Shri P.N. Kashalkar, Hon’ble Presiding Judicial Member
This is a consumer complaint filed by M/s.S.K. Shah & Sons carrying on jewellers business at Chirabazar, Mumbai against the opponent-The New India Assurance Company Ltd. According to the complainant-firm it is having jewellers shop at 500/502, Chirabazar, Mumbai. The opponent-Insurance Company is having branch office at Gurudhwara Building, 2nd floor, Dr.Ambedkar Road, Dadar, Mumbai. It is in the business of general insurance. The complainant approached the New India Assurance Co. Ltd. at Dadar for taking Jewellers Block Insurance Policy for business shop of the complainant. The complainant took insurance policy for assured sum of `26 Lakhs. The proposal was accepted and Jewellers Block Insurance Policy was issued commencing from 03/02/1995 to midnight of 02/02/1996. By the said policy, opponent-Insurance Company insured the property of the complainant in locked safe showcases and elsewhere in the said premises against fire, explosion, lightening, burglary, house-breaking, theft, etc.
2. On 14/10/1995 shop of the complainant at the aforesaid premises was opened at 09.30 a.m. and because of Diwali season there was heavy rush of the customers. On that day at about 6.00 p.m. one of the partner Mr.Vinod Shah checked the stock and found it to be perfect as at that time customers were very few. Again there was rush of customers. The complainant closed their gate at 8.00 p.m. as usual and after attending the customers who were already inside the shop, at 08.30 p.m. again on checking total business on that day, Mr.Vinod Kumar Shah noticed that one box containing 36 gold bangles weighing 700 gms. valued `3,50,000/- was not in the shop. That box was kept on a stool near safe behind the counters in the air-conditioned portion of the shop. Mr.Shah asked all the employees about the said box, but it was not found. So, partner and employees concluded that taking advantage of rush, box might have been stolen by somebody. Immediately, Mr.Vinod Kumar Shah went to L.T. Marg Police Station to lodge a complaint and reported the matter to the Officer on duty who recorded F.I.R. on 15/10/1995 vide C.R. No.512 of 1995 under Section 380 of I.P.C. Exhibit-B is the said complaint. According to the complainant, thereafter they had lodged insurance claim with the opponent-Insurance Company and requested to depute Surveyor. The opponent-Insurance Company as well as their Surveyor and Investigator surveyed the premises, called various documents, but on 28/04/1997 opponent-Insurance Company rejected the claim by sending repudiation letter Exhibit-D. According to the complainant, opponent-Insurance Company came to the conclusion that there was no possibility of any one trying to sneak through the gap of hardly 6"-8" in between counter and the safe and there was no other way to go to the other side of the counter. The complainant pleaded that height of the counter was 3’ and width of the counter was 1.6’ and gap between the wall and the counter is 2.8’ and any one across the counter can lift the said box by standing on the other side of the counter. According to the complainant their employees were of good moral character and standing and nobody from the staff members had done the job. The Police interrogated the staff and they also found them innocent. The Surveyor and Investigator also made inquiry with them. According to the complainant, there was theft of golden bangles kept in the box and since Police were satisfied that there was theft and they registered a F.I.R. against the unknown person. The complainant pleaded that the loss caused to them was the peril covered under the policy and not under the mysterious circumstances for unexplained reasons. The complainant pleaded that because of Diwali rush, somebody had stolen the box. The complainant pleaded that as per the insurance policy-opponent was legally bound to pay price of golden bangles worth `3,50,000/-. The opponent-Insurance Company avoided their liability to pay said amount on false and flimsy grounds and therefore, complainant was required to file consumer complaint claiming amount of `5,53.962.50 including interest of 21% p.a. from 14/10/1995 till filing of this complaint on the amount of `3,50,000/-. The complainant also prayed cost of litigation of `25,000/- be granted. The complainant filed inbuilt affidavit in support of the complaint and also filed policy document, F.I.R. and repudiation letter.
3. Opponent-Insurance Company filed written version and pleaded that it had issued Jewellers Block Insurance Policy to the complainant-firm, but it denied that it had agreed to insure property of the complainant kept in the locked safe showcases and elsewhere, which according to the opponent is misstatement. It admitted that it has sent repudiation letter to the complainant-firm on 28/04/1997 repudiating the claim for the reasons stated therein. It specifically relied upon the exclusion clause indicated in Para 4 of the policy, which runs as under :-
“Provided Always that the Company shall not be liable for under this policy in respect of :-
1) …
2)(a) Property missing at stock taking in respect of which no claim has been previously notified unless the loss be proved by the insured to be due to a peril covered by the policy.
