PER SHRI. S. G. CHABUKSWAR – HON’BLE  MEMBER

1)        This is a complaint for the reliefs of loss of money Rs.4,50,367/- covered by the Money Insurance Policy with interest @ 18% p.a. from the date of filing complaint and cost.

2)        Brief fact of the Complainant’s case is as under –

          The Complainant is the partnership firm registered under the Indian Partnership Act, 1932 and doing the business of distributions and C & F Ltd. of branded items like Philips, Parle-G, Navneet Publication, etc. having its office at Vile-Parle (W), Mumbai – 400 058.  Opposite Party issued to the Complainant Money Insurance Policy bearing No.130600/48/07/07/00000527 for the period from 28/10/2007 to 27/10/2008 with the terms and conditions set out in the policy documents. 

3)        The further case of the Complainant is that on 23/04/2008 at 9.30 p.m. the Complainant closed his office as usual business and went to home.  On the very next day on 24/04/2008 when the partner of the Complainant went to the shop then he noticed the lock of shop, main gate was collapsible and the office door locks were broken forcibly and entry to the cash cabin was made by some one unknown person and the table drawer were also broken.  When the Complainant checked the items and drawer then the Complainant observed that the cash of Rs.4,50,637/- kept in the cupboard were found to be stolen.  The Complainant immediately reported the matter to Juhu Police Station.  The police of the said police station registered the crime and visited the office of the Complainant. On 24/04/2008 the Complainant has informed the above incident to the Opposite Party by the letter.

4)        The further case of the Complainant is that, Opposite Party appointed one Parimal R. Shah & Co. as Surveyor.  The said Surveyor visited the premises and verified all records of purchase, sale, stock and cash collection.  After verification of the record the Surveyor sent letter dtd.02/06/2008 to the Complainant and asked for submitting certain records belonging to the business of the Complainant. The Opposite Party also send a questionnaire for necessary clarification.  The Complainant send the details of sale, purchase, etc. by the letter dtd.19/06/2008 and also fill-up the questionnaire and send it to the Opposite Party. The Complainant received the letter dd.18/08/2008 from the Surveyor and asked for submitting audited balance sheet and explanation of cash kept in the safe. After giving the above explanation the Complainant were waiting for settlement of the claim.  In the meantime Surveyor submitted his report to the Opposite Party in the month of January, 2009. The Opposite Party did not settle the claim therefore Complainant sent letters dtd.12/05/2009 and 20/06/2009 to the Opposite Party and pointed out that the claim is not settled though the Surveyor has assessed it.  The Opposite Party informed to the Complainant by the letter dtd.21/07/2009 that they found discrepancies in the survey report and they are appointing M/s. SVJ Investigator to resolve the same. After appointment of said Surveyor the Opposite Party has not settled the claim in spite of the reminder letters dtd.24/08/2009, 09/09/2009, 25/09/2009, 02/11/2009 and 09/11/2009. The Complainant requested to the Opposite Party and their Chairman, Dy. General Manager, Sr. Divisional Manager for finalization of the claim but they did not turn till filing the complaint.  There  is  deficiency  in service on the part of the Opposite Party.  Hence, this complaint for the reliefs mentioned in above para no.1.

5)        The Opposite Party in response to the notice of the complaint appeared through Advocate on 23/09/2010. Opposite Party failed to file written version hence, complaint proceeded without written version of Opposite Party by passing order on 14/12/2010.

6)        The Complainant has filed affidavit of evidence of Girish Chedda, a Partner of the Complainant.  Both the parties have submitted their respective written notes of arguments.  We have gone through the documents produced on record.  We heard oral argument of Shri. Dinesh Guchiya, Ld.Advocate for the Complainant and Smt. Kalpana Trivedi, Ld.Advocate for the Opposite Party.    

7)        Smt. Kalpana Trivedi, Ld.Advocate for the Opposite Party has raised one of the ground in the argument regarding point of limitation.  As per her argument the incident of alleged house breaking took place on 24/04/2008.  The complaint is filed on 28/06/2010 beyond the period two years and it is not within limitation.  On perusal of record and proceeding it is clear that, Opposite Party has admitted partial liability of the claim amount by the letter dtd.21/07/2009.  Opposite Party has partly denied the liability on 21/07/2009 hence, cause of action arises for filing complaint on the said date.  The complaint is filed within two years from the date of cause of action as laid down u/s.24-A of the Consumer Protection Act, 1986.  The complaint is filed within the period of limitation.

