National Consumer Disputes Redressal
G.B.S. Chauhan, Director, Prince ... vs Senior Divisional Manager, United ... on 7 September, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1168 OF 2016 (Against the Order dated 15/12/2015 in Appeal No. 61/2014 of the State Commission Delhi) 1. G.B.S. CHAUHAN, DIRECTOR, PRINCE DIAMOND JEWELLERS P. LTD. S/O SH. R.S. CHAUHAN, DIRECTOR, PRINCE DIAMOND JEWELLERS P. LTD., 4 PARK END, MAIN VIKAS MARG, OPP. PREET VIHAR NEW DELHI-110092 ...........Petitioner(s) Versus 1. SENIOR DIVISIONAL MANAGER, UNITED INDIA INSURANCE COMPANY LTD. UNITED INDIA INSURANCE CO. LTD. D-8, C.S. AZAD MARG, LUXMI NAGAR, VIKAS MARG NEW DELHI-110092 ...........Respondent(s)
BEFORE: HON'BLE MR. DR. B.C. GUPTA,PRESIDING MEMBER
For the Petitioner : For the Respondent :
Dated : 07 Sep 2017 ORDER
APPEARED AT THE TIME OF ARGUMENTS
For the Petitioner
:
Mr. Sudhir Sharma, Advocate
For the Respondent
:
Mr. Harsh Kumar, Advocate
Ms. Suman Lata, Advocate
PRONOUNCED ON : 7TH SEPTEMBER 2017
O R D E R
PER DR. B.C. GUPTA, MEMBER This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 15.12.2015, passed by the Delhi State Consumer Disputes Redressal Commission (hereinafter referred to as 'the State Commission') in First Appeal No. 61/2014, "G.B.S. Chauhan versus Senior Divisional Manager, United India Insurance Co. Ltd.", vide which, while dismissing the appeal, the order dated 2.12.2013, passed by the District Forum in consumer complaint No. 466/2012, filed by the present petitioner/complainant, dismissing the said complaint, was upheld.
2. Briefly stated, the facts of the case are that the petitioner/complainant M/s Prince Diamond Jewelleries Private Limited is a company registered under the Companies Act and is engaged in the business of marketing and exporting of metals such as diamond, gold and silver. The complaint has been filed on behalf of the company by G.B.S. Chauhan, Managing Director. The company had obtained a Money Insurance Policy from the Opposite Party (OP) United India Insurance Company, by which the money while in transit, had been insured by the OP Company; the total coverage under the policy being ₹1 crore. On 17.11.2011 at about 7:15 PM, G.B.S. Chauhan, Managing Director of the company visited the showroom in his Innova car [DL-7CA 3567]. The said official collected ₹13 lakh from the locker of the show-room, put it in a briefcase and placed the briefcase in the car, which was parked in the front side of the showroom. At that time, he noticed that some important documents had been left in the shop. He came back to the shop after putting the briefcase in the car. Both the briefcase and the car were properly locked. As stated in the consumer complaint, the petitioner instructed the security guard Tajinder Dua to keep an eye on the locked car. After some time, the security guard came inside the showroom and stated that the right side glass of the car had been broken and the briefcase containing ₹13 lakh was missing from the car. Intimation about the incident was given to the Police as well as to the Insurance Company. The Police registered an FIR bearing no. 333 dated 17.11.11 under section 379/461 I.P.C. The OP Insurance Company deputed a surveyor Atul Kapoor & Co. for assessment of the loss. The said surveyor assessed the loss at ₹13 lakh, but submitted a report concluding that the loss was not covered under the policy, as it had occurred in an unattended vehicle. According to the complainant, the car was just 10 ft. away from the show-room and their employee Tajinder Dua was keeping an eye on the vehicle and hence, the allegation of leaving the vehicle unattended had not been substantiated. It is also contended by the petitioner/complainant that clause V & IX of the Policy, upon which the OP Insurance Company had relied while repudiating the claim, were not applicable, as these had not been notified to the complainant. The complainant filed the consumer complaint in question, seeking directions to the OP Insurance Company to pay a sum of ₹13 lakh to them alongwith interest @18% p.a. compounded annually and also to award compensation of ₹2 lakh for mental harassment etc.
3. The complaint was resisted by the OP Insurance Company by filing a written reply before the District Forum, in which they stated that the complainant did not fall within the definition of 'consumer', as the Policy had been taken for a commercial purpose. The OP referred to the law laid down by the Hon'ble Supreme Court in "Laxmi Engineering Works vs. P.S.G. Industrial Institute" [1195 AIR 1428], in this regard. The OP also stated that the policy was not applicable in the case of theft of money from an unattended vehicle. The claim had, therefore, been rightly repudiated, keeping in view the terms and conditions and various clauses of the Insurance Policy.
