Delhi

East Delhi

CC/47/2016

PADMA POLY - Complainant(s)

Versus

NEW INDIA ASS. - Opp.Party(s)

11 Sep 2018

ORDER

           DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, EAST, Govt of NCT of Delhi

              CONVENIENT SHOPPING CENTRE, 1^st FLOOR, SAINI ENCLAVE, DELHI 110092  

 

                                                                                                    Consumer complaint no.         47/2016

                                                                                                   Date of Institution               28/01/2016

                                                                                                   Order reserved on               11/09/2018        

                                                                                                   Date of Order                       17/09/2018                                                                                    

 

In matter of-

M/s  Padma Polychem Pvt Ltd

Through – Director Mr Rakesh Kumar  

Office- 528/1, Karkarri Road, 

Vishwas Nagar, Delhi 110032 ..……..……….……………...…………….Complainant

                             

                                      Vs

 

M/s The New India Assurance Co. Ltd.

DRO- II, 10^th Floor, Core I,  

Scope Minar, Laxmi Nagar District Centre,

Delhi 110092 …………………………………………………………………….…Opponent

 

Complainant’s Advocate               Mr. Anuj Kumar & Rajesh Pathak       

Opponent’s  Advocate                   Mr. Abhinav Jain & Asso.  

 

Quorum     Sh Sukhdev  Singh       President

                    Dr P N Tiwari                Member

                    Mrs Harpreet Kaur      Member                                                                                             

 

Order by Dr P N Tiwari  Member

Brief of the case-                                                                                                

Complainant, is a registered private limited company duly incorporated under the Company act 1956 (annexed as Ex CW1/1) under the name of complainant and through its resolution from the Directors of the company (Ex CW1/2) as an authorised person, Mr Rakesh Kumar, filed this complaint against the deficiency of OP for rejecting his money theft claim. He stated that his company, Padma Polychem Pvt Ltd., took Money Insurance policy from OP vide policy no. 32320048140300000015 from 13/06/2014 to 12/06/2015 for sum of Rs 10 lacs (Ex CW1/3) with terms and conditions.  

It was stated that on 11/02/2015 at around 6 pm complainant was returning from his office to his house through his own car vide regd. No. DL3CCB1653 and was carrying Rs 9.65,000/-lacs with some office documents in a bag. He had to take petrol in his car so reached petrol pump at CBD ground, East Delhi and after taking petrol, got checked air pressure in his car wheels.

 

The tyre mechanic told that his rear wheel was punctured so complainant got repaired his wheel and started his car, but he noticed that his bag was missing from rear seat of the car. He immediately got down and shouted and asked petrol pump owner to show the CCTV footage. It was noticed that one man was standing near his car and taking away bag and ran away on a motorcycle with another person. Complainant immediately called police and got FIR registered u/s 379 IPC vide no. 115/2015 at PS Anand Vihar, Delhi (Ex CW1/Anne. 8). Next day he intimated OP about the theft (Ex CW1/Anne.13). Police investigated the matter, but could not trace thief so untraced report was given from the court on 06/07/2015 (Ex CW1/Anne.9).

It was stated that OP appointed surveyor who investigated and verified of all the documents and after 230 days submitted wrong facts and observation which resulted repudiation of genuine claim. It was stated that surveyor submitted report stating that complainant did not take proper care of his car and left unattended while he was getting his tyre repaired and doors of his car wernot locked which resulted in theft without resistance by thieves at the petrol pump. It was also submitted by the surveyor that complainant withdrew cash inadequately from the bank and could not submit valid clarification resulting in repudiation.  

It was stated that he was carrying Rs 9,65,000/-for the purchase of immoveable property, but deal could not be successful so decided to deposit cash back in bank as the same amount was needed by his partner M/s SN Impex and Padmini Chemicals also. OP had relied on the wrong report of surveyor which had resulted in financial loss, mental and physical harassment. Complainant submitted reference of citation ‘Riddhi Gupta vs National Insurance Co.’ in Appeal no. 492/2005, State Commission where it was held that OP was barred from appointing any investigator or investigate in to the fact whether theft has taken place or not. OP could only assess the loss by appointing surveyor. Thus repudiating claim amounts to unfair trade practice adopted by OP and complainant was entitled for adequate compensation from OP.

