DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC No. 115 of 08-03-2010<br /> Decided on : 18-06-2010 <br /> <br /> Paradise Glass House, G.T. Road, Near Pukhraj Cinema, Bathinda through its Sole Prop. Mithan Lal<br /> .... Complainant<br /> Versus<br /> <br /> 1.The New India Assurance Co. Ltd., Branch Office, Ist Floor, Red Cross Complex, The Mall, Bathinda through its Branch Manager.<br /> 2.Indian Bank, Guru Kanshi Marg, Bathinda through its Branch Manager<br /> <br /> ..... Opposite parties<br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM <br /> <br /> Ms. Vikramjit Kaur Soni, President<br /> Dr. Phulinder Preet, Member <br /> Sh. Amarjeet Paul, Member<br /> <br /> For the Complainant : Sh. Naresh Garg, counsel for the complainant <br /> For the Opposite parties : Sh. Vinod Garg, counsel for opposite party No. 1<br /> Opposite party No. 2 exparte. <br /> <br /> O R D E R<br /> <br /> VIKRAMJIT KAUR SONI, PRESIDENT<br /> <br /> 1. In brief the case of the complainant is that complainant purchased Shopkeeper Insurance of Fire, Burglary and allied perils etc., vide Cover Note No. 296248 w.e.f. 12-03-2009 to 11-03-2010 for the total amount of Rs. 21,00,000/-. He also purchased Insurance for cash in transit for Rs. 1,00,000/- and in cash box/counter and/or such other places under lock and key for the amount of Rs. 21,000/- and charged Rs. 54/- for this purpose. No policy was issued to the complainant by the opposite parties. Theft took place in the shop of the complainant in the intervening night of 30/31-03-2009. Some unknown persons after breaking the locks of the shutter thereafter broken the cash box/counter and took away the amount of about Rs. 35,000/-. In this regard an FIR was lodged by the complainant. The complainant gave intimation of loss immediately to opposite party No. 1 who deputed Maj. S.C. Bansal as 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 person Sh. Vipul Mittal, C.A. as surveyor . The complainant had again supplied documents to 2nd 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 2nd surveyor without taking permission of the Controller of the Insurance under Section 64 UMG(3) of Insurance Act. He further alleged that after a lapse of 10 months, opposite party No. 1 vide letter dated 05-02-2010 repudiated the claim of the complainant on account that burglary/theft have occurred in the premises but the cash in counter is not covered as the theft has not taken place during the business house. The opposite party No. 1 finally repudiated the claim of the complainant vide letter dated 19-02-2010. The complainant alleged that while issuing cover note, the development officer Mr. Anil Kumar Yadav who is employee cum representative of opposite party No. 1 has neither mentioned in the cover note nor told the complainant regarding any such condition that cash at counter under lock and key will be covered only during business hours.<br /> 2. The opposite party No. 1 filed written version in which it pleaded that complainant has concealed material fact that as per Clause 3(c) of the policy, loss of money in the cashier's till or counter in the insured premises was covered only during business hours whereas in the present case the loss has occurred during night, not during the business hours. Hence, it has repudiated the claim of the complainant. The opposite party No. 1 further pleaded that the complainant purchased Insurance policy after fully understanding the terms and conditions which were duly explained to him by the development officer, who issued the cover note.<br /> 3. Despite service of notice, opposite party No. 2 has failed to appear before this Forum. Hence, exparte proceedings were taken against it.<br /> 4. Parties have led evidence in support of their pleadings. <br /> 5. Arguments heard and written submissions submitted by the parties perused. As per version of opposite party No. 1 the complainant has fully understood the condition that the cash in till /counter in his premises is covered during business hours. There was loss of cash of Rs. 32,708/- from the drawer of the table lying in front of the shop of the complainant between 8.00 P.M. to 7.00 A.M. in the intervening night of 30/31-03-2009. The opposite party No. 1 on receipt of the intimation, immediately deputed Sh. S C Bansal, as surveyor who conducted investigation regarding alleged incident and submitted his report dated 07-04-2009. The opposite party No. 1 further pleaded that it deputed Sh. Vipul Mittal, licensed surveyor from I.R.D.A. to conduct survey and asses the loss, who conducted survey and submitted his report dated 07-01-2010. The claim of the complainant was repudiated by opposite party No. 1 on the ground that theft took place during night hours whereas according to the policy/cover note, it is covered only during the working hours. For the settlement of the claim two surveyors had been appointed by opposite party No. 1. In para No. 7 of the written reply, opposite party No. 1 has submitted that on receipt of intimation regarding alleged loss, it immediately deputed Mr. S C Bansal, surveyor who conducted investigation regarding theft and burglary and submitted his report dated 07-04-2009. This report has been supplied to the complainant vide Ex. C-11 in the shape of investigation report assessing the loss to the tune of Rs. 32,108/-. Thereafter opposite party No. 1 deputed Sh. Vipul Mittal, C.A. as a surveyor who was licensed surveyor from I.R.D.A. to conduct survey and he assessed the loss to the tune of Rs. 21,00,000/-. As per Ex. C-6 under clause 8 of the final survey report he wrote that in order to restrict the liability of the insurer, he assessed the loss. As per the cash book, the balance was adequate. However, the money insured is for Rs. 21,000/-. Accordingly, the loss is assessed as Rs. 21,000/-. The said surveyor submitted the report dated 07-01-2010 which is approximately after a lapse of nine months period from the date of incident whereas as per Insurance Regulatory and Development Authority (Protection of Policy holder' Interest) Regulations, 2002 – Clause 9 at page 6 titled as Claim procedure in respect of a general policy :<br /> “ In cases where a surveyor has to be appointed for assessing a loss/claim, it shall be so done within 72 hours of the receipt of intimation from the insured”.