(b) Loss of and/or damage to property insured due to mysterious circumstances/disappearance or unexplained reasons”
4. According to the opponent on the relevant date and time there were two partners-Mr.Vinod Shah and Mr.Pradeep Shah and their 3 employees-Mr.Sureshkumar Rawal, Mr.Rameshkumar Rawal and Mr.Hemant Salermolji and one security guard-Mr.Prakash Kumar Himmatmal was posted at the shop, but in the statement given by Mr.Vinod Kumar Shah on 15/10/1995 in the F.I.R. as well as in the statement of the employee Shri Rameshkumar Rawal recorded on 04/12/1995 there was some contradiction with reference to averments made in Para 5 of the complaint. According to the opponent, the whole episode was well planned drama leading to many doubts regarding authenticity of the claim. It pleaded that the complainant stated in the complaint that at about 6.00 p.m. on Diwali season on 14/10/1995 there were only few customers in the shop, whereas in the beginning of the part, it has pleaded that there was huge rush of customers. According to the complainant 5 persons were inside the shop and it was closed at 8.00 p.m. and stock was allegedly taken by partner at 08.30 p.m. whereas considering the Diwali season, shops are normally kept open on the extended period as this is a period when most of the golden ornaments are sold by the Jewellers. It pleaded that it is false that a box containing some golden bangles was kept in the open air-conditioned portion of the shop which remained unattended. Moreover, weighing of golden ornaments takes place only when the deal is completed and the selection made by the customers. Hence, contention of the complainant with respect of quantity and value was not acceptable as no cogent and convincing evidence was given by the complainant. Hence, they pleaded that they have rightly repudiated the claim. They pleaded that they are not guilty of deficiency in service. There are many loopholes in the case of the complainant which cannot be decided by this Commission. Therefore, opponent pleaded that complaint should be dismissed.
5. The opponent-Insurance Company further pleaded that in terms of terms and conditions of the Jewellers Block Insurance Policy, the insured must inform the Police as well as the opponent within twenty-four hours of any occurrence. But in the instant case, though loss was found at 20.30 hours on 14/10/1995, intimation to Police was given only on 15/10/1995 i.e. after about 20 hours from the occurrence. No explanation has been given for such a long delay. The complainant did not inform opponent-Insurance Company immediately, but only on 16/10/1995 intimation was given to them after a long delay which was clear violation of terms and conditions of the policy. The term to that effect is that – “The insured shall take all reasonable precautions for the safety of the property as regards selection and supervision of employees securing all the doors and windows and other means of entrance or exit otherwise and shall give intimation to the Police and the Insurance Company within 24 hours and obtain the conviction of such person for the offence.”
6. In the instant case, no intimation was given to the Police or to the Insurance Company within stipulated period. On telephone intimation could have been given to the Police as well as to the opponent-Insurance Company. The complainant was not giving any co-operation to the Surveyor and Investigator that is why so many visits were undertaken by the Surveyor and Investigator. Opponent pleaded that it has clearly explained the circumstances which prompted it to send repudiation letter and it had sent repudiation letter after obtaining report from Detective Agency dated 14/11/1995 and copy of which is annexed at Exhibit-B to the written version. Opponent pleaded that the wooden box in which the ornaments were kept was allegedly kept unattended negligently by the complainant-firm which no normal businessman would do. The opponent therefore pleaded that the complaint should be dismissed with costs as it was not guilty of deficiency in service. Written version is also filed after it was duly notarized by the Notary Advocate.
7. The complainant also filed affidavit evidence of Mr.Vinod Kumar Shah, partner of complainant-firm and opponent filed affidavit of Mr.Purushottam N. Saitavdekar, Senior Divisional Manager of opponent-Insurance Company.
8. This complaint was filed in the year 1998 and upto 2005 it was attended by one or other Advocate, but thereafter, it lost track and it was lying unattended. As per policy of this Commission, all old matters were routinely kept for hearing on Daily Board. Accordingly after issuing notice to both the parties on 09/06/2011, we have placed this complaint for hearing before our Bench on 22/06/2011. Notice was already sent by registered post acknowledgement due. Advocate Mrs.Kalpana Trivedi appeared for the opponent-Insurance Company and sought time to file Vakalatnama. Hence, matter was adjourned to 04/08/2011. On that date, Advocate Mrs.Trivedi appeared for opponent and filed Vakalatnama. After perusal of the complaint and written version, complaint was treated as admitted since written version was already on record. Both the parties were directed to produce affidavit evidence as per Section 13(4) of Consumer Protection Act, 1986 on the next date and matter was posted to 13/09/2011. On 13/09/2011 none was present for the complainant. Mrs.Trivedi, Advocate appeared for the opponent. On her request it was adjourned to 19/09/2011. Again on 19/09/2011 none was appeared for the complainant. We received by then RPAD receipt from the Postal Authority showing that M/s.S.K. Shah & Sons have been duly served with the registered notice sent by this Commission. The complainant received that notice on 13/06/2011, but complainant preferred not to remain present and did not make inquiry from 13/06/2011 till 19/09/2011 on which date we heard Advocate Mrs.Trivedi for the opponent.
9. Now we have to decide whether there is deficiency in service on the part of the opponent-Insurance Company in repudiating claim of the complainant.
