State Consumer Disputes Redressal Commission
Shri Naresh Kumar Bansal S/O Shri Raje ... vs M/S Orintal Insurance Co.Ltd. ... on 2 May, 2018
IN THE STATE COMMISSION: DELHI
(Constituted under Section 9 of the Consumer Protection Act, 1986)
Date of Decision: 02.05.2018
Complaint No. 198/2006
In the matter of:
1. Naresh Kumar Bansal :
S/o. Shri Raje Lal Bansal
H. No. 2785, Gali Rajputan,
Sabzi Mandi, main Bazar, Delhi-110007 Complainant
Versus
1. M/s. Oriental Insurance Co. Ltd. :
D. O. O. 12, 7678 Singh Sabha Road,
Clock Tower, Near Amba Cinema, Delhi
2. M/s. Oriental Insurance Co. Ltd. :
R.O.-II, First Floor, Core-1, SCOPE Minar,
Distt. Centre, Laxmi Nagar, Delhi-110092 Respondents
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)
JUDGEMENT
1. Present complaint was filed in this Commission on 28.02.2005 vide complaint No. C-35/2005. This Commission vide orders dated 27.04.2006 had directed M/s. Oriental Insurance Company Ltd. (OP1) D. O. No.121, 7678, Singh Sabha Road, Clock Tower, near Amba Cinema, Delhi and Oriental Insurance Company Ltd., R.O.-II, First Floor, Core-1, SCOPE Page 1 of 9 Minar, Distt. Centre, Laxmi Nagar, Delhi-92 (OP2) to treat the complaint as a fresh claim and decided it by way of speaking orders. OPs again repudiated the claim and the complainant filed fresh complaint bearing no. 198/2006.
2. In brief, the Appellant Sh. Naresh Kumar Bansal had taken an insurance policy known as „Jeweller‟s Block Insurance‟. He was issued policy no. 46/200577 dated 30.09.2004. Policy covered the loss of Rs.1,15,50,000/- and its premium was Rs.18,899/. Complainant who happens to be the Proprietor of M/s. Shyam Jewellers, 11/185, Kucha Mahajani, Chandni Chowk, Delhi-110006 started his journey for Jaipur in a bus from ISBT Delhi at 12 night on 04.01.2005. Complainant was carrying a cash of Rs.30 lakhs in a briefcase for the purpose of the trade of gold . His bus reached Beharor (Rajasthan) at about 3.00 a.m. in the morning of 05.01.2005. It halted in front of Aakriti Guest House for the purpose of refreshment etc. of its passengers. Complainant deboarded for toilet. After coming back, he found his briefcase empty and cash was stolen away. Locks of the briefcase were open. Wife and son of the complainant reached Jaipur at about 7.30 a.m. after the complainant had informed them of the aforesaid theft. Matter Page 2 of 9 was reported to the Police who registered an FIR at Sindhi Camp Police Station.
3. Complainant lodged his claim with OP1. Claim was repudiated on the grounds that loss of cash was not tenable under „Jeweller‟s Block Insurance‟ policy. Complainant submitted an application to OP1 for reviewing its decision. It was not replied to. Complainant sent legal notice dated 28.01.2005. Finally, he filed the complaint bearing NO. C- 35/2005 before this Commission. As mentioned above, this Commission vide order dated 27.04.2006 directed the OPs to reconsider the application of the complainant. OPs vide its letter dated 17.10.2006 informed the complainant that his claim already stood rejected vide letter dated 25.07.2006. Thereupon, complainant filed a fresh complaint before this Commission (bearing No. 198/2006)
4. A joint written version was filed by the OPs stating that a Jeweller‟s Blocks Insurance Policy was issued to the complainant, valid for the period from 30.09.2004 to 29.09.2005 to cover the risks to the extent of Rs. 35 lakhs under Section 2 of the policy. It covered the risk of property insured excluding cash and currency notes while in the Page 3 of 9 custody of insured, his partners, Directors duly constituted Attorneys, his employees or sorters of diamonds. Another cover for Rs. 10 lakhs was provided for the property insured including cash and currency notes while in the custody of the persons not in regular employment of the complainant such as brokers or agents or cutters or goldsmiths. OPs admitted that the complainant vide its letter dated 06.01.2005 reported the loss of cash of Rs. 30 lakhs while he travelled from Delhi to Jaipur. Vide letter dated 13.01.2005, complainant was informed that his claim was not admissible under Jeweller‟s Block Insurance.
5. OPs further submitted that they replied to the legal notice received from the complainant reiterating that the claim was not admissible under the policy. Vide another letter dated 25.07.2006, reasons in detail of non-admissibility of claim were given. OPs stated that the cash and currency notes as referred in Section 2 of the policy were not covered.
6. Before proceeding further, it may be mentioned here that the OPs despite repeated directions by this Commission, failed to file evidence. One of my Ld. Predecessors vide orders dated 30.07.2007 closed the right of the OPs to file affidavits towards Page 4 of 9 evidence. OPs also did not file written arguments though it was given several opportunities for this purpose. Oral arguments too were not addressed despite opportunities. Costs of Rs.3,000/- were imposed upon the OPs vide orders dated 20.10.2015. OPs started absenting themselves from the proceedings. Notice was sent to the Divisional Manager of the OP Insurance Company. Despite all this, OPs failed to place on record their affidavit towards evidence and written arguments. OPs sought adjournments on one or the other pretext. Last and final opportunity was granted to the OPs vide orders dated 20.02.2017. Even today i.e. on 02.05.2018 Ld. Counsel for the OPs did not appear. No AR of the OPs appeared. I have heard the arguments addressed by the Counsel for the complainant Ms. Pratima N. Chauhan, Advocate at length.
