DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA (PUNJAB)

CC No. 28 of 18-01-2011

Decided on : 23-05-2011

M/s. Kesho Ram Pashupati Nath, Guru Kashi Marg, Near HDFC Bank, Bathinda, through its Partner Ashutosh Chander

.... Complainant

Versus

1. The New India Assurance Co. Ltd., Branch Office, Grover Building, Near Post Office Chowk, Malout through its Branch Manager.

2. The New Indian Assurance Co. Ltd., Divisional Office, The Mall, Bathinda through its Divisional Manager duly Constituted Attorney.

3. Indian Bank, Guru Kashi Marg, Bathinda through its Branch Manager.

    

   ..... Opposite parties

Complaint under Section 12 of the Consumer Protection

Act, 1986.

 

QUORUM

Ms. Vikramjit Kaur Soni, President

Sh. Amarjeet Paul, Member

For the Complainant : Sh. Naresh Garg, counsel for the complainant

For the Opposite parties : Sh. Vinod Garg, counsel for opposite party Nos. 1 & 2.

Sh. M R Gupta, counsel for opposite party No. 3.

O R D E R

VIKRAMJIT KAUR SONI, PRESIDENT

1. The instant complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986 as amended upto date (here-in-after referred to as 'Act'). Briefly stated, the complainant firm deals in the business of 3 Petrol Diesel Pumps of Hindustan Petroleum Corporation at Bathinda and has its Cash Credit limit with opposite party No. 3. The complainant purchased Money Insurance of all the 3 petrol pumps (i.e. one at Gole Diggi, one at Guru Kashi Marg, Civil Lines and one at Village Gurusar Sahnewala) from opposite party No. 1 vide Insurance Certificate No. 360603/48/07/07/00000325 w.e.f. 28-10-2007 to 27-10-2008 for the total amount of Rs. 6,00,000/- “whilst on the premises during business hours etc.,” and opposite party Nos. 1 & 2 charged Rs. 2022/- for this purpose. No policy was issued to the complainant by the opposite parties. Theft took place in the petrol pump of the complainant in the intervening night of 30/01-12-2007. Some unknown persons after breaking the locks of the cash box/counter took away the amount of about Rs.1,43,886/- forcibly by entering through ventilator. In this regard an FIR No. 750 dated 01-12-2007 at P.S. Kotwali, Bathinda U/S 457, 380 IPC was lodged by the complainant. The complainant gave intimation of loss immediately to opposite party Nos. 1 & 2 who deputed Investigator cum Surveyor. All the necessary papers were taken from the complainant but no survey report was supplied to him. The opposite party No. 1 thereafter appointed another C.A. Parmod Mittal as surveyor . The complainant again supplied documents to 2^nd surveyor as demanded by him. This time also no survey report was supplied to the complainant. The complainant alleged that opposite party No. 1 appointed 2^nd surveyor without taking permission of the Controller of the Insurance under Section 64 UMG(3) of Insurance Act. Thereafter, the opposite party Nos. 1 & 2 demanded illegally another documents which were not in his possession. The complainant alleged that after a lapse of three years opposite party No. 1 vide letter dated 04-01-2011 repudiated the claim of the complainant on flimsy and illegal ground that the claim is not covered in the scope of the policy, although the policy is still in the custody of the opposite party Nos. 1 & 2 only and till today no copy of policy with terms and conditions supplied to the complainant. The complainant alleged that there is gross deficiency in service on the part of opposite party Nos. 1 & 2 as they took more than three years to finalise the claim of the complainant and repudiated the same by simply writing one line “The claim is not covered in the scope of the policy”. The opposite party Nos. 1 & 2 have not disclosed in the above said repudiation letter, the terms and conditions under which the loss was not covered.

2. The opposite party Nos. 1 & 2 filed their joint written version in which they pleaded that complainant has concealed material fact that the loss is not covered within the scope of the policy as the said loss took place during non-business hours and further the cash was not kept in safe or locked strong room. Hence, it has repudiated the claim of the complainant. It has been denied that no terms and conditions were supplied to the complainant. However, no proposal form was got filled as it was a case of continued insurance and the earlier insurance policy was renewed without any break. The opposite party Nos. 1 & 2 pleaded that they deputed M/s. Mittal Surveyors Pvt. Ltd., to conduct survey and assess the loss. They denied that Mr. Parmod Mittal was deputed as 2^nd surveyor rather, Parmod Mittal is himself Director of M/s. Mittal Surveyors Pvt. Ltd., The opposite party Nos. 1 & 2 pleaded that claim was repudiated as the loss was not covered within the scope of the policy because the money was not kept in safe/strong room during non-business hours as required as per terms and conditions of the policy. It has been denied that question of business hours is absolutely redundant. The complainant has himself opted for certain business hours and has admitted so in the statement given to the surveyor. Further, the premises was lying closed at the time of loss which also shows that it was a time of non-business hours.

