State Consumer Disputes Redressal Commission
M/S Narain Prabhu Jewellers vs Universal Sompo General Insurance Co. ... on 16 September, 2022
CNO.364/2014 D.O.D. : 16.09.2022
M/s NARAIN PRABHU JEWELLERS Vs UNIVERSAL SOMPO GENERAL INSURANCE CO. LTD. AND
ANR.
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution: 07.08.2014
Date of Reserving
the order : 20.07.2022
Date of Decision : 16.09.2022
CONSUMR COMPLAINT No. - 364/2014
IN THE MATTER OF
M/S. NARAIN PRABHU JEWELLERS
THROUGH SHRI AKASH SAGAR GUPTA
(SOLE PROPRIETOR)
SHOP N.30, LFC, AUROBINDO PLACE MARKET
NEW DELHI
(Through: Rajan Khosla, Advocate)
...Complainant
VERSUS
1. UNIVERSAL SOMPO GENERAL INSURANCE COMPANY
LIMITED
THROUGH ITS MANAGER
FLAT NO. 514 SHAKUNTALA BUILDING NO. 59
NEHRU PLACE NEW DELHI - 110019
2. INDIAN OVERSEAS BANK
THROUGH ITS MANAGER
DEFENCE COLONY BRANCH
M S COMPLEX DEFENCE COLONY NEW DELHI-110024
(Through: Mr Rajat Khattry, Advocate)
...Opposite party
Allowed PAGE 1 OF 19
CNO.364/2014 D.O.D. : 16.09.2022
M/s NARAIN PRABHU JEWELLERS Vs UNIVERSAL SOMPO GENERAL INSURANCE CO. LTD. AND
ANR.
HON'BLE MR. RAJAN SHARMA, MEMBER (JUDICIAL)
HON'BLE MS. BIMLA KUMARI, MEMBER (FEMALE)
Present: Mr S. Surender advocate learned counsel for the
complainant
Mr Rajat Khattry advocate learned counsel for the
opposite party
MS. BIMLA KUMARI, MEMBER (FEMALE)
ORDER
1. In the present case, the complainant is a proprietary concern and Akash Sagar Gupta is the sole proprietor of the complainant. Opposite Party No.1 is a joint venture between Allahabad Bank, Sompo Japan Insurance Inc., Indian Overseas Bank (Opposite party No.2), Karnataka Bank and Dabar Investment and is carrying on the business of General Insurance policies.
2. On the basis of representations of the agents of Opposite party No.1 & 2, the complainant purchased a 'Jeweller Block Insurance Policy' bearing No. 2971/50689271/00/00 w.e.f 15.05.2010 to 14.05.2011 for a total sum assured to the tune of Rs 5,00,00,000/-. The premium amount was debited from the complainant's account with the Opposite party No.2. Copy of the policy Allowed PAGE 2 OF 19 CNO.364/2014 D.O.D. : 16.09.2022 M/s NARAIN PRABHU JEWELLERS Vs UNIVERSAL SOMPO GENERAL INSURANCE CO. LTD. AND ANR.
is Annexure C-1. The said policy was got renewed from year to year by the complainant and said renewal was done without imposing any pre condition. The said policy was renewed on 20.06.2012 by the Opposite party No.1 in the name of complainant w.e.f. 15.06.2012 to 14.06.2013. Copy of the renewed policy is Annexure C-2.
3. On 12.10.2012, theft took place in the premises of the complainant and FIR No. 353 dated 12.10.2012 u/s 379 IPC, PS Safdarjung Enclave, Annexure C-3 was registered. The alleged theft was committed by four ladies, who came in the premises at about 12.25 noon and bought a jewellery item for Rs.700/-and stole a diamond studded 18 carat Gold bangle, weighing 60.850 gms valuing approx.. Rs.36,45,477/-. The complainant informed the AGM of Opposite party No.2 on 12.10.2012 itself about the theft, as the policy was facilitated by the said bank. Copy of the written intimation given to Opposite party No. 2 by the complainant is Annexure C-4.