<br /> According to above mentioned extract, it is very much clear that in case where their surveyors are appointed for assessing the loss/claim, it shall be done within 72 hours of the receipt of the intimation from the insured. In the present case, opposite party No. 1 has denied appointment of Maj. S C Bansal as surveyor who has produced his report as Investigation report. As the opposite party No. 1 has denied that Maj S C Bansal is not a surveyor as it had not been appointed surveyor as per I.R.D.A. Guidelines he was only an Investigator. The opposite party No. 1 has admitted that Sh. Vipul Mittal was appointed as surveyor who submitted his report dated 07-01-2010 which too after the lapse of nine months, which tantamounts to deficiency in service on the part of opposite party No. 1. Moreover, the claim of the complainant was repudiated as per Section 3 (c) of the Insurance policy Ex. R-5. According to this Section : “The company will indemnify the insured in respect of loss of money whilst lying in the cashier's till and/or counter in the Insured's premises, during business hours consequent on or following assault and/or violence against the insured or any employee of the insured or any threat thereof, burglary and/or housebreaking, provided always that such money are in the custody of a responsible employee entrusted with the work of handling cash.”<br /> As per Proposal form of the opposite party No. 1 for shopkeeper's Insurance Annexure 'A' : “In till/counter (1% of the Sum Insured under Section 1 or Rs. 10,000/- whichever is less - covered during business hours only.” It is not tenable how these clauses are incorporated in the Insurance policy. As detailed above, meaning of this clause is that policy covers cash only during business hours which means claimant has to take separate policy for the night theft. How a person can take two separate policies for the same place and for the same purpose. Moreover, at the time of issuing policy, no such terms and conditions were communicated to the claimant. If opposite party No. 1 had done so, the claimant would not have taken such policy as it is the most inconvenient way for the claimant to take the policy under two separate conditions. As Insurance is a contract, it should be agreed/signed by both the parties. In the present case, terms and conditions are not signed by both the parties. Hence, in the absence of signatures of one of the parties means that the contract agreement is not complete. Nothing was placed on file to show that these terms and conditions were part of the Insurance policy. As per Investigation report of Maj S C Bansal Ex. C-11, when he reached site he found that there were four shutters, one shutter which was installed in the side lane was broken and cash box lock also broken. The investigator concluded that after his investigation, he found that cash of about Rs. 32,108/- was stolen from the cash box. When a shutter of a place is broken that means that a theft had been taken place. 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 -<br /> “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 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.” <br /> In contradiction with Cover note Ex. C-5 in which cash in Box/till can be insured @2.55% against premium of Rs. 54/- and the sum assured is Rs. 21,000/- whereas as per Ex. C-17 which is a policy taken by some other person for the same purpose and according to Section 3(c) of this policy also, the Insurance company can only insure in till/counter (1% of the sum insured under Section 1 or Rs. 5,000/- whichever is less). Therefore, in no case insured can insure the amount more than Rs. 5,000/-. Further more Ex. C-16 is contradictory with Annexure 'A' in which it is mentioned in Section 3 (c) that in till/counter (1% of the Sum Insured under Section 1 or Rs. 10,000/- whichever is less) – covered during business hours only. In these two pieces of evidence, the complainant can get the policy equivalent to 1% or 5,000/- in case of Ex. C-17 and Rs. 10,000/- in case of Annexure 'A' whichever is less than 1%. In the present case, sum insured by the opposite party No. 1 is Rs. 21,000/- is itself breach of its terms and conditions made by opposite party No. 1. At the time of issuing the insurance policy under Section 3(c), the opposite party No. 1 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 : <br /> “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.” <br /> 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. Thus, this Forum is of the view that opposite party No. 1 cannot take benefit of its own wrongs.<br /> 6. Under Section 3(c) as per Ex. C-17 , it was to make insurance of 1% of the sum insured or 5,000/- and as per Annexure 'A' it was to make insurance of 1% of the sum insured or Rs. 10,000/- whichever is less. In the present case the total sum insured is Rs. 21,00,000/- whereas the sum insured in cash till/counter was Rs. 21,000/- only. As per above mentioned Section 3(c), the Insurance company was bound to insure only 10,000/- which is gross deficiency in service as Insurance Company has kept the claimant/insured in the dark and insured the particular cash till or amount for Rs. 21,000/-. Therefore, there is deficiency in service on the part of the opposite party No. 1. Hence, this complaint is dismissed qua opposite party No. 2 as it has no liability and accepted against opposite party No. 1 with Rs. 5,000/- as cost and Rs. 10,000/- as compensation for mental harassment with direction to opposite party No. 1 to pay Rs. 21,000/- to the complainant as the insured amount for cash in till/counter. <br /> 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.<br /> A copy of this order be sent to the parties concerned free of cost and the file be consigned to record.<br /> Pronounced<br /> 18-06-2010 (Vikramjit Kaur Soni)<br /> President<br /> <br /> <br /> (Dr. Phulinder Preet)<br /> Member<br /> <br /> <br /> (Amarjeet Paul) Member