National Consumer Disputes Redressal
National Insurance Company Ltd. vs M/S. Ganesha International on 11 March, 2019
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 944 OF 2016 (Against the Order dated 20/05/2016 in Complaint No. 284/2011 of the State Commission Delhi) 1. NATIONAL INSURANCE COMPANY LTD. DIVISIONAL OFFICE 26, 2ND FLOOR, EMCA HOUSE, 23/23-B, ANSARI ROAD, DARYA GANJ, NEW DELHI-110002 ...........Appellant(s) Versus 1. M/S. GANESHA INTERNATIONAL 216, 2ND FLOOR, BLOCK-L, GALI NO. 2, DIAMOND MALL, NAIWALA, KAROL BAGH, NEW DELHI-110005 ...........Respondent(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Appellant : Ms. Jyoti Nagpal , Advocate
For Mr. Niraj Singh, Advocate For the Respondent : Mr. Vibhor Garg, Advocate
Dated : 11 Mar 2019 ORDER
The present first appeal has been preferred by the appellant/Opposite Party against the order dated 20.05.2016 of the State Consumer Disputes Redressal Commission, Delhi, (in short 'the State Commission'), passed in Complaint No.284 of 2011 whereby the State Commission directed the OPs to pay the principal amount of Rs. 27, 00, 000/- alongwith interest @ 12% p.a. The State Commission also awarded compensation of Rs.2,00,000/- to the Complainant/respondent.
2. Briefly put, facts relevant for the disposal of present first appeal are that the complainant is a sole proprietorship concern dealing in bullion gold/silver jewellery and export of handicrafts. Complainant took a special contingency insurance from OP/appellant vide policy no. 361500/46/08/9500000165 for the period 11.08.2008 to 10.08.2009. The risk covered were burglary cover, transit cover, larceny, housebreaking, robbery cover etc. Special contingency terms were that insurance was for Rs.2.50 crore for cash/bullion in locked safe, Rs. 47.50 crore for cash/bullion in transit. Special condition was that gold would be carried in the insured's own conveyance with adequate security and proper accounting of stock. On 19.6.2009, robbery of Rs. 27 lacs in cash occurred in transit when authorized employees of the complainant namely Sh. Narender Kumar Singhal and Mr. Akhilesh Kumar were carrying the said cash. They had taken an auto rickshaw from complainant's office to Chandni Chowk to deposit the money in SBI, Chandni Chowk in the bank account of the complainant. Two persons on bike obstructed the auto rickshaw and took away the total cash. Complainant informed police and FIR no. 133 dated 19.6.2009 was registered. The OP was duly intimated about the said incident on 19.6.2009 through email and by hand written communication which was received by OP on 22.6.2009. The claim form was signed and filled and submitted along with copy of FIR. Surveyor was appointed and all the documents were duly presented and handed over to them by the complainant. Complainant alleges that it took insurer 100 months to adjudicate the claim. On 20.12.2010, the insurer intimated the complainant that his claim has been closed because of violation of policy condition that transit was to be done in own conveyance of insured.
3. Aggrieved, the complainant filed a consumer complaint in the State commission for claim of Rs. 27 lacs as principal amount along with interest @ 12% p.a. from the date of incident till realization.
4. OP filed written statement raising preliminary objections that complainant is not a consumer as it is commercial enterprises and had taken the policy for commercial purpose. OP averred that at the time of alleged incident, cash was being carried in an auto rickshaw as stated by the complainant and hence there was breach in terms of policy.
5. State Commission, however allowed the complaint as under:-
"As a result of the above discussion, the complaint is allowed, OPs are directed to pay Rs.27 lacs as principal amount alongwith interest @12% per annum from 19.06.2009/date of accident till date of payment. Since the OP has been dragging unnecessarily the matter for seven years from 2009 to 2016, it must have caused immense mental agony and harassment to the complainant. Hence, OP is directed to pay Rs.two lacs as compensation for harassment and mental agony. The order must be complied within 30 days failing which complainant will be entitled to invoke Section 25/27 Consumer Protection Act."