4. The complainant also lodged a claim with the opposite party No 1 for a sum of Rs. 36,45,577/- vide Claim Form Annexure C-5. The opposite party No.1 appointed the surveyor M/s Atul Kapoor and Co., who inspected the premises of the complainant on 19.10.2012 and took all the necessary information and Allowed PAGE 3 OF 19 CNO.364/2014 D.O.D. : 16.09.2022 M/s NARAIN PRABHU JEWELLERS Vs UNIVERSAL SOMPO GENERAL INSURANCE CO. LTD. AND ANR.
documents about the theft. He also saw the camera recordings, took the CD of the CCTV footage and the photographs of the ladies. The complainant vide letter dated 09.02.2013, Annexure C-7 submitted all the documents and information, which were demanded by opposite party and Surveryor.
5. The Police, however, after investigation of the case filed an untraced report Annexure C-8 in the Court Ld. M.M. II Saket. On 16.03.2013 the complainant submitted the remaining documents to the surveyor vide letter Annexure C-9 and the survey was complete. The surveyor, however, started bargaining/negotiating with the complainant by using various delaying and pressure tactics and asked them to accept a reduced claim of Rs. 19.77 lakhs against the total claim of Rs.36.50 Lakhs (approx.). The complainant, however, protested against the unfair tactics of the surveyor vide email dated 29.06.2013, Annexure C-10. The Complainant, due to increasing financial pressure and on account of delaying tactics of opposite party No 1 and Surveyor, vide letter dated 25.07.2013, without prejudice to his right, gave consent to the surveyor. The letter is Annexure C-12. The complainant had protested against the harassment and the delaying tactics of the opposite party and sent an email dated 04.10.2013 to IRDA (Annexure C-13) and informed about the Allowed PAGE 4 OF 19 CNO.364/2014 D.O.D. : 16.09.2022 M/s NARAIN PRABHU JEWELLERS Vs UNIVERSAL SOMPO GENERAL INSURANCE CO. LTD. AND ANR.
cancellation of its earlier consent and requested to do the needful. Thereafter, vide email dated 25.09.2013, Annexure C-14 the surveyor asked the complainant to provide further documents and information regarding footage of another camera and the complainant vide email dated 20.12.2013 Annexure C-15 submitted all the additional documents sought by the opposite party. The Opposite party, however, treated the claim of the complainant, as declined vide its letter dated 15.12.2013 for the reason that the complainant did not take reasonable care to protect the property insured because the show case from where the bangle was lifted was within reach of the customers and was not having glass door and CCTV footage of Camera No. 3 was not provided.
6. It is further alleged by the complainant that when he started the showroom in the year 2009 there used to be a glass door, at the show case but the same was broken during usage and, thereafter, he did not feel the requirement to replace the glass door. It is further submitted by the complainant that the opposite party's officials visited the complainant showroom, before issuing the policy and at that time also there was no glass door on the window/showcase. The complainant was only asked by the opposite party to install CCTV cameras in the showroom and to keep an arm guard at the entrance door and he duly complied with the said Allowed PAGE 5 OF 19 CNO.364/2014 D.O.D. : 16.09.2022 M/s NARAIN PRABHU JEWELLERS Vs UNIVERSAL SOMPO GENERAL INSURANCE CO. LTD. AND ANR.
instructions of the opposite party. It is further submitted by the complainant that at the time of renewal of the policy the opposite party did not even raise any objection at the absence of the glass window. Thus, the reasons given by the opposite party for declining the claim of the complainant, amounts to 'deficiency in service' and repudiation of the bonafide, justified, legal and legitimate claim of the complainant is illegal, arbitrary and against the terms of the insurance policy which has caused not only great financial losses to him but also caused extreme harassment, mental agony and torture to him, for which he is liable to be compensated.
