BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 35 of 2016
Date of Institution : 2.2.2016
Date of Decision : 31.8.2017.
M/s. Goyal Filling Station, Bathinda-Dabwali Road, Near Refinery Near Jassi Bagwali, Distt. Bathinda, Punjab through its Prop. Mangal Dev Goyal.
……Complainant.
Versus.
1. The Oriental Insurance Co. Ltd. Regional Office- LIC Building, IInd Floor, Jagadhari Road, Ambala Cantt, through its Regional Manager.
2. The Manager/ Authorized Person, Oriental Insurance Company, Janta Bhawan Road, Sirsa, Distt. Sirsa.
3. Girdhari Lal Gupta, Field Officer, Oriental Insurance Company Limited, Janta Bhawan Road, Sirsa.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH. R.L.AHUJA…………………………PRESIDENT
SMT. RAJNI GOYAT ………………… MEMBER
SH. MOHINDER PAUL RATHEE …… MEMBER.
Present: Sh. N.K. Daroliya, Advocate for the complainant.
Sh. A.S. Kalra, Advocate for opposite parties.
ORDER
The case of the complainant in brief is that complainant firm deals in the business of Fuel Material/ Petrol Pump under the name and style of M/s. Goyal Filling Station and Sh. Mangal Dev is the authorized person of the said firm being proprietor and he has only source of earning and livelihood and he and his family is wholly dependent on the income of the complainant firm and the complainant is the consumer of the ops. It is further averred that op no.3 on behalf of ops No.1 & 2 approached complainant and allured for purchase of peril coverage and warranties policy (cash in counter) of the said company and by making buttering language allured the complainant that it has become the routine happening of dacoity and robbery on the petrol pump and to satisfy the effected person, the company has launched the said policy. Thereafter as per allurement of ops, complainant purchased policy bearing Sr. No. 861104 for the period 9.6.2013 to 8.6.2014 and after the purchase of the policy, he was quite satisfied that in case of any dacoity or robbery, he would be compensated by the op company. That on 15/16.5.2014, Arvind Kumar and Vijay Kumar were present on the said petrol pump and in the meantime, they saw that four persons were coming out from the adjoining room and when they called them, then they ran away and when they checked the room, they found that the drawer of the said room was opened and an amount of Rs.70765/- which was the sale of the said fuel of the said pump from 9.00 P.M. to 3.30 a.m. of 16.5.2014 had been robbed/ stolen by those persons. Accordingly, matter was forwarded to the concerned officer/ I.O. of the police station Sangat, Distt. Bathinda immediately and the matter to this effect was also reported to the office of ops. Thereafter, a case bearing FIR No.53 dated 2.6.2014, u/s 457/380/382/506 IPC was lodged with police station Sangat against unknown culprits on the statement of Arvind Kumar. It is further averred that thereafter op no.3 being Field Officer of the company got verified this matter through their official/ surveyor and on the claim of the stolen cash/ booty, the ops assured that as per the rules of the company, the ops have to wait and watch the investigation report of police authorities and in this way the genuine claim of complainant which duly covered and liability of ops under the said policy has been lingered on with one pretext or the other. However, the documents whatsoever have been demanded by the ops have been provided by complainant well within time. It is further averred that police filed the untraced report and then complainant immediately approached the ops and requested for disbursement of the claim amount but the ops instead of discharging their responsibility put off the complainant making lame excuse and made the complainant to take round to the office of ops time and again. That opposite parties in collusion with each other acting arbitrary and adopting unfair trade practice and committed willful deficiency in service and negligence in the duties which caused mental tension and harassment to the complainant and they wrongly withheld the genuine claim of the complainant. In the month of September, the ops bluntly refused to settle the claim of the complainant and to disburse the claim amount of Rs.70,765/- to the complainant and repudiated his claim. It is further averred that complainant on the very same day moved complaint regarding the lodging of case against the accused persons but the police after taking the application/ complaint assured the complainant that definitely within few hours of the occurrence they will do the needful regarding the theft of the cash of complainant. The ops have collected all the relevant documents as well as copy of insurance on the pretext that these documents are required to get sanction the claim of complainant from the higher authorities but the op company failed to redress the grievance of complainant and ops have repudiated the claim of complainant simply on baseless ground that claim could not be paid to the complainant because the complainant has got lodged the FIR regarding the theft of cash after delay. That the complainant after waiting for long period, also got served a legal notice dated 7.9.2015 upon ops but to no effect. Hence, this complaint.
