000=00,for Burglary, Rs.39,86,000=00, for Money in Transit Rs.54,75,000=00, for Money in Safe, Rs2,00,000=00, for Fidelity Guarantee, Rs.2,00,000=00. The gross premium was Rs.5,435=00 with an additional Earthquake premium, Terrorism premium, additional 10% Service Tax and additional Edu.Cess 3% on S. Tax and the total premium came to Rs.7,017=00 and the complainant has paid regular premium till 08.04.2011 without any default. On 08.08.2010, the shop was closed on its usual time at around 10.20p.m. and in the next morning i.e., on 09.08.2010, around 08.30 a.m., when the Shop In-charge along with other attendants came to open the shop, they found the shutter of the shop damaged and the safe being a drawer under lock and key where they keep their cash was broken upon and cash amounting of Rs.84,417=00 was missing from the said safe/drawer, and an F.I.R. to this effect was lodged with Kasba PS on the very same day and an electronic mail sent to Ms. Mahua Chatterjee, the authorized representative of the OP, and a letter to Shri S.K. Sinha Chowdhury, the Surveyor and Loss Assessor of the OP, was sent on 09.08.2010 by the complainant reporting about the burglary at the retail shop of the complainant. By a letter dated 12.08.2010, said Shri S.K. Sinha Chowdhury expressed his desire to visit the shop of the complainant to survey and assess the loss due to burglary and requested the complainant to submit certain documents to enable him to finalise his survey report and accordingly, on 24.08.2010, the Claim Form duly filled in and also such documents along with a covering letter was sent to said Shri S.K. Sinha Chowdhury. Subsequently, by a letter dated 08.09.2010, the OP declined the claim of the complainant by taking the plea that the cash was stolen from a wooden drawer of the counter and that in the Money section of the policy, they have stated that the OP only covers loss or damage to money while kept locked in a safe or strongroom in the premises outside the business hours due to burglary, housebreaking, robbery or hold up, which does not include wooden drawer. By a letter dated 27.09.2010, the complainant wrote to the OP that as per Oxford Dictionary, safe means a strong lockable cabinet etc. for valuables and further wrote that there is no definition of Locked Safe and that nowhere in the Policy of the OP it was mentioned that locked wooden cabinet/drawer shall not be considered as Safe. Moreover, while taking out the Policy, it was clearly stated to said Mahua Chatterjee that the complainant did not have any strongroom and that the complainant kept their cash in wooden drawer/cabinet with lock facilities in all their pharmacies and even at the time of renewal of policy it was never intimated to the complainant at any given point of time that keeping of cash in the drawer/cabinet duly locked is not covered under the Policy. The OP had also declined the request for re-consideration of the claim by the complainant by a letter dated 12.10.2010, but the complainant kept pursuing the matter and several electronic mails were sent to the OP, the last of which was on 17.03.2011 and the city based representatives till third week of March,2011 had kept assuring/representing/inducing the complainant to believe that they had placed the matter before the Managing Director of the OP as a special case keeping in mind long-standing relationship between the two parties. As all their efforts went in vain, this case.
On the other hand, the main case of the Appellant/OP in its W/V is that the alleged theft occurred from the drawers inside the shop of the complainant but such drawers by no means can be considered as safe within the terms and conditions of the concerned policy of insurance as well as standard definition of the term safe. Further, the said drawer was not broken open and it was just opened by using a key and therefore the complainant is not entitled to any claim from the OP. It is further stated that in Oxford Dictionary, the term safe has been defined as a strong fireproof cabinet with a complex lock, used for the storage of valuables and that non-quoting of definition of safe in the policy condition is immaterial. Thus, by repudiating the present claim of the complainant, the OP No.1 did not commit any negligence, deficiency in service as well as unfair trade practice. Accordingly, it has been prayed to dismiss the complaint with cost.
By the impugned judgment and order, the Ld. District Forum, 24-Parganas(North) has allowed the case on contest against the OPs and directed the OP to pay a sum of Rs.84,417=00 to the insured/complainant with interest @9% interest P.A. from the date of the order till its realization, with further direction to pay a sum of Rs.2,000=00 to the complainant towards litigation cost.
It to be considered if the impugned judgment and order suffers from any kind of irregularity or illegality so as to call for interference in this appeal, or not.
Decisions with reasons.
