Delhi

StateCommission

FA/1290/2013

THE NEW INDIA ASSU. CO. LTD. - Complainant(s)

Versus

BG's FASHION (P). LTD. - Opp.Party(s)

26 Sep 2018

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

Date of Decision: 26.09.2018

 

 

First Appeal No.1290/2013

Arising out of the order dated 23.10.2013 passed in Complaint Case No. 251/2011 by the District Consumer Disputes Redressal Forum (Central),  Kashmere Gate, Delhi)

 

 

New India Insurance Co. Ltd.,

10^th Floor, Scope Minar,

Laxmi Nagar, District Centre,

Delhi -110092.

…..Appellant

 

Versus

 

 

M/s. BG’s Fashion P. Ltd.,

D-24, South Extension Part I,

Ne4w Delhi -110049.

                                                .….Respondent

 

CORAM

Justice Veena Birbal, President

Ms. Salma Noor, Member

 

1.     Whether reporters of local newspaper be allowed to see the judgment?

2.      To be referred to the reporter or not?

 

 

Justice Veena Birbal, President

 

 

1. This is an appeal under Section 15 of the Consumer Protection Act, 1986 (in short ‘the Act’) wherein challenge is made to order dated 23.10-2013 passed by the Consumer Disputes Redressal Forum(Central), Kashmere Gate, Delhi, (in short, the “District Forum”) in Complaint Case No.251/2011, by which the aforesaid complaint has been allowed and appellant/OP has been directed as under:

 

1. “To pay to the complainant the claimed insured amount of Rs.9,49,000/- (Rs. Nine Lakh Forty Nine Thousand) with interest @9% per annum from the date of repudiation of the claim i.e. 18.03.2011 till the realization of the amount.

 

2. To pay to the complainant a sum of Rs.25,000/- (Rs. Twenty Five Thousand only) as compensation for causing deficiency in service as well as harassment, pain and mental agony.

 

3. To pay to the complainant a sum of Rs.5,000/- (Rs. Five Thousand) as litigation costs.”

 

