STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

1.        The Oriental Insurance Company Ltd., SCO 109-111,      Surindera Building, Sector 17-D, Chandigarh, through    its Regional Manager.

2.        The Oriental Insurance Company Ltd. SCO 325, 2^nd        Floor, Sector 9, Panchkula, through its Branch        Manager.

……                                                                                                                                                                                                                                               

V e r s u s

Delhi Assam Roadways Corporation, presently known as DRACL Logistics Ltd., having its office at 19/3, Tilak Bazar, Hissar, Haryana, through its Authorized Representative.

              ....Respondent

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:    JUSTICE SHAM SUNDER, PRESIDENT.

                   MRS. NEENA SANDHU, MEMBER.

                   SH.JAGROOP SINGH MAHAL, MEMBER.

Argued by:  Sh.G.S.Ahluwalia, Advocate for the appellants.

PER  JUSTICE SHAM SUNDER, PRESIDENT

1.             This appeal is directed against the order dated 23.01.2012, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, and directed the Opposite Parties, as under:-

“In view of the above discussion, we are of the considered opinion that the repudiation of complainant’s claim by the OP Company is totally unjustified.  The complaint has merit.  The same is accordingly allowed.  The OPs are directed to pay Rs.4,02,936/-, the loss suffered by the complainant as well as assessed by the Surveyor vide Ann.C-4, along with interest @9% p.a. from the date of repudiation i.e. 23.6.2011 (Ann.C-5) till it the date of order. The OPs are also directed to pay Rs.15,000/- as litigation costs.

The order be complied with by the OPs within a period of 30 days from the date of receipt of copy of this order, failing which they shall be liable to pay interest @12% p.a. on the above said awarded amount from the date of repudiation i.e. 23.6.2011 (Ann.C-5) till its actual payment, besides paying litigation cost of Rs.10,000/.”-

2.             The facts, in brief, are that the complainant took Cash in Transit Insurance Policy No.231202/48/2010/1093, which was valid for the period from 11.8.2009 to 10.8.2010, issued by Opposite Party No.2. A theft took place at Balasore Office (branch office of the complainant), Orissa, on 14.8.2009. The thieves took away cash worth Rs.4,02,936/-, besides a laptop of Lenovo and one Laptop of Sony. The matter was immediately reported, to the concerned Police Station on 15.8.2009 and an FIR was registered. The matter was also reported to Opposite Party No.2, vide letter dated 19.8.2009. All the necessary documents, alongwith the claim form were sent to the Insurance Company. A Surveyor was appointed by the Insurance Company, who submitted a detailed report dated 30.1.2011 (Annexure C-4). It was stated that despite receipt of all the documents, the legitimate claim of the complainant was repudiated, vide letter dated 23.6.2011  (Annexure C-5), by Opposite Party No.1 (now appellant No.1), at Chandigarh, on the ground, that there was no mark of threat or violence involved, for obtaining the keys of safe/strong room/lockers/almirahs, which were found open. Thereafter, the complainant through various letters, and emails, requested the Opposite Parties, to settle his valid claim, but to no avail. It was further stated that the repudiation of the valid claim of the complainant, was illegal and invalid. It was further stated that the Opposite Parties, by not settling the genuine claim of the complainant, and, on the other hand, illegally repudiating the same, were deficient, in rendering service, as also indulged into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed.

3.             The Opposite Parties, admitted the factual matrix of the case, of obtaining Cash in Transit Insurance Policy No.231202/48/2010/1093, by the complainant valid for the period from 11.8.2009 to 10.8.2010. It was stated that the incident, related to the intervening night of 14/15.8.2009. It was further stated that on the morning of 15.8.2009, the office Peon, opened the office premises and, thereafter, the Cook of the Mess, detected that the safe/strong room/lockers/almirahs, were in open condition. It was further stated that the matter was investigated/surveyed by the Surveyor, appointed by the Opposite Parties. It was further stated that, the Surveyor, did not find any mark of/use of, violence at the spot. It was further stated that as per the Exclusion Clause of the policy, the insured was required to take all reasonable precautions, for the safety of the property. It was further stated that the policy did not cover loss of cash abstracted from safe/strong room, following use of the key or any duplicate key thereof, unless such key had been obtained by threat or violence. It was further stated that the concerned employee(s) of the complainant, failed to exercise reasonable care and caution in keeping the keys of safe/strong room/lockers/almirahs, in safe custody, and, as such, the terms and conditions of the policy were violated by it (complainant). It was further stated that as such, the claim was legally and validly repudiated. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.

4.             The Parties led evidence, in support of their case.

5.             After hearing the Counsel for the Parties, and, on going through the evidence, and record of the case, the District Forum,  accepted the complaint, in the manner, referred to, in the opening paragraph of the instant order. 

6.             Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.

7.             We have heard the Counsel for the appellants, and, have gone through the evidence, and record of the case, carefully. 

