1.      Heard Mr. Sunil Mund, Advocate, for the appellant and Mr. Ajay Singh, Advocate, for respondent-1, through video conferencing.

2.      This appeal has been filed against the order of State Consumer Disputes Redressal Commission, Maharashtra, at Mumbai, dated 30.01.2015, passed in Complaint Case No. 57/2013, whereby the complaint, for insurance claim, has been dismissed.

3.      Hitesh M. Selarka, Proprietor of M/s. Hitesh Jewellers (the appellant) filed Complaint Case No. 86 of 2011, on 29.03.2011, for directing The Oriental Insurance Co. Ltd. (respondent-1) to reinstate the loss of gold of 3.480650 Kg or its value on the date of judgment under Insurance Policy No. 112101/48/2008/1237, (its value was assessed to Rs. 42 lakhs, for the purposes of pecuniary jurisdiction), interest at the rate of 18% per annum from the date of loss till its payment, Rs.2 lakhs, for mental and physical harassment, Rs. 1.5 lakh as cost of litigation, Rs.1 lakh, against opposite party-2, or any other relief which may deem fit in the circumstances of the case. The complaint was dismissed as time barred by order dated 16.06.2011. The appellant filed First Appeal No. 518 of 2011, from the aforesaid order, which was allowed by this Commission, by order dated 21.01.2013 and it was held that there was no delay in filing the complaint, as limitation would start from the date of repudiation of the claim on 01.09.2010. The matter was remanded to State Commission for deciding the complaint on merit. On remand, the case was registered as Complaint Case No. 57/2013.

4.      It has been stated in the complaint that the complainant was engaged in the trade of gold jewellery (whole sale business) and job work by making gold jewellery. His agents used to travel to different part of the country for selling the gold ornaments. The complainant obtained insurance policy i.e. “Jewellers Block Policy Schedule”, being Insurance Policy No. 112101/48/2008/1237, (hereinafter referred to as Policy No. 1237) extending risk coverage of Rs. 3.01 crores, from The Oriental Insurance Company Limited (opposite party-1) on 24.08.2007, which was valid up to midnight of 23.08.2008. On 27.10.2007, two employees of the Insured, namely Anant Vithmal and Nitesh Bhagne were travelling from Mumbai to Hyderabad in the bus, along with 6.700 Kg. gold ornaments, which were packed in several packets and kept in the bag, duly locked. During night, the thief broke open the lock of the bag and took away some packets of gold ornaments, weight of which was found as 3.480650 Kg. At Hyderabad, the entire passengers elite from the bus, as it was last stoppage. When his employees started to come out of the bus, then they could know about the theft. They reported the theft to the driver and conductor of the bus, who advised to lodge FIR of the incident, at police station as at that time, individual search of the passengers was not possible. The employees of the complainant then informed him about the incident on telephone. The complainant advised them to go to their rooms, where they had to stay and keep the remaining ornaments at safe place. The complainant, then, went to Hyderabad from Mumbai in plane and went to the rooms of his employees and kept the remaining gold ornaments at safe place. Thereafter, FIR (Crime No. 687/2007,under Section 379 IPC) was lodged at Police Station Saifabad, Hyderabad on 27.10.2007 at 22:00 hours. The complainant informed the Insurer about the incident on 29.10.2007 and submitted his claim under the insurance policy. The Insurer appointed Mehta and Padamsee Pvt. Ltd., Mumbai, Surveyor and Loss Assessor, for survey and assessment of the loss. He supplied all the necessary papers to the Surveyor as demanded by him. The Surveyor submitted his report to the Insurer on 12.05.2008 without supplying its copy to him. On which, the Insurer, through letter dated 01.09.2010, repudiated his claim. The complainant gave a legal notice for recalling the repudiation letter and granting the claim. The complainant, through his advocate, demanded copy of Survey Report from the Surveyor, through letter dated 03.11.2010. For which, the Surveyor demanded Rs.500/-. A cheque of Rs. 500/- was sent to the Surveyor, but he did not supply copy of the Survey Report to him and committed misconduct.   On these allegations, the complaint was filed.       

