DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL)
ISBT KASHMERE GATE DELHI
CC/75/2016
No. DF/ Central/ Date
Sh.T.R. Dua,
R/o-D-65, Vikaspuri,
New Delhi-110018.
Smt. Shashi Dua,
W/o Sh. T.R. Dua,
R/o-D-65, Vikaspuri,
New Delhi-110018. …..COMPLAINANTS
VERSUS
National Insurance Co. Ltd.
(A Company incorporated and registered
under the Companies Act, 1956) having
its Registered & Head Office at:
3, Middleton Street, Kolkata-700071
And one its Regional Office at:
Div, Office-XII, 6/90, IIIrd Floor,
Padam Singh Marg, Karol Bagh,
New Delhi-110005
The Divisional Manager:
National Insurance Co. Ltd.
Div. Office-XII, 6/90, IIIrd Floor,
Padam Singh Marg, Karol Bagh,
New Delhi-110005. …..OPPOSITE PARTIES
Quorum : Ms. Rekha Rani, President
Ms. Manju Bala Sharma, Member
ORDER
Ms. Rekha Rani, President
- Instant complaint was filed by Sh. T.R. Dua and Smt. Shashi Dua (in short the complainants) under Section 12 of the Consumer Protection Act, 1986 as amended up to date pleading therein that the complainants took a household insurance policy bearing number 3600001403 valid from 18.08.2014 to 17.08.0215 from National Insurance Co. Ltd. (in short OP). On 02.05.2015 during the subsistence for the aforesaid period certain items were stolen from the residence of the complainants. An FIR No. 472 was registered on 12.05.2015. Complainants on 18.02.2015 submitted a claim for Rs. 1,84,306/- which was repudiated by OP on the ground that reasonable care was not taken for safety of the goods as per terms and conditions of the policy. Hence, instant complaint was filed seeking direction to OP to pay to the complainant a sum of Rs. 2,02,609.33/- with interest @ 18% per annum, Rs. 1,00,000/- on account of deficiency in service and Rs. 1,00,000/- as compensation for causing mental agony.
- On receipt of notice OP appeared and filed written statement. It is pleaded that this Forum has no jurisdiction in view of arbitration clause in the policy. It is also stated that complainant did not intimate the OP immediately after the incident of theft nor did he submit the requisite documents to substantiate the claim within 14 days thereafter. It is also stated that there was negligence on part of the complainants as no reasonable care was taken to safeguard the jewellery which is in violation of General Condition No. 3 of the policy.
- Both sides adduced evidence by way of affidavits. They have also filed written arguments. We have heard Sh. P.S. Tomar, counsel for OP.
- Objection of the OP that the complaint is not maintainable in view of the arbitration clause in the insurance policy and that the complainant should invoke arbitration clause is not tenable in view of the judgments in:
Neeraj Bhope & Anr., Bharatha Laxmi Vetsa & Anr. ,
Souvik Khamaru vs. Alpine Housing Development & Ors., III (2013) CPJ 58 (Kar.),
Satish Kumar Pandey & Ors. vs. Unitech Ltd., III (2015) CPJ 440 (NC),
Bharat Sanchar Nigam Ltd. vs. Ambika Singh, III (2010) CPJ 265 (U.P.) and in World Wide Immigration Consultancy Services vs. K.R. Shambhu, III (2010) CPJ 349 (Ker.) wherein it was held that availability of arbitration as remedy does not bar complainant from approaching consumer Forum in case of deficiency in services.
In Ashminder Pal Singh vs The New India Assurance Co. Ltd Complaint No.C-47/2002 vide order dated 27.03.2009 State Commission Delhi observed that it has been stated in the order of the Hon’ble High Court dated 12.07.2005 that the award passed by the Insurance Ombudsman dated 03.12.2001 is not binding on the complainant. It was further observed as under :
“33. As regards the verdict of Ombudsman relied upon by the counsel for the OP it is neither binding though may be persuasive nor has any relevance as the remedy under section 3 of Consumer Protection Act 1986 is in addition to and not in derogation of any other law for the time being in force. While widening the scope of Section 3 of Consumer Protection Act, Supreme Court in large number of cases has taken a view that even if there is remedy available in any other legal forum or even if there is arbitration clause between the parties, still the aggrieved party can file complaint under Section 12 of the Consumer Protection Act 1986 seeking indemnification of the loss, compensation for mental agony, harassment, physical discomfort and other injustices suffered by him as no other statute provides such reliefs .”
