RESERVED

State Consumer Disputes Redressal Commission

U.P., Lucknow.

Appeal No.2378 of 2007

1- The New India Assurance Co. Ltd,.

     87, Mahatma Gandhi Marg, Fort Mumbai through

     Chairman/Managing Director.

2- The New India Assurance Co. Ltd,.

     Branch Officer, 117/96, near Deveki Cinema,

     Kaka Deo, Kanpur through Branch Manager.

                                                                   ……Appellants.

Versus

1- M/s Ashish Medical Agencies, 348, Kheldar,

    G.T. Road, Fatehpur through sole owner

    Smt. Rama Gupta w/o Sri Kailash Chandra Gupta,

    R/o Old Katchehri Road, Devi Ganj, Fatehpur (U.P.)

2- Smt. Rama Gupta w/o Sri Kailash Chandra Gupta,

    R/o Purani Katchehri Road, Devi Ganj, Fatehpur.

2- Sri Sandeep Agrhari s/o Sri Kailash Chandra Gupta,

    R/o Purani Katchehri Road, Devi Ganj, Fatehpur(U.P.)/

    Sanchalak M/s Ashish Medical Agencies.

                                                                    ...Respondents.

Present:-

1- Hon’ble Sri A.K. Bose, Presiding Member.

2- Hon’ble Sri Govardhan Yadav, Member.

For the appellant   : Sri J.N. Mishra. 

For the respondent: Sri A.K. Mishra.

Date   28.10.2016

JUDGMENT

Sri A.K. Bose,  Member- Aggrieved by the judgment and order dated 26.9.2007, passed by the Ld. DCDRF, Kanpur Nagar in complaint case No.561 of 2005, the appellant The New India Assurance Co. Ltd, and another have preferred the instant appeal under Section 15

(2)

of the Consumer Protection Act, 1986 (Act 68 of 1986) on the ground that the impugned order is arbitrary, perverse and is bad in the eye of law. It was delivered without proper appreciation of law and/or application of mind, on the basis of surmises and conjectures and therefore, it has been prayed that the same be set aside in the interest of justice otherwise, the appellants will suffer irreparable financial loss.

          From perusal of the records, it transpires that the  respondent/complainant M/s Ashish Medical Agencies through its Proprietress Smt. Rama Gupta obtained a Shop Keeper Insurance Policy bearing  no.420102/48/02/ 00875 which was effective from 20.12.2002 to  19.12.2003.   The description of perils, among other things, covered Money Insurance, not exceeding Rs.50,000.00 per carrying. The insurance also covered Fire and Allied perils to the extent of Rs.6 lacs, Burglary to the extent of Rs.6 lacs, Money Insurance in Counter Rs.6,000.00, Paddle Cycles for Rs.1,400.00, Baggage Insurance for Rs.12,000.00, Personal Accident with names for Rs.50,000.00 + 1,00,000.00 + 50,000.00 + 50,000.00 totalling to to Rs.2,50,000.00 and Public Liability for Rs.16,000.00. The insured deposited premium in time and consequently, the Policy Bond was issued.

It has been alleged that on 5.9.2003, the respondent/ complainant no.3 Shri Sandeep Agrahari had gone to Varanasi in order to purchase some medicines. He was carrying a sum of  Rs.52,700.00 in cash. At Varanasi, he

(3)

paid a sum of Rs.13,000.00 to M/s Chaurasia Agencies towards balance against the previous purchases and Rs.19,281.00 towards cost of medicines which were freshly purchased, totalling to Rs.32,281.00. From the records, it transpires that on his way back, a sum of Rs.20,000.00 was stolen from his  carry-bag at Varanasi Bus Stop, Varanasi. He lodged an FIR on returning to Fatehpur. The matter was investigated. The IO of Police Station: Sigra, Varanasi submitted Final Report in the matter which was accepted by the Hon'ble Court in due course of time. The Police failed to apprehend the accused or recover the stolen amount of Rs.20,000.00. Subsequently, a claim petition was filed for indemnifying the loss suffered by the insured Agency. The Insurer appointed Shri Deepak Kumar as Surveyor/Loss Assessor. He submitted his report on 17.3.2004 in which he opined that the loss of cash of Rs.20,000.00 took place at Varanasi which was beyond the place under coverage of the insurance. The claim petition was repudiated in view of sub clause (a) of Section III (Money Insurance) of the Terms and Conditions of the Shop Keepers Insurance Policy. The repudiation order is available on record.