2. On notice, opposite parties appeared. Ops No.1 and 2 filed joint written statement and while taking certain preliminary objections it is submitted that complainant is estopped by his own act and conduct to file the present complaint against answering ops as there is no deficiency in any manner on the part of answering ops and its officials who in discharge of their officials duty acting in accordance with the terms and conditions of policy, which keeps binding effects upon the complainant/ insured and according to law laid down by Hon’ble Apex Court in case titled NIC Vs. Luxmi Narayan, UIIC Vs. Harchand Rai, terms and conditions are to be construed strictly and it is specifically mentioned in the policy under the relevant condition that what is required by law to be complied with by the insured and what is the claim procedure under the cover and what is cash insurance. The same with sequence of the facts relating to this very case, is submitted which clearly prove that claim of complainant has been rightly repudiated and not paid due to the facts and circumstances. According to the term and conditions under the head-What is cash insurance at column 1(c), it has been described ‘out of business hours cash shall be secured in locked safe or locked strong room on the premises’ and in the column 4 it has been described ‘Cash other than described in item (1) 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, house breaking, dacoity, robbery and hold-up (However, loss due to theft of the cash is not covered). Under the head- What is the claim procedure under this cover, it has been described ‘At the time of any loss, insured should immediately lodge a complaint with the nearest police station and obtain a proper FIR. A prompt intimation of loss to insurer followed by necessary documents and claim form is very essential. Insured should also take all practicable steps to discover the guilty person (s) and recover cash lost. In this case/ claim, cash was not secured in locked safe or locked in the premises. FIR No.53 dated 2.6.2014 with P.S. Sangat lodged on the statement of representative of insured/ complainant namely Arvind Kumar alleged salesman, for the alleged mishap on 15/16.5.2014 clearly reveal that Arvind Kumar and Vijay Kumar were sitting in the room and were busy in talking and they noticed four persons coming out from adjoining room and they were called but they ran away from petrol pump and then they went in second room, drawer of table was lying open and on checking it was found that sale proceed from 9.00 p.m. to 3.30 a.m. in the intervening night of 15/16.5.2014 total amount of Rs.70,765/- were taken away and then he with his companions followed these persons and wooden sticks and iron rod were seen with them and they were abusing and stating that if they will come forward they will kill them, then they in order to intimate owner saw their mobiles and found that their mobiles were taken by them. They intimated the owner Mangal Dev and he arrived at spot. This FIR has been lodged on 2.6.2014 after 17 days of alleged incident. Amount was allegedly lying in a drawer without any lock and was unsecured amount on the premises. The policy does not cover for loss of cash obtained from safe. There is no immediate complaint with receipt of receipt of FIR by insured or his representative. There is no prompt intimation of alleged loss to the answering ops. It is further submitted that insured/ representiave of insured agreed for non traceable report submitted by the police. Under the further term and conditions of the policy, insured shall keep a daily record of 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 be produced as documentary evidence in support of a claim under the 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 employer of the insured. In a case such keys is left on the premises shall be deposited in a secure place not in the vicinity of the safe or strong room. The policy does not cover loss of cash obtained from safe/ strong room following the use of key to the said safe/ strong room or any duplicate thereof belonging to the insured unless such key has been obtained by threat or violence. But in this case according to the FIR, it is not a case of any violent or forcible entry, burglary, house breaking, dacoity, robbery in the premises rather at the most, if FIR is considered to be true one, even then the loss due to theft of cash is not covered. In addition to above all, FIR No.53 dated 2.6.2014 has been approved by Ld. JMIC, Bathinda on 23.2.2015 after recording the statement of Arvind Kumar representative of insured. All the above clearly prove, reflect that the risk of cash for which claim has been lodged, is not covered, hence was/is not payable. Further there are violation of terms and conditions of the policy as well and an attempt has been made by insured by concealment of facts from the company and by way of mis-representation regarding fact contained in the burglary claim form and intimation letter. It is further submitted that there is further violation on the part of complainant as he supplied delayed intimation to the company on 18.5.2014 and FIR has been lodged on 2.6.2014. The assertion given on 19.5.2014 in the intimation by the complainant is incomplete and false to own knowledge of complainant and is incomplete. It is further submitted that during the intervening night period bills have been issued in the name of one Sukha Singh in between 9.00 p.m. to 3.30 a.m. bearing No.27331, 27335, 27336, 27337 with different quantity, which seems to be improbable. Intimation to company is also delayed one. It is signed to be received on 19.5.2014, in which it has been mentioned by Mangal Dev that four persons committed a dacoity with the force/ use of pistol and FIR has been lodged with P.S. Sangat. This assertion was/is completely false according to own representative of Mangal Dev and documentary evidence in shape of FIR No.53 dated 2.6.2014, wherein there is no such reference. An attempt with the aid of police has been made by getting a certificate and rapat dated 8.10.2014 and 23.6.2014 to bring this case under Sections 457, 380, 382 IPC and FIR No.53 dated 2.6.2014 u/s 457/380 IPC. It is also submitted that complainant does not fall within the definition of consumer as he was running a commercial establishment. Remaining contents of the complaint have also been denied.
