Tamil Nadu

North Chennai

CC/177/2015

Kesar Hallmarking Center - Complainant(s)

Versus

The Senior Branch Manager,National Insurance Company Limited - Opp.Party(s)

M/s.S.Chandrasekaran

26 Jul 2016

ORDER

 

                                                            Complaint presented on:  18.11.2015

                                                               Order pronounced on:  26.07.2016

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,           MEMBER II

 

TUESDAY THE 26^th    DAY OF JULY 2016

 

C.C.NO.177/2015

 

 

Kesar Hallmarking Centre,

No.21, Ramasamy Street 2^nd Floor,

T.Nagar, Chennai 600 017,

Represented by its Proprietor Mr.Rajkumar Jain.

 

 

                                                                                               ..... Complainant

 

..Vs..

 

The Senior Branch Manager,

National Insurance Company Limited,

Branch Office at 378, Mint Street,

First Floor, Sowcarpet,

Chennai 600 079.

	.....Opposite Party

Date of complaint                                 : 16.12.2015  

Counsel for Complainant                      :M/s. S.Chandrasekharan                 

 

Counsel for opposite party                     : N.Vijayaraghavan

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.

1. THE COMPLAINT IS IN BRIEF:

        The Complainant KESAR HALLMARKING CENTRE have been availing Jewelers Block Policy with the Opposite Party for the past 8 years and there has been Nil claim till 13.10.2014.  The Complainant renewed from the Opposite Party Insurance Company a Jewelers Block Policy No.501901591410000077 commencing at midnight on 10.05.2014 and ending at midnight on 09.05.2015. In policy No.50901591410000077 the Opposite Party has unilaterally imposed a huge excess of 10% of claim amount subject to a minimum of Rs.10,00,000/- without the Complainant’s knowledge and consent. The Complainant herein never expected that the Opposite Party would indulge in doing material alteration in the renewal document leading to denial of benefit of the policy to the long standing customer. The unilateral imposition of excess is not at all tenable. The Complainant also submit that the Opposite Party had taken almost 250 days to convey their decision of not paying the claim lodged on them by the Complainant, thus Deficiency in Service on the part of the Opposite Party is stabilized beyond doubt. The Opposite Party asserted that the underwriting office has got the authority to impose an excess called Imposed Excess even though the policy do not contain compulsory excess, based on the various factors prevailing at the time of underwriting the risk and that once the policy is issued, it is deemed to be agreed by both the parties and cannot be waived or altered after occurrence of claim.  The unilateral imposition of excess is not at all tenable. The Complainant, hence respectfully submits that they have a valid claim under section II – Custody Risk of the policy No. 501901591410000077 which covers loss of “Property insured excluding cash & currency notes whilst in the custody of the insured, his partners, employees, duly constituted attorneys.  On 14.10.2014 at 8.00 p.m the said Mr.Surrender Singh has collected 13 packets of gold ornaments from M/s.Sree Kumaran Thanga Malaigai and put it in a safety bag and cautiously due care was taken for the articles in a safe manner. On 14.10.2014 at 8.00 p.m. Deepavalli festival season heavy crowded in the T.Nagar and at 8.10 p.m.Venkatesan Street, 3 persons followed Mr.Surrender and they told that we are mufti police constables and checking his bag. Suddenly the said three persons picked 2 pockets of gold ornaments weighing 227.860 grams value of Rs.6,62,430/- from the employee. The Complainant  crave leave of the Honourable Forum to read the FIR as part and parcel of the Complaint. Immediately the Complainant herein lodged the Complaint to the R-I Mambalam Police Station, T.Nagar, Chennai 600 017 and FIR No.1310/15.10.2014 issued by the Police Official under Section 420 of IPC. The Complainant within fourteen days delivered a Complaint to the Opposite Party detailed statement in writing of the loss in theft with estimate of  actual value of the articles lost and the amount of damage sustained and fulfilled all other formalities required of him.  The claim under the policy was repudiated by the Opposite Party by his letter dated 08.06.2015, holding that loss of the gold occasioned as it was loss is within the limit of deductible i.e the policy excess of Rs.10,00,000/- as stated in warranties attached with the subject policy as such claim was repudiated. The claim was validly covered in Section II of schedule B of the policy, because this section covered the loss for property carried outside the premises of business. The claim was repudiated by the Opposite Party is not sustainable and hence the Opposite Party committed Deficiency in Service and hence the Complainant filed this Complaint claiming the amount and compensation with cost.

