State Consumer Disputes Redressal Commission
Mr.Hitesh M. Selarka vs 1. The Manager, The Oriental Insurance ... on 30 January, 2015
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE HON'BLE STATE CONSUMER DISPUTES
REDRESSAL
COMMISSION, MAHARASHTRA,
MUMBAI
Complaint Case No. RBTCC/13/57
Mr.Hitesh M. Selarka,
Proprietor of M/s.Hitesh Jewellers,
B/20, Bhuleshwar Darshan,
61, Dr.Atmaram
Merchant Road,
Kalbadevi, Mumbai 400 002.
...........Complainant(s)
Versus
1. The Manager,
The Oriental Insurance Co.Ltd.
through the Manager,
M.C.D.O. No.19, Magnet House, Ground Floor,
Right Wing, Narrottam Morarji Marg,
Ballard Estate, Mumbai 400 036.
2. Mehta & Padamsee Pvt.Ltd.
Fort Chambers,
C Block, Tamarind Street,
Fort, Mumbai 400 001.
............Opp.Party(s)
BEFORE:
HON'BLE MR. Shashikant
A. Kulkarni PRESIDING MEMBER
HON'BLE MR. Narendra
Kawde MEMBER
For the Complainant:
Adv.Baliram Kamble
For the Opp. Party:
Adv.Sapna Bhuptani
ORDER
Per Honble Mr.Narendra Kawde, Member [1] Complainant is a proprietor of M/s.Hitesh M. Selarka who has availed Jewellers Block Policy No.112101/48/2008/1237 with sum insured of Rs.3,01,00,000/- from the opponent. Policy period commenced on 24/08/2007 till 23/08/2008. On 27/10/2007, two employees of the complainant were travelling in the bus from Mumbai to Hyderabad carrying consignment of gold in the packed and locked bag. The employees noticed the theft of gold from the locked bag. They immediately got down from the bus, informed the incident to their employer on phone i.e. complainant. Complainant instructed to go to police station and instructed to preserve the remaining gold consignment in safe place. FIR was lodged on 27/10/2007 thereby reporting the theft of 3.5 kgs of gold. Matter was investigated and submitted to the competent court for filing the non-detection report. However, complainant lodged a claim of loss of the gold as it was covered under insurance company. Opponent insurance company appointed a surveyor M/s.Mehta & Padamsee, who carried out detailed survey and arrived at conclusion holding loss of Rs.29,56,725/-. However, opponent repudiated the claim by their letter dated 01/09/2010 invoking the provision in Condition 13(a) of the Policy. This condition precisely reads as under :-
The insured shall give notice to the police and the company within 24 hours and take all practicable steps to discover the guilty person or persons and to recover the property lot or stolen and to prosecute and obtain the conviction of such person or persons for the offence.
[2] Aggrieved thereby, the complainant has filed this consumer complaint alleging deficiency in service against the opponent insurance company and claiming an amount of Rs.42 lacs together with interest @18% p.a. and Rs.2 lacs for mental torture and Rs.1,50,000/- as costs of litigation.
[3] Opponent insurance company has appeared by filing written version opposing the contentions and claim of the complainant. The important ground taken by the opponent is violation of Condition 13(a) incorporated in the policy terms and conditions. Moreover, no due diligence was exercised by the complainant while carrying the gold in question. Claim was repudiated by letter dated 01/09/2010 for violation of the terms and conditions of the policy mainly 13(a).
[4] We have heard learned counsel Mr.Baliram Kamble for the complainant and learned counsel Mrs.Sapana Bhuptani for the opponent.
[5] There is no dispute about the insurance coverage during the period of incident to the insured goods, gold and gold ornaments under the policy. Policy documents provide insurance cover under various heads. Transit insurance in Part II covers risk to the extent of Rs.60 lacs. Amount claimed is well within the limit.
Surveyor quantified the damage to the tune of Rs.29,56,725/-. However, he has observed that there was no due diligence on the part of the complainant, as the concerned employees of the complainant did not raise any alarm in bus in which they were travelling.
[6] The only point relied by the complainant is that the opponent failed to act on the insurance claim for the period of two years from the date of submission of the surveyors report. Complainant diligently filed FIR on the date of incident. However, there is no record to demonstrate that the complainant informed to the insurance company within a period of 24 hours or even thereafter. Moreover, what we find that the alleged consignment carried out in the bus in closed and locked bag is not supported by specification or voucher or name of the consignee. What we find that FIR is based only on the information given by the employees of the complainant to the concerned police station. In the several pronouncements, it was held that the insurance policies are to be strictly stipulated within the terms and conditions applicable to the contract. This was held in the case United India Insurance Co.Ltd. vs. Harchand Rai Charandas Lal - Appeal(Civil) 6277 of 2004 - by the Honble Apex Court with observation that the The terms of the policy have to be construed as it is and we cannot add or subtract something. It is settled law that terms of policy shall govern the contract between the parties, they have abide by definition given therein and all those expressions appearing in the policy should be interpreted with reference to the terms of the policy and not with reference to the definition given in other laws. Violation of the conditions which are germane to the contract bound to vitiate the contract. Complainant failed to establish that on intimation or even thereafter, the complainant has failed to establish loss in transit as a question of fact and in the legal terms on the basis of documents. Complainant has also failed to establish the notice of intimation given to the opponent immediately or thereafter as required under the stipulation which is vital to the contract. Therefore, no deficiency can be attributed against the opponent for repudiation of the claim. The consumer complaint deserves to be dismissed. We hold accordingly and pass the following order.
ORDER
1.
Consumer Complaint stands dismissed.
2. No order as to costs.
3. Copies of the order be furnished to the parties free of cost.
Pronounced Dated 30th January, 2015.
[HON'BLE MR. Shashikant A. Kulkarni] PRESIDING MEMBER [HON'BLE MR. Narendra Kawde] MEMBER PGG