8)        The Complainant has deposed in his affidavit of evidence the entire facts narrated by him in the complaint. The Complainant has produced alongwith complaint at Exh.A (page Nos.10 to 12) copy of the Money Insurance Policy bearing No.130600/48/07/07/00000527 and its terms and conditions at Exh.B (page Nos.13 to 18).  The insurance policy Exh.A shows that the Complainant has obtained above mentioned policy and paid to the Opposite Party premium Rs.5,700/- and service tax Rs.705/- and its validity was for the period from 28/10/2007 to 27/10/2008 and limit of any one loss was Rs.5,00,000/-.  The money which covered under the policy has been laid down u/s.IC of the policy. As per said provision Money (other than described in IA and IB) collected by and in the personal custody of the Insured or the authorized 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. Section II of the policy says that, cash (other than described in section IA) whilst on the premises during business hours or whilst secured in locked safe or locked strong room on the Insured’s premises out of business hours against the risk of burglary, housebreaking and hold-up.

9)        Smt. Kalpana Trivedi, Ld.Advocate for the Opposite Party has argued that, as per first information report lodged by the Complainant cash was kept in cupboard which was broken and the said cupboard was not safe.  The advocate for Opposite Party has further argued that the claim of the Complainant is not acceptable as it falls under the exclusion clause of the policy.  The Complainant has accepted the policy alongwith said exclusion clause.  The exclusion clause provides that the Company is not liable in respect of loss occurring on the premises after business hours, unless the money is in a locked safe or strong room.  The Complainant has produced copy of FIR at Exh.C (page nos.19 to 25).  It has been contended in the FIR that, on 23/04/2008 at about 9.30 p.m. the Complainant, his wife, son had kept cash Rs.4,43,367/- in the safe of iron cupboard of the Complainant and he had properly locked it and the keys of said cupboard and his cabin had taken with him.  The above contention of FIR clearly goes to show that the cash was in the safe of locked iron cupboard and it was not kept open in the cabin. The risk of burglary, house breaking and hold-up are covered under Section II of the policy.  The FIR shows that the theft took place in the night in the office/cabin of the Complainant.  The cash was kept secured in locked safe as laid down under Section II of the Policy Exh.A and it does not come under the exclusion clause of the policy. The terms and conditions of the policy Exh.B provides that insured shall also indemnify loss of money by burglary, house braking, robbery or hold-up whilst money is retained at Insured’s premises. In view of the above discussion, the argument advanced by the advocate for the Opposite Party cannot be accepted. 

10)      Admittedly after the incident of house breaking Opposite Party appointed Parimal R. Shah & Co., Chartered Accountant as Surveyor for the survey.  The Parimal R. Shah & Co. conducted the survey and submitted report with Opposite Party on 26/01/2009. The said Surveyor reported that, the loss of cash from insured’s office as on date of incident was Rs.4,43,367/-and loss of cash is falling within the scope of the policy.  On 21/07/2009 Opposite Party issued letter to the Complainant and informed that, Opposite Party found the discrepancies in he survey report and therefore, they are appointing M/s. SVJ Investigator to resolve the same.  The record and documents shows that, M/s. SVJ investigator has not submitted his report with Opposite Party till filing of the Complainant. 

11)      Opposite Party has contended in the last para of letter dtd.21/07/2009 that, cash collected on 22/04/2008 amounting to Rs.1,93,187/- was supposed to deposit on 23/04/2008. If admissible, our liability is restricted to Rs.2,50,180/- (as per the records verified by the Surveyor).  Under these circumstances the question arises whether the Complainant is entitled to the amount Rs.4,43,367/- as per survey report of Parimal R. Shah or to the amount Rs.1,93,187/- mentioned by Opposite Party in the last para of the letter dtd.21/07/2009.  The special condition no.1 (page no.15 of the compliant) of the policy is material therefore it is hereby quoted for ready reference. It runs as under “The insured shall keep a daily record of the amount of cash contained in the safe or strong room and such record shall be deposited in a secure place other than the said safe or strong room and produce as documentary evidence in support of a claim under this policy.  The keys of the safe or strong room shall not be left on the premises out of business hours unless the premises are occupied by the Insured or any authorized employee of the Insured in which case, such keys if left on the premises shall be deposited in a secure place not in the vicinity of the safe or strongroom”

