DISPUTES REDRESSAL FORUM – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110 016
Case No.619/2008
- SH. G.K. VAISH
S/O LATE SH. A.P. VAISH
(COMPLAINANT EXPIRED ON 13.01.2009
DECEASED TO BE REPRESENTED BY
HIS WIFE, COMPLAINANT NO.2)
- SMT. PUSHPA VAISH
W/O SH. G.K. VAISH
R/O N-17/D, SAKET,
NEW DELHI-110017
…………. COMPLAINANTS
Vs.
- M/S NATIONAL INSURANCE CO. LTD.
DIVISION NO.XVI, 42, COMMUNITY CENTRE,
NEW FRIENDS COLONY, NEW DELHI-110065
- M/S SPICEJET LTD.
319, UDYOG VIHAR, PHASE-IV,
GURGAON-122016, HARYANA
…………..RESPONDENTS
Date of Order: 14.12.2017
O R D E R
A.S. Yadav, President
Initially the complaint was filed before the Hon’ble State Commission and the Hon’ble State Commission vide order dated 09.07.2008 held that the amount of compensation claimed is exaggerated and the Hon’ble State Commission directed to transfer the complaint to the concerned District Forum and also stated that the amount of compensation cannot exceed Rs.20 lacs for the purpose of pecuniary jurisdiction. Thereafter the complaint was filed before this Forum.
The complainants are husband and wife and are senior citizens. The complainant No.1 obtained a house holders’ insurance policy from OP-1. The policy was valid from 25.07.2005 to 24.07.2006 in the name of complainant no.1 in respect of house hold items including jewellery. The value of items of jewellery declared by the complainant for the purpose of insurance cover was Rs.8 lakhs. The total value of the cover issued by OP-1 in favour of the complainant no.1 was Rs.60,65,000/- for which the complainant paid a premium of Rs.11,159/-.
The case of the complainants is that they travelled from Delhi to Mumbai in the night of 12.12.2005 by SpiceJet Airlines flight in order to attend the marriage of the niece of complainant No.2 which was solemnized at Hotel K’Stars at Belapur, Navi Mumbai on 14.12.2005. The said flight reached Mumbai after 2.00 AM on 13.12.2005. The complainant No.2 carried her precious jewellery with her for wearing the same at the marriage function of her niece.
It is stated that complainant No.2 would have carried her jewellery in her hand bag but since they were on a late flight to Mumbai, they thought that it would be more safe to keep the jewellery in the checked-in baggage so as to avoid any exigency of a mishap/hold-up etc. late at night after they land at Mumabi. Accordingly, two suit cases out of which one contained the items of jewellery of complainant No.2 were checked-in by the complainants at the Delhi Airport. After landing at Mumbai the complainants collected the checked-in baggage from the conveyor belt and they did not suspect that their checked-in baggage might have been tampered with and their items of jewellery might have been stolen/removed therefrom. However, after reaching the K’Stars Hotel, Belapur, Navi Mumbai and checking into their room and opening the baggage, the complainant No.2 discovered that the pouch containing her jewellery was missing from the said baggage. However, the complainant No.2 was not too sure as to whether she actually kept the pouch in the suit case or she might have forgotten it either in the house at New Delhi or in the bank locker itself, the complainants could not think in terms of either lodging a police report immediately or of making a claim on OPs forthwith.
It is further stated that the complainants returned to Delhi on 18.12.2005 at about midnight on a SpiceJet flight and immediately on reaching home they checked their steel almirah to see if they had inadvertently left behind the jewellery pouch therein. However, they did not find the same there. In the morning of 19.12.2005, the complainant No.1 went to their bank and operated their locker to ascertain if the jewellery pouch had been inadvertently left therein. He found the locker did not contain the said pouch. Thereafter, the complainant No.2 also went to the bank and operated the locker to reconfirm as to whether the jewellery pouch was there or not. She too found that the pouch was not there in the locker. The discovery by the complainants that the jewellery pooch was not found either in their steel almirah or in their bank locker left them in a totally shocked and shattered condition. They could not immediately take a decision either to inform the police or OP about the factum of the aforesaid loss suffered by them. So much so, it did not occur to the complainants that under the circumstances the staff of SpiceJet Ltd., the airline on which the complainants flew out to Mumbai on 12.12.2005 were clearly the suspects for the removal of the jewellery pouch of the complainant No.2 from their checked in baggage. Ultimately on the advice of their daughters and sons-in-law and other relatives and well-wishers, the complainant No.1 lodged police report on 29.12.2005 and also informed OP-1 about the loss. The complainant No.1 thereafter made a written complaint on 02.01.2006 to the Senior Divisional Manager, National Insurance Co. Ltd., regarding the theft of the jewellery.