7. OPs vide letter dated 25.07.2006 gave detailed reasons for rejection of the claim. Relevant portion of the said letter is reproduced below:
"In the proposal form signed and submitted by you for effecting the subject insurance, you have declared cash and currency notes to the tune of Rs.35 lacs under Section 1 of the policy. The policy was accordingly issued Section 1 of the policy does not cover cash and currency notes outside the premises declared by you, which in this case are 1185/115, Kucha Page 5 of 9 Mahajani, Chandni Chowk, Delhi. Since the loss in question took place outside the aforesaid your4 premises, the said Section of the policy is not invoked. For your ready reference we reproduce here below the operative clause of Section I;
Section I: Loss of or damage to property insured under Items 1 to 5 under Section 1 of the Schedule whilst contained in the premises where the Insured's business is carried on or at other premises where the insured property is deposited as specified in the Schedule, by FIRE, EXDPLOSION, LIGHTING, RIO AND STRIKE, MALICIOUS DAMAGE, BURGLARY, HOUSE BREKAING, THEFT, ROBBER AND HOLD-UP RISKS ONLY.
You have declared in your proposal from under Section II, property of up to Rs.35,00,000/- for coverage whilst in your possession. Or in the possession of your employees. Section II of the policy doe snot cover cash or currency notes. The operative part of the aid section in the policy, which excludes cash and currency notes by dpreifie mention is reproduced here below for your ready reference;
Section II
1. Property insured excluding cash and currency notes whilst in the custody of the insured, his partners, directors, duly constituted attorneys his employees or sorters of diamondsz:.
(Limits for any on loss Rs._____)
2. Property Insured excluding cash and currency notes whilst in the custody of persons not whilst in the custody of persons not in regular employment of the insured such as brokers or agents or cutters or goldsmiths.
(Limits for any on loss Rs._____) In view of the foregoing, we regret that you loss is not covered either by Section I, Or section II of the policy. No other section of the policy is involved in the case of the present loss. In these circumstances we reaffirm repudiation of liability under the policy in respect of the subject claim, as already communicated to you vide our letter of 13.01.2005."Page 6 of 9
8. The only question with which this Commission is confronted is whether the loss of currency notes during journey was covered or not under the policy. For this purpose, the details of the property insured as shown in the policy are relevant. Relevant portion of the proposal form and that of the policy is reproduced below:
8. Anywhere in India Sums to be insured (only total to be insured may be given) Section -I
1) Property Insured on the Premises
2) Property insured in display windows. NIL
3) Property insured in locked safe on the premises Rs.35 lakhs
4) Cash and currency notes Rs.35 lakhs
5) Property insured in bank lockers subject to insured maintaining a separate register to record all deposits/ withdrawals in such lockers:
Section-II (Outdoor Risk)
1) Property in the custody of the insured his Rs.35 lakh partners and his employee
2) In the custody of brokers
3) In the custody of cutters Rs.10 lakh Section-III
1) Regd. Insured Parcel Post
2) Air Freight
3) Angadia Section-IV Furniture, Fixtures, Fittings at premises not used as residence and sales at residences Rs.50,000/-
"Stock and stock in the trade consisting of jewellery, gold or silver ornaments, articles, pearls and precious stones of any sort or kind whatsoever cash and currency notes and/ or other merchandise and materials usual to conduct of the insured's business, belonging to and/ or held in trust or on commission for which the insured is responsible."Page 7 of 9
9. Perusal of Section 1 of the cover note shows that under sub- heading 4, it refers to cash and currency notes worth Rs.35 lakhs. The said sub-heading starts with a heading "anywhere in India". Both the heading and the sub-heading read together, go to show that the cash and currency notes when it is outside the business premises of the Insured, are covered.
10. OPs ought have excluded cash and currency outside the business premises by way of specific exclusionary clause in this behalf if they wished so. This proposition of law has been laid down by the Hon‟ble Supreme Court in the case of National Insurance Company Ltd. vs. Ishar Das, 2007 ACJ 1623. The Apex Court ruled as under:
"However, here may be an express clause excluding the applicability of insurance cover. Wherever such exclusionary clause is contained in a policy, it would be for the insurer to show that the case fails within the purview thereof. In case of ambiguity, it is trite, the contract of insurance shall be construed in favour of trhe insured. [See United India Insurance Co. Ltd. V. Pushpalaya Printers, 2004 CCJ 499 (SC); Peacock Plywood Pvt. Ltd. V. Oriental Insurance Co. Ltd., 2007 ACJ 1600 (SC) and United India Insurance Co. Ltd. Vs. Kiran Combers & Spinners, 2007 ACJ 532 (SC)"
11. Insured had admitted the cover note and the policy in question. It has vaguely stated in its letter of repudiation that the claim was not covered under the policy. As discussed Page 8 of 9 above loss of cash and currency during journey outside the business premises too is covered. I am, therefore, of the considered opinion that the letter of repudiation dated 13.01.2005 read with detailed letter dated 25.07.2005 is illegal, unjustified and not sustainable. The same are hence set aside. Complainant is entitled to the recovery of Rs. 30 lakhs alongwith interest @6% per annum w.e.f. the date of letter of repudiation i.e. w.e.f. 13.01.2005 till the date of its realization. The aforesaid amount shall be paid to the complainant within a period of 30 days from today failing which it shall carry interest @12% per annum. Complaint is accordingly disposed of. File be sent to record room.
12. A copy of this order be sent to Chairman and Managing Director (Sh. A. V. Girija Kumar), Oriental House, A-25/27, Asaf Ali Road, New Delhi-110002, who is directed to take necessary action against its delinquent officers.
(N P KAUSHIK) MEMBER (JUDICIAL) (atm) Page 9 of 9