- Further OP has taken objection that it was not informed immediately about the incident of theft and that complainant did not submit the requisite documents to substantiate the claim within 14 days thereafter. It is stated that theft took place on 02.05.2015. It is also stated that the complainants submitted “All Risk” claim form for an amount of Rs.1,84,306/- to OP on 18.06.2015.
- It is not in dispute that theft took place on 02.05.2015. FIR is stated to be registered on 15.05.2015. It is submitted on behalf of the complainant that they had intimated the police on 05.05.2015. Even if it is assumed to be correct there is a delay of 3 days in intimating even the police about the alleged theft of jewellery.
- In Para 5 Page 1 of its written statement, OP stated that complainant did not intimate the insurance company about the loss immediately and did not submit the requisite documents to substantiate the claim within 14 days. It is submitted that the theft took place on 02.05.2015 and OP was informed on 15.05.2015 which is after 13 days and further that documents were submitted on 18.06.2015 that is after one month and 5 days which is in violation of Condition No. 5 (b) of the policy terms and conditions which is reproduced as under:
-
8. In Para 6 of the written statement, it is further pleaded that terms and conditions of the policy were duly sent to the complainants. It is also stated that on 15.05.2015 OP received intimation of theft of jewellery from the house of the complainants. Sh. Ajay Kumar Aggarwal, surveyor and loss assessor was appointed to investigate and assess the loss who visited the house of the complainants on 29.05.2015 and requested the complainants to submit requisite documents which complainants failed to submit. Letter dated 17.06.2015 was written to the complainants to file requisite documents but complainant failed to do so.
9. Complainants in their rejoinder have not denied that OP was informed about theft on 15.05.2015 which is 13 days after the loss. He has not denied that he failed to submit requisite documents to substantiate the claim within 14 days. They have not denied that they submitted the requisite documents on 18.06.2015. They have not denied that terms and conditions of the policy were sent by the OP to them.
10. As per the insurance policy, the complainants were required to intimate the OP immediately and submit the requisite documents within 14 days thereafter. They did not do so which had its own adverse consequences.
11. Apex court delivered the judgment in National Insurance Co. Ltd vs Nitin Khandelwal Appeal (civil) 3409 of 2008 on 08/05/2008. Subsequently, on 17/08/10 Apex Court discussed its judgement in Nitin Khandelwal (supra) in Oriental Insurance Company vs. Parvesh Chander Civil Appeal No. 6739/2010 and vide its order dated 17.08.10 held that insurer cannot be held liable to pay compensation in the event of breach of terms of the policy and further that insurer in such case is not bound to settle claim on non-standard basis. It observed:
“Unfortunately, all the consumer foras omitted to consider this grave lapse on the part of the respondent and directed the appellant to settle the claim on non-standard basis. In our view, the appellant cannot be saddled with the liability to pay compensation to the respondent despite the fact that he had not complied with the terms of the policy.”
12. Hon’ble Supreme Court in United India Insurance Company Limited v. M/s. Harchand Rai Chandan Lal reported in JT 2004 (8) SC 8 has held that:
“The insurance policy has to be construed having reference only to the stipulations contained in it and no artificial farfetched meaning could be given to the words appearing in it….
Similarly, in the case of Oriental Insurance Co.Ltd. Vs. Sony Cheriyan reported in (1999) 6 SCC 451 an insurance was taken out under the Motor Vehicles Act, 1988 in which their Lordships' observed:
“The insurance policy between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy.”
