Complaint presented on:  07.01.2014

 

 

 

 

 

 

M/s. Just Buy Cycles,

Rep by its partner Mr.Ritesh  D Shah,

No.1, Velacherry Byepass Road,

Chennai – 600 042.

 

                                                                                    ….. Complainant 

 

..Vs..

M/s. Cholamandalam MS 

General Insurance Company Limited,

Rep by Assistant Manager (Claims),

Dare House, 2nd Floor,

No.2, NSC Bose Road,

Chennai – 600 001.

                                                                                                                        .....Opposite Party

    

 

     

 

Date of complaint                            : 10.01.2014

Counsel for Complainant              : M/s.S.S.Swaminathan,

                                                                   Arachelvi Kavitha  & J.Siva Priya

 

Counsel for   Opposite Party                   : N.Vijayaraghavan, M.B.Raghavan

 

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

This complaint is filed by the complainant to direct the Opposite Party to pay sum of Rs.68,000/-  towards the loss of money kept in the cash box of his shop and also to pay a sum of Rs.50,000/- towards compensation for mental agony with cost of the Complaint u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

The Complainant is carrying on cycle business in the premises bearing No.1, Valacherry Byepass Road, Chennai 600 042. The Complainant took owner’s comprehensive Insurance in respect of his shop with the Opposite Party under policy bearing No.SSO-009544-000-02 in respect of the stocks, Neon & sign, Burglary & House breaking, Money, plate Glass, personal accident etc which is valid from 05.11.2010 to 04.11.2011. On 27.03.2011 a burglary happened at its store at No.1, Velacherry Bye Pass Road, Chennai – 600 042 and in that a cash of Rs.68,000/- was stolen from the cash box and a mobile which was kept under lock and key.  Immediately on coming to know about the burglary on 28.03.2011, the Complainant made a Complaint to the police authorities and also intimated the same to the Opposite Party.

2. The police authorities registered the case and issued the FIR in respect of the burglary. No action was taken by the Opposite Party in respect of the claim made by the Complainant,  the Complainant sent a mail on 12.05.2011 in settling the claim in respect of the burglary. The Complainant also forwarded the particulars as required by the surveyor. The Opposite Party by letter dated 13.08.2011 communicated to the Complainant on 23.09.2011 that the claim cannot be entertained. The Complainant forwarded a reminder on 07.12.2011 to reconsider the claim. The Opposite Party by letter dated 20.02.2012 categorically informed that the claim cannot be settled. After rejection of the claim made by the Complainant, he sent letters dated 21.02.2012, 05.04.2012 and 25.09.2012 requesting the Opposite Party to review the rejection of her claim. However, the Opposite Party rejected it. Hence the Complainant filed this Complaint to direct the Opposite Party to pay  a sum of Rs.68,000/-  have the loss of money kept in the cash box of his shop and also to pay a sum of Rs.50,000/- towards compensation for mental agony with cost of the Complaint.

3. WRITTEN VERSION OF THE  OPPOSITE PARTY IN BRIEF:

The Complainant had availed a shop owner’s comprehensive Insurance Policy No.SSO-M009544-000-02 in respect of its Stocks, Neon & Glow sign, Burglary and House breaking, Money, Plate Glass, personal accident etc for the period 05.11.2010 to 04.11.2011 with the Opposite Party.  The Complainant made a claim in respect of a burglary that has happened in the insured premises on 27.03.2011. It was alleged by the Complainant that a cash of Rs.68,000/-  was stolen from the cash box of the insured premises which was kept under lock and key. On receipt of claim, the Opposite Party scrutinized the claim papers and the following facts were noted.

1. On the date of burglary, the culprits used a crow bar to break open the cash drawer and have taken away the entire cash left in the cash drawer and also the mobile phone which was kept in the drawer;

2. It was also found that the keys were kept inside the drawer after office Hours.

     4. The Shop Owners comprehensive Policy Warranties No (1) (2) (3) states as follows:

I.”It is warranted that cash in till or in counter is kept inside the safe after office hours”,

ii.”It is warranted that the safe is made of steel and is fixed or embedded on floor or wall.”

iii.”It is warranted that the keys are not left in the insured premises after office hours”.