It is further stated that OP-1 vide letter dated 09.01.2006 appointed Atul Kapur & Co. as surveyors in respect of the claim arising as a consequence of the theft of jewellery. It is submitted that for a period of more than one year, the complainant no.1 was made to run from pillar to post to comply with all kinds of demands, answer the queries, provide documents and do all that was asked to him by the surveyor as well as the investigator appointed by OP-1.
It is further stated that the claim was repudiated by OP-1 vide letter dated 28.02.2007 on the ground of violation of condition No.3 and 5 of the policy as reasonable care was not take in respect of the item insured and the matter was not reported to the police authorities immediately. The complainant No.1 sent a legal notice dated 22.12.2007 to OPs regarding repudiation of the claim.
It is further stated that during the course of investigation carried out by OP-1, it has come to light that the procedure followed by OP-2 in the name of security/screening of the checked-in baggage at the time of check-in by the passengers, there is a clear possibility of the staff of the said Airlines committing theft of valuables like jewellery from the checked-in baggage. The complainants have claimed an amount of Rs.6,43,269/- alongwith interest and also sought compensation and litigation expenses.
OP-1 in its reply took the plea that the complaint is not maintainable as the complainant has nowhere alleged in complaint that there was any deficiency in service on the part of OP. Even otherwise the complaint is liable to be dismissed as barred under the terms and conditions of the policy. It is submitted that as per condition No.3 of the policy, the insured is to take reasonable care of the goods. However in the present case the complainants alleged to have put all their expensive jewellery in the bag and got the same checked instead of carrying the same as the part of their hand baggage inside the aircraft cabin. It is submitted that it is a general practice for everyone to carry the expensive item in their hand baggage which was not followed by the complainants.
Further as per condition No.5.1 of the policy, the complainants shall upon the occurrence of any event giving rise or likely to give rise to a claim under this policy. Whereas in the instant case there is a violation of the above condition as complainants had not lodged the police complaint forthwith and the police was informed on 29.12.2005 which was about 17 days after the loss and 10 days after they returned to Delhi.
The complainant also did not lodge any complaint with the airlines or even inform them about the loss, which is claimed to have taken place, while the property was in their possession.
There is violation of condition No.5(1)(b) as the complainants have intimated the OP-1 of the alleged loss on 02.01.2006 which was about 20 days after the loss was discovered and 15 days after their return to Delhi.
OP appointed Sh. Atul Kapur & Co. as surveyor to assess and verify the loss. The surveyor gave a report that the claim should be treated as “no claim” as there was violation of condition No.3 and 5 of the policy. Another surveyor was appointed and he also gave the same report.
It is submitted that the locker had been operated by the complainants seven times between the date of loss and intimation of loss. When the surveyor of the company asked the complainants the reason for numerous operation of the locker, they confirmed that the locker was searched a number of times by them to doubly check that the jewellery had not been misplaced. However, it does not seems to be convincing to a prudent mind that the complainants would need to check the contents of the locker seven times to ensure that the items thought to be missing were not there in the locker and that too at times on two occasions on the same day. In fact even on the date when intimation of the loss was given to the insurer that is on 02.01.2006, the clocker was operated twice. These factors seem to indicate that there was every possibility of the locker having been operated by the complainants before the intimation to the insurer to keep or take out some jewellery, which is contrary to the statement of the complainants and which also creates doubt about the authenticity and genuineness of the claim. The statement of the complainants are proved to be inconsistent as they have even claimed for two items valued approximately Rs.0.97 lacs (one diamond ring and a gold bracelet) which have not be even been mentioned in the list of stolen items given to the police weeks after the loss.
It is submitted that the complaint is not maintainable as the exact circumstances under which the loss took place are also not corroborated with the circumstantial evidence since the pouch containing the jewellery was stated to be missing from the suitcase which the insured has confirmed in the statement given to the surveyor that the bag was externally intact and the lock was also intact and the key of which was in their possession. It is further submitted that during survey the surveyor also took photographs of the bag and it was observed that there was no sign of tampering or forcible opening of the same. Thus, the circumstantial evidence also indicate that the loss could not have taken place. The complainant in their statement have repeatedly stated that when the pouch was not found in the bag, the complainants were still not sure whether they had left same in house or in the locker or in the steel almirah or at any other place despite the fact that the complainant had stated in the police report that he is sure that the loss took place in the airport after X-ray of the bag and before their loading on to the plane. It is prayed that the complaint be dismissed.
OP-2 in its reply took the plea that no case is made out against OP. It is submitted that having booked the ticket, the complainants, who are well aware and conversant about the terms and conditions contained in the e-ticket, were under an obligation to follow the same or travel on their own risk. It is submitted that the relevant clause of the terms and conditions contained in the said ticket reads as under:-
“Safety and Security:- Spicejet highly recommends that you remove, all valuable (cameras, jewellery, money, electronics, perishables etc.) and medication from your checked in baggage and place them in your carry on.