2. Briefly the facts relevant for the disposal of the present appeal are that a complaint under Section 12 of the Act was filed by the respondent herein i.e. the complainant, before the Ld. District Forum stating therein that respondent/complainant had purchased a Money Insurance Policy bearing No.323200480907900000053 from the appellant/OP against the loss of money in transit by the insured or insured’s authorised employee(s), occasioned by Robbery, theft or any other fortuitous cause.  The policy was also in regard to loss of money by burglary, housebreaking, robbery or hold-up, whilst money is retained at insured’ premises in safe(s) or strong room or premises etc. It was alleged that on 05.02.10 the respondent/complainant had locked his office at D-24, South Extension Part-I, New Delhi at about 8.30 PM. On the next date i.e. 06.02.2010 when the respondent/complainant reached his office at 10.30 AM he found that locks of the shutter gate were broken. The director of respondent/complainant entered his office and found that all the locks of the gates were broken and the steel vault and all other almirahs, drawers were found opened and all the valuables including jewellery and cash had been stolen from the almirahs, vault and drawers.  The matter was immediately reported to the police control room. The police officials of PS Kotla Mubarak Pur arrived at the scene of crime and recorded FIR No.27/2010 under Section 457/380 of IPC.  It was stated that the respondent/complainant had also informed the alleged incident to the appellant/OP. On getting the information appellant/OP appointed surveyor, namely, Atul Kapoor to assess the loss. All necessary relevant documents were given to the surveyor by the respondent/complainant. It was alleged that as per respondent/complainant there was loss of Rs.9,49,000/- to him. Respondent/complainant had alleged that both the keys of the safe were with the respondent/complainant only and the safe could have been unlocked by master key. The police had also filed untraced report before the concerned Metropolitan Magistrate, The said untraced report was also sent to the surveyor by the respondent/complainant. Ultimately, the claim was repudiated by the appellant/OP vide letter dated 10.05.2011. Finding deficiency in service on the part of the appellant/OP, a complaint was filed before the District Forum seeking the claim of lost amount of Rs.9,49,000/- alongwith interest @18%, Rs.5,00,000/- towards compensation, mental torture and agony and Rs.31,000/- as litigation costs.
3. The complaint was opposed by the appellant/OP by filing a written statement wherein it was stated that there was no deficiency in service on the part of appellant/OP. It was admitted that Money Insurance Policy, the details of which have been mentioned above was taken by the respondent/complainant. The intimation of incident was also admitted. It was stated that the appellant. OP had appointed surveyor M/s. Atul Kapoor & Co., who submitted the report on 29.10.2010 and 27.01.2011. It was alleged that as per surveyor reports there was no evidence of forcible opening of the safe. The opening of safe by use of key was not covered as per exclusion clause No.7 of the policy.  It was further alleged that the insured was not maintaining the cashbook as required under Condition No.1 of the policy, as such it was not possible to ascertain the exact amount lying in the safe. The surveyor restricted the loss to  Rs.5,00,000/-. It was alleged that relying on surveyor report the claim was rejected.
4. Respondent/complainant had filed rejoinder to the written statement of the appellant/OP and reiterated the contents as pleaded in the complaint.
5. Both the parties had filed evidence in the form of affidavits. On behalf of the respondent/complainant, affidavit of Mr. Nitin Gupta was filed. He has relied upon the documents Ex. CW -1/1 to CW -1/16 as mentioned in his affidavit in support of his case. On behalf the appellant/OP affidavit of Mr. William R. Desauze, officer of appellant/OP was filed and reliance was placed upon the report of surveyor Ex. R-1 to R-IV and letter of repudiation of the claim.
6. After hearing proxy appearing for counsel for the appellant/OP, Ld. District Forum observed that surveyor had noticed the sign of forcible entry in the premises. Ld. District Forum also observed that forcible entry was also confirmed from the report lodged with the police. Ld. District Forum held that it was case of forcible entry into the business premises of the respondent/complainant. It was further held that respondent/complainant had made available both the keys of the safe to the surveyor and the surveyor was also informed that the culprits must have opened the cash box with some master key. It was held that there was no evidence that the respondent/complainant had left the keys of the safe in the business premises as such opening of cash box with master key amounted to opening cash box with force.  Ld. District Forum also found that there was loss of cash lying in the box as claimed by respondent/complainant. District Forum also held that there was no merit in the contention of appellant/OP that the repudiation was valid and was as per exclusion clause or in conformity with the terms and conditions of the policy.  Accordingly, ld. District Forum allowed the complaint and directed the appellant/OP to pay the claimed amount alongwith interest as has been stated above.
7. Aggrieved with the aforesaid order, present appeal is filed by appellant/OP.
8. Ld. counsel for the appellant/OP has contended that ld. District Forum has wrongly concluded that the safe was opened forcibly by using master key. It is contended that the lock of the safe was not found broken nor the surveyor has spelt out that any force was used to open the lock of the safe as such inference drawn by the ld. District Forum is not correct. It is contended that the report of the surveyor has not been rightly examined by the District Forum. It is further contended that the appellant/OP had covered three locations of the respondent/complainant for a total sum of Rs.15,00,000/-. The coverage of Rs.15,00,000/- was not in respect of one location, accordingly, the liability under the policy for each location could not have more than Rs.5,00,000/-. It is contended that even if there is any deficiency, the liability of the appellant/OP is only of Rs.5,00,000/-  and not Rs.9,49,000/- as is held by Ld. District Forum. It is further contended that as per case of the respondent/complainant only currency notes of Rs.1,000/- and Rs.500/- denomination were kept in the safe and the currency of smaller denomination were kept in wooden almirah. There is no cogent evidence that the entire amount of Rs.9,49,000/- was kept inside the safe. The ld. District Forum has wrongly given finding in this regard. It is further contended that District Forum has wrongly concluded that the safe was opened forcibly by using master key. It is contended that the relief given by the ld. District Forum is beyond the coverage as provided under the policy.
9. On the other hand, ld. counsel for the respondent/complainant has argued that a frivolous appeal has been filed by the appellant/OP. It is contended that the surveyor report, FIR and statement of the respondent/complainant made to the surveyor clearly makes out a case that there was forcible entry in the premises. It is contended that it has also come in evidence that safe has been opened with master key as such District Forum has rightly drawn the conclusion that force has been used for opening the safe. It is contended that there is no evidence that the keys of the respondent/complainant were used to open the safe and in the absence of the same the case of the respondent/complainant is clearly made out. It is further contended that there is nothing on record to show that the limit for indemnification was Rs.5,00,000/- for each location as is contended. It is further contended that the District Forum after considering the material on record has passed a well reasoned order and there is no illegality in the impugned and a frivolous appeal has been filed to defeat the genuine claim of the respondent/complainant.
10. We have heard the counsel for the parties and have perused the material on record as well as record of the District Forum.
11. The policy in question is admitted by the appellant/OP. The alleged incident and intimation of the same is also not denied by the appellant/OP.  The repudiation letter dated 18.03.2011 is as under:

 

“This has reference to claim intimated under the captioned policy in respect of burglary dtd. 06/02/2010. Accordingly, M/s. Atul Kapoor & Co. were deputed to assess the loss. The surveyor in his report has observed the following:

 

1.  No evidence of forcible opining was evident on the safe. Thus, the possibility of use of keys to open the safe cannot be ruled out. The cash stolen from the cash box/safe with the use of keys is not covered under the terms and conditions of the policy.

 

2.  The insured was not maintaining any cashbook. In the absence of any documentary evidence/record it is not possible to ascertain the exact amount lying in the safe claimed to have been stolen.

 

The above observations are in violation of “maintenance of books and keys clause” condition of the policy. Based on the surveyors report your claim is not admissible. Hence, we are repudiating our liability under the claim.”

 

 

12. In the surveyor report (Ex.R.II and Ex. R.III) it has been clearly stated that during the inspection of the premises signs of forcible entry were visible (Para 4.2 of the surveyor report). In the statement made to the surveyor, respondent/complainant had stated that on 06.02.2010 at 10.30 AM when he reached his business premises he found that shutter was lying pulled up about 1 feet height from the ground and locks of the same were intact but latch of the shutter was broken. He went inside and found that locks of main door as well as other doors were lying broken on the floor and whole office was lying ransacked. Drawers/almirahs were lying broken and still vault/safe was lying opened and cash lying in safe was missing from the safe. In the statement made to the police same allegations are there. The allegations in the police complaint as well as in the complaint are same.
13. The stand of the appellant/OP is that it is not the case of the respondent/complainant that lock of the safe was lying broken as such it cannot be said that any force was applied to the safe; as such the case is not covered under the policy. The appellant/OP has relied upon the exclusion clause 7 of the policy, which is as under:

Exclusions: The company shall not be liable in respect of:

1.  ………..

2.  …………

3.  ………...

4.  ………...

5.  …………

6.  ………...

7. Loss of money from safe or strong room following use of the key of the safe or strong room or any duplicate thereof belonging to the insured, unless this has been obtained by threat or by violence

 

14. We have gone through the exclusion clause 7 of the policy. As per aforesaid clause the loss of money from the safe opened by the use of key belonging to the insured or duplicate thereof is not covered unless the same have been obtained by threat or by violence. Respondent/complainant has categorically stated to the surveyor as well as to the police and in the complaint case that both the keys of the safe were with him meaning thereby that the safe was not opened by the key belonging to the respondent/complainant. It is also not the case of the appellant/OP that the safe has been opened with duplicate keys thereof. No evidence has been led by the appellant/OP to show that the respondent/complainant had left the key of the safe in the business premises. There is also no evidence that duplicate key was used to open the safe. There are averments in the complaint that the safe had been opened with master key. In the evidence of the respondent/complainant the same statement has also been made on oath, which has not been rebutted in any manner by the appellant/OP. Ld. District Forum has held that if the culprits have opened the cash box with master key then it amount to opening the cash box with force. In New India Assurance Co. Ltd. v. Star Studio’s and Digital Gallery  reported as II(2014) CPJ 271(NC) where cause of loss was theft with unauthorised entry in the shop after opening locks without damaging the shutter and other structure. The National Commission observed that there was no evidence that duplicate key was used and in the absence of that it was clear that lock had been broken open with the use of ‘force’. It was held that there was forcibly entry in the premises. Relevant para of Judgment is as under:

“5.     We have perused the documents, including Surveyor’s report, and the Engineer’s report. The OP Company appointed one Mr. Navdeep Singh Chaudhary, as Surveyor, who has asserted the loss at Rs. 2,32,627 in his survey report. The relevant portion of the report is reproduced, as under:

          There were two locks on the shutter and there was no central lock. The locks were found in open condition with its one lcok missing and there was second lying near the shutter in open condition. The cause of loss is theft with unauthorised entry in the shop with the help of duplicate key or master key but there were no damages to shutter and other infrastructure of the shop.

