BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 19th June 2017
PRESENT
SRI. VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI. T.C. RAJASHEKAR : HON’BLE MEMBER
ORDER IN
C.C.No.306/2013
(Admitted on 3.12.2013)
The Central Arecanut and Cocoa,
Marketing and Processing
Co Op. Ltd, (CAMPCO),
Mission Street, Mangalore,
Represented by its Managing Director,
Mr. Suresh Bhandary M.
….. COMPLAINANT
(Advocate for the Complainant: Sri KBA)
VERSUS
The manager,
United India Insurance Co.Ltd,
Varanasi Towers, Mission Street,
Mangalore.
….OPPOSITE PARTY
(Advocate for the Opposite Party by Sri. DRK)
ORDER DELIVERED BY HON’BLE MEMBER
T.C. RAJASHEKAR:
I. 1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming, to payment of Rs.5,00,000/ theft of cash from the sales depot in respect of arecanut with 12% interest p.a. from 209.2011, to pay of Rs.6,724/ in respect of chocolate, to pay of Rs.1,00,000/ as damages for mental tension and agony and such other reliefs.
2. In support of the above complaint Mr. Suresh Bhandary, filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked at Ex.C1 to C10 as detailed in the annexure here below. On behalf of the opposite party Pundalik Nayak,(RW1) Divisional Manager, also filed affidavit evidence.
The brief facts of the case are as under:
On perusal of the complaint and the version of the parties, this dispute is with regard to the repudiation of insurance claim for cash theft in the premises of the complainant. The complainant alleges that he had obtained a Money insurance policy from the opposite party and there was a theft of the cash from the premises by breaking open of the window rods of the premises. On filing the claim the opposite party rejected the claim on the ground of exclusion clause of the policy illegally and alleges deficiency in service. The opposite party contested that the claim of the complainant is falls under the exclusion clause of the policy and hence they have rightly repudiated the claim and there is no deficiency in service on their part. These are being the facts of dispute we are of the view to decide the following
POINTS FOR ADJUDICATION
We have considered the facts on record and the evidence produced. The admitted material facts are, the issue of the policy by the opposite party and the coverage during the period of theft. The theft is also admitted. The policy condition is admitted but it is not admitted the applicability of the policy condition and the exclusion clause in the policy for the nature of theft. It is denied by the complainant that there is breach of policy condition and the applicability of the exclusion clause. It is not denied that the complainant is the consumer hence admitted the complainant as the consumer. Admissions and denials reconciled and the following points are taken for consideration in resolving this dispute.
- Whether opposite party proves the repudiation is proper and legal and there is no deficiency in service on their part?
- Whether the complainant is entitled for the relief prayed for?
- What order?
We have traversed through the records on file and the evidence lead by the parties. The argument notes considered and counsels submissions heard and answered the above points as under:
- In the affirmative.
- In the negative.
- As per delivered order.
REASON
POINT NO 1 & 2: The case of the complainant is he had obtained the insurance policy called as the Money Insurance Policy, there was a theft and loss of money during the period of running policy. An amount of Rs. 7,04,550=80 in sale depot of the Ahmadabad and Rs. 6,724/ from the chocolate factory were stolen. On submitting the claim form the opposite party not honored the claim on the ground of breach of policy condition and the claim will come under the exclusion clause. The opposite party admits the theft and the currency of the policy. But contend the breach of policy condition. Hence it is the opposite party burden to prove the breach of terms & conditions of the policy and the point taken for consideration.
2. The opposite party claims the breach of the policy conditions exclusion clause No 3 and 6, and special condition No 1. So we have prompted to consider those conditions and clauses. The policy conditions are not disputed except applicability for the claim in dispute. The same has been engrossed.
SPECIAL CONDITION No 1: Insured shall keep a daily record..... The keys of the safe or strong room shall not be left in 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 strong room.
EXCLUSIONS
No 3: Loss occurring on the premises after the business hours, unless the money is in a locked safe or strong room.