12)      The Opposite Party has admitted the liability of Rs.2,50,180/-.  The Opposite Party has denied the liability of Rs.1,93,187/- on the ground that the said cash was collected on 22/04/2008 and it was to be deposited in the bank on 23/04/2008.  From the above contentions of the Opposite Party it is clear that, Opposite Party has admitted total loss of (Rs.2,50,180/- +Rs.1,93,187/-)  Rs.4,43,367/- of the complaint in the house breaking incident which had taken place in the night in between 23/04/2008 to 24/04/2008.  However, there is no document on record to show that the amount Rs.1,93,187/- was collected from the business on 22/04/2008 and it was not deposited in the bank on 23/04/2008.  It has not come on record that, on the basis of which document Opposite Party has bifurcated the amount Rs.1,93,187/-  as collection of 22/04/2008 and Rs.2,50,180/- collection of 23/04/2008. The report of M/s. SVJ Investigator is  not on record.   In the absence of specific pleadings of Opposite Party, documents of bifurcation of amount and report of M/s. SVJ Investigator or affidavit of evidence of concerned witness the contention made by Opposite Party regarding partial denial of claim of Rs.1,93,187/- in the last para of the letter dtd.21/07/2009 can not be accepted and relied.

13)        The Parimal R. Shah & Co. Surveyor appointed by the Opposite Party has specifically mentioned in the survey report that the insured, based on records, had cash balance of Rs.4,43,367/- as on the date of incident.  The Surveyor Parimal R. Shah & Co. has made above report on verifying the copy of audited balance sheet, bank statement for last one month, few cash memos, sales register for the month of March 2008, sales register company wise, rough cash book and collection details as on the date of incident duly certified by their Chartered Accountant, copy of bank statement.  It appears the Surveyor Parimal Shah & Co. has verified the collection details of the date 23/04/2008 maintained by the Complainant as laid down in special condition no.1 of the policy. The survey report submitted by Parimal Shah has not been contravened by any of the reliable evidence on the side of Opposite Party.  The Complainant immediately after the incident lodged FIR in the police station early in the morning on 24/04/2008.  The Complainant has contended in the FIR that the loss of cash of Rs.4,43,367/- taken place due to the house breaking.  In view of the survey report of Parimal Shah and FIR we find that loss of cash collected on 23/04/2008 of Rs.4,43,367/- of the Complainant took place in the house breaking in the night in between 23/04/2008 to 24/04/2008.  The Complainant though claimed in prayer clause of the complaint loss of cash Rs.4,50,367/-, however, he has fairly admitted in the FIR that loss of cash is Rs.4,43,367/- and the loss of mobile valued Rs.7,000/-. The Complainant has admitted that he is not entitled to Rs.7,000/- price amount of the mobile and he has restricted his claim only to Rs.4,43,367/- which covered by the money insurance policy. The Complainant has proved the said fact hence, he is entitled to the amount Rs.4,43,367/- from the Opposite Party as laid down in the money insurance policy which has been issued to the Complainant.  Opposite Party has not offered the amount Rs.2,50,180/- to the Complainant by the letter dtd.21/07/2009.  However, Complainant has not filed complaint immediately after the letter dtd.21/07/2009. The Complainant has filed complaint on 28/06/2010. The Complainant has also claimed interest from the date of filing complaint.  Under these circumstances the Complainant is entitled to the interest on the amount Rs.4,43,367/- @ 6%  p.a. from the date of filing complaint till the realization of the amount and cost of complaint Rs.3,000/-.

            In the result complaint deserves to be partly allowed with cost.  Hence, we proceeds to pass following order –

O R D E R

               i.     Complaint No.202/2010 is partly allowed with cost as under -

       ii.     Opposite Party is directed to pay to the Complainant loss of money Rs.4,43,367/- (Rs. Four Lacs Forty Three Thousand

               Three Hundred Sixty Seven Only) covered under the money insurance policy with interest @ 6% p.a. from the date of filing

               of complaint i.e.28/06/2010   till realization of the amount.  

             iii.     Opposite Party is directed to pay to the Complainant Rs.3,000/- (Rs. Three Thousand Only) towards cost of the complaint. 

      vi.     Certified copies of this order be furnished to the parties.