7. The complainant has prayed that the repudiation letter dated 15.12.2013, issued by the opposite party be set aside and opposite party be directed to pay a sum of Rs. 36,45,577/- along with interest @ 24% per annum from the date of theft i.e. 12.10.2012 till its realization. The Opposite party be further directed to pay a sum of Rs. 10 lakhs for mental and physical harassment, pain and agony suffered by the complainant and a sum of Rs. 2 lakhs towards litigation expenses.
8. The Opposite party No.1 has filed the written statement, wherein it is submitted that the complaint is liable Allowed PAGE 6 OF 19 CNO.364/2014 D.O.D. : 16.09.2022 M/s NARAIN PRABHU JEWELLERS Vs UNIVERSAL SOMPO GENERAL INSURANCE CO. LTD. AND ANR.
to be dismissed as the complainant has not come with clean hands and has suppressed material and important facts. It has however, been admitted that an insurance policy Annexure R-1 was issued by it in favour of the complainant, who lodged a claim in respect of the theft, which took place in the insured premises on 12.10.2012. The Opposite party No.1 immediately appointed the licensed independent surveyor M/s Atul Kapoor & Co. for the purpose of assessment and investigation of the claim of the complainant. The complainant, however, provided the relevant documents and information in piece meal and never provided the complete information and documents. The surveyor on the basis of documents and on the knowledge gathered from the site visit and interview submitted the report Annexure R-3 wherein the surveyor observed that there was lack of reasonable care and gross negligence on the part of the complainant as the open showcase was within the reach of the woman who allegedly committed the theft, and stretched her arm and groped around three times freely for 3/10 seconds each time and that too in front of 3 shop personnel, specially the one person, who was sitting right in front of the alleged thief and from whose immediate left side the bangle was reportedly stolen.
9. It is the further case of the Opposite party No1 that the CCTV footage of camera No.3, which would have Allowed PAGE 7 OF 19 CNO.364/2014 D.O.D. : 16.09.2022 M/s NARAIN PRABHU JEWELLERS Vs UNIVERSAL SOMPO GENERAL INSURANCE CO. LTD. AND ANR.
brought to light the possible involvement of the person involved, was not furnished and complainant should have been diligent to preserve the recording of that camera. Further, the shop window from where the claimed bangle was stolen did not have any glass door and locking system, which used to be there in the place earlier. The complainant did not feel the requirement of fixing the broken glass, which clearly amounts to lack of reasonable care and gross negligence on the part of the complainant and therefore, the complainant has violated the general term and condition No. 2 of the insurance policy. The complainant is guilty of material breach of the policy and the theft occurred due to the inadequacy of the safeguard arrangements, which is entirely the fault of the complainant.
10. It is further case of the Opposite party No.1 that the complainant has been insisting the surveyor to settle the claim at the earliest, as they were under tremendous financial pressure, due to the loss. The surveyor intimated the complainant that the matter can be settled on sub- standard basis subject to the terms and conditions of the policy and the total loss suffered by the complainant under sub-standard category was Rs.19,77, 905/-. The complainant, however, later on, withdrew his consent. Thereafter, the surveyor asked the complainant to produce the documents, which were not provided by Allowed PAGE 8 OF 19 CNO.364/2014 D.O.D. : 16.09.2022 M/s NARAIN PRABHU JEWELLERS Vs UNIVERSAL SOMPO GENERAL INSURANCE CO. LTD. AND ANR.
the complainant. Thereafter, on the basis of the report submitted by the surveyor, the Opposite party No.1 declined the claim of the complainant vide letter dated 15.12.2013. The Opposite party No.1 has acted within the terms of the policy. There is no 'deficiency in service' or 'unfair trade practice' on its part and complaint is liable to be dismissed.
11. The complainant has filed rejoinder to the written statement, wherein the complainant has re-affirmed and re- iterated the facts.