6. Aggrieved by the order of the State Commission, OP has preferred the present appeal.
7. Heard the Learned counsel for both the parties and perused record. Learned counsel for the appellant stated that the claim was repudiated vide letter dated 20.12.2010 of the insurance company on the ground that the cash was being transited by the representative of the complainant on an auto rickshaw against the special condition that it was to be carried on the vehicle owned by the complainant. This is as per the policy condition. The complainant had given letter dated 9th July, 2007 that he would be carrying the cash and gold et cetera on his own vehicle or on the vehicle of his business Associates or of relatives or under any exigencies by a private taxi. The carrying of the cash on auto rickshaw is not covered even by this letter. Thus, carrying the cash on auto rickshaw was totally against the condition of the policy and therefore the Insurance Company has rightly repudiated the claim.
It was further stated by the learned counsel for the appellant that the surveyor has assessed the loss to the tune of Rs. 27 lacs and the adjusted loss after policy excess as Rs.25,65,000/-. The State Commission has not taken the policy excess into account. Moreover the State Commission has allowed interest on the insurance amount @ 12% per annum from the date of incident, at the most the same can be awarded from the date of order of the State Commission because before that the claim was not accepted by the Insurance Company. Learned counsel for the appellant further stated that the State Commission has awarded compensation of Rs.2 lacs without any basis. It is widely accepted principle that when the interest has been awarded no separate compensation is justified.
8. On the other hand, the learned counsel for the respondent complainant stated that the special condition is very clear and that is only in respect of carrying of gold only. There is no such condition for carrying of cash. Thus, the repudiation is not justified. The State Commission has rightly allowed the claim and has rightly allowed the interest from the date of incident. The insurance company has taken a period of 9 months to decide the claim even after submission of the surveyor report. The State Commission has considered this aspect of delay in processing the claim and that is why a compensation of Rs.2 lacs has been awarded for mental agony and harassment.
9. I have given a thoughtful consideration to the arguments advanced by both the learned counsel for the parties and examined the record. The special condition mentioned in the policy reads as under:-
"Special Conditions: GOLD WILL BE CARRIED IN INSURED'S OWN CONVEYANCE, ADEQUATE SECURITY, PROPER ACCOUNTING OF STOCK BEIN"
10. From the above condition, it is clear that this special condition is only for the gold and not for the cash being transited. The State Commission has correctly interpreted this condition. The State Commission has also observed that conditions mentioned in the policy are to be strictly adhered to by the parties. Even if the letter dated 09.07.2007 written by the complainant to the insurance company is taken into consideration, it allows the use of private taxi in exigencies. This letter is also to be interpreted only for gold as there was no condition in the original policy in regard to the carrying of cash. Thus, the Insurance Company cannot get any advantage from this letter. I agree with the contention of the learned counsel for the insurance company that the surveyor has assessed the net loss as Rs.25,65,000/- after adjusting the policy excess and therefore at the most only this amount could have been allowed by the State Commission. Honorable Supreme Court in the matter of Chengalrayan Cooperative Sugar Mills Vs. Oriental Insurance Co. Ltd. & Anr., (2000) 10 SCC 213 has held the following:-
"6. We however, feel that the interest ought to have been awarded from the date on which the claim was filed before the National Commission. Consequently, while maintaining the order of the National Commission for payment of Rs.11,69,994 to the appellant as the value of the gunny bags, we direct that this amount shall be paid within two months from today and that too, with interest at the rate of 18 per cent per annum from the date of filing of the claim before the National Commission till the date of actual payment."
11. Clearly the interest can only be paid from the date of filing of the complaint and not from the date of incident as allowed by the State Commission. Now coming to the rate of interest it is seen that interest @ 12% seems to be quite high as the deposit in the bank could not have yielded this much of interest. In my view as there is no contract in the policy for payment of interest I deem it appropriate to allow an interest of 7% per annum on the insurance amount. As the interest has been allowed which is also in the shape of compensation, separate compensation of rupees 2 lacs is not justified.
12. Based on the above discussion, the First Appeal No.944 of 2016 is partly allowed and the Order of the State Commission is modified to the extent that the opposite party Insurance Company is directed to pay Rs.25,65,000/- (rupees twenty five lakhs sixty five thousand only) along with interest @ 7% per annum from the date of filing of the complaint i.e. 02.09.2011 instead of as ordered by the State Commission.
...................... PREM NARAIN PRESIDING MEMBER