State Consumer Disputes Redressal Commission
N.K. Gupta vs National Insu. Co. Ltd. on 25 July, 2017
Daily Order IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision: 25.07.2017 Complaint Case No. 79/2011 In the matter of: Sh. N K Gupta C/o M/s Beads N Jewel Tanishq Showroom No. 1022 Ground Floor Turab Nagar Ambedkar Road Ghaziabad-201001 Also at: G-3, Akarshan Bhawan 4754/23 Ansari Road Darya Ganj, New Delhi-110002 ........Complainant Versus National Insurance Co. Ltd. Divisional Office:361500 2nd Floor, EMCA House 23/23-B Ansari Road Darya Ganj New Delhi-110002 .....Opposite Party CORAM N P KAUSHIK - Member (Judicial) 1. Whether reporters of local newspaper be allowed to see the judgment? Yes 2. To be referred to the reporter or not? Yes N P KAUSHIK - MEMBER (JUDICIAL) JUDGMENT
Facts of the complaint are broadly not in dispute. Complainant is an HUF and proprietor of the firm M/s Beads N Jewel, G-3 Akarshan Bhawan, 4754/23 Ansari Road Darya Ganj New Delhi. It is engaged in the business of selling gold and diamond jewellery. Complainant had its showroom at 1022 Ground Floor Turab Nagar Ambedkar Road Ghaziabad UP. Complainant admittedly took an insurance policy from National Insurance Co. Ltd. (in short the OP) for loss or damage to its aforesaid property in Ghaziabad. The said property included items in display windows, locker/safe, cash and currency notes, property in bank locker, private lockers, furniture, fixtures and fittings. Insurance policy provided a comprehensive cover against any contingency. Subject policy was termed as `jewellers block'. Complainant thus obtained two insurance policies, one carrying premium of Rs. 1,18,943/- towards `jewellers block' and the record with a premium of Rs. 15,332/- towards `public liability - non industrial risk'. Policies were taken on 30.03.2009.
On 26.07.2009 when the complainant was out of station, a theft took place in the insured premises i.e. the premises bearing no. 1022 Ground Floor Turab Road Ghaziabad. Insured goods worth Rs. 56,19,204/- were stolen. On the next day, a complaint was lodged with Police Station Kotwali City Ghaziabad which culminated into an FIR bearing No. 599/09. There was no eye witness to the said incident. Complainant doubted his servants named Basant Giri Bahadur, Suresh Bahadur and Nawal Bahadur as the persons who committed theft. These persons did not turn up after the factum of theft was noticed. Complainant in his complaint to the police alleged that the aforesaid servants had committed the theft in his showroom. Complainant also had availed of the services of detective agency. Theft could not be traced. Police submitted the final report on 14.05.2010 as 'untraced'. Complainant intimated the incident of theft to the OP on 28.07.2009 and lodged its claim. A surveyor named Pradeep Kumar Harjani was appointed by the OP. All requisite documents were provided to the surveyor.
Grievance of the complainant is that the OP vide its letter dated 06.05.2010 repudiated the claim placing reliance upon the exclusion clause no. 8(b) of the policy. Complainant vide its letter dated 16.06.2010 informed the OP that the cover note in his possession did not contain any exclusion clause. Complainant expressed his ignorance of the existence of any such clause in the agreement. Vide its letter dated 23.07.2010, OP informed the complainant that the parties had agreed to the terms and conditions of `jewellers block' insurance policy.
Exclusion clause 8(b) of the policy reads as under:
"8.... Loss of or damage occasioned by theft or dishonesty or any attempt threat committed by or where such loss or damage has been expedited or in any way sustained or brought about by:
a) Any of the insured's' family members.
b) Any servants or traveler or messenger in the exclusive employment of the insured.
c) Any customer or broker or their Angadias or cutters or goldsmiths in respect of the property hereby insured entrusted to them by the insured his or their servants or agents."
With the aforesaid spectrum of facts complainant has prayed for directions to the OP to pay an amount of Rs. 56,19,204/- alongwith interest @ 18% p.a. Compensation to the tune of Rs. 10,00,000/- and litigation charges of Rs. 2,00,000/- have also been prayed for.
Defence raised by the OP is that no theft ever took place as the owner/complainant had entrusted his shop to his staff. OP thus contends that it is a case of criminal breach of trust and not that of `theft' as alleged. OP has heavily relied upon the exclusion clause 8(b) of the policy (reproduced above). OP further submitted that in the present case an FIR was registered under section 406 IPC against the employees named Basant Giri Bahadur, Suresh Bahadur and Nawal Bahadur. OP also admitted having appointed the surveyor who submitted his report dated 18.03.2010. Last paragraph of the report with the heading 'conclusion' reads as under:
"From the facts of the case, FIR of the police (Section 406 of the Indian Penal Code) & our own enquiries, the three employees of the insured concern namely Basant Giri Bahadur, Suresh Bahadur and Nawal Bahadur have disappeared alongwith the cash, gold jewellery and coins lying inside the showroom.
