Complaint filed on: 20-01-2010<br /> Disposed on: 14-07-2010<br /> <br /> BEFORE THE BANGALORE IV ADDITIONAL DISTRICT <br /> CONSUMER DISPUTES REDRESSAL FORUM,<br /> BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052 <br /> <br /> C.C.No.130/2010<br /> DATED THIS THE 14th JULY 2010<br /> <br /> PRESENT<br /> <br /> SRI.D.KRISHNAPPA., PRESIDENT<br /> <br /> SRI.GANGANARASAIAH., MEMBER<br /> <br /> SMT. ANITA SHIVAKUMAR. K, MEMBER<br /> <br /> <br /> Complainant: - Vinayak Cars Pvt Ltd,<br /> Authorised dealers of <br /> SAKODA AUTO INDIA PVT LTD.<br /> Off at No.50/2 old Madras Road,<br /> T.C.Palya Cross, Garden city <br /> College Road, Bangalore -49<br /> Rep by Vijay Patel, <br /> It’s Managing Director <br /> <br /> V/s<br /> <br /> Opposite parties: - Managing Director and CEO<br /> Authorised Signatory <br /> ICICI LOMBARD GENERAL <br /> INSURANCE COMPNAY LTD,<br /> Regd. Office: ICICI Bank towers<br /> Bandra Kurla complex, <br /> Mumbai-400051<br /> <br /> Area Manager – Claims, <br /> Prestige Corniche, <br /> No.62/2, 2nd Floor, <br /> Richmond Road, <br /> Bangalore-560 025 <br /> <br /> <br /> <br /> <br /> O R D E R<br /> <br /> SRI. D.KRISHNAPPA., PRESIDENT., <br /> <br /> Brief facts of the complaint filed by the complainant against the opposite parties [hereinafter called as OPs for short) are that, he is the customer of Ops the insurance company had taken a policy from Ops by paying premium of Rs.5852/-, which was valid from 10-9-2008 to midnight 9-9-2009. That on 4-7-2009 at about 8.30 pm a cash of Rs.1,55,500/- and a HP Laptop was stolen from the cabin of the General Manager of the complainant and a complaint was given in this regard to the police on 6-7-2009 and a case had been registered in the concerned police station. When the claim was made to the Ops the Ops through their letter dated 30-7-2009 have not honoured his claim. That Ops have sent letter denying their liability, under the policy had agreed to reimburse the money kept in the drawer of the General Manager’s personal chamber, which is a safe room which was under proper lock and key and OP had refused to honour the claim. On the ground that the complainant had kept the money in violation of the condition of the policy and therefore has prayed for a direction to Ops to pay compensation of Rs.1,55,000/- towards the theft of money and a laptop and award damages of Rs.50,000/- and also award costs. <br /> <br /> 2. OPs have appeared through their advocate and filed version contending that, the complaint is not maintainable and claim is also exorbitant. Ops admitting to had issued a Money Insurance Policy covering money kept in the premises of the complainant and that liability of paying the loss strictly on the terms and conditions of the policy, Ops further stated to had received information of loss of cash from the complaint, stated to had appointed a surveyor who after visiting the spot did inspection of the spot taken photos, but when the complainant did not produced relevant documents before him, he did not assess the loss for want of documents and therefore he had submitted the report to them. On the complainant submitting the documents latter scrutinized them and found that the complainant had violated the conditions of the policy, therefore they repudiated the claim. It is further stated that the complainant had reported to the police stating that the cash stolen was kept in almaira drawer in the chamber of the general manger and not in safe locker in the insured premises. Hence stated it is violation of the policy terms. It is further contended by them that the cash was kept in almaira drawer which was kept in the chamber of the general manager even after business hours and cash was not either kept in safe or strong room and that drawer of the almaira can not be equated with the safe and that as resulted in violation of the terms of the policy. Further stated that the lap top is not covered in the policy have and prayed for dismissal of the complaint. <br /> <br /> 3. In the course of enquiry into the complaint, the complainant and the Manger [legal] of Ops have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant has produced insurance policy, copy of the terms and conditions, repudiation letter issued by OP, copy of the complaint given to the police, FIR copy and copy of legal notice issued to Ops. Ops have produced copies of correspondences, copy of the policy terms and conditions. We have heard the counsel for both the parties and perused the records. <br /> <br /> 4. On the above contentions following points for determination arise.<br /> 1. Whether the complainant proves that OPs have caused deficiency in their service in not reimbursing the loss occurred to them due to theft?<br /> 2. To what reliefs, the complainant is entitled to?<br /> <br /> 5. Our findings are as under:<br /> 1. Answer Point No.1: In the Negative <br /> 2. Answer Point No.2: To see the final order<br /> <br /> REASONS<br /> 6. Answer on Point No.1: On consideration of the contentions of both parties, their evidence and the policy produced before this forum, we find that the complainant had taken a Money Insurance Policy from Ops for Rs.1,00,000/- to cover money of Rs.1,00,000/- for reimbursing for loss while in transit by the insured or his employee, by robbery theft etc. and also while money is retained at the insured premises in the safe or strong room and loss or theft occurred due to theft burglary etc. Ops have not seriously disputed the theft took place in the premises of the complainant on 4-7-2009 by some miscreants committing theft of Rs.1,55,500/- and a laptop. Ops have stated that laptop is not covered in the policy, and that is not dispute by the complainant. Therefore, only money that was kept in the premises of the complainant particularly in the safe or strong room is covered by insurance and the liability of Ops would arise subject to the terms and conditions of the policy. <br /> <br /> 7. Ops have repudiated the claim of the complainant, through their letter dated 3-7-2009 on the grounds that, the money insurance policy was issued which covers the loss occurring in the premises after business hours if the money was kept in a locked safe or strong room and thereby stating that the complainant had not kept either in the locker safe or in the strong room in violation of the terms of the policy. Considering the scope of cover under the policy we find that not only loss of money in transit is covered but also covers money while it was retained in the insured premises. Relevant portion reads as under: “Further the company shall also indemnify loss of money by hold up, burglary, robbery whilst money is retained at insured’s premises, in safe (s) or a strong room (more particularly described in part-I of schedule and as specified therein) rest is omitted. Exclusion clause no.3 (iv) as reads as under: “the loss occurring in the premises, after business hours, unless the money is in a locked safe or strong room.”