BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 278/2002 Filed on 03.07.2002

Dated : 30.01.2009

Complainant:

M/s Transmatic Systems Ltd., a company registered under the Companies Act, 1956 having its registered office at Lekshmy Chambers, Vazhuthacaud, Thiruvananthapuram represented by its Managing Director M.R. Narayanan.

(By adv. Nair Ajay Krishnan)

Opposite party:

M/s United Insurance Co. Ltd., Divisional Office No. 11, 2^nd Floor, Malankara Buildings, Palayam, P.B. No. 5521, Thiruvananthapuram.

(By adv. M. Nizamudeen)

This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 03.02.2004, the order was not prepared accordingly. This Forum assumed office on 08.02.2008 and re-heard the complaint. This O.P having been heard on 30.12.2008, the Forum on 30.01.2009 delivered the following:

ORDER

SRI. G. SIVAPRASAD: PRESIDENT

The facts leading to the filing of the complaint are that complainant had purchased a Note book Personal computer which was insured with the opposite party for the period 05.01.2001 to 04.01.2002. The said note book PC was lost or stolen at Brussels railway station on 08.07.2001 and the fact of burglary was intimated to the opposite party on 12.07.2001. A criminal case was registered at Brussels railway police station in this regard. The claim form was submitted on 10.11.2001. The claim was rejected by the opposite party on the ground that the insurance is categorized that the insurance policy taken by the complainant is categorized under Electronic Equipment Policy. Hence this complaint for deficiency of service and unfair trade practice.

Opposite party entered appearance and filed version contending that the complainant has taken Electronic Equipment Policy. The said policy does not cover loss during travel. As per the proposal form given by the complainant equipment was located at Lakshmi Chambers, Vazhuthacaud and policy was issued to that effect. Hence the alleged theft is not covered under the present policy and the claim of the complainant was repudiated and the same was informed by letter dated 07.12.2001. There is no deficiency of service and the present complaint is not maintainable. Complainant was duty bound to state in the proposal form if the equipment is movable. Opposite party issues policy on the basis of the proposal and the claims are settled on the basis of the conditions of the policy and not on the basis of the presumptions and imaginations at the convenience of the party. Hence opposite party prayed for dismissal of the complaint with costs.

The points that would arise for consideration are:-

1. Whether there has been deficiency in service on the part of opposite party?

2. Reliefs and costs.

In support of the complaint, M.R. Narayanan, Managing Director, M/s Transmatic Systems Ltd. has filed an affidavit in lieu of examination in chief and marked Exts. P1 to P8. In rebuttal, Jayaprakash, Assistant Divisional Manager, United India Insurance Company has filed an affidavit and marked Ext. D1.

Points (i) & (ii):- Admittedly, the complainant had insured the Compaq Presario 1700 Note Book P.C with the opposite party for the period 05.01.2001 to 04.01.2002. Ext. P1 is the copy of the policy issued by the opposite party in the name of Transmatic Systems Ltd. A perusal of Ext. P1 policy discloses that the policy No. is 101400/44/11/11/005865/2000, the name of the insured is Transmatic Systems Ltd and period of insurance is 05.01.2001 to 04.01.2002. The total sum insured is Rs. 1,00,000/-. The case of the complainant is that the said Note Book PC was lost/stolen at Brussels railway station on 08.07.2001 and a criminal case was registered at Brussels in this regard. Ext. P2 is the copy of the report before the Brussels Railway police. As per Ext. P2, the date of complaint is 08.07.2001. In Ext. P2 it is stated that “I was on the entry of the Euvostar to check the reservation to London and had my bag containing the note book PC and other documents slug on the handle of my bigger bag. After I checked the reservation I turned back and I found the above bag missing. This bag was stolen in 2 seconds. The bag contained the following:

1. Compaq Armada Note Book PC

2. Passport

3. Delta Air ticket from Bombay-Frankfurt-Bombay.

4. Indian Airlines ticket Bombay-Trivandrum.

5. EVRAIL PASS

6. Casio Digital diary.”

It is urged by the complainant that the fact of burglary was intimated to opposite party on 12.07.2001 and a burglary claim form was submitted to opposite party on 10.11.2001 and that opposite party repudiated the claim on the ground that the said 'Note Book PC' was covered under the Electronic Equipment Policy. Ext. P3 is the copy of the letter dated 07.12.2001 repudiating the claim of the complainant. Main thrust of argument advanced by the opposite party is that although complainant had taken an electronic equipment insurance policy from the opposite party and lodged a claim alleging that the said equipment was stolen/lost at Brussels railway station, the said policy does not cover loss during travel. Submission by the opposite party was that the said policy was not one covering loss during travel and that proposal was not for such a policy. Ext. D1 is the copy of the questionnaire and proposal for electronic equipment insurance policy. As per Ext. D1, the location of equipment to be insured is at Lakshmi Chambers, Vazhuthacaud. As per Ext. D1, the questionnaire and proposal form is the basis and is part of policy in connection with the risk. Further it is agreed that the insurers are liable in accordance with the terms of the policy. As per Ext. D1, the description of items is compaq Presario Note Book PC SD RAM 64 MB, year of manufacture : 2000. There is a suggestion in the remarks column of Ext. D1 that in case of mobile equipment, complainant was requested to state means and frequency of transport, areas of operation and distances, please state if picture or admitter tubes are built in, wherein complainant has mentioned S/No. 5YOAFP715J72. Ext. P4 is the copy of reply to Ext. P3. Ext. P5 is the copy of the letter given by the opposite party stating that nowhere in the proposal form the insured item is mentioned to be movable in nature. Exts. P6 and P7 are the copy of the legal notice and its reply notice. One of the reasons for repudiating the claim as per Ext. P3 is that the theft claim occurred at Brussels railway station. Opposite party made reliance on the decision of the Hon'ble National Commission in the case of Anilkumar Vs. New India Assurance Co. Ltd. reported in IV(2003) CPJ 50(NC) wherein it is held that company is not liable to loss of the vehicle since the policy is valid for vehicle used in geographical territory of India and that the area is clearly given in capital thus “GEOGRAPHICAL AREA-INDIA”. There is no material on record to show that opposite party cannot be held liable for compensation for any loss sustained outside India. There is no mention in the policy stating that opposite party would not be liable for any loss to the equipment outside the geographical area-India. Hence the aforesaid decision has no relevance to this case. It is pertinent to note that the item insured is a 'Note Book PC'. It is a movable item and meant to be carried around. It may be the reason why, a suggestion has been made by the opposite party in the proposal form for equipment policy, in the remarks column that in the case of mobile equipment, state means of frequency of transport, areas of operation and distances. In the light of such suggestion, the statement of the opposite party that as per policy condition 'the equipment is stationary in nature' cannot be accepted. It is common knowledge that the Note Book PC is movable, portable and meant to be carried from place to place. The purpose of getting insurance policy for electronic equipment like Note Book PC is to cover the risk while it is being used by the complainant. Submission by the complainant is that complainant is the Managing Director of the company who in course of business always travels inside and out of India could keep in touch with the company through internet and also make presentation about the company, its products with the note book PC to prospective clients and have an upto date details of all the demo etc. maintained in the company at his finger tips. In view of the above we find the equipment is immovable/movable. Hence the submission by the opposite party that in the proposal form the location of equipment was at Lekshmi Chambers and the policy was issued to that effect is unacceptable. Hence repudiation on the ground that as per policy condition equipment is stationary in nature and that theft claim occurred at Brussels railway station is arbitrary and hence unacceptable. Though insurer was deprived to hold investigation about loss of the Note Book PC, evidently the said equipment was lost from the complainant by Ext. P2. The insurance policy would clearly go to show intention of the policy holder and purpose for which the policy was taken. If the words employed in the contract are ambiguous, uncertain or any doubt arises as to the terms employed, we deem it proper to put upon rational meaning of the words employed in the contract. We are required to consider the words of the contract to ensure coherence and consistency with the purpose of taking insurance policy to avoid undesirable consequences and unjust results. The words employed in the contract are required to be construed, according to the intention, who makes it and it is the duty of the court to act upon the true intention of the parties to the contract. In the instant case, the insurance company has given the electronic equipment policy to avoid the loss/damage of the said electronic equipment. This was the predominant purpose of the insured in taking insurance policy. If the words used in the contract are imprecise, we are required to lift the veil and find out the word intention of the policy in the light of material placed on records. In view of the above we find repudiation of claim is arbitrary and unacceptable. There is deficiency in service on the part of opposite party. Taking into consideration of the totality of circumstances, we are of the considered opinion that justice will be well met if complainant is allowed a half of the insured amount.

In the result, complaint is partly allowed. Opposite party shall pay the complainant a sum of Rs. 50,000/- as half of the insured amount. Opposite party shall also pay Rs. 5,000/- towards compensation and Rs. 2,000/- towards cost. The said amounts shall carry interest at the rate of 12% if not paid within two months from the date of receipt of this order. Both parties shall bear and suffer their costs.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 30^th January 2009.

G. SIVAPRASAD,

President.

BEENAKUMARI. A : MEMBER

S.K. SREELA : MEMBER

O.P. No. 278/2002

APPENDIX

I COMPLAINANT'S WITNESS :

NIL

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of policy for Electronic Equipment Insurance.

P2 - Copy of report before the Brussels Police dated 08.07.2001.

P3 - Copy of letter dated 07.12.2001 issued by opposite party.

P4 - Copy of reply letter dated 19.12.2001 issued by

complainant.

P5 - Copy of letter sent by the opposite party to the

complainant.

P6 - Copy of advocate notice dated 02.03.2002 issued to the

complainant.

P7 - Copy of reply letter dated 13.03.2002.

P8 - Copy of policy standard fire and special perils policy.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Copy of questionnaire and proposal for Electronic Equipment Insurance Policy.

PRESIDENT