 

6.      We have perused the report of Engineer Sh. K.S. Chandiok, Investigator, who was deputed by the Respondent/Complainant on 15.11.2007, for investigation of the case. Relevant portion of the said report is reproduced as under:

          There were two locks on the shutter and there was no central lock. The locks were found in open condition with its one lcok missing and there was second lying near the shutter in open condition. The cause of loss is theft with unauthorised entry in the shop after opening locks without damaging the shutter and other structure.

 

7.      There is no evidence on record to prove that some duplicate key was used and in the absence of that, it is clear that the lock, had been broken open with the use of ‘force’ and the said ‘force’ was used for breaking open the lock only, and there is no evidence showing use of force on the shutter or any other part, but unauthorized entry was made for committing the burglary. Hence, both the reports clearly shows that one lock was missing and the other lock was opened.”

 

 

15. In view of the discussion, the contention raised by the appellant/OP that the District Forum has wrongly held that the safe was opened by force stands rejected. As regards the contention of the appellant/OP that the liability of the appellant/OP is restricted only to Rs.5,00,000/-, we have perused the policy in question, the sum assured is Rs.15,00,000/-. There is nothing on record to show that the liability of the appellant/OP was Rs.5,00,000/- for each location of the respondent/complainant. Nothing is also mentioned in the policy in this regard. Accordingly the contention raised is rejected
16. Further, contention of the appellant/OP is that ld. District Forum has wrongly held that entire money was kept in the safe whereas it is the case of the respondent/complainant that only the currency notes of Rs.1000/- and Rs.500/- denomination was kept in the safe and currency of smaller denomination was kept in the wooden almirah. In this regard, ld. counsel for the respondent/complainant has placed reliance upon the report of surveyor wherein under the heading “Basis of Assessment”, para 5.2  and 5.3 of the report are as under:

 

“5.2       During the survey the insured confirmed that they received cash from their respective showrooms almost every second day (depending upon amount of cash collected there) to be deposited in the bank on the next day which again depended upon the amount of cash collected in the office and need of the cash requirement in the office. From the insured’s cash book we observed that they have closing cash balance of Rs.9,49,310.75 on 05.02.2010 before the loss”

 

5.3         The cash balance after the loss was Rs.311/- thus the assessed loss works out to Rs.9,49,000/- (round off).

 

 

17. Ld. Counsel for appellant/OP has referred to para 8.1 of the report,  wherein the surveyor has observed that the insured had confirmed vide their attached statement that they kept high denomination notes in the safe and smaller denomination including coins etc. in the wooden almirah which indicates that atleast part of claimed cash was lying out of the safe which in any case was not covered under the policy. Since, no evidence was available about the exact amount kept outside the safe therefore, it was not possible to find out the total cash loss.
18. We have considered the surveyor report. We agree with the observation of Ld. District Forum that the later observation of the surveyor has got no meaning because of the observations made by the surveyor in the earlier part of its report i.e. para 5.2 and 5.3 as stated above, pertinently, when the surveyor in para 5.3 has assessed the loss at Rs.9,49,000/- as the respondent/complainant had claimed the loss of cash lying in the safe.
19. In view of above discussion we agree with the finding of the ld. District Forum that the respondent/complainant has not flouted any provision of the policy and did not leave key of the safe to facilitate its opening by some thief or burglar.
20. In view of the above discussion, we do not find any illegality or infirmity in the impugned order and accordingly dismiss the appeal.
21. A copy of this order as per the statutory requirement be forwarded to the parties free of charge and also to the concerned District Forum.  

              Thereafter the file be consigned to Record Room.