3. The opposite party No. 3 filed separate written reply and pleaded that there is no allegation against opposite party No. 3 directly, hence the complainant against it is not maintainable.

4. Parties have led evidence in support of their pleadings.

5. Arguments heard and written submissions submitted by the parties perused.

6. These are the undisputed facts between the parties that the complainant has obtained Money Insurance policy of all his three petrol pumps covering the risk of cash i.e. Rs. 6,00,000/- with opposite party Nos. 1 & 2; theft has taken place on the intervening night of 30/01-12-2007 at his petrol pump; FIR with police as well as claim with opposite party No. 1 & 2 were lodged by the complainant; Sh. Parmod Mittal of Mittal Surveyors Private Limited was deputed to assess the loss who after inspecting the spot assessed the loss.

7. Sh. P K Jain, Senior Divisional Manager, of opposite party Nos. 1 & 2 vide his affidavit has deposed :-

   “....3. That the complainant intimated about the loss during the intervening night of 30/1-12-2007. However, it was not a case of burglary. The complainant had violated the terms and conditions of the policy. The cash was not kept in any safe or strong room during non business hours.”

8. The opposite party Nos. 1 & 2 repudiated the claim of the complainant vide repudiation letter dated 04-01-2011 vide Ex. C-5 mentioning therein :-

   “We are closing your claim file on account of the following reason :-

   THE CLAIM IS NOT COVERED IN THE SCOPE OF THE POLICY”

9. The Insurance Cover note Ex. C-3 which the cash was insured reveals as under :

   “ Policy period 28-10-2007 to Midnight on 27-10-2009

   Description of money to be insured : ON THE RISK OF CASH AND CURRENCY NOTES (THE PROPERTY OF THE INSURED) WHILST STORED AND/OR LYING IN TABLE DRAWERS AT PETROL PUMPS (SITUATED AT GOAL DIGGI AND CIVIL LINES. BTI AND PUMP OF VPO GURSAR SAHNEWALA).”

10. The survey report dated 15-10-2008 Ex. C-18 of Sh. Parmod Mittal of Mittal Surveyors Pvt. Ltd., Surveyors/Loss Assessors. The relevant portion of the said survey report is reproduced hereunder :-

    “1. Preliminary “

    a) As per your telephone advice we held the survey at the petrol pump of the insured at Bathinda on 1-12-2007. Later on the discussion was held from time to time.

    b) The loss relates to burglary in which cash lying in the table drawer was stolen during night hours.

    c) The insured was asked for the documents required in the claim. After repeated reminders, we got the documents a few days back.

    ...... INSURANCE

    i) Policy No. : 360603/48/07/07/00000325

    ii) Type of insurance : Money Insurance

    iii) Period : 28-10-2007 to 27-10-2008

    iv) Sum insured : Rs. 6.00 Lacs

    v) Description of risk : On the risk of all kind and currency notes (the property of the insured) whilst stored and or lying in the table drawers at petrol pump (situated at Gole Diggi, Civil Lines and VOP Gurusar Sahanewala.)

    OCCUPATION

    The insured is running three petrol pumps of H.P Company at Civil Lines, Gole Diggi and Village Gurusar Sahnewala. The loss took place at the petrol pump at Civil Lines, Bathinda. It has six units of filling of petrol and diesel and one office on right side corner. The entry in the office rooms is through shutter.

    ....POSITION OF SURVEY

    At the time of survey almost everything was lying as it. The entry in the premises was made by removing glass piece of backside window above the air conditioner fitted in the window. The thieves climbed down in the office and searched the table drawers. The thieves pushed opened the table drawer and from one of the table drawer found the cash which they have stolen.

    The police also called the finger prints experts and took some prints but could not lead to any evidence. There was forcible entry in the premises. The police registered the complaint u/s 457/380 IPC with deals with burglary losses.

    QUANATUM OF LOSS

    As per the record, on 30-11-2007 the insured was having cash balance of Rs. 3,26,886.42 out of which some cash was taken by the insured in the evening and only Rs. 1,52,856/- were left in the drawer of the petrol pump. Further Rs. 8999/- were left unstolen. Thus, balance cash amounting to Rs. 1,43,866/- were stolen from the table drawer. Accordingly, we assess the loss for Rs. 1,43,866/-.

    8) POLICE REPORT

    The burglary was immediately brought to the notice of the police at Thana Kotwali, Bathinda. The police registered the complaint in terms of FIR No. 750 dt. 1.12.07. A copy of the FIR alongwith its English translation is enclosed. Further the insured has also provided the Investigation Report dt. 2.7.08 in which it is certified that till date no recovery could be made.”

