Delhi

StateCommission

A/10/462

K.D PROCESSOR, - Complainant(s)

Versus

NATIONA INSURANCE CO. LTD. - Opp.Party(s)

18 Mar 2016

ORDER

 

IN THE STATE COMMISSION: DELHI

(Constituted under section 9 of the Consumer Protection Act, 1986)

 

Date of Decision: 18.03.2016

 

First Appeal –462/2010

 

          M/s K.D. Processor,

          Proprietor through Sh. Atul Jain,

          2072, Katra Roshan Udolla,

          Kinari Bazar, Chandni Chowk,

          Delhi-110006.

……Appellant     Versus   National Insurance Co. Ltd., Divisional No.-II, Deep Dayal Upadhyay Bhawan, IIIrd Floor, 7-E, Jhandewalan Extension, New Delhi-110055.                                                                                                           …….Respondent

CORAM

 

Justice Veena Birbal, President

Salma Noor, Member

 

1.   Whether reporters of local newspaper be allowed to see the   judgment? 

2.   To be referred to the reporter or not?

 

 

 

 

 

Justice Veena Birbal, President

1.                This is an appeal u/s 15 of the Consumer Protection Act, 1986 (in short ‘the Act’) challenging order dated 28.04.2010 passed by the Consumer Disputes Redressal Forum, Kashmere Gate, Delhi (in short ‘the District Forum’) in complaint case No. 378/08.

2.                Briefly the facts relevant for the disposal of present appeal are as under:

                   The appellant herein was the complainant before the Ld. District Forum. A complaint u/s 12 of the Act was filed by him stating therein that he had taken a shopkeepers insurance from appellant/OP which provided cover under various heads, including money for a sum of Rs. 20,000/-. The premium was also paid by him for taking the said policy. The policy was effective from 29.07.2006 to midnight of 28.07.2007. It was alleged that the appellant/complainant routinely used to take his day’s sale proceeds to his house and would deposit in the bank on next date morning while coming from house to shop. It was alleged that on 14.08.2006 the appellant/complainant was coming from home to shop and had kept sale proceeds of Rs. 20,000/- in a briefcase. The briefcase was kept in car No.DL 7C-E-5129. On the way, he stopped his ca r at C-Block Market, Preet Vihar, New Delhi and had left the briefcase containing money inside the car after locking the door of the car. The appellant/complainant went to the market. When he returned back he found that the door of the car was opened by somebody and briefcase containing Rs. 20,000/- which was lying inside the car had been stolen by some unknown person. He immediately reported the matter to the police and FIR No. 536/2006 was registered. Thereupon, he had lodged the insurance claim with the respondent/OP. A surveyor was appointed who had assessed the loss. However, the claim was rejected by the respondent/OP vide letter dated 10.01.2007 on the ground that the appellant/complainant did not take reasonable care/steps to protect the property and that the money did not remain in the hands of the appellant/complainant/his employee in the transit. Thereupon, the appellant/complainant filed a complaint before the Ld. District Forum alleging that the repudiation was unjustified and claimed Rs. 20,000/- being the loss of money suffered by him along with 18% interest. Besides aforesaid amount, the appellant/complaint also claimed Rs. 10,000/- towards compensation for mental pain and agony and Rs. 5000/- as litigation charges. 

3.                The aforesaid complaint was opposed by the respondent/OP by filing a written statement wherein it was alleged that appellant/complainant had violated general condition No. 3 and Condition No. (a)  of  Section III of Shopkeepers Insurance Policy. It was alleged that the appellant/complainant had left the bag with currency of Rs. 20,000/- in an unattended car. The money was neither in the insured’s hand nor in the hands of his employee in transit as such there was violation of terms and conditions of the policy. It was alleged that the repudiation was legal and justified and there was no deficiency in service on the part of the respondent/OP.

4.                The appellant/complainant filed rejoinder reiterating the facts  alleged in the complaint.  Both the parties filed evidence in the form of affidavits.

5.                After hearing the counsel for the parties, the Ld. District Forum dismissed the complaint vide impugned order dated 28.04.2010 by holding that the appellant/complainant did not take reasonable care to protect and safeguard the property and that the property also did not remain in his physical possession when he had left the money in unattended car which was not parked in any authorized parking zone. It was held that the repudiation was within the terms and conditions of the policy.