It was also stated that complainant had money insurance from OP for a sum of Rs 10 lacs hence, claimed for the sum insured and compensation for 2 lacs and Rs 25,000/-as legal expenses.  

 

OP filed written statement and denied all the facts and alleged allegations stated in the complaint though it was admitted that the said policy was issued by them as Money Insurance policy under strict terms and conditions for a sum insured Rs 10 lacs. The claim was repudiated due to the violation of policy terms and doubtful facts and statement given by complainant during surveyor verification which resulted in repudiation of claim and the same report was on record.  

Repudiation of claim could not be termed as deficiency in services or any negligence. OP refuted reference of citation submitted by the complainant as appointing surveyor was barred under the scope of OP under Riddhi Gupta vs National Insurance Co.’ in Appeal no. 492/2005 as without coming to the factual outcome of loss, OP could not merely compensate as demanded by insured.  

It was stated that complainant as Director of the company was carrying huge amount in his car and left the cash unattended in the car when he was getting repaired his tyre at the petrol pump. The rear door of the said car was also unlocked which resulted easy theft whereas complainant had to take care of his money all the time specially when he was outside the car and he noticed his bag was missing from the rear seat. It was also stated that withdrawal of alleged huge cash from the bank on different dates from bank despite of having sufficient cash balance for his office day to day expenditure. Theft occurred due to carelessness of complainant by leaving his car unattended and during surveyors query, complainant could not reply sufficiently for the purchase of immovable property.

OP submitted reference of Venketeshawar Syndicate vs OIC Ltd., III (2009) CPJ 81 SC where it was laid down that appointment of surveyor is to assess loss in question and being a good link between the Insurer and Insured to facilitate the claim process under the policy terms and conditions. The final report from the surveyor forms the basis of the claim under policy conditions so claim must be genuine and justified.  

OP had also annexed surveyor’s report (Ex OPW1/2) where it was clearly pointed out by the surveyor that the loss was doubtful as why complainant was carrying huge amount with him without taking proper care and leaving huge cash in unattended car which resulted theft. All the facts were duly verified by the surveyor from cash books, statements from the witnesses and FIR. The statement given by the complainant about theft also not justified as he could not produce any relevant documents for which he was carrying huge cash and other office documents in a beg. Neither list of documents were available nor withdrawal of amount from the banks was justified and does not tally the withdrawal amount was for purchase of property though he had good overdraft withdrawal facility from his two banks current accounts.  Available daily cash balance was sufficient with complainant for taking care of daily day to day expenditure of his office. Despite of having sufficient daily cash balance, he was carrying huge amount with him without proper care which clearly violated policy terms and conditions 6 and 11 (Ex OPW1/1) which reads as –

Exclusion Clause- 6-

‘Money carried under contract of affreightment and theft of money from unattended vehicle’.  

 

Exclusion Clause-11-

‘Loss or damage due to or contributed to by the insured having caused or suffered anything to be done whereby the risks hereby insured against were unnecessarily increased.’

After analyzing statements given by complainant and reason for withdrawing huge cash from banks on earlier dated and re depositing the same cash in banks with no proof of purchasing property and also no details of office documents available which got theft. So surveyor was not satisfied hence recommended as doubtful claim.  Hence this complaint may be dismissed in view of violation of policy terms and conditions.  

Complainant submitted entire contents of his main complaint and denied all the replies submitted by OP and stated that his claim was wrongly repudiated by OP on the wrong facts and observations submitted by their surveyor. He also stated that his vehicle was not left unattended and no doors were left open. He stated that deal for purchasing property failed so he had huge cash with him and OP had insured money to 10 lacs still OP had illegally rejected claim. So complainant denied all the replies in written statement from para 01 to 33.

Complainant also submitted evidences by way of affidavit where he affirmed on oath himself stated that all contents and evidence in the complaint were correct and true to his knowledge and had been on record. He relied on Ex CW1/1 to Ex CW1/20 and stated to be correct.  