. Under this exclusion Ops are not liable for the loss suffered by the insured in case of theft of money in the business premises after business hours if the money was not kept in locked safe or strong room. We here emphasise the words locked safe or strong room. The condition says that if the complainant had kept the cash in his business premises in a safe or strong room and if it was stolen after business hours then only Ops would become liable and not otherwise. Therefore in order to find out the liability of Ops, we shall consider materials on records to know whether the complainant had kept his cash in either locked safe or strong room. <br /> <br /> 8. The complainant himself has produced a copy of the complaint, they had given to the concerned police after the theft. In this complaint, the complainant has stated that, cash of Rs.1,55,500/- and a HP laptop was kept in his cabin. When they opened the office on 6-7-2009, the cash of Rs.1,55,500/- left on Saturday and a HP laptop that was in his cabin was missing, the cash and a laptop were kept in drawer. The drawer in his cabin was broken. The locker in the MD’s cabin was also damaged by the thieves since the police have told them not to touch it, they do not know whether the money in the locker is robbered or not. On going through the contents of the complaint given to the police discloses that the general manager had kept the cash in his cabin and that cash and a laptop kept in cabin were missing. It is further stated that they were kept in drawer and the cabin was broken. It is not made clear what the drawer is, is it drawer of his table or almaira is not clarified. Similarly the complainant has not cleared what are the drawers in the cabins were damaged and where those drawers were provided. Further it could be gathered that the cash was not kept either in the safe or in the strong room and the cash was kept in the drawer that cannot be considered as cash chest or strong room. It is not the complainant’s case, they did not have any locker in their premises, therefore could not keys in it. It is also not specifically stated that cash was kept the drawer of almirah. The complainant further stated that the locker in the MD’s cabin was also damaged but did not touch it as told by the police and he did not know if money in the locker is robbered or not. Therefore it is clear from the complaint only, there is locker in the MD’s cabin and they had also kept money in it but they did not check it probably until the police came there. Thus it is evident that the complainant though had locker in the MD’s cabin he did not keep the money is that locker but left the cash in drawer in his cabin and therefore it can be held that the complainant has violated the condition of the policy by not keeping the cash either in the locker or in the strong room. The complainant in the complaint also has stated that the cash and a laptop were stolen from the cabin of the complainant the general manger by breaking opening the cabin and his drawer lock. Which make it manifest that cash was not either in the locker or in the strong room as on the date of theft. <br /> <br /> 9. The learned counsel appearing for the complainant submitted that the cabin of the general manager was itself treated as strong room and therefore it should be construed as a strong room he also argued that the managing director of the 1st OP has not filed affidavit evidence, the manager, legal branch of the 1st OP has filed affidavit evidence, is one without authority and therefore submitted to take that the OP has not filed his affidavit evidence and he further stated that such an affidavit cannot be looked into and in support of his submission relied upon the decisions of Hon’ble Supreme Court reported in AIR 2006 SUPREMENT COURT 430 and a decision of Hon’ble High Court of Karnataka reported in ILR 2007 KAR 5126 and another decision of Bombay High Court reported in 2006 CRI. L. 214. In the case on hand, the manager of legal branch of the 1st OP has filed his affidavit evidence on behalf of the Managing Director claiming to have knowledge of facts. We are of the view that a person having knowledge of facts in this type of cash can file affidavit and it is not the requirement of law that always and in all cases the head of the organization or institution alone shall file affidavit evidence or give evidence. The decisions therefore relied upon by the counsel for the complainant are not applicable to the fact of this case. The learned counsel appearing for the Ops referring to the conditions of the policy and exclusions argued that the complainant did not keep the cash securely as provided under the terms and conditions of the policy and is not entitled for insurance amount. In support of his arguments relied on two decisions, reported in I (1996) CPJ 325, Karnataka State Consumer Disputes Redressal Commission, Bangalore and another decision of Hon’ble National Commission rendered in revision petition No.324/2007 between T.S.Vivekananda Kumar versus United India Insurance Co. Ltd. The Hon’ble National Commission in the decision referred above, even by referring dictionary meaning of the device safe which used for securing goods has held if the insured goods are not kept in such safe the company will not be liable to reimburse the insured. Both the decisions apply to the facts of this case therefore we hold that the complainant had kept the money in the cabin of the general manager without keeping it securely in the locker of the managing director has violated the condition and therefore the OP has rightly repudiated his claim and it do not amounts to deficiency in their service, as a result, we answer point no.1 in the negative and pass the following order: <br /> O R D E R<br /> <br /> Complaint is dismissed. Both the parties to bear their own costs. <br /> Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this the 14th July 2010.<br /> <br /> <br /> MEMBER MEMBER PRESIDENT <br /> <br /> <br /> <br />