IN THE STATE COMMISSION : DELHI

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

Date of Decision :  28.08.2014

First Appeal No.678/2011

(Arising out of the order dated 14.09.2011 passed by the District Consumer Dispute Redressal Forum-VII, Sheikh Sarai, New Delhi, in Complaint Case No. 429/2010)

The Oriental Insurance Co. Ltd.

Divisional Officer-18

Shahpuri Tirath Singh Tower,

VIth Floor, C-58, Community Centre

Janakpuri, New Delhi-110058

Also at:

The Oriental Insurance Co. Ltd.

9, Community Centre, Phase-I

Maya Puri, New Delhi-110064                   ……Appellant

VERSUS

M/s Brisk Infotec Solutions

2157, Guru Arjun Nagar

New Ranjit Nagar

New Delhi-110008                       …..Respondent

CORAM

S.A.Siddiqui, Member (Judicial)

S.C.Jain, Member

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

2.      To be referred to the reporter or not?

S.A.Siddiqui, Member (Judicial)

Judgment

1.       This is an appeal under section 15 of the Consumer Protection Act 1986 (hereinafter called the Act) filed by Appellant/OP-Oriental Insurance Company Ltd. against the order dt. 14.09.2011 passed by District Consumer Disputes Redressal Forum-VII, Sheikh Sarai, New Delhi in Complaint Case No. 429/2010. 
2.       Relevant facts of the matter are that the complainant/respondent M/s Brisk Infotec Solutions had taken an Umbrella Policy Package No. 215503/48/2009/577 dt. 23.05.2008 from OP/appellant. The policy covered risk of theft of cash as well as goods and machinery among other perils.  On 05.03.2009 at about 07:30 hrs Sh. Praveen Chaudhary Partner of the complainant firm received a call from Sh. Bhagwan T. Malkani-Landlord that locks of both the door of the office were broken. Sh. Malkani along with other partners left for the office immediately.  On 04.03.2009, the office was closed at around 17:00 hrs.  On reaching office partners found the locks of the office broken. The police was immediately informed and an FIR was lodged and a case under Section 380/457 IPC was registered on 05.03.2010 P.S. Patel Nagar.  It was found that cash Rs. 1.23 Lac was kept in the locked drawer of one of the partners and this money was stolen after breaking open the drawers lock.  Thus the burglary in the office took place during the intervening night of 4/5.03.2009.
3.       The complainant lodged claim with the insurance company which appointed M/s Sanjay Dwivedi & Associates surveyors to assess/investigate the case.  The surveyor visited the premises on the same day and inspected the office and found the locks broken.  The surveyor through its letter dt. 06.03.2009 demanded certain documents from the complainant/respondent which were duly provided.  The surveyor submitted report with the insurance company.  On its part, the OP/appellant through its letter dt. April 2010 asked the complainant/respondent to submit original copies of FIR and untraced report from the police.  Both the documents were duly submitted.  Later on, OP/appellant vide its letter dt. 12.05.2010 informed the complainant/respondent about the repudiation of the claim as being not admissible under the policy terms and conditions for the reasons of “loss of cash out of business hours is covered only whilst secured in a locked safe or locked strong room in the insured’s premises”.  The drawer from where the cash was stolen was properly locked and the lock was broken open.  The burglary was committed sometime during the night 4/5.03.2010 and the cash was stolen after breaking upon the locked/drawer; this fact was duly acknowledge by the surveyor’s representative who had seen that four locks were broken before entering into the room from where cash was kept in the locked drawer.  The ground for the quotation was arbitrary and therefore the complainant had no option but to file consumer complaint for deficiency of service on the part of the insurance company.  The total loss of the complainant in the incident was of Rs. 1.38 Lac, but, the claim was restricted to Rs. 30,000/-.
4.       On filing the complaint, notice was issued to the OP/appellant who filed reply.  It was submitted that the surveyor was appointed on receiving the information about burglary.  The surveyor submitted its report on 12.05.2010 and assess the loss to Rs. 30,000/- (towards cash) but the claim was repudiated on the ground that under the terms and conditions of the policy, only “loss of cash out of business hours was covered only whilst secured in a locked safe or locked strong room in the insured’s premises”.  Therefore cash stolen from the drawer was not covered under the policy.  The repudiation of the claim was duly intimated to the complainant/respondent.  There was no deficiency of service of any kind on the part of the insurance company and the claim was rightly repudiated.
5.       The complainant/respondent filed rejoinder against the reply and refuted the averments made in the reply.  Both the parties led evidence through affidavit.  Upon consideration of facts, circumstances and evaluation of evidence on record, the Ld. District Forum allowed the complaint and directed the OP/appellant to pay Rs. 30,000/- to the complainant/respondent along with interest @ 9% p.a.  Besides, a sum of Rs. 10,000/- was awarded as compensation along with Rs. 5,000/- costs.
6.       The OP insurance company felt aggrieved and preferred this appeal inter-alia on these main grounds besides the others:-