11. The burglary has taken place on the intervening night of 30/01-12-2007 and the complainant immediately lodged the claim with the opposite party Nos. 1 & 2 and thereafter he submitted all the required documents with the aforesaid surveyor as admitted by the surveyor as mentioned above. The opposite party Nos. 1 & 2 deputed Sh. Rajan Singla, Insurance Claims Investigator for verification of Untrace Certificate Report of the FIR lodged by the complainant in connection with the loss suffered by him. The said Investigator submitted his report confirming the attestation and contents of untraced report approved by the higher officials of the police. The opposite party No. 1 vide letter dated 27-10-2010 recommended the claim of the complainant to the tune of Rs. 1,43,857/- to opposite party No. 2 for payment. Thereafter the opposite party Nos. 1 & 2 repudiated the claim of the complainant on flimsy ground that “The claim is not covered in the scope of the policy”. It is not understandable under which policy the claim is not covered. As discussed above, a cover note issued by the opposite party Nos. 1 & 2 to the complainant at the time of effecting the insurance clearly reveals that money i.e. cash and currency notes, is insured whilst stored and/or lying in the table drawers at petrol pump. The surveyor of the opposite parties also verified the same cover note, as mentioned above, and after finding everything genuine, he assessed the loss to the tune of Rs. 1,43,866/-. The said surveyor submitted the report dated 15-10-2008 with the opposite party Nos. 1 & 2. The claim of the complainant was repudiated on 04-01-2011, by opposite party Nos. 1 & 2 after a lapse of three years period on flimsy grounds. The support can be sought from the law laid down by the Hon'ble Supreme Court in the case titled United India Insurance Co. Ltd., Vs. M/s. Harchand Rai Chandan Lal 2004 SCCL. COM.870 wherein it has been held -

    “Insurance – burglary – theft – the terms of the contract has to be strictly read and natural meaning be given to it. No outside aid should be sought unless the meaning is ambiguous – theft should have preceded with force or violence as per the terms of insurance policy. In order to substantiate a claim an insurer has to establish that theft or burglary took place preceding with force or violence and if it is not, then the insurance company will be well within their right to repudiate the claim of the insurer – all the three forums have already awarded compensation and the amount has been paid to the respondent, therefore, on the point of equity court would not like to disturb the payment which has already been made. However, in view of legal position stated by this court, the orders of the District Forum, State Commission and the National Commission cannot be upheld – the definition of the word burglary should be given meaning which is closer to the realities of life. The common man understands that he has taken out the Policy against theft . The Insurance Companies will amend their policies so as to make them more meaningful to the public at large. It should have the meaning which a common man can easily understand rather than become more technical so as to defeat the cause of the public at large.”

    At the time of issuing the insurance policy, the opposite parties overlooked such technicalities. When the time comes of settling the claim, such Insurance companies show their another face by indulging into their minor technicalities and mould sections and clauses according to their own convenience. Indirectly, they are playing with the faith of general public. In this context, support can be sought from the precedent laid down by our own Hon'ble State Commission, Chandigarh, in the case Bathinda Medical Hall Vs. National Insurance Co., in First Appeal No. 766 of 2002 decided on 19-02-2009 against the order dated 24-04-2002 of this Forum, wherein it has been held that :

    “The very objective of getting an insurance done is to cover the loss if an unfortunate incident takes place, which in all possibilities can take place anytime during day or night. Therefore, taking plea that the theft took place during non-working hours in our view is not a genuine enough reason to repudiate the claim. and moreover when this very condition has not been expressed by the opposite party No. 1 at the time of providing the Insurance policy.”

    Further reliance can be put on precedent laid down by Hon'ble State Commission, Chandigarh in the case The Oriental Insurance Co. Ltd, Jalandhar and others Vs. M/s. Puneet Pasricha, Parnter, Pasricha Hospital, Jallandhar in First Appeal No. 1579 of 2002 decided on 05-03-2010 wherein it has been held that the appellants cannot be permitted to frustrate the insurance claim on the technicalities.

12. With utmost regard and humility to the authorities cited by the learned counsel for the opposite parties, they are distinguishable on facts.

13. Hence keeping in view the facts, circumstances and the record placed on file by the parties, it stands proved that the opposite party Nos. 1 & 2 have repudiated the claim of the complainant without any sufficient cause and on flimsy grounds which tantamounts to deficiency in service on the part of the opposite party Nos. 1 & 2. However, no relief is claimed against opposite party No. 3. Thus, this complaint is dismissed qua opposite party No. 3 as it has no liability and accepted against opposite party Nos. 1 & 2 with Rs. 10,000/- as cost and compensation. The opposite party Nos. 1 & 2 are directed to pay Rs. 1,43,866/- the loss suffered by the complainant as assessed by the surveyor, with interest @9% P.A. w.e.f. 01-03-2008 (The date calculated on expiry of three months from the date of loss a period required for processing the claim in an effective manner in normal course) till realisation.

    The compliance of this order be made within 45 days from the date of receipt of copy of this order. A copy of this order be sent to the parties concerned free of cost and the file be consigned to record.

Pronounced

23-05-2011 (Vikramjit Kaur Soni)

President

(Amarjeet Paul) Member