12. The Opposite party No. 2 however, did not file the written statement and its right to file the written statement was closed by Ld. predecessor vide order dated 21.05.2015.
13. The complainant has filed the evidence by way of affidavit of Shri Akash Sagar Gupta, the sole proprietor of complainant firm.
14. The Opposite party No.1 has also filed the evidence by way of affidavit of Mr Piyush Shankar, working as Assistant General Manager Claims, with the opposite party No.1.
Allowed PAGE 9 OF 19 CNO.364/2014 D.O.D. : 16.09.2022
M/s NARAIN PRABHU JEWELLERS Vs UNIVERSAL SOMPO GENERAL INSURANCE CO. LTD. AND ANR.
15. We have gone through the written submissions filed by both the parties.
16. The only question that arises for consideration is whether the Opposite party No.1 was right in repudiating the claim of the complainant.
17. In the present case, the opposite party No.1 has taken the defence that complainant has been negligent in taking reasonable care to protect the insured property as per general terms and conditions No.2 of the policy Annexure R-1 (colly). Further, the case of complainant is falling under exclusion clause No 8 of the policy.
18. The said general condition No.2 of the policy is reproduced here for ready reference.
2. Reasonable Care:
You must take all reasonable steps to protect the property insured, prevent damage or accidents and maintain the property insured in a sound condition.
Allowed PAGE 10 OF 19 CNO.364/2014 D.O.D. : 16.09.2022
M/s NARAIN PRABHU JEWELLERS Vs UNIVERSAL SOMPO GENERAL INSURANCE CO. LTD. AND ANR.
19. The relevant exclusion Clause No. 8 of the policy relied upon by the opposite party No 1 is also reproduced here for ready reference.
8. Loss and/or damage occasioned by theft or dishonesty or attempted threat committed by or where such loss or damage has been expedited or in any way sustained or brought about by
a) any of Your family members,
b) any servant, traveler or messenger in your employment,
c) any customer or broker or broker's customer or, angadias, cutter in respect of the property hereby insured entrusted to them by You or Your servants or agents.
20. Now, coming to the facts of present case it is significant to note that it is an admitted case of the parties that Opposite party No.1 has issued an insurance policy Annexure R-1 colly in favour of the complainant, which was valid for the period w.e.f 15.06.2012 to 14.06.2013. It is also admitted case of the parties that the said policy i.e. Annexure R-1 was a renewed policy which was issued in favour of the complainant on the basis of earlier policy, Annexure C-1, Page 20 of the complaint, which was valid from Allowed PAGE 11 OF 19 CNO.364/2014 D.O.D. : 16.09.2022 M/s NARAIN PRABHU JEWELLERS Vs UNIVERSAL SOMPO GENERAL INSURANCE CO. LTD. AND ANR.
15.05.2010 to 14.05.2011. It is further admitted case of the parties that the 'jeweler block insurance policy' Annexure R-1 was issued by the Opposite party No.1 in favour of the complainant on the same terms and conditions and no new term and condition was imposed by the Opposite party upon the complainant at the time of renewal of the policy. It is further admitted case of the parties that the insurance policy was issued by the Opposite party in favour of the complainant after inspection of the premises of the complainant as stated in para 23 of the complaint and there was no glass door at the showcase/window from where the alleged thief stole the diamond studded gold kada/secured jewellery.
21. It is the worth noting that at the time of renewal of the policy, the Opposite party did not raise any objection on the absence of glass door at the window/showcase. No material has been placed on record by the opposite party No 1 to show that it ever instructed the complainant to install glass door at the window/showcase. It is also noteworthy that the complainant immediately reported the matter to Opposite party no.2 regarding the incident of theft on 12.10.2012 itself, as the policy in question was facilitated by opposite party No.2. The complainant has also informed the police on the same day i.e. 12.10.2012, when the theft took place in Allowed PAGE 12 OF 19 CNO.364/2014 D.O.D. : 16.09.2022 M/s NARAIN PRABHU JEWELLERS Vs UNIVERSAL SOMPO GENERAL INSURANCE CO. LTD. AND ANR.