The Exclusion No. 8(b) of the Jewellers Block Insurance Policy states that the Insurance Company shall not be liable under the policy in respect of loss or damage occasioned by theft or dishonesty or any attempt thereof committed by or where such loss or damage has been expedited or in any way sustained or brought about by any servant or traveler or messenger in the exclusive employment of the insured.
Keeping the above exclusions in mind, in view of the above we are of the opinion that the claim does not fall within the purview of the policy & hence is not payable.
This report is issued without prejudice and is subject to terms and conditions of the policy under which this claim is preferred."
On the basis of the defence discussed above, OP wants this Commission to dismiss the complaint.
Complainant filed his rejoinder. Parties filed their evidence by way of affidavit. Written arguments two were placed on record.
I have heard at length the arguments addressed by the Counsel for the Complainant Sh. Kanwal Chaudhary Advocate and the Counsel for the OP Sh. Animesh Sinha Advocate.
Ld. Counsel for the Complainant has relied upon the case of National Insurance Co. Ltd. v. Ishar Das Madan Lal AIR 2007 SC (Supp) 508. Ld. Counsel for the Complainant submitted that in the aforesaid case, the Apex Court held that the exclusion clause 8(c) did not come into play. Before proceeding further, it may be mentioned here that the exclusion clause 8(c) referred to in the aforesaid case is the copy of the exclusion clause in question. On the contrary, Ld. Counsel for the OP has argued that the case relied upon by the complainant pertains to an entrustment of the property to a customer. In the said case the facts were that the theft of jewellery was committed by a customer who had come to the shop for purchase of jewellery. The Hon'ble Apex Court observed that the word 'customer' contained in clause 8(c) of the policy must be read ejusdem generis. Para 14 of the judgment is relevant and the same is reproduced below:
For the purpose of arriving at a conclusion as to whether the exclusion clause is attracted or not, loss or damage must be occasioned, inter alia, by a customer in respect of the property entrusted to him. The word 'customer' contained in clause 8 (c) of the Insurance Policy must be read ejusdem generis. A customer contemplated thereunder must have to be one who would be a man of trust. If a customer is not a man of trust or the property had not been entrusted to him, the exclusion clause would not apply. The customer who committed theft of jewellery was an unknown person. It was so categorically stated in the First Information Report. There was, thus, no occasion for the respondent to entrust the jewellery to him.
The Hon'ble Apex Court thus held that the exclusion clause 8(c) was not applicable in the said case.
Coming to the case in hand, admittedly it is not the case of any entrustment to a customer. OP repudiated the claim vide its letter dated 06.05.2010. The relevant portion of which reads as under:
"Exclusion No. 8 (B) of the Jewellers Block Insurance Policy states that the insurance company shall not be liable under the policy in respect of loss or damage occasioned by theft or dishonest or any attempt thereof committed by or where such loss or damage has been expedited or in any way sustained or brought about by any servant or traveler or messenger in the exclusive employment of the insured."
Perusal of the letter of repudiation shows that the OP relied upon the exclusion clause no. 8(b) of the policy and not clause 8(c). Clearly the case relied upon by the complainant is not parallel to the facts of the present complaint.
During the course of arguments, Ld. Counsel for the Complainant had argued that the present case too is a case of entrustment though the same has been made to the employees and not the customer. A careful perusal of the letter of repudiation shows that the exclusion clause 8(b) pertains to the loss or damage occurred by theft committed by the servant. Now a question arises whether the complainant can be allowed to plead that it was a case of entrustment, breach of which was committed by the employee. Clause 8(b) aims had excluding cases of theft by the employees by taking into account expression of 'theft' specifically. Complainant in his complaint to the police categorically stated that his own employees Basant Giri Bahadur, Suresh Bahadur and Nawal Bahadur committed the theft in his showroom. Complainant has placed on record the report 'untraced' filed by the police in the court. The said report too clearly mentions that the aforesaid employees of the complainant fled to Nepal after committing the theft. Be that as it may, complainant never challenged the said report at any forum. Taking the present case into the ambit of 'entrustment to a customer' is foregone conclusion. On the basis of these reasons, I am of the considered opinion that the present case clearly falls within the ambit of clause 8(b) of the policy. Case law thus relied upon by the complainant is of no avail to him. OP has thus rightly repudiated the claim of the complainant. Complaint is, therefore, dismissed.
Copy of the orders be made available to the parties free of costs as per rules and thereafter the file be consigned to Records.
(N P KAUSHIK) MEMBER (JUDICIAL)