State Consumer Disputes Redressal Commission
Paliwal Jewellers vs National Insur.Co. on 30 October, 2009
APPEAL NO: 1417/2009 1. Public Health Engineering Deptt., through Asstt.Engineer, Revenue Sub-division-I, Bikaner. 2. State of Rajasthan, through Collector, Bikaner. Opposite parties-appellants Vs. Vishnu Narain s/o Ramkishan Sharma, r/o Chholina Kuua, Bikaner. Complainant-respondent 30.10.09 Before: Mr.Justice Sunil Kumar Garg- Presidents Mrs.Vimla Sethia-Member
Ms.Neelu Mathur counsel for the appellants BY THE STATE COMMISSION Heard at admission stage.
2This appeal has been filed by the appellants PHED against order dated 8.7.09 passed by the District Forum, Bikaner in complaint no. 210/08 by which the complaint of the complainant respondent was allowed in the manner that the water bills for the period Sept.2004 to March 2008 which were sent by the appellants on the basis of commercial use were quashed and in that place it was ordered that they be issued on the basis of domestic use and further a sum of Rs.2000/- was ordered to be paid as amount of compensation for mental agony.
2. It arises in the following circumstances-
That the complainant respondent had filed a complaint before the District Forum, Bikaner inter alia stating that he had taken a domestic connection from the appellants and bill for the month of Sept. 2004 for a sum of Rs.561/- was sent by the appellant and when he contacted the employees of the appellants, he was told that the excess amount would be adjusted in the future bill but in the month of November 2004 the bill of the same amount was sent on the basis of commercial use and he was told that since he had got a shop attached with the house, therefore, the bill on the basis of commercial use was rightly sent but according to the complainant he had got opened a medical store in his house for his son and since no water was being used by that shop, therefore, sending of these bills on the basis of commercial use was wrong one and thus it was 3 prayed that bills in question be quashed and for that the present complaint was filed by the complainant.
A reply was filed by the appellants before the District Forum, Bikaner and in the reply it was stated that since a medical shop was being run by the complainant in his house and therefore, bills were rightly issued on the basis of commercial use and it was prayed that complaint be dismissed.
After hearing the parties, the District Forum,Bikaner through impugned order dated 8.7.09 had allowed the complaint of the complainant respondent inter alia holding that if for the sake of argument, it was found that he had opened a medical store in his house but in that shop no water was needed, therefore sending the bills on the basis of commercial use was not justified and the impugned order was passed as stated above.
Aggrieved from the said order dated 8.7.09 passed by the District Forum, Bikaner, this appeal has been filed by the appellants.
3. In this appeal the main contention of the learned counsel for the appellants is that since the fact that there was a medical shop attached with the house of the complainant is well established and therefore, the bills were rightly sent on the basis of commercial use and further reliance has been placed 4 on the notification dated 29.5.98 where it was mentioned that if any commercial activity is being run in the premises, for that a separate connection has to be taken and thus running of the shop by the complainant in the same premises that would certainly be covered under commercial activity and the learned District Forum had committed serious error and illegality in allowing the complaint of the complainant respondent and the findings of the District Forum are wholly erroneous, illegal and perverse one and the same could not be sustained and liable to be quashed and set aside and this appeal deserves to be allowed.
4. In our considered opinion, no doubt there is a medical shop in the house of the complainant respondent but to say that for running the medical shop there was a need of water could not be accepted and thus merely because there was a shop where no water was needed for running that shop, a case of commercial activity could not be found established.
5. Had the shop in question would have been a shop of Halwai, the position would have been different one but in a medical shop customers take the medicines and go and no question of supplying drinking water arises except in a case where one or two glass of water are offered to the customers, therefore, present case was not a case of commercial activity and no benefit of notification dated 29.5.98 could be given to the appellants and thus the findings of the District Forum decreeing the claim of the complainant respondent are liable to be confirmed as they are based on correct appreciation of 5 entire materials and evidence on record and they do not suffer from any basic infirmity,illegality or perversity and this appeal deserves to be dismissed .
Accordingly, the appeal filed by the appellants is dismissed.