OP submitted evidences on affidavit through Md. Kavita Jain, working as Authorised Attorney with OP and affirmed that claim under policy no. 32320048140300000015 had sum assured ten lacs and due to violation of policy terms and conditions his claim was rejected which was after submission of surveyor’s report. It was stated that OP process of claim depends upon policy terms and surveyors report so that justified claim be paid ((Ex OPW1/1 & 2). She stated that carrying huge amount without due care and leaving his car unattended resulted theft. It was accepted that policy was issued but complainant /insured had to take due care when he was carrying huge cash with him. It was also stated that due no ambiguity found in his statement pertaining to cash taken out from his two banks, balance in cash books and ledger were not found genuine so surveyor recommended as doubtful claim. Hence, claimant was not entitled for sum assured amount under policy terms and conditions as exclusion clauses 6 & 11.

 

Arguments were heard from the complainant and OP counsel and after perusal of file, order was reserved. During arguments, OP submitted that claim was repudiated due to violation of Money Insurance Policy (Ex OPW1/1) exclusion clause 6 & 11 which had been submitted on record.     

After perusal of all the documents on record, we have gone through Exclusion clause 6 &11 of the policy. We have seen that clause 6 says- “Money carried under contract of affreightment and theft of money from unattended vehicle”. 

To analyse the exclusion clause 6, we have seen that complainant was carrying huge cash without proper care in his car and the cash was lying at the back seat and car doors were open.  We have also seen the policy issued by OP (Ex CW1/3) as Anne. C3 which specify that cash has to be kept during and after the business hours and limit was sum insured Rs 10 lacs.

Also Sec. 1, sub sec. 1A says that—“Money for the payment of wages, salaries and other earning or for petty cash in direct transit from the bank to the insured premises from the time the cash is received at the bank by the insured or the autherised employee/s of the insured until delivered at the premises or other place of disbursement and whilst there until paid out provided that out of business hours such cash shall be secured in locked safe or locked strong room on the premises. Cheques drawn by the insured to provide for such cash are covered in transit from the premises to the bank”. 

Here cash was kept in a bag which was lying on the rear seat of the car and doors were unlocked.

Sec.1 Sub sec.1B- “Money other then described in 1A above, in the personal custody of the insured or the authorised employee /s of the insured whilst in direct transit between the premises and the bank or post office and vice versa”.

Here money was carried by the complainant from office to residence without proper care and custody.

Sec.1 Sub sec.1C- “Money other than described in 1A and 1B above collected by and in the personal custody of the insured or the authorised employee/s of the insured whilst in transit to the premises or bank within a period not exceeding 48 hours from the time of collection and vice versa”.  

Here money collected by the complainant had exceeded 48 hours and as per his own statement before FIR and surveyor does not correspond with the policy terms. We have also seen the Anne.CW1/5 page 20 where complainant had submitted statement of account up to date 09/02/2015 which showed Rs 10,72,223.56/ and 0n 11/02/2015 incident of theft occurred in the evening, but there was no statement of account for 10/02/2015 and also no explanation for taking Rs 9,65,000/- and leaving Rs 1,07,223/-in the office.

 

Hence considering balance sheet, statement of complainant and FIR, it is clear that there was violation of policy conditions. Complainant had not submitted required documents pertaining to purchase of property and list of office documents which were present in the same bag and also reason for carrying huge cash without proper care.

Complainant being in PVC trading business and dealing in huge cash transaction, should had been more vigilant for carrying huge cash, but after seeing the facts and evidences of the case, there is no concrete evidence on record to prove deficiency of OP or has taken due care for the cash. It is clear that OP work depend upon policy terms and condition and final report from their appointed surveyor. Here these points were found to be as per policy norms. So, neither deficiency of OP seen in their working nor any element of unfair trade practice was proved by the complainant.       

 

Hence, we come to the conclusion that complainant has failed to prove deficiency of OP and element of unfair trade practice as alleged by complainant. We are of the opinion that this complaint is devoid of any merit and that being so, complaint deserves to be dismissed with cost of Rs 5000/-which is to be deposited in the legal aid account maintained by the District court, Karkarduma, East Delhi within 15 days from the receiving of this order and acknowledgment be submitted in the record file.

 

Copy of this order be sent to the parties as per the Section 18 (6) of the Consumer Protection Regulation, 2005 (in short the CPR) and file be consigned to Record Room under Section 20 (1) of the CPR.

 

(Dr) P N Tiwari  Member                                                                         Mrs  Harpreet Kaur  Member                                                                                                                        

                                      

                                                  Shri  Sukhdev Singh  President