the showroom of the complainant as is clear from the FIR Annexure C- 3 and thereafter lodged the claim with Opposite party No.1. Further, the contention of opposite party No 1 that the complainant did not take reasonable care to protect the jewellery and violated the terms and conditions of policy is not tenable as opposite party has not placed on record any material to show that there was a condition in the Jeweller's Block Insurance Policy, which restrained the complainant from displaying the expensive ornaments/jewellery in showcase during day time. We cannot ignore the fact that complainant is carrying on the business of Jewellery and is bound to display his best Jewellery items in the showcase to attract its customers.
22. It is also significant to note that the surveyor did not ask for the CCTV footage of camera No. 3 on the day of his visit to the showroom of the complainant. It is a common practice that CCTV footage of a camera is generally not available after a gap of certain period and this fact cannot be taken adversely against the complainant, who could not provide the said CCTV footage to the surveyor after a gap of some days from the date of the alleged theft.
23. Now, a perusal of the Jeweler's Block Insurance Policy, Annexure R-1 colly shows that the property Allowed PAGE 13 OF 19 CNO.364/2014 D.O.D. : 16.09.2022 M/s NARAIN PRABHU JEWELLERS Vs UNIVERSAL SOMPO GENERAL INSURANCE CO. LTD. AND ANR.
of the complainant pertaining to sec I & IV was ensured and covered under the policy.
24. Further, as per sec I of the insurance policy (page 20 of the insurance policy Annexure R-1 colly) the opposite party No.1 had agreed to indemnify the loss or damage directly caused to the stock of the complainant company by Fire, Lightning, explosion, burglary, Theft, hold-up, robbery etc..
25. Sec I of the insurance policy is reproduced here for ready reference.
Loss or Damage directly caused to your stocks comprising of jewellery, gold and silver ornaments of plates/bar, pearls, precious and semi precious stones, Currency notes and cash and any other similar contents pertaining to your business whilst kept and lying in the insured premises by perils listed hereunder and subject to its not being otherwise excluded.
1. Fire
2. Lightning
3. Explosion/implosion
4. Damage caused by an aircraft, other aerial or space devices and articles dropped there from.
Allowed PAGE 14 OF 19 CNO.364/2014 D.O.D. : 16.09.2022
M/s NARAIN PRABHU JEWELLERS Vs UNIVERSAL SOMPO GENERAL INSURANCE CO. LTD. AND ANR.
5. Riot, Strike and Malicious Damage:- Visible physical Damage by external violent means directly caused to the property insured.
6. Burglary, Theft, Hold- Up & Robbery.
26. In the present case, the theft had occurred in the shop of the complainant during broad daylight, when four ladies came to the showroom at about 12.25 noon and stole a diamond studded 18 carat gold bangle. It is also noteworthy that the Surveyor had already verified the commission of theft in the showroom of the complainant and the purchase of the stolen item by the complainant from M/s KeshavImpex 203/C, Mantri Bldg. JSS Road, Opera House, Mumbai, which is clear from the surveyor report Annexure R-3. The surveyor report further shows that the said group of ladies was also involved in another incidence, which took place at South Extension Market and the incident was published in the newspaper. The clippings of the publication were also enclosed by the surveyor in its report as Enclosure 8.
27. Further, after going through the Exclusion clause 8 of the said policy relied upon by the opposite party Allowed PAGE 15 OF 19 CNO.364/2014 D.O.D. : 16.09.2022 M/s NARAIN PRABHU JEWELLERS Vs UNIVERSAL SOMPO GENERAL INSURANCE CO. LTD. AND ANR.
we are of the view that the said exclusion clause is not applicable to the facts of the present case, as the stolen jewellery was never entrusted by the complainant to the customer at the time of alleged theft. Thus, the Opposite party No.1 has wrongly interpreted the said exclusion clause in its favour.