Member President APPEAL NO: 1930/2008 M/s.Paliwal Jewellers, B-360 Himmat Nagar, Gopalpura Byepass Tonk Road, Jaipur through partner Vishal Paliwal. Complainant-appellant Vs. National Insurance Co. Ltd., through Regional Manager, 4-24 A Transport Nagar, Delhi Road, Jaipur. Opposite party-respondent 30.10.09 Before: Mr.Justice Sunil Kumar Garg- Presidents Mrs.Vimla Sethia-Member Mr.Ajay Tantia counsel for the appellant Mr.Sanjeev Arora counsel for the respondent BY THE STATE COMMISSION This
appeal has been filed by the complainant appellant against order dated 24.9.08 passed by the District Forum, 2 Jaipur Ist in complaint no. 911/06 by which the complaint of the complainant appellant was dismissed.
2. It arises in the following circumstances-
That the complainant appellant had filed a complaint before the District Forum, Jaipur Ist on 24.7.06 inter alia stating that for the safety of his jewellery shop, the complainant firm had taken a policy bearing no. 370204/ 216/ 05/ 3700000072 from the respondent for the period 17.6.05 to 16.6.06 for a sum of Rs. 1 crore 25 lacs. It was further stated in the complaint that in the night of 11.7.05 the shop in question was closed at about 8.30 p.m. and since the next day i.e. on 12.7.05 there was Tuesday and on Tuesday the shop remained closed and when on 13.7.05 the shop in question was opened, it was found that the goods lying in the shop were lying here and there and some jewellery which was kept in the locker of the counter was stolen away by some thieves and for that a FIR bearing no. 316/2005 was lodged with the Police Station, Bajaj Nagar on 13.7.05 and in the report it was mentioned that on being searched, it was found that the thieves had taken three rings of gold and one pair of gold bangles and the value of these things were Rs. 1,92,000/- and thereafter claim was preferred by the complainant before the office of the respondent but that claim was repudiated by the respondent through letter dated 8.1.05 in the following manner-
3" We are sorry to inform you that claim is not admissible under the policy as because our policy cover the jewellery kept/ stored in locked safe where as the loss has taken place at the counter which is not covered by the policy.
Considering the above we are closing the above claim. This is for your information."
Thereafter the present complaint was filed.
A reply was filed by the respondent Insurance Co. before the District Forum, Jaipur Ist on 25.9.06 and in the reply they have taken the same pleas which were taken by them in the repudiation letter dated 8.1.05. It was further stated in the reply that as per terms and conditions of the policy, the risk of the property which was kept in the locked safe of standard make would be covered and since in the present case theft had taken place from the open counter, therefore, the same was not covered under the terms and conditions of the policy and further the complainant had wrongly claimed a sum of Rs.1,92,000/- for the articles due to theft and since there was no deficiency in service on the part of the respondents as the claim of the complainant appellant was not covered under the terms and conditions of the policy and therefore, claim of the complainant was rightly repudiated by the respondent Insurance 4 Company and it was prayed that complaint be dismissed.
After hearing the parties, the District Forum,Jaipur Ist through impugned order dated 24.9.08 had dismissed the complaint of the complainant appellant inter alia holding -
(i) That the argument of the complainant appellant was not found acceptable and the District Forum had come to the conclusion that the case of the complainant would be covered u/Sec. I of the policy in question and since as per terms and conditions of s.I of the policy, the article should have been kept in locked safe of standard make and since as per the contents of the FIR it is very much clear that three rings of gold and one pair of gold bangles were kept in the counter and the same were stolen away from the counter , therefore, the respondent Insurance Co. was justified in repudiating the claim of the complainant appellant.
(ii) The District Forum had further observed that the case of the complainant was not covered under the terms and conditions of S.II of the policy in question as the goods kept in the counter could not be said to be under the custody of the Partner/Director/ Employee of the firm.5
Aggrieved from the said order dated 24.9.08 passed by the District Forum, Jaipur Ist, this appeal has been filed by the complainant appellant.
3. In this appeal the main contention of the learned counsel for the appellant is that since the risk of theft was covered under the policy in question and since the surveyor Mr.Rajesh Kumar Goyal in his report dated 11.11.05 had come to the conclusion that the case of theft was genuine one and since the surveyor had assessed the net loss to the tune of Rs.87,580/-, therefore, this amount should have been ordered by the District Forum and thus the learned District Forum had committed serious error and illegality in dismissing the complaint of the complainantappellant and the findings of the District Forum are wholly erroneous, illegal and perverse one and the same could not be sustained and liable to be quashed and set aside and this appeal deserves to be allowed.