Admittedly, the Respondent/Complainant, Emami Frank Ross Ltd. was having Insurance Policy of the Appellant/OP against fire, burglary, money in transit, money in safe and fidelity guarantee and the break-up of the total sum insured was Rs.40,36,000=00, Rs.39,86,000=00, Rs.54,75,000=00, Rs.2,00,000=00 and Rs.2,00,000=00, respectively.
It is rather undisputed that there has been a theft in the shop of the Respondent/Complainant on the overnight of 08.08.2010. In this respect, there was FIR by the Respondent/Complainant and electronic mail to Mahua Chatterjee, the representative of the OP and thereafter return mail by the OP and deputing Shri S.K. Sinha Chowdhury to conduct survey and assess the loss with request to furnish all the details as asked by Shri Sinha Chowdhury and also to return the relevant claim form duly filled in and signed which is attached. Thereafter, it is found that Shri S.K. Sinha Chowdhury, Surveyor and Loss Assessor, made a Final Survey Report dated 31.08.2010 with the assessment of the amount taken away by burglars of Rs.84,417=00. But, he opined that as the burglars have taken away money from the drawers and not from the safe, so the policy issued does not permit the payment of claim. On that basis, the Appellant repudiated the claim by a letter dated 08.09.2010 by making out that at Money section of the policy, sl. no.3, of para What we cover, reads as loss or damage to money while kept locked in a safe or strongroom in the premises outside the business hours due to burglary, housebreaking, robbery or hold up. Thereafter, by a letter dated 27.09.2010, the Respondent/Complainant referred the matter for re-consideration submitting that as per Oxford Dictionary Safe means, strong lockable cabinet etc. for valuables and in their policy, there is no definition of Locked Safe and further there is no mention in the policy that locked wooden cabinet/drawer will not be considered as Safe and furthermore that while taking out the policy it was clearly stated to their representative Ms. Mahua Chatterjee that they do not have strongroom and they keep their cash in wooden drawer/cabinet with lock facilities in all their pharmacies. But, it was turned down by a letter dated 12.10.2010 by the Appellant/OP stating inter alia that Oxford Dictionary describes safe as a strong fire proof cabinet with complex lock, used for the storage of valuables, and thus wooden drawer having single inbuilt lock facilities cannot be considered as safe. Further, there was a communication by electronic mail by the Respondent/Complainant to the said Ms. Mahua Chatterjee on 17.03.2011. It is true that no specific defining clause of safe has been spelt out in the policy document. Further, it was not disputed that the said matter of keeping cash in wooden drawer/cabinet on locked facilities in all their pharmacies was made out to Ms. Mahua Chatterjee while taking out the instant policy. Such an important clause of the policy should have been defined to the other side being ignorant and having no idea of it at the time of giving out any such policy to the insured, which in this case has not been followed by the Appellants/OP. The complainant/Respondent has also a duty cast in the matter being an organization with higher-ups, to be conversant with the actual meaning of safe and the implication of the policy conditions being lying with them. As referred by the Ld. Advocate for the Appellant, it has been held by the Honble Supreme Court in Civil Appeal No. 8176 of 1997 in the case of Oriental Insurance Co. Ltd., Appellant vs. Samayanllur Primary Agricultural Co-op. Bank, Respondent, reported in AIR 2000 SC 10, that a burglary insurance policy shall cover loss of only cash or jewellery in safe and safe does not cover cashiers cash box and burglary committed in respect of jewels and cash kept in cashiers cash box is not covered by insurance policy, which has been referred by the Honble National Commission in disposing Revision Petition No. 455 of 2009 in the case of Jagrut Nagrik & Anr., Petitioners vs. New India Assurance Co. Ltd., Respondent by holding that keeping in view of the above ruling of Honble Supreme Court in Oriental Insurance Co. Ltd. (supra) and the terms and conditions of the insurance policy, Respondent/Insurance Company was right in repudiating the claim. This case falls in the same line. Accordingly, the impugned judgment and order suffers from lack of exercise of legal propriety in the matter which cannot be sustained.
In the result, the appeal succeeds.
Hence ordered That the appeal be and the same is allowed on contest against the Respondent without cost. The impugned judgment and order is hereby set aside. Resultantly, the petition of complaint stands dismissed.
MEMBER MEMBER