No 6: Loss of money from safe or strong room following use of the key to the safe or strong room or any duplicate thereof belonging to the insured unless this has been obtained by threat or by violence.
3. As per records available the incidence of theft as per the complainant version and also as per the FIR EX C 5 it is stated that, the complainant says I and my two sons namely Purvesh and Kunal were came to our shop at 9.45 morning and after opened the shutter of the office on the third floor we find that all the things were not in its places, and wall behind our shop, one iron stick was found cutted on window putted on the fridge and when we reached in our cabin it was found opened and all the drawers of the cabin also found opened, and found that the cash amount of Rs. 12 lakhs and two coins of gold each of 1 gram worth Rs. 5,600/ etc were stolen by someone
Going by the above facts on record it is revealed that,
1) The thieves entered the premises by breaking open the windows, they have entered the manager cabin, and taken the key of the safe locker which was kept in the drawer and opened the safe locker and steal the cash.
2) At the time of theft there was no body in the premises.
3) The complainant had kept the key of the safe locker in the drawer of the managers table in the cabin of the manager.
Now as per insurance terms & conditions as above:
The key of the safe locker shall not be kept in the premises outside the business hours if the premises is not occupied by the insured or his employees. If it is kept in the premises with the occupation of the insured or his employees the insurer is liable for the loss if the key kept in the premises was obtained by the thieves by threat or violence. And out of business hours the insurer is liable if the cash kept in the premises in the safe locker.
4. On matching the incidence and the conditions it is established the key was in the premises and there is no occupant in the premises at the time of theft. The threat and the violence will not arise as there is no occupant in the premises. As for as chocolate factory theft of Rs. 6,724/ is concerned the amount was not kept in the safe locker but it was in the managers drawer and hence the insurer is not liable. There is breach of policy condition and the exclusion clause is applicable. Hence the repudiation is as per terms & conditions of the policy.
5. The complainant stated that the key of the safe was safely kept in the managers cabin drawer and the drawer key was taken to home by the manager, the safe key was not kept within the vicinity of the safe locker as the safe locker was in another floor. As per policy condition it is unequivocal that the safe locker key should not be kept in the premises outside the business hours. The condition was put to avoid claim on internal theft by the known persons. It is established principle that the insurance is a contract and the policy conditions must be adhered to and cannot be rewritten or different interpretation should not be given. Hence the opposite party proved his case as the repudiation is proper and there is no deficiency in service on their part and hence we answered the point no 1 in the affirmative and as such the point no 2 in the negative.
POINT NO 3: In the light of the above discussions and the adjudication of above points we deliver the following
ORDER
The complaint is dismissed. No order as to cost.
Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.
(Page No.1 to 8 directly typed by Member, revised and pronounced in the open court on this the 19th June 2017)
MEMBER PRESIDENT
(T.C. RAJASHEKAR) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mr. Suresh Bhandary
Documents marked on behalf of the Complainant:
Ex-C1: 12.4.2011: The copy of the money insurance policy.
Ex.C2: 23.9.2011: The office copy of the letter written to the Opposite Party.
Ex.C3: 29.10.2011: The office copy of the letter written to Mr. Jayesh H. Shah.
Ex.C4: 17.10.2011: The copy of the claim form.
Ex.C5: 23.11.2011: The copy of the FIR given to the Opposite Party.
Ex.C6: 31.1.2013: The repudiation of claim amount with the survey report.
Ex.C7: 21.3.2013: The office copy of the reply to the above said repudiation letter.
Ex.C8: 20.9.2013: The copy of the final report of the police given to the Opposite Party.
Ex.C9: 21.10.2013: The office copy of the lawyers notice.
Ex.C10: 25.10.2013: The reply to the above said lawyers notice.
Witnesses examined on behalf of the Opposite Party:
RW1: Pundalik Nayak, Divisional Manager
Documents marked on behalf of the Opposite Party:
Nil
Dated: 19.06.2017 MEMBER