8.             The Counsel for the appellants, submitted that since no threat/violence, was used in obtaining the keys of the safe/strong room/lockers/almirahs, by the miscreants, the loss suffered by the complainant,  fell under the Exclusion Clause of the Policy, as it did not take all reasonable precautions for the safety of the property. He further submitted that, under these circumstances, the claim of the complainant was rightly repudiated. He further submitted that the District Forum was, wrong, in accepting the complaint. He further submitted that the order of the District Forum, being illegal and invalid, is liable, to be set aside.

9.             Admittedly, the policy, in question, was obtained by the respondent/complainant, from the appellants/Opposite Parties, after making the payment of premium. This policy was valid for the period from 11.8.2009 to 10.8.2010. It was, during the currency of the policy, i.e. on the night intervening 14/15.08.2009, that the incident of theft took place, resulting into lodging of F.I.R. No.143, dated 15.8.2009, under Section 380 IPC (Annexure C-2), by an employee of the respondent/complainant.  The Surveyor appointed, investigated the matter, and basing his conclusion, on the statement of account, furnished by the complainant, came to the conclusion, that the closing cash balance as on 14.08.2009 was Rs.4,04,580/-, whereas, on 15.08.2009, after the theft, cash balance was Rs.1,644/-. The Surveyor came to the conclusion,  vide his report dated 30.01.2011 (Annexure C-4), that the loss of cash which occurred, due to theft, was of Rs.4,02,936/-. It was, in respect of the loss aforesaid, that the FIR aforesaid, was lodged by the complainant. Under the remarks column of his report at page 39 of the District Forum File, the Surveyor, came to the conclusion, that since there was no sign of violence at the office premises, on the day of incident, the theft might have been committed by using fabricated keys and/or similar vices. The final untraced report was also submitted by the Police, to the Court of S.D.J.M. Balasore, Orissa, for acceptance. There was nothing mentioned, in the written version, filed by the appellants/Opposite Parties, that the terms and conditions of the policy were supplied to the complainant. Even, the terms and conditions of the Policy, were not placed, on record, by the appellants/Opposite Parties. There is no tangible evidence, on the file, either regarding the supply of the terms and conditions of the policy, to the respondent/complainant, or explaining the same to its (respondent/complainant) authorized representative. Since, the theft, in this case, could not be ruled out,  by way of using the duplicate keys, the mere fact, that there was no mark of threat or violence, at the spot, did not mean, that there was breach of the alleged terms and conditions of the policy. In Paresh Mohanlal Parmar Vs. New India Assurance Company Ltd. & Ors., III(2011) CPJ 146 (NC), it was held, that it was not necessary that force should be used, against the complainant, or his employee, prior to the commission of theft. It was further held that it would be sufficient, if force is used prior to entering the premises. In the absence of production of the terms and conditions of the policy, and proof of the factum,  that the same (terms and conditions), were explained to the complainant, it could not be said that there was violation thereof, by it. The principle of law laid down in Paresh Mohanlal Parmar`s case (supra), is fully applicable to the facts of the instant case. The District Forum, was, thus, right in coming to the conclusion, that claim of the respondent/complainant, was illegally and invalidly repudiated by the Opposite Parties. The District Forum, was, also right in holding, that by illegally repudiating the claim, the Opposite Parties were deficient, in rendering service, as also indulged into unfair trade practice. The findings of the District Forum, in this regard, being correct are affirmed.

10.           It may be stated here, that in paragraph no. 12 of the impugned order, the Opposite Parties, were directed to pay Rs.15,000/-, as litigation costs.  However, on account of typographical mistake, in the subsequent paragraph, the litigation costs were mentioned as Rs.10,000/-. Once in paragraph no. 12, the litigation costs of Rs.15,000/-, were directed to be paid by the Opposite Parties, to the complainant, and, in the subsequent paragraph, if, due to typographical mistake, litigation costs were written as Rs.10,000/-, that did not mean, that costs of litigation were infact Rs.10,000/-. It is, therefore, held that the litigation costs, awarded by the District Forum, in this case, were Rs.15,000/-, as depicted in paragraph number 12 of the impugned order, but due to typographical  mistake, the same were typed as Rs.10,000/-, in the subsequent paragraph. This fact stands clarified, in the manner indicated above.

11.         No other point, was urged, by the Counsel for the appellants.

12.         The order passed by the District Forum, with the clarification, referred to above, with respect to the litigation costs, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.

13.         For the reasons recorded above, the appeal, with the clarification, referred to above, with respect to the litigation costs, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum, with the clarification referred to above, is upheld.

14.         Certified Copies of this order be sent to the parties, free of charge.

15.         The file be consigned to Record Room, after completion

Pronounced.

March 1, 2012

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Sd/-

[JAGROOP SINGH MAHAL]

MEMBER

Rg.