10. Admittedly, the complainant had taken Jewellers Block Insurance Policy from the opponent-Insurance Company covering ornaments kept in the locked safe showcases in the premises situated at 500/502 Chirabazar, Mumbai. Admittedly, policy was for sum assured of `26 Lakhs and policy was in force from 03/02/1995 to 02/02/1996. Premium was admittedly paid. It is the case of the complainant that on 14/10/1995 shop was opened at 09.30 a.m. and there was huge rush of customers on that day because of Diwali season. The complainant stated in the complaint that at 6.00 p.m. partner of complainant Mr.Vinod Kumar Shah checked the stocks and found it to be perfect as customers were very few at that time. Then again there was rush of customers and shop became full of customers. The complainant closed their gate at 8.00 p.m. as usual and after attending the remaining customers who were inside the premises, at about 08.30 p.m. on checking the total business of the day and stocks, Mr.Vinod Kumar Shah noticed that a box containing 36 golden bangles weighing 700 gms. valued `3,50,000/- was not there in the shop. That box was kept near the safe behind the counter in the air-conditioned portion of the shop. The box was searched but it was missing and therefore, on the following day, F.I.R. was lodged about theft of box containing golden ornaments in L.T. Marg Police Station and Police registered C.R. No.512 of 1995 under Section 380 of I.P.C. against the unknown person. Copy of F.I.R. is enclosed. If we perused the F.I.R. lodged by Mr.Vinod Kumar Shah it would reveal that they were aware of occurrence mentioned F.I.R. on 14/10/1995 between 6.00 p.m. to 08.30 p.m. and at that time, three employees, Mr.Sureshkumar, Mr.Rameshkumar and Mr.Hemant were present besides two partners including the complainant. The box was allegedly kept on one stool which contained golden ornaments and F.I.R. reported that taking advantage of rush somebody has stolen the said box. This F.I.R. has been lodged on 15/10/1995 at 04.45 p.m. In our view, lodging of F.I.R. so belatedly is itself doubtful when the box was stolen at about 6.00 p.m. to 8.30 p.m. on 14/10/1995 and since it came to be known to the complainant that a box containing valuable ornaments worth `3,50,000/- was stolen by 8.30 p.m. the complainant ought to have immediately filed F.I.R. in the nearest Police Station, but F.I.R. has came to be filed after delay of 20 hours. This is really fatal to the complainant’s own case.
11. Secondly, the contention of the Insurance Company is that besides late lodging of F.I.R. they have not intimated them promptly is also appearing to be having substance. In a case like this, Insurance Company should have been intimated immediately on phone, but intimation was given to the Insurance Company on 16/10/1995 whereas F.I.R. was already recorded on 15/10/1995 and incident was occurred on 14/10/1995 at 6.00 p.m. to 8.30 p.m. This delay in giving intimation to the Insurance Company, the underwriter is fatal to the complainant’s own case and it creates doubt about authenticity of the complainant that there was theft of golden ornaments worth `3, 50,000/- from his shop premises.
12. It was contended by Counsel for the opponent-Insurance Company Mrs.Trivedi that the complainant-firm had not taken reasonable care to safeguard the valuable ornaments from the customers coming in the shop premises at rush hours. One of the policy condition mentioned that the complainant was required to take proper care of the golden ornaments by keeping proper vigilance and posting security guards not only at the entrance door, but even inside the shop premises. Surveyor and Investigator categorically reported to the complainant that there was no possibility of any one trying to sneak through the gap of hardly 6"-8" in between counter and safe which was in the last end of the shop where exactly box of golden bangles was kept. Even a child if made to push through would attract attention of other customers since it was busy hours and heavy rush. So, according to the Insurance Company the loss falls under exception clause 2(a) & (b) of Jewellers Block Insurance Policy which reads as under :-
““Provided Always that the Company shall not be liable for under this policy in respect of :-
1) …
2)(a) Property missing at stock taking in respect of which no claim has been previously notified unless the loss be proved by the insured to be due to a peril covered by the policy.
(b) Loss of and/or damage to property insured due to mysterious circumstances/disappearance or unexplained reasons”
13. This was told to the complainant-firm by repudiation letter sent by the Insurance Company dated 28/04/1997. In any view of the matter, we are of the view that if the Insurance Company has repudiated the claim of complainant-firm after scrutinizing the Surveyor and Investigator’s report, their repudiation letter will have to be given due weightage, particularly when we are fully convinced that the box in question containing golden ornaments worth `3,50,000/- had been found missing under mysterious circumstances. If two partners and three employees were in the premises besides one Security Guard posted at the entrance gate of the shop premises and when the box containing golden ornaments was kept behind the counter in air-conditioned portion of the shop it is difficult for any one to sneak into said portion and to remove the box containing ornaments worth `3,50,000/- without getting noticed from anybody. So, this circumstance is highly impossible. This circumstance is highly mysterious and that is why in our view the Insurance Company has rightly repudiated the claim after considering the Surveyor and Investigator’s report. Delay in lodging F.I.R., delay in giving intimation to the Insurance Company is also fatal to the case of the complainant. On the whole, we are finding that there is no substance in the allegation made by the complainant-firm that there insurance claim was illegally denied or repudiated by the Insurance Company. In our view the repudiation was well founded and well merited and we find no substance in the complaint filed by M/s.S.K. Shah & Sons. Hence, we pass the following order :-
-: ORDER :-
1. Consumer complaint stands dismissed.
2. No order as to costs.
3. Copies of the order be furnished to the parties.
Pronounced
Dated 19th September 2011.