3. Opposite party no. 3 in his separate written statement has averred that there is no cause of action against answering op as complainant cannot avoid the policy, its terms and conditions which are binding upon him. Answering op has been joined and impleaded as party to present complaint in his personal capacity, deliberately, malafidely in order to harass answering op and that answering op adopts the written statement filed by ops no.1 & 2 apart from denying allegations.
4. The complainant produced his affidavit Ex.C1 and copies of documents Ex.C2 to Ex.C20. On the other hand, ops produced affidavit Ex.R1, affidavit Ex.R2 and copies of documents Ex.R3 to Ex.R16.
5. We have heard learned counsel for the parties and have perused the case file carefully.
6. Learned counsel for the complainant has contended that it is a proved case of the complainant that complainant had purchased a policy for the period 9.6.2013 to 8.6.2014 bearing No.861104 for the commission of any dacoity or robbery with the assurance that complainant will be compensated. On 15/16,5,2014, salesmen of the complainant namely Arvind Kumar and Vijay Kumar were present on the petrol pump and they were sitting and talking with each other in the adjoining room. Four persons were coming out of a room and when they called them, they ran away. They checked and found a sum of Rs.70,765/- missing from the drawer of the table which the sale of the period from 9.00 p.m. to 3.30 a.m. on 16.5.2014. Due intimation was given to the ops and claim was lodged. FIR was lodged under sections 457/380/ 382/506 IPC with police station Sangat and after sometime police submitted untraced report and the complainant made requests for disbursement of the claim amount but, however, ops No.1 and 2 have arbitrarily and illegally repudiated the claim of the complainant on technical grounds whereas the complainant is entitled to the claim as per terms and conditions of the policy.
7. On the other hand, learned counsel for opposite parties has contended that no doubt policy was purchased by complainant but both parties are bound by the terms and conditions of the policy. As per terms and conditions of the policy, claim of the complainant was repudiated as same was not payable. The complainant has alleged the theft of amount of Rs.70,765/- which is not covered under the policy. Though, the complainant has tried to manipulate the things in order to get claim approved but complainant has failed to prove his case beyond shadow of all doubts. There is inordinate delay of seventeen days in lodging FIR with the police. The complainant has placed on record four bills of petrol pump in the name of one Sukha Singh which is not practically possible that a person will come four times in the midnight to get diesel time and again for his vehicle. The ingredients of burglary are not made out from the statement of salesman of the complainant as well as from the statement of complainant Mangal Dev. Originally, FIR was lodged under Sections 457/380 IPC but later on Section 382 IPC was added on 3.6.2014 on the statement of Mangal Dev though he was not an eye witness of the occurrence. Learned counsel for opposite parties has relied upon judgments reported as 2005 (1) RCR (Civil) titled as United India Insurance Co. Ltd. vs. M/s. Harchand Rai Chandan Lal (SC), 2002 (5) ALT 50 titled as NIC Vs. R.K. Aggarwal (NC), 2012 (4) CPJ 441 titled as NIAC Vs. Trilochan Jane (NC), 2016 (3) CPR 502 titled as Reliance General Insurance Vs. Vinod Kumar (NC), 2016 (2) CPR 53, titled as Malhotra sons Jewellers vs. Bajaj Allianz General Insurance company Ltd. (NC), 2017 (1) CLT 521 titled Gopinath vs. UIIC (NC) and 2017 (2) CPR 26 titled as M/s Mehsana Urban Co-operative Bank Ltd. vs. Division Manager, UIIC (NC).