4. On the other hand, the learned counsel appearing for the complainants respondents has supported the impugned order of the District Forum and has strongly argued that the case of the complainant appellant is covered under s. I of the terms and conditions of the policy and since the goods were not locked in safe of standard make and they were kept in open counter, therefore, the same was not covered under the policy in question and has prayed that appeal be dismissed.
5. We have heard the learned counsel appearing for the appellant as well as for the respondents and have gone 6 through the entire materials available on record.
6. To appreciate the contention of the learned counsel for the complainant appellant, we have to first see the terms and conditions of the policy as are found in the cover note and for convenience S . I of that policy is reproduced here-
" Warranted that all property including cash and currency notes whilst at the premises specified in the schedule shall be secured in licked safe of standard make at all tims out of business hours.
Classification warranties-
Class I Warranted that insured having stated in his proposal form that all the premises specified herein are fully protected by employment of watchman/watchmen, all the 24 hours of the day they will be so continued to be employed during the currency of the policy."
7. It may be stated here that S.II of the terms and conditions of the above mentioned cover note pertains to the custody of brokers and agents and not in regular employment of the insured.
8. Thus, after seeing S. I & II of the cover note, it clearly appears that the case of the complainant appellant 7 would fall under the terms and condition of S.I of the terms and conditions of the policy.
9. In this case there is no dispute on the point that at the time of theft three rings of gold and one pair of gold bangles were kept in the open counter of the shop and they were not locked in the safe of standard make.
10. Thus, in the facts and circumstances just narrated above, the question for consideration is whether repudiation of claim of complainant appellant by the respondents was justified or not or whether the findings of the District Forum dismissing the complaint of the complainant appellant would be sustained or not.
11. Before appreciating the contentions of the learned counsel for the parties, the position of law as set up by the Hon'ble National Commission in the cases of T.S.Vivekananda Kumar Vs. United India Insurance Co. ( I ( 2009) CPJ 288 (NC ) ) , National Insurance Co. Ltd. Vs. Ram Kumar Agarwal ( IV ( 2007 ) CPJ 215 (NC ) and Oriental Insurance Co. Ltd. & anr. Vs. South Eastern Coalfields Ltd. ( II (2009 ) CPJ 60 (NC ) ) has to be seen.
12. It may be stated here that in the case of T.S.Vivekananda Kumar Vs. United India Insurance Co. ( supra ) it is held that provisions of iron grills and shutters would not dispense with keeping of jewellery in safe as required under the policy and the insurance company is not 8 liable for loss and damage to property insured whilst in window display at night or kept out of safe after business hours.
13. Further in the case of National Insurance Co. Ltd. Vs. Ram Kumar Agarwal (supra) it is held that money kept in violation of policy terms and money neither in safe or in strong room and if the same were kept in drawer of almirah would not be covered under the terms and conditions of the policy.
14. Further in case of Oriental Insurance Co. Ltd. & anr. Vs. South Eastern Coalfields Ltd. ( supra ) it is held that stolen cash was not kept in stipulated safe but in steel trunk placed in strong room the same was not covered under the policy.
15. A bare perusal of the law laid down by the Hon'ble National Commission in the above cases it clearly reveals that the money kept in violation of terms and conditions of the policy or money neither in safe nor in strong room and if the same were kept in drawer of the counter, that would not be covered under the terms and conditions of the policy in question.
16. It may be stated here that since in this case as per S.I of the terms and conditions of the policy, it was the duty of the complainant to have kept the articles in the locked safe of standard make and since they were not kept in that manner, 9 therefore, there was a gross violation of terms and conditions of the policy in question by the complainant appellant in keeping the goods in the open counter.
17. For the reasons stated above, the respondents were justified in repudiating the claim of the complainant appellant and the respondents Insurance Co. had rightly repudiated the claim of the complainant and in view of this the findings of the District Forum dismissing the complaint of the complainant appellant are liable to be confirmed as they are based on correct appreciation of entire materials and evidence on record and they do not suffer from any basic infirmity,illegality or perversity and this appeal deserves to be dismissed .
Accordingly, the appeal filed by the appellant is dismissed.
Member President