The claim papers of the Complainant reveal that the alleged stolen cash of the Complainant was kept inside the cash box after office hours which are in violation of policy terms. The policy clearly stipulates that the cash ought to be kept in safe, made of steel and fixed or embedded on floor or wall in insured premises. The Complainant merely kept the cash in cash box along with the key and not in the safe made of steel as specified in the policy terms. Thus the Complainant has failed to take proper steps to care of the stolen cash which has resulted in burglary.  The Complainant has failed to comply with the warranty Clause, the claim was repudiated by letters dated 13.08.2011 and 20.02.2012 addressed to the Complainant. Insurance is based on Utmost Good Faith. Both parties are bound by the terms and conditions of contract of insurance. The liability of the insurer would be within the four corners of the contract of insurance alone. There is no cause of action for the Complaint. Hence this Opposite Party prays to dismiss the Complaint with cost.

 

 

5. POINTS FOR CONSIDERATION:

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

2. Whether the complainant is entitled to any relief? If so to what extent?

6. POINT NO :1

The admitted facts are that the Complainant carrying on cycle  business in the premises bearing No.1, Valacherry Byepass Road, Chennai 600 042. The Complainant took a shop owner’s comprehensive Insurance with the Opposite Party under policy bearing No.SSO-009544-000-02 in respect of the stocks, Neon & sign, Burglary & House breaking, Money, plate Glass, personal accident etc which is valid from 05.11.2010 to 04.11.2011and on 27.03.2011 a Burglary happened in the Complainant shop that a cash of Rs.68,000/- was stolen from the cash box which was kept under lock and key and immediately after informing the Opposite Party, the Complainant also gave a Complaint to the police on 28.03.2011 and  the police registered Ex.A2 FIR and thereafter the Opposite Party sent Ex.A3 letter dated 13.08.2011 that the claim of the Complainant could not be considered in his favour  and also sent Ex.A4 letter dated 20.02.2012 that their inability to consider the claim of the Complaint.

7. Ex.A1 and Ex.B1 is the insurance of the policy issued to the Opposite Party to the Complainant for the period 05.11.2010 to 04.11.2011. Admittedly the Burglary occurred in the Complainant shop during insurer period on 27.03.2011 during night hours. The Opposite Party would contend that the Ex.A1 comprehensive policy warranties are states are follows:

 

i.”It is warranted that cash in till or in counter is kept inside the safe ofter office hours”.

ii.”It is warranted that the safe is made of steel and is fixed or embedded on floor or wall.”

iii.”It is warranted that the keys are not left in the insured premises after office hours”.

Admittedly, as per warranty of the policy the Complainant ought to have kept the cash inside the safe is made of steel and is fixed or embedded on the floor or wall.  The Hon’ble Supreme Court of India held in 1999(9) Supreme page 88(Oriental Insurance Company Limited Appellant Vs. Samya Nallur Primary Agricultural Co-operative Bank and respondent)  and also another judgment reported  in 2016 (vol-1 CPR (SC) 115 (UNITED INDIA INSURANCE CO. LTD. VS. M/S ORIENT TREASURES  PVT. LTD.) held that Cashier’s box could not be equated with the safe within the meaning of the Insurance Policy. Admittedly in the case in hand the Complainant pleaded in the Complaint that he had kept the cash of Rs.68,000/- only in the cash box which was kept under lock and key. The safe is supposed to be embedded or fixed on the floor on the wall. Therefore, the Complainant is not having safe at all in his shop and on the other hand he had kept the cash only in the cash box. As per the policy warranties, keeping the money in the cash box is not a safe method and further the Complainant had kept the cash and cell phone in the cash box is in violation of the terms of the policy issued to him. Therefore, as per the warranties of the policies issued to the Complainant, we hold that the Opposite Party has not committed any Deficiency in Service in rejecting the claim made by the Complainant.

 

08. POINT NO:2

Since the Opposite Party has not committed any Deficiency in Service, the Complainant is not entitled for any relief and the Complaint is liable to be dismissed.

In the result the Complaint is dismissed. No costs.

Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 09th day of June 2017.

 

MEMBER – II PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 09.11.2010 Insurance Policy copy with Terms & 

                                                              Conditions

 

Ex.A2 dated 28.03.2011 FIR copy

 

Ex.A3 dated 13.08.2011 Letter by Opposite Party 

 

Ex.A4 dated 20.02.2012 Letter by Opposite Party 

 

Ex.A5 dated 25.09.2012 Letter by Complainant 

 

Ex.A6 dated NIL Letters by Complainant to Insurance 

                                                              Ombudsman

Ex.A7 dated 12.05.2011 to 

 25.05.2012 E-mail messages

 

 

 

 

 

 

 

 

 

 

 

 

 

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY :

 

Ex.B1 dated NIL Insurance Policy with terms and conditions

 

Ex.B2 dated 04.06.2011 &

 14.06.2011 Survey Report and Addendum to the Survey 

                                                              Report

 

 

 

 

MEMBER – II PRESIDENT