State Consumer Disputes Redressal Commission
G.N. Hallmarking And Refinery Private ... vs National Insurance Company Limited on 26 September, 2014
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/57/2013 1. G. N. Hallmarking and Refinery Pvt. Ltd. 6, Banstala Galli, Kolkata - 700 007 represented by its Director Sasikant Shinde. ...........Complainant(s) Versus 1. National Insurance Co. Ltd. Regd. office- 3, Middleton Street, Kolkata-700 071 & also Div. office-XIX, 6A, Sambhu Chatterjee Street, 3rd Floor, Kolkata -700 007. 2. The Divisional Manager, National Insurance Co. Ltd. 6A, Sambhu Chatterjee Street, 3rd Floor, Kolkata - 700 007. ............Opp.Party(s) BEFORE: HON'BLE MR. DEBASIS BHATTACHARYA PRESIDING MEMBER HON'BLE MR. JAGANNATH BAG MEMBER For the Complainant: For the Opp. Party: ORDER : O R D E R : MR. J.BAG, LD. MEMBER
This application has been filed under Section 17 of the Consumer Protection Act, 1986, seeking redressal in the matter of a dispute raised by the Complainant against the OP Insurance Company following repudiation of the claim preferred for about a sum of Rs. 42,86,293/-( Forty two lakh eighty six thousand two hundred and ninety three ) only .
The Complainant is a registered company engaged in the business of Gold Jewellery Hallmarking along with testing of jewellery , refinery and testing of gold. Since the business transaction of the Complainant involves some risk factors , a Jeweller's Block Policy for a total coverage of Rs.4,52,00000/- (Four crore fifty two lakh) only was obtained from the OP Insurance Company on yearly basis for a premium of Rs.101885/- + Service Tax. The policy was valid between 04.05.2009 and 03.05.2010 . On 01st December, 2009, an employee of the Complainant, named, Mr. Jogesh Todkar was returning to the shop of the Complainant after collection of jewelleries which were kept in a bag . Two unknown persons snatched the bag at Hariram Goenka Street and fled away . The employee tried to chase the said unknown persons but in vain. A Police complaint, dated 1st December, 2009 was lodged by the Director of the Complainant company with the Posta Police Station. The FIR was received by the Police Station on 02.12.2009. The jewellery shops from whom jewelleries were collected , demanded for reimbursement of their gold . The Complainant reimbursed 397.550 grams to Kanta Jewelleries Pvt Ltd. with acknowledgement of receipt . The Complainant also reimbursed to M.P. Jewellers a total amount of 97.090 grms of gold worth of Rs.1,71,205/- along with the amount of Rs.27,288/- for emerald. No reimbursement has been made to Madanji Meghraj and Co. for 919.67 grms of gold . The loss incurred by the Complainant was intimated by a letter dated 2nd December 2009 addressed to the Senior Divisional Manager NIC . No action being taken by the concerned Police Officer , the Complainant filed an application under Section 156 (3) of the Code of Criminal Procedure before the Ld. Additional Chief Metropolitan Magistrate, Calcutta. By an order dated 01.12.2009 the application was allowed with direction upon the Officer-in-Charge of Posta Police Station to register the case and to make an investigation of the same. During the pendency of the investigation by Police authorities, the Complainant submitted a claim form for a sum of Rs. 25,98,600/- . Copy of the final Police Report was received by the Complainant on 18th January 2012 . From the said Police report it appeared that the lost goods could not be detected and the case has been closed. A Surveyor was appointed by the OP. As per requirement of the Surveyor , the Complainant submitted the relevant documents. Inspite of written representations , no positive steps were taken by the OP Insurance Company . On 30th November 2012 a letter was delivered by the O.P. to one of the employees of the Complainant and the said letter conveyed rejection of the claim of the Complainant. Hence the consumer complaint was filed. Keeping in view , the fact that valuation of gold increases day by day, the loss sustained by the Complainant has been estimated at Rs. 42,86,293/- together with interest @18% as the claimed amount apart from prayer for compensation of Rs.30,00,000/- for damages of goodwill suffered for wrongful action of the OP , Rs.20,00,000/- as compensation for harassment and mental agony and litigation cost of Rs. 1,00,000/-.