8. We have considered the rival contentions of the parties and have gone through the judgments relied upon by learned counsel for opposite parties. The perusal of record reveal that it is an admitted fact between the parties that complainant had purchased the aforesaid policy from opposite parties in order to safeguard his interest qua burglary and dacoity if any committed at the petrol pump of the complainant. As per averments made in the complaint, a theft took place in the intervening night of 15/16.5.2014 at the petrol pump of the complainant and due intimation was given to the opposite parties and FIR was lodged with the concerned police station at Sangat. The perusal of the FIR reveals that it was lodged on the statement of one Arvind Kumar who is alleged to be the salesman of the complainant. He has stated in his statement that he alongwith another salesman namely Vijay Kumar were on night duty at petrol pump and in the intervening night of 15/16.5.2014, they were sitting in a room and talking with each other and in the adjoining room four persons were coming out and when they asked them to stop they ran away. Later on, they found that cash of Rs.70,765/- was stolen. The perusal of this statement reveals that this statement was made to ASI Harbans Singh on 2.6.2014 though occurrence took place in the intervening night of 15/16.5.2014. The perusal of evidence of complainant reveal that complainant has not explained the delay of 17 days for not lodging FIR with the police qua the occurrence. Nor the complainant has placed on record any copy of application by which he ever informed police prior to 2.6.2014. By not lodging FIR with the police station in time, definitely complainant has deprived the police as well as insurer to initiate proceedings for tracing the accused and has also prejudiced the right of the opposite parties and further more, the police has submitted the untraceable report qua the present FIR and same has been accepted after recording statement by the Illaqa Magistrate. So this act of the complainant itself is fatal to the case of the complainant. Though, the complainant has placed on record certain bills regarding sale which also appears to be untrustworthy. There are four bills in the name of one Sukha Singh and from which it appears that practically it is not possible for a man to come in midnight four times to get supply of diesel from the petrol pump of the complainant.
9. The perusal of the record further reveal that initially FIR was registered under Sections 380/ 457 and 506 IPC on 2.6.2014 but later on offence under Section 382 IPC was added on the statement of complainant Mangal Dev, though he was not an eye witness to the occurrence and no reasons have been assigned and no circumstances have been explained under which the offence under Section 382 IPC was added.
10. It is settled principle of law that insurance is a contract between the two and both parties to the contract are bound by terms and conditions of the policy. The perusal of policy Ex.R15 reveals that it was purchased by the complainant for insured value of Rs.2,00,000/- and it is clearly mentioned in the policy under head Description of cash covered at sr. No.II that “Cash (other than described in Section I A above) whilst on the premises during the 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 holdup. It is not case of the complainant that under threat of any weapon, the burglary was committed by the unknown persons or any housebreaking was made nor it is a case of the complainant that his salesmen were holdup by the unknown persons who committed the alleged theft. From the statement of Arvind Kumar and copy of FIR, it cannot be presumed that any burglary, housebreaking or the ingredients of holdup were made out. So, it appears that claim of complainant is not covered under terms and conditions of the policy and opposite parties have rightly repudiated the claim of the complainant. Further, we find force from the judgments relied upon by learned counsel for opposite parties especially from the judgment of the Hon’ble Supreme Court titled as United India Insurance Co. Ltd. vs. M/s. Harchand Rai Chandan Lal (supra) in which it was observed by the Hon’ble Supreme Court that “Element of use of force and violence is conditions precedent for burglary and house breaking which has to be established by the insured to sustain his claim under the insurance policy. If he fails to establish the same, the insurance company will have the right to repudiate his claim.”
11. In view of our above discussion, we are of the opinion that the claim of the complainant is devoid of any merit and opposite party has rightly repudiated the claim of the complainant. As such, the present complaint is hereby dismissed. Parties are left to bear their own costs. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.
Announced in open Forum. President,
Dated:31.8.2017. Member Member District Consumer Disputes
Redressal Forum, Sirsa.