28. Since, the surveyor has submitted in his report that the claim amount of Rs. 36,45,577/-, as per claim form, was consistent with the purchase invoice and theft was committed in respect of the stolen bangle, we are of the considered view that the Opposite party was not justified in repudiating the claim of the complainant.
In Oriental Insurance Company Limited Versus Ozma Shipping Company and another (2009) 9 Supreme Court Cases 159, It was held by Hon'ble Supreme Court as under:-
"It may be pertinent to mention that when the valuation of the vessel had been carried out by the surveyor of the Insurance company who came to the conclusion that the value of the vessel would be Rs 21,50,000, then the Insurance Company should not hesitate to pay the amount, which is legitimately due to Allowed PAGE 16 OF 19 CNO.364/2014 D.O.D. : 16.09.2022 M/s NARAIN PRABHU JEWELLERS Vs UNIVERSAL SOMPO GENERAL INSURANCE CO. LTD. AND ANR.
the complainant, particularly, when there is no dispute that the entire vessel with cargo insured with the appellant sank while the vessel was sailing from Beypore to Kavarattti.
It was further held that before parting with this case, we would like to observe that the insurance companies in genuine and bona fide claims of the insured should not adopt the attitude of avoiding payment on one pretext or the other. This attitude puts a serious question mark on the credibility and trustworthiness of the insurance companies."
In National Insurance Co. Ltd. Versus Ishar Das Madanlal (Manu/SC/7135/2007), It was held by Hon'ble Supreme Court as under:-
"It is not in dispute that an insurance cover against theft was granted by the appellant. The Insurance policy, thus, covered the risk of theft also. An insurer determines the extent of its risk. It floats the policy knowing fully well the risk it seeks to cover. Having regard to the determination of the risk only he fixes the Allowed PAGE 17 OF 19 CNO.364/2014 D.O.D. : 16.09.2022 M/s NARAIN PRABHU JEWELLERS Vs UNIVERSAL SOMPO GENERAL INSURANCE CO. LTD. AND ANR.
quantum of premium. The insured while entering into a contract of insurance must precisely know the extent of his cover so that he may take out additional insurance if it is so required".
29. Since, the Jeweller's Block Policy Annexure R- 1 covered the risk of theft also, as per sec I of the policy, and the case of complainant was not falling under exclusion clause No. 8 of the policy, the claim filed by the complainant is allowed.
30. The opposite party No 1 is directed to pay a sum of Rs.36,45,577/-to the complainant from the date of theft i.e. 12.10.2012 till its realization.
31. In the present case, complainant has demanded the interest @ 24% per annum. However, we are of considered view that the interest @ 24 % per annum is on higher side. We are of the considered view that ends of the justice will be met if interest @ 9 % per annum is awarded in favour of the complainant.
32. Accordingly, the opposite party No 1 is directed to pay a sum of Rs 36,45,577/- to the complainant from the date of theft i.e. 12.10.2012 till its realization along with interest @ 9% per annum.
Allowed PAGE 18 OF 19 CNO.364/2014 D.O.D. : 16.09.2022
M/s NARAIN PRABHU JEWELLERS Vs UNIVERSAL SOMPO GENERAL INSURANCE CO. LTD. AND ANR.
33. Opposite party No 1 is further directed to pay a sum of Rs 2,00,000/- to the complainant for mental harassment, pain and agony suffered by him.
34. Opposite party No 1 is further directed to pay a sum of Rs 50,000/- towards litigation costs.
35. A copy of this judgement be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986. The judgement be uploaded forthwith on the website of the Commission for the perusal of the parties.
36. File be consigned to record room along with a copy of this judgement.
(RAJAN SHARMA) Member (Judicial) (BIMLA KUMARI) Member (Female) PRONOUNCED ON:
16.09.2022 ry Allowed PAGE 19 OF 19