6.                Aggrieved with aforesaid order present appeal is filed.

7.                Ld. Counsel for appellant/complainant has contended that the appellant/complainant was not aware of the terms and conditions of the policy as the same were never supplied to him when he had taken the policy.  It is contended that only cover note and policy schedule was given to him, as such terms and conditions of policy are not binding upon appellant/complainant.  It is contended that Ld. District Forum has not examined the aforesaid aspect of the matter.  It is further contended that in any event, the appellant/complainant did not violate the terms and conditions of the policy, as has been alleged.  It is contended that appellant/complainant had parked the car properly and briefcase containing Rs.20,000/- was kept inside the car and the door of the car was properly locked, as such it cannot be said that there was any violation of the terms and conditions of the policy, as has been alleged.  It is contended that respondent/OP has taken frivolous stand to avoid its contractual liability.

8.                On the other hand, Ld. Counsel for the respondent/OP has contended that the policy, containing terms and conditions, was supplied to the appellant/complainant.  It is submitted that the stand taken in the complaint is that the policy given to the complainant did not contain any such terms and conditions on the basis of which claim had been repudiated.  It is submitted that in the grounds of appeal, altogether different stand is taken by alleging that the policy containing terms and conditions was not supplied.  Only cover note and policy schedule was given.   It is contended that the appellant has taken a different stand in the appeal and the same is also an afterthought, as such is not believable.  It is further contended that appellant/complainant has taken different stand at different stages, as such the same is liable to be rejected.  It is contended that repudiation of the claim is as per terms and conditions of the policy and there is no deficiency in service.

9.                We have heard the Counsel for the parties and perused the material on record.

10.               The question for consideration is whether the policy containing terms and conditions was supplied to the appellant/complainant or not. 

11.               Perusal of the complaint shows that the complainant has categorically stated in the complaint that policy was given to him, however, there was no such conditions in the policy on the basis of which the claim has been repudiated.  If the terms and conditions were different, as is alleged, in that event the appellant/complainant ought to have placed the same on record to substantiate his stand.  Nothing has been placed on record by the appellant/complainant in this regard.  Further in the grounds of appeal, the complainant has stated that only the insurance cover note and policy schedule was given.  No such stand is taken in the complaint case.    Further it is not the case of the appellant/complainant that he had taken the policy for the first time.  The present policy was taken after renewal of earlier policy.  Further during arguments, it has been stated that the appellant/complainant has been taking policy from the respondent/OP for the last more than 30 years.  In these circumstances, the stand taken by the appellant/complainant that the terms and conditions were not supplied is not believable.  Accordingly the contention raised in this regard is rejected. 

12.               The other contention of the appellant/complainant is that in any event, there was no violation of terms of conditions of the policy, as is alleged.  The said contention is also considered.  The Insurance Policy containing terms and conditions is Ex.RW-1/1.

13.               The General Condition No.3 of the policy is as under:

“Reasonable Care: The insured take all reasonable steps to safeguards 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 or other regulations.”

The relevant Condition(a) of Section III relates to money insurance which reads as under:-

          “The company will indemnify the insured in respect of:

1. Loss of 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 fifteen miles from the insured premises.”

14.               It is the own case of the appellant/complainant that he had left money in a briefcase in the car.  According to appellant, by locking the car he had taken reasonable steps to safeguard the money.  It may be noticed, as per evidence on record, the car was parked in a crowded place in the market area of Preet Vihar.  It is not the stand of the appellant/complainant that the car was parked in an authorized parking.  Further it is not his case that the briefcase was not visible from the window pane of the car.  By leaving the briefcase containing money in an unattended car cannot be said that the appellant/complainant had taken reasonable steps/care to safeguard the money.  Further under the terms and conditions of insurance policy, the respondent/OP has to indemnify for the loss of the money of the insured if it remains in the hands of the insured or in the hands of the employees during the transit between two places.  In the present case, the briefcase containing the money was kept in the car which was left unattended in the market.  In these circumstances, it was not in the physical possession of the complainant.   

15.               Ld. District Forum has considered the entire evidence on record and thereafter has given its findings that no deficiency in service is there on the part of respondent/OP in repudiating the claim.  No infirmity is seen in the impugned order passed by the District Forum. Accordingly the appeal stands dismissed.

16.               A copy of this order as per the statutory requirement be forwarded to the parties free of charge and also to the concerned District Forum. The record of the District Forum be sent forthwith.  Thereafter the file be consigned to Record Room.

 

(Justice Veena Birbal)

President

 

(Salma Noor)

Member

 

 

         

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