5.      Respondent-1 filed its written reply and contested the complaint. It has been stated that the alleged theft had taken place in night of 26/27.10.2007 and it was noticed by the employees of the complainant during journey in bus at Lakdi-ka-pool, Hyderabad but they did not raise any alarm. They informed the incident to the complainant on telephone, who also advised not to raise any alarm and to go to the room, where they had to stay. If the employees from whose possession, theft had taken place, had acted diligently and informed to the conductor and the driver of the bus, then the passengers would have been searched by them or at police station. They have not taken proper care to recover the stolen property and violated the Condition 13 (a) of the Policy. On the claim being made, the Insurer appointed Mehta and Padamsee Pvt. Ltd., Mumbai, Surveyor and Loss Assessor, for survey and assessment of the loss. The Surveyor made an inquiry from Jabbar Travels, from whose bus, the employees of the complainant had travelled, who totally showed his ignorance about the theft in his bus. It was alleged that the plastic bag, containing the ornaments was kept below the seat of the bus, on which the employees were sitting. The Surveyor during inspection found that the plastic bag of that size could not be pulled in rear side from the seat. Approval voucher relating to transit of the ornaments as supplied to the Surveyor by the complainant did not bear the serial number. Therefore, authentic loss was not found to be proved by the Surveyor. The complainant, in his letter dated 18.02.2010, has admitted receiving of Surveyor’s report dated 12.05.2008. FIR was also unreasonably delayed. On consideration of entire material on record, it was found that there was violation of Condition-13 (a) of the Policy as such, the claim of the complainant was repudiated by letter dated 01.09.2010.                                              

6.      The complainant filed documentary evidence, i.e. Insurance Policy, Copy of FIR, Copy of Case diary, Final Report submitted by the Police, which was accepted by Magistrate, Repudiation letter dated 01.09.2010, Legal Notice, Copy of IRDA Rules and Regulation, Copy of legal notice dated 03.11.2010, copies of letters dated 04.11.2010, 09.11.2010, correspondence between the parties and particular of claim and Affidavit of Evidence. Respondent-1 filed documentary evidence and Affidavit of Evidence of Kazi G.R.M. and Affidavit of Evidence of Saumil Dilip Mehta, the Surveyor.

7.      State Commission vide judgment dated 30.01.2015, held that the complainant did not inform the Insurer within 24 hours of the incident. It is not proved from specification of the voucher, name of the consignee that the ornaments were carried in the bag on the date of incident. The complainant has failed to prove loss in transit by adducing reliable evidence. Terms of Policy have been violated as such the claim was rightly repudiated. On these findings, the complaint was dismissed. Hence this appeal has been filed. 

8.      The counsel for the appellant submitted that the Surveyor found the case of the appellant as genuine and assessed the loss to Rs.2956725/-. However, the Insurer repudiated the claim on the ground that incident was informed to the Insurer with delay inasmuch as the incident had occurred during night of 26/27.10.2007 and information was given to the Insurer on 29.10.2007. As 27.10.2007 and 28.10.2007 being Saturday and Sunday as such delay has occurred. So far as delay in FIR was concerned, the employees who were carrying gold were terrorised with the incident and informed the complainant, who was at that time in Mumbai. He went through plane and FIR was lodged on 27.10.2007 at 22:00 hours. Supreme Court in Om Prakash Vs. Reliance General Insurance, IV 2017 CPJ 10 (SC) and in Civil Appeal No. 5705 of 2021 Dharamender Vs. United India Insurance Co. Ltd. (decided on 13.09.2021) and this Commission in Revision Petition No. 2736 of 2017, Shriram General Insurance Co. Ltd. Vs. Kuldeep, (decided on 06.11.2018) and Ved Prakash Kalja Vs. New India Assurance Co. Ltd., III (2018) CPJ 567, has held that if reason for delay has been satisfactorily explained then the claim cannot be rejected on the ground of delay. Insurer has wrongly repudiated the claim on alleged violation of Condition No. 13 (a) of the Policy. However, State Commission has dismissed the complaint on a totally new ground although Supreme Court in Galada Power and Telecommunication Ltd. Vs. United India Insurance Company Ltd., (2016) 14 SCC 161, has held that Insurer cannot take a new ground, which was not taken for repudiation of the claim.      