4. The District Forum, after taking into account the averments of the parties, dismissed the complaint, observing that as per report of the investigation agency appointed by the respondent, Tajinder Dua, the security guard was inside the show-room and not posted outside the main gate, when the alleged theft took place, meaning thereby that the cash had been left unattended in the vehicle. The District Forum also observed that the complainant was under obligation to take reasonable care to safeguard the money in transit. Had the complainant deployed armed guard near the car, while it was parked outside the show-room, the theft might not have taken place. Being aggrieved against the said order of the District Forum, the complainant challenged the same by way of an appeal before the State Commission. The said appeal having been dismissed vide impugned order, the complainant is before this Commission by way of the present revision petition.
5. At the time of arguments, the learned counsel referred to his application for condonation of delay of 16 days in filing the present revision petition. It has been stated therein that the complainant had to visit Punjab to look after his ailing father-in-law who was in his 90s. Considering the reasons explained by the petitioner on this account, the delay of 16 days in filing the present revision petition is ordered to be condoned.
6. Referring to the merits of the case, the learned counsel for the petitioner argued that the factum of the theft having taken place, had not been disputed by the Opposite Party (OP) anywhere. From the report of the investigator, Maple Investigation also, it was clear that the theft had indeed taken place. The learned counsel further stated that their Managing Director had properly locked the briefcase, had locked the car as well after putting the briefcase inside, and had taken away the keys of the car after removing the same from the ignition slot. He had also asked the security guard posted at the entry gate to keep an eye on the locked car. The exclusion clause was not applicable in the present case and the repudiation of the claim had been made on mis-interpretation of the said clause. The learned counsel further stated that the security guard Tajinder Dua had stated in his cross-examination that he was outside the showroom on the right side of the main gate.
7. Per contra, the learned counsel for the OP Insurance Company argued that it was clear from the facts and circumstances of the case that the briefcase containing ₹13 lakh had been left in an unattended vehicle. It was made out from the statements of G.B.S. Chauhan, MD and Tajinder Dua that the theft had already taken place when Tajinder Dua was sent near the vehicle. The learned counsel stated that the case was covered under the exclusion clause of the policy and no claim was payable to the complainant. The order passed by the consumer fora below were in accordance with law and should be upheld.
8. I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.
9. The main issue that merits consideration in the matter is whether there has been any violation of the terms & conditions of the Insurance Policy on the part of the complainant, based upon which, the payment of claim could be denied to him by the Insurance Company. In this regard, it shall be worthwhile to quote from the statement made by Tajinder Dua, the security guard which says as follows:-
"At about 7.20pm, at that time I was posted outside of the main gate right side as a guard. Sh. G.B.S. Chauhan told me to go near his Innova car as some important things are kept in it. I went there & found that right side window pane of the car was broken and I could not hear the noise also couldn't see, immediately I rushed back to the showroom and informed Mr. Chauhan and staff about the broken glass of the car. We all went back and when checked Mr. Chauhan told that his cherry colour VIP briefcase is missing which carried a lot of cash in it."
10. In the statement of G.B.S. Chauhan MD made before the District Forum, it has been stated that there were two briefcases with him, one of black colour and the other of cherry colour, when he came to the showroom from G-9, Preet Vihar. The black colour briefcase was carried by him inside the showroom and the other briefcase was left behind in the car. He further stated that he collected ₹13 lakh cash from the locker in the showroom, kept it in a polythene bag and then placed it in the cherry colour briefcase, meaning thereby that he must have come out from the showroom with the polythene bag, placed it in the cherry colour briefcase, which was lying outside in the car and then went back in the showroom, after asking Tajinder Dua, security guard to keep a watch over the car. In case, Tajinder Dua the security guard was standing outside the showroom at that time, the car must be visible to him all the time. Evidently, if any person committed theft by breaking or cutting the glass of the car, the security guard could have seen the person doing so, and he could have raised an alarm or prevented such person from doing so. On the other hand, the security guard says that when he went near the car, he found the right side window pane of the car broken. He rushed back to the showroom and informed Mr. G.B.S. Chauhan and staff about the breaking of glass of the car. It is clear from this version that the security guard was not standing outside the showroom and thus, the theft took place from an unattended vehicle. Had he been standing outside the showroom, there was no question of the theft having taken place. From the statements made by G.B.S. Chauhan and Tajinder Dua, it is made out, therefore, that either the theft took place from an unattended vehicle, or the story about the theft is not correct. The exclusion clause in the policy is very much attracted, if the theft had taken place from an unattended vehicle. It is clear, therefore, that the claim has been rightly repudiated by the Insurance Company. Keeping this factor in mind, there is no irregularity, illegality or jurisdictional error in the orders passed by the Consumer Fora below. Moreover, it is a settled legal position that powers in the exercise of the revisional jurisdiction should be used only, if there is a jurisdictional error or material defect in the orders passed by the Consumer Fora below. The Hon'ble Apex Court in their judgment in "Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd. [(2011) 11 SCC 269]" have taken this view.
11. Based on the foregoing discussion, this revision petition is ordered to be dismissed and the orders passed by the consumer fora below are upheld. There shall be no order as to costs.
...................... DR. B.C. GUPTA PRESIDING MEMBER