In case, the passenger decides to carry any valuables in their checked in baggage, against the above advice, they will do this at their own risk and shall not hold Spicejet responsible for any pilferage/damage/etc to such valuables.
Baggage:- the carrier’s liability for loss of baggage is limited to Rs.200/- per g with a maximum of Rs.3,000/- only. The carrier assumes no liability for fragile or perishable articles.”
It is evident that the items such as jewellery is to be carried in hand bag and not placed in the baggage.
It is further stated that no proof has been furnished by the complainants substantiating their allegations regarding carrying of the alleged goods by them in checked in baggage and in absence of the same, the claim of the complainants is not maintainable.
It is submitted that admittedly, the baggage was not torn from anywhere. The same must have been properly locked by the complainants and admittedly, the lock was there on the said baggage when the complainants received it from the conveyor belt at the airport. When the baggage was intact at the time loading as well as at the time of receipt of the same, it is improbable that anyone would have taken the jewellery of any other article from the said baggage.
Moreover the allegation of the complainants that at the time of boarding and lodging some employee of the Spicejet might have taken it, is also misconceived and improbable in as much as there are at least 6-7 employees in direct supervision of CISF personnel and Supervisor of the Spicejet Airlines, who load the baggage and off load the same in less than 10 minutes and hey do not even know what is lying in which baggage. In such a short span and without knowing the contents, it is impossible that anyone of the said employees would take out the said articles. As per the procedure, once the passenger becomes aware of lost baggage or article, a baggage irregularity report is must, and admittedly no report has been lodged by the complainant in this case. It is submitted that had the said baggage contained valuable articles, as alleged in the complaint, what prevented the complainant to lodge the Baggage Irregularity Report. It is prayed that the complaint be dismissed.
We have gone through the case file carefully.
As per the complainants they boarded the flight in the night of 12.12.2005. They reached Mumbai at 2.00 PM on 13.12.2005. The baggage was collected from the conveyor belt and the complainants did not suspect that their checked-in baggage might have been tampered with and their jewellery might have been stolen. On 13.12.2005 the complainants have come to know about missing of their baggage. In fact as per the report of the surveyor Mr. Atul Kapur when the complainants did not find the jewellery in the bag, they called up to one of their daughters in Delhi who was married and was taking care of their house in their absence. But after checking the house, she confirmed that the jewellery was not there. So for all practical purposes they came to know on 13.12.2005 that the jewellery was not there in the bag. Though the complainants arrived at Delhi on 18.12.2005 and immediately on reaching the home they checked the almirah to see that inadvertently they had left behind the jewellery pouch therein, however, they did not find the same.
In the morning of 19.12.2005, the complainant No.1 went to their bank and operated their locker to ascertain if the jewellery pouch had been inadvertently left therein. He found the locker did not contain the said pouch. Thereafter, the complainant No.2 also went to the bank and operated the locker to reconfirm as to whether the jewellery pouch was there or not. She too found that the pouch was not there in the locker.
As per the report of the surveyor, on 19.12.2005 complainant No.1 and complainant No.2 operated the locker at 10.40 AM and 10.45 AM respectively. Thereafter the complainants opened the locker on 21.12.2005 and 28.12.2005. On 29.12.2005, a letter was submitte din Delhi to the SHO concerned. On 30.12.2005 the complainant No.1 visited the locker. On 02.01.2006 the complainant No.2 visited the locker twice that is on the day when the intimation was given to the insurance company.
The matter was reported to the police on 29.12.05 and thereafter the complainant No.1 made a written complaint on 02.01.2006 to the Senior Divisional Manager, National Insurance Co. Ltd., regarding the theft of the jewellery.
The matter was reported to the police on 29.12.05 but the police did not lodge a formal FIR at that time and the same was formally recorded as the complaint was made to the ACP on 30.03.2006. So far all practical purposes, the complainants have come to know on 13.12.05 that the jewellery has been stolen. At last they have come to know of the same on 18.12.2005 that the jewellery is not in the house and on 19.12.2005 that the jewellery was not even in the locker even then it took 10 days to lodge the report to the police. Though the matter should be reported on 13.12.2005 but the complaint was made to police after 16 days and likewise to the insurance company after 19 days. There was clear cut violation of section 5(i) of the policy and also it is evident that the complainants have not taken adequate protection. OP-2 has clearly stated that jewellery is not be kept in the baggage and if it is carried, it is on the risk of the person who is carrying the same. So in this case it is a clear cut violation of condition No.3 of the policy.
There was no deficiency in service on the part OP. Repudiation of the claim was justified. Hence the complaint is dismissed.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(RITU GARODIA) (A.S. YADAV)
MEMBER PRESIDENT