Similarly in the case of General Assurance Society Ltd. Vs. Chandumull Jain and Anr. reported in (1966) 3 SCR 500 the Constitution Bench has observed that the policy document being a contract has to be read strictly. It was observed, " In interpreting documents relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract, however reasonable, if the parties have not made it themselves.”
13. In Kotak Mahindra Prime Ltd. Vs. Rajaram and Ors. 2017 (1) CPR 391 (NC), Hon’ble National Commission has observed thus:-
“Insured was under a contractual obligation to intimate theft of vehicle to insurer immediately after theft came to his knowledge. Mere intimating police or lodging an FIR does not amount to sufficient compliance with terms and conditions of insurance policy.”
14. In New India Assurance Co. Ltd., vs Trilochan Jane in First Appeal No. 321 of 2005 decided on 09/12/2009 National Commission took the same view after discussing the judgment of Apex Court in Nitin Khandelwal (supra) it was held that:
‘‘The word immediately is stronger than the expression within a reasonable time. It was held that compensation on non-standard basis cannot be granted.
15. OP has repudiated the claim further on the ground that complainants did not take reasonable care to safeguard the jewellery which is in violation of General Condition 3 of the policy terms and conditions which is reproduced as under:
“Reasonable Care- the insured shall take all reasonable steps to safeguard the property insured against any loss or damage. The insured shall exercise reasonable care that only competent employees are employed and shall take all reasonable precautions to prevent all accidents and shall comply with all statutory of other regulations.”
16. In the complaint to the police, it is reported that the theft took place on 02.05.2015 between 11:00 AM and 04:00 PM. It is also stated that some labourers were working on the air conditioner cleaning and that they might have committed theft of the jewellery. Complainant has placed on record the letter of Mr. Ajay Kumar Aggarwal, the surveyor dated 02.06.2015 wherein vide Para 8 of his report it is mentioned that:
“During the survey it was informed that on 02.05.2015, the jewellery was left on the dressing table and was missing. When it was required after 2 days, then it came to notice that the jewellery is missing and after search only it was intimated to police authority. In such circumstances Point No. 3 of general condition of the policy which is Reasonable Care: the insured shall take all reasonable steps to safeguard the property insured against any loss or damage. The insured shall exercise reasonable care that only competent employees are employed and shall take all reasonable precautions to prevent all accidents and shall comply with all statutory of other regulations., is not fulfilled. Kindly clarify as to how the loss covered under the policy.”
17. Now we come to the investigation report which is an important document.
In Lakhvinder Singh Bhamra vs. Cholamandalam Ms General Insurance Co. Ltd. & Anr., II (2012) CPJ 109 (Chhat.) it was held that report of Surveyor is an important document, which cannot be brushed aside easily without any valid justification or any report to contrary.
As per surveyor’s report insured is required to take reasonable steps to safeguard the property insured against any loss or damage in terms of point no. 3 of the general condition of the policy. It is also stated that a query was put to the insured vide letter dated 02.06.2015 for which insured vide their letter dated 18.06.2015 has given clarification that:
“On 02 May 2015 before taking the bath my wife (Dr. Shashi Dua) who is a general practitioner at Uttam Nagar New Delhi, removed the jewellery and kept it at the dressing table in the bedroom. As she came out of the bathroom suddenly there was an urgent call from her clinic to attend the serious patients. In. a hurry she had to leave to attend the patients as left jewellery on the dressing table”.
In the complaint to the police it was reported that some labourers were working on the air conditioner cleaning and that they might have committed theft of the jewellery. Jewellery cannot be kept here or there giving free access and opportunity to the labourers to steal the same. Complainants have not explained what reasonable care was taken by them to ensure the safety and security of the jewellery. They have neither explained in the complaint nor in the rejoinder.
18. The complaint is dismissed on account of delay in intimation of loss to the police as well as insurer and also on account of failure to exercise due care to ensure safety and security of the insured goods. Copy of this order be sent to the parties as statutorily required. File be consigned to record room.
Announced on _____ Day of _____ 2019.