1. The Ld. District Forum failed to appreciate that complainant kept the cash in the drawer which was not covered as per section-III of the money insurance policy, which clearly states that the “money in office is locked safe outside the business hours or loss of cash out of business hours is covered only whilst secured in a locked safe or locked strong room in the insured premises”.
2. The Ld. District Forum failed to appreciate that the word ‘safe’ could not be equated with the word ‘safe custody’.
3. That the Complainant/respondent had not taken reasonable steps to safeguard the money and has violated the condition of the policy.  Cash was kept in the drawer, which does not conform to the requirement of the policy.  The Ld. District Forum nowhere mentioned in its impugned order that the cash was kept in safe custody or was kept in due and proper manner. 
4. The Ld. District Forum while passing the impugned order ignored the well settled law on the point that the terms of the contract has to be strictly read and natural meaning be given to it.  No farfetched meaning could be given to the terms of the contract.  The impugned order dt. 14.09.2011 was therefore erroneous and was liable to be set aside.

1.       The complainant/respondent filed reply.  It was mentioned that the surveyor’s representative had seen that four locks were broken before entering into the room where cash was stolen.  The reasons for repudiation were without any merit.  It was arbitrary and unjust.  The Ld. District Forum while passing the impugned order did not commit any illegality or irregularity.  The judgment was just and sound being based on evidence on record.  Appeal was therefore without merit and could not be sustained.
2.       We have heard Sh. Vijay Singh Ld. Counsel for the Appellant and Sh. Praveen Chaudhary AR for the Respondent Company at length and have also perused the record.
3.       The Ld. Counsel for the appellant drew our attention towards office umbrella packaging policy schedule.  In Section III money insurance at S.No.3 provides “money in office in locked safe outside business hours-section III OUP” he emphasised the word safe cannot be equated with the word safe custody.  He relied upon the ratio of the Hon’ble Supreme Court decision’s in Oriental Insurance Company Ltd. V/s Samayanallur Primary Agricultural Co-operative Bank AIR2000SC10 NO. 8716/97 decided on 02.11.1999.  The ratio of the judgment of the case is that “insurance policy has to be construed having reference only to the stipulations contained in it and no artificial farfetched meaning could be given to the words.  Burglary was committed during the intervening night of 4/5.03.2010 though the partner left the premises on 04.03.2010 in the evening at about 5:00 pm after carefully locking the premises.  The cash was kept in the drawer of a partner which was properly locked.  The contention of the appellant counsel was that the money should have been kept in a locked safe or in a locker after the close of the business hours. Since it was kept in a locked drawer it was not covered under the terms and conditions of the policy.  The partners of the complainant/respondent did not take proper care of the cash as required under the policy; therefore the claim was rightly repudiated.  The impugned judgment and order dt. 14.09.2011 suffers from illegality and is erroneous and therefore is liable to be set aside. 
4. On the other hand Counsel for the respondent argued that the thieves could reach the locked drawer where money was kept, after breaking four locks and this fact was very much noticed by the representative of the surveyor.  The money was kept in a locked drawer of the partner, which was completely safe and secured, no carelessness was committed by the partner and before leaving premises it was fully locked and kept secured.  The insurance company was taking an arbitrary view while interpreting the word safe and natural interpretation to the word locked safe should be given which means that cash should be kept carefully locked and secured and it was so kept upon by the partner.  Not only this the premises was carefully locked so much so that the thieves could reach the locked drawer where money was kept, after breaking four locks.
5.  We are of the considered view that the surveyor’s report dt. 10.01.2011 is a reliable document which cannot be easily brushed aside.  Under the heading cause of loss the surveyor’s report mentioned that, the entry to the premises was made by breaking the locks and letches of the main door of the office. This is a clear-cut case of forcible entry in the premises which is termed as burglary.  The loss due to burglary is an insured peril under the subject policy and not under any exclusions, hence underwriters are liable to indemnify the insured as per terms and conditions of the insurance policy.  The report further mentioned that the entry in the premises was made by breaking the lock and letches of the main door of the office.  On searching the office, the drawer of Sh. Praveen Chaudhary was found broken open and thereafter cash was stolen.  We therefore came to the conclusion that the impugned order of the District Forum does not suffer from any illegality or irregularity and deserves to be maintained.
6.  Consequently, the appeal is found without forces and is hereby dismissed. However, cost is made easy.
7.  The impugned order dt. 14.09.2011 is confirmed. 
8.  Let a copy of the order be made available to the parties free of cost as per law and thereafter file be consigned to record room’
9. FDR if any deposited by the appellant shall be released as per rule.
   1.  

MEMBER (JUDICIAL)

FATIMA