DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016
Case No.916/2009
M/s LKG Forex Limited
Through its Director
E-35 (GF) Lajpat Nagar-I
New Delhi-110024 ….Complainant
Versus
National Insurance Co. Ltd.
Branch Office:
E-13, Hauz Khas Market,
New Delhi-110016
Also at:
3m Niddleton Street,
Kolkata -700071 ….Opposite Party
Date of Institution : 31.12.10 Date of Order : 12.11.18
Coram:
Sh. R.S. Bagri, President
Ms. Naina Bakshi, Member
Ms. Kiran Kaushal, Member
ORDER
Naina Bakshi, Member
Briefly stated, the case of the complainant is that the complainant got a policy from the OP vide policy No.360902/48/09/1500001053 dated 13.8.2009 for non traditional business. It is stated that a theft took place in the business premises of the complainant on 25.8.2009 at 9.45 a.m. when one of the directors of the complainant company, namely, Kush Gera came to the office from his residence, which is in the same building on first floor with the bag containing Rs.5,15,000/- and kept the bag on the table and folded his hand before the picture of Sai Baba and other God and was intending to keep the same in safe but in the meantime two persons entered behind him and asked for exchange of money against dollars. Sh. Kush Gera requested them to wait on the sofa to enable him the check rates, he turned towards the computer to check the rates, when he turned back, he saw two persons, who came for exchange for dollars were missing alongwith his bag. It is further stated that Mr. Gera immediately ran out and searched in the whole area but did not find them. After that Mr. Gera immediately lodged a complaint with the SHO P.S. Lajpat Nagar, New Delhi on the basis of which an FIR No. 316/09 U/s 379/411/34 IPC was registered. It is submitted that after lodging of the complaint, the police came into action and ultimately the culprits, namely, Mr. Sunil @ Natwar, Mr. Amit Gaur, Mr. Fateh Singh @ Fateh and Mr. Sandeep Kumar @ Sandi were nabbed and only a sum of Rs.1,62,000/- was recovered from them out of the total stolen money of Rs.5,15,000/- and the amount of Rs.1,62,000/- had been released to the complainant by the order of Ld. M.M., South East, Delhi and the accused are facing trial. It is submitted that immediately the complainant lodged a claim bearing No. 370902/48/09/1590000152 with OP through fax on 25.08.09 and through letter dated 26.08.09 but the OP repudiated the claim of the complainant on the pretext that “Theft of money from office is not covered as per terms and conditions of money insurance policy, Section-VIII”. It is stated that repudiation of the genuine claim of the complainant company on the part of OP is illegal, unlawful, utra-vires and against the terms of the policy and the provisions of section VIII of the policy are not all applicable which provides that the Insurance Company will indemnify the insured against all loss of money in transit by the insured or insured’s authorized employee (s) occasioned by robbery, theft or any other fortuitous cause. Hence pleading deficiency in service and unfair trade practice on the part of the OP, the complainant has filed the present complaint for the following reliefs:-
- Direct the OP to pay a sum of Rs.3,53,000/- to the complainant together with up to date interest @ 12% p.a. from the date of incident till realization of the amount;
- Direct the OP to pay Rs.11,000/- as litigation expenses;
- Direct the OP to pay Rs.1,00,000/- as damages to the complainant on account of mental pain, agony, harassment, sufferings and torture.
OP in the written statement has admitted that the complainant got a policy issued from the OP vide policy No.360902/48/09/ 15000010523 dated 13.08.09 in respect of Non-Traditional Business. It is submitted that according to the terms and conditions of insurance policy, the complainant was required to keep the money in safe custody but the complainant was negligent in keeping the bag in safe custody and as such not entitled to claim any amount. It is submitted that a theft took place in the business premises of the complainant on 25.08.09 at about 9.45 a.m. and the incident happened because of the negligence of Mr. Gera, director of the complainant. Mr. Gera after reaching the office instead of keeping the bag in safe custody, kept the bag on table and started worshiping God and from his back the bag was stolen by the culprits. It is submitted that as per section VII of the insurance policy the complainant was insured for the losses of the amount kept in locked safe custody outside business hours or loss of money during transit but the theft took place during business hours in the office of the complainant because of Mr. Gera’s own negligence and the OP is not responsible for negligence and irresponsibility on the part of Mr. Gera. Denying any deficiency in service on its part the OP has prayed for dismissal of the complaint.