9.      We have considered the arguments of the counsel for the parties and examined the record. Insurance Regulatory and Development Authority has issued Circular dated 20.09.2011, directing the Insurer not to reject any claim only on the ground of delay. Thereafter, Supreme Court and this Commission also held that if reason for delay has been satisfactorily explained then the claim cannot be rejected on the ground of delay. In the present case, repudiation letter was issued on 01.09.2010, i.e. prior to the Circular dated 20.09.2011 as well as judgments of this Commission and Supreme Court. Same is the position of the order of State Commission, which has been passed prior to the judgement of Supreme Court in Galada Power and Telecommunication Ltd.’s case (supra). But the appeal is pending as such only for the reason of two days delay, the claim was not liable to be rejected nor a different ground can be considered for deciding the complaint.

10.    The claim of the appellant has been repudiated on the ground of violation of Condition No. 13 (a) of the Policy, which is reproduced below:-

13. Upon the happening of any event, giving rise to or likely to give rise to a claim under this Policy, coming to the knowledge of the Insured.

(a) The Insured shall give notice to the police and the Company within 24 hours and take all practicable steps to discover the guilty person or persons and to recover the property lost or stolen and to prosecute and obtain the conviction of such person or persons for the offence.

11.    In the present case, it is alleged that two employees of the Insured, namely Anant Vithmal and Nitesh Bhagne were travelling from Mumbai to Hyderabad in the bus, along with 6.700 Kg. gold ornaments, which were packed in several packets and kept in the bag, duly locked. During night, the thief broke open the lock of the bag and took away some packets of gold ornaments, weight of which was found as 3.480650 Kg. Theft was noticed by them during journey in the bus at Lakdi-ka-pool, Hyderabad but they did not raise any alarm. They informed the incident to the complainant on telephone, who also advised not to raise any alarm and to go to the room, where they had to stay. At that time, the bus had not reached at the bus station and passengers were still in the bus. If at that time, they had informed the bus conductor or driver about the theft of gold worth Rs. 42 lakhs, they would have taken step for individual search of the passengers. Thus neither the employees carrying the gold took any step for its recovery after theft nor did the complainant, who was informed on telephone asked them to take any step for recovery of the theft good. Thus violation of Condition No. 13 (a) is proved.

12.    It does not appear probable that after theft of gold worth Rs. 42 lakhs, the person will remain silent. It creates doubts regarding bonafide of the incident. Anant Vithmal, in his written complaint given to Police Station Saifabad, Hyderabad, on which, FIR has been lodged, has stated that “On 26.10.2007 at about 4:00 PM, his owner by name Hitesh M Salerka gave his gold bangles weight around 3.5 Kg. to him for supply in Musaddilal Jewellers, M.G. Road, Secunderabad………… Today i.e. on 27.10.2007 at about 8:30 AM, the bus reached at Lakdi-ka-pool and he found that the gold ornaments box was missing from the suit-case”. In this FIR, it has not been stated that some of the ornaments were stolen and some left in his bag. In the claim petition, it has been stated that Anant Vithmal and Nitesh Bhagne were travelling from Mumbai to Hyderabad in the bus, along with 6.700 Kg. gold ornaments, which were packed in several packets and kept in the bag, duly locked. During night, the thief broke open the lock of the bag and took away some packets of gold ornaments, weight of which was found as 3.480650 Kg. This was a material contradiction in the case, inasmuch as in FIR total weight of gold bangles was disclosed as 3.5 Kg. and in present complaint 6.7 Kg. In such circumstances, if neither the employees took any step at earliest stage for the recovery of the gold nor the complainant asked them for doing so, then it creates doubts about the incident. It is well settled that the terms of Insurance Policy has to be read strictly. The Insurer has repudiated the claim on valid ground. There is no valid ground for interfering with the order of State Commission.

O R D E R

In view of aforementioned discussions the appeal is dismissed.