The complaint has been contested by the OP Insurance Company by filing of W.V. contending therein that the Company is not be liable for reimbursement of the loss as per clause No. 8 of the policy . It has also been contended that as per IRDA norms a Surveyor was appointed for investigation , but, in this case, ' the question of Surveyor's report does not arise at all as the repudiation of the claim has been made as per Exclusion Clause of the policy.' ( Paragraph 16 of W.V) Ld. Advocate appearing for the Complainant submitted that the Insurance Company rejected the genuine claim of the Complainant in a very illegal manner . The exclusion clause as pointed out by the OPs is not at all applicable in the present case as the employee from whose custody the jewelleries were snatched by the miscreants never attempted in any manner , the loss or damage of the jewelleries. Nothing adverse has been proved against him either by the Surveyor appointed by the OPs or the Police who interrogated the employee in connection with the theft of the jewelleries from his custody. The same insurance company entertained a claim of similar mature in respect of an incident that happened on 06.10.2009. Ld. Advocate cited the judgment of the Hon'ble Supreme Court as reported in AIR 2004 Supreme Court 1700 , Civil Appeal No. 391 of 1999 D / 25.02.2004 and the judgment as reported in Air 1994 Supreme Court 787 in Civil Appeal No. 6237 of 1990 with SLP ( C ) Nos. 659 of 1991 and 16842 of 1992 .
Ld. Advocate appearing for the OPs submitted that the claim of the Complainant that the jewelleries were snatched by the miscreants while their employee was carrying the said jewellery in the bag has not been proved with any witness . The exclusion clause of the Jewellr's Block Policy has been rightly applied in case of the Complainant and it is a fact that because of dishonesty or otherwise of the employee the story of theft of jewellery bag has been framed and the repudiation by the Insurance Company is just and proper. Ld. Advocate cited the following Case Laws:
2013 (1) CPR 267 (NC) Important Point: Opinion of surveyor will be of no relevance to question of violation of condition of policy.
2012(3) CPR17 (NC) Important Point : If insurance company commits a mistake, that mistake is not to be followed in other cases.
2013(1) CPR 378 (NC) Important Point: Terms and conditions of insurance policy have to be construed strictly .
2011 (1) CPR 243 (NC) Important Point : Any violation of terms and conditions of policy by insured entitles insurance company to repudiate claim.
We have gone through the affidavit in evidence , the questionnaire filed by the OP, the replies submitted in connection with the questionnaire, the evidence in chief filed by the OP and questionnaire / replies submitted by the OP and the Complainant. The policy document has also been gone through among other documents.
Decision with Reasons There is no dispute that the Complainant obtained a Jeweller's Block Policy and the said policy was valid when the reported incident of theft of jewelleries of about 1490 grams of gold contained in a bag was snatched by some miscreants while the employee of the Complainant named Mr. Jogesh Todkar was carrying the bag of jewelleries on 01.12.2009 on Hariram Goenka Street . The OP Insurance Company repudiated the claim citing Exclusion Clause of the policy according to which the loss, if occasioned by theft or dishonesty or any attempt committed by or brought about by any of the insured family members, any servant or traveler or messenger or customer or broker of the insured , the claim would not be entertained.
It is seen that though a Surveyor was engaged by the insured company the report has not been disclosed . From the Final Report of the Police it is evident that the incident of theft as alleged by the Complainant took place but the case could not be detected inspite of investigation from different angels . The OP failed to substantiate with any evidence that the alleged loss was caused by any of the reasons noted under Clause No. 8 of the policy.
On scrutiny of the Receipt No. 6689 issued on behalf of the Complainant showing receipt of 397.53 grams of gold (32 pieces) from Kanta Jewelers Pvt Ltd, it appears that the jewelleries were receive on 01.12.09 at about 1.15 p.m., but the expected date of delivery ( after hallmarking) was recorded as 02.11.09 which is but absurd and hence not treated as a piece of reliable evidence (Complaint Page -36) . Reimbursement of the said quantity of gold to the concerned jeweler can not but be ignored and the total loss shall be calculated accordingly i.e. alleged loss of 1490 grams- 397.550 grams may be taken into consideration for the purpose of insurance claim.
We are of the considered view that the complainant has substantiated their claim with proof except for the above noted 397.550 grams of gold. Accordingly, the total claim of Rs. 25,78,600/- shall be reduced to Rs. 18,57,112 ( as per calculation sheet vide Annexure "X" to the petition of complaint).
Hence, Ordered that the complaint be and the same is allowed in part. The OP insurance company is directed to pay a sum of Rs. 18,57,112/- to the complainant with interest @ 9% p.a. from the date of filing of the claim form till final realization. The entire amount shall be paid by the OP within 45 days from the date of this order . Failing which interest @ 10% p.a. shall be payable on the above noted amount from the date of default i.e., from the 46th day from the date of this order till full realization . There shall be no order as to costs.
Sd/- Sd/- Sri Jagannath Bag Sri Debasis Bhattacharya (Member) (Member) [HON'BLE MR. DEBASIS BHATTACHARYA] PRESIDING MEMBER [HON'BLE MR. JAGANNATH BAG] MEMBER