Rejoinder to the written statement of OP has been filed on behalf of the complainant reiterating the averments made in the complaint.
Sh. Kush Gera, Director of Complainant has filed his affidavit in evidence. On the other hand, affidavit of Sh. H. K. Soni, Dy. Manager has been filed in evidence on behalf of the OP.
Written arguments have been filed on behalf of the parties.
We have heard the arguments on behalf of the parties.
Admittedly, the complainant took a policy from the OP vide policy No.360902/48/09/1500001053 dated 13.8.2009 for non traditional business. We mark the same as Mark A for the purposes of proper identification. During the subsistence of policy a theft took place in the business premises of the complainant on 25.08.2009 at 9.45 a.m. and a complaint was lodged with the SHO P.S. Lajpat Nagar, New Delhi on the basis of which an FIR No. 316/09 U/s 379/411/34 IPC was registered. We mark the copy of the FIR as Mark-B for the purposes of proper identification. The police recovered a sum of Rs.1,62,000/- out of the total stolen money of Rs.5,15,000/- from the accused and the said amount had been released to the complainant by the order of Ld. M.M., South East, Delhi and the accused are in judicial custody. The complainant made a claim with OP through fax on 25.08.09 and also through letter dated 26.08.09 but the OP repudiated the claim of the complainant on the ground that “Theft of money from office is not covered as per terms and conditions of money insurance policy, Section-VIII” vide letter dated 11.11.09. We mark the copy of the repudiation letter dated 11.11.09 as Mark-C for the purposes of proper identification.
Section-VII & VIII of the insurance policy reads as under:-
“ VII Wages And Salary (In Transit From/ To the Office).
VIII Money In Office In locked Safe Outside Business Hours.”
It is evident from the record that the claim of the complainant was rejected by the OP on the ground that the incident happened because of the negligence of the director of the complainant as he after reaching the office instead of keeping the bag in safe custody kept the bag on table and started worshiping God and from his back the bag was stolen by the culprits. It is submitted that as per section VII of the insurance policy the complainant was insured for the losses of the amount kept in locked safe custody outside business hours or loss of money during transit but the theft took place during business hours in the office of the complainant and the OP is not responsible for negligence and irresponsibility of the complainant.
On the other hand, the case of the complainant is that OP illegally repudiated the genuine claim of the complainant which against the terms of the policy and the provisions of section VIII of the policy are not all applicable which provides that the Insurance Company will indemnify the insured against all loss of money in transit by the insured or insured’s authorized employee (s) occasioned by robbery, theft or any other fortuitous cause.
The complainant has filed a copy of judgment passed by the Hon’ble State Commission, Delhi passed in Ridhi Gupta Vs. National Insurance Co. Ltd. III (2008) CPJ 459 wherein it is held as under:
“9. It is a rule of universal interpretation that every beneficial law like the Consumer Protection Act and for that purpose every beneficial contract like the insurance contract should be provided and receive a beneficial interpretation. There is an unvarying judicial unanimity of foreign Courts and the Supreme Court of India that wherever two or more constructions or interpretation of any term of contract or a provision of a statute are possible, the interpretation of the construction which goes in favour of the consumer, should invariably be accepted by the service provider is neither permissible nor is consumer friendly nor in consonance with the aims and objects of the contract or the welfare statute or beneficial statute.
10. Our experience shows that the Insurance Companies interpret every clause in such a manner that a consumer should suffer and the service provider should become unjustly rich and gain undue advantage. This is not a happy approach and has to be deprecated.”
This judgment applies to the facts of the present case. It is clear that the claim of the complainant was wrongly repudiated by the OP on the false and frivolous ground. Under the special facts and circumstances of the case Section VII and Section are not applicable to the facts of the present case. Rejecting the claim by the OP is unjustified and not consumer friendly and is against the aims and objects of the contract. The total amount was stolen Rs.5,15,000/- & the police recovered an amount of Rs.1,62,000/- and the same was released to the complainant by the order of Ld. M.M.
In view of the above discussion, we hold the OP guilty of deficiency in service while rejecting the genuine claim of the complainant. We allow the complaint and direct the OP to pay Rs.3,53,000/- to the complainant and Rs.20,000/- as compensation for harassment and mental agony undergone by the complainant within a period of one month from the date of receipt of the copy of this order failing which the OP shall become liable to pay the said amount of Rs3,53,000/- alongwith interest @ 9% p.a. from the date of filing of the complaint till the date of realization.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Annouced on 12.11.18