Aggrieved by this repudiation, complaint case no.561 of 2005 was preferred before the ld. DCDRF, Kanpur Nagar. The complaint was allowed on 26.9.2007 and the appellant Insurance Company was directed to indemnify the loss of Rs.20,000.00 with interest from the date of filing the complaint. Aggrieved by this judgment and order, the instant appeal has been preferred.

(4)

Heard ld. counsel for the respondent Shri A.K. Mishra. The ld. counsel for the appellant Shri Zafar Aziz was not in attendance at the time of the arguments but Shri J.N. Mishra, Penal Lawyer of the Company was in attendance. They were heard at length.

Perused the records. There is no dispute that the respondent/complainant M/s Ashish Medical Agencies was having a Shop Keeper Insurance Policy bearing  no.420102/48/02/00875 which was effective from 20.12.2002 to  19.12.2003.   The description of covers/ perils indicates that the policy covered risk for Money in Transit not exceeding Rs.50,000.00. There is no dispute relating to the fact that the money was stolen from the bag of the respondent/complainant no.3 on 5.9.2003 at Varanasi Bus Stop which is about 250 Kms away from the insured premises as is apparent from Google Search.  An FIR in this connection was lodged by the respondent/complainant no.3 but the police failed to apprehend the accused or recover the stolen money. The factum of theft has not been disputed by the I.O. The FIR was accepted by the Hon'ble Court in due course of time. The Survey Report dated 17.3.2004 also testifies the factum of theft of Rs.20,000.00 in cash at Varanasi Bus Stop. Admittedly, District Varanasi is located more than 15 miles away from the premises of the insured at Fatehpur. Therefore, the claim was repudiated on this ground. Section III(a) of the Terms and Conditions of the Shop Keeper Insurance Policy provides that:

(5)

 ”The Company will indemnify the insured in respect of loss by accident or misfortune whilst the insured's money is in his  hands or in the hands of his employees in transit, between any two places within a radius of 15 miles from the insured's premises."

          There is no dispute that the Terms and Conditions have a force of law in matters of contract of insurance which are to be strictly followed. It was argued by the ld. counsel for the respondents/ complainants that the terms and conditions of the Shop Keeper Insurance Policy were neither disclosed to the respondents nor a copy of the same was provided to them at the time of the insurance and therefore, the terms and conditions of the Policy can not be invoked against them. This argument has no force. It is a settled law that the insurance policies are based on the principles of Uberrima Fides and therefore, it is presumed that the parties entered into contract of insurance after full knowledge of the terms and conditions of the same. Since the theft did not take place within 15 miles from the premises to the insured therefore, as per the terms of the Policy, the Insurance Company was not bound to indemnify the loss. The repudiation was made in accordance with the Terms. There was no remiss, irregularity or illegality in the same. We do not find any mala-fide or misfeasance in the order either. The Ld. Forum below failed to consider this aspect of the matter and passed the impugned judgment in violation of the provisions contained under Clause (a) of Chapter III

(6)

of the Terms and Conditions of the Policy. Consequently, the same can not be allowed to sustain. The appeal deserves to be allowed.

ORDER

          The appeal is allowed and the judgment and order dated 26.9.2007, passed by the Ld. DCDRF, Kanpur Nagar, U.P. in complaint case No.561 of 2005 is set aside.  No order as to costs. Certified copy of the judgment be provided to the parties in accordance with rules.

         (A.K. Bose)                           (Govardhan Yadav)

    Presiding Member                             Member

Jafri PA-II

Court No.3