2. WRITTEN VERSION OF THE OPPOSITE PARTY IS IN BRIEF:

          The Complainant has availed Jewellers Block Policy No.50190159140000077 with the Opposite Party for the period 10.05.2014 to 09.05.2015 for the sum insured of Rs.10,00,00,000/- in respect of jewellery in the custody of the insured/partner/employees. It is submitted that the policy as accepted by the Complainant is contractual in nature and the claims arising therein are subject to the terms and conditions forming part of the policy. The policy specifically provides for excess clause which states as follows:

  Excess: 10% of the claim amount subject to     

  Minimum of Rs.10,00,000/- on each and every loss.

The “Excess” clauses are commonly used in Insurance contracts. In insurance parlance, the term “EXCESS” in the Excess clause in the policy refers to “that part of the amount of loss, under each claim, which is not covered by the policy” or the “amount that the policy holder has, by agreement, to bear or contribute to each insurance claim”. In other words it limits the liability of the insurer in regard to each claim, only to the amount of loss, in excess of the sum specified in the Excess clause, which the insured has agreed to bear. The Excess clause is imposed on the basis of the high sum insured and low premium rate. The policy incorporating excess clause was issued on 01.07.2014 and the same was accepted by the Complainant without any demur. In any case, Excess clauses form part of standard terms of contracts of insurance and the Complainant cannot feign ignorance of the same, as if his attention was not brought to it etc. The Opposite Party surveyor assessed loss of Rs.6,62,386/-. Since the excess clause provides deduction of Rs.10,00,000/- on each and every loss the claim of the  Complainant was repudiated by the Opposite Party by letter dated 08.06.2015 and the said amount is not payable by the insurer. The insured cannot claim anything more than what is covered by the insurance policy. The terms of the contractor of Insurance are binding on both the parties. Neither party can seek to alter or modified the terms of the policy. There is no cause of action for the Complaint. Hence the Opposite Party prays to dismiss the Complaint with cost.

3. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite party?

          2. Whether the complainant is entitled to any relief? If so to what relief?

4. POINT NO: 1

          It is an admitted fact  that  the Complainant Kessar Almarking Centre  have been availing jewelers Block Policy  for the past 8 years and there has been no claim made to the Opposite Party till 2014 and the Complainant renewed the policy for the period 10.05.2014 to 09.05.2015 and the said policy with the other policies terms and conditions  is marked as Ex.A2 & Ex.B1 and  the premium paid in all the  policies is Rs.1,67,416/- for the sum insured 10,00,00,000/- .

          5. According to the Complainant, on 14.10.2014 at 8.00 p.m Mr.Surrender Singh Employee of the Complainant collected 13 packets of gold ornaments from Sree Kumaran Thanga Maligai and he was moving through Venkatesan Street, T.Nagar to the Complainant place 3 persons were followed him and taken two packets of gold ornaments by pretending  as police men  weighing 227.860 grams value of Rs.6,62,430/- from him  and immediately on a Complaint from the Complainant Ex.A5, FIR No.1310/15.10.2014 under section 420 IPC  was registered at Mambalam Police Station.

          6. The Opposite Party on receipt of the  information of missing of jewels of the Complainant, The Opposite Party appointed Mr.A.Vijayaragunathan, Insurance Surveyor to assess the loss  of value of the jewels and accordingly after his enquiry he filed Ex.B2 report to the Opposite Party that the loss of value of gold is Rs.6,62,430/-. The Complainant made a claim for the value under Ex.A6 to the Opposite Party. The Opposite Party rejected the claim on the ground that the policy contains “Excess” clause  and as per the clause more than 10% of the insured amount only the insured can claim and where as the claim of Rs.6,62,430/- is less than 10%  of the insured amount.

          7. The policy for the claim period 10.05.2014 to 09.05.2015 contain “Excess” clause is as follows:

EXCESS: 10% OF THE CLAIM AMOUNT SUBJECT TO MINIUM     OF RS.10,00,000/- (TEN LAKHS) EEL.

As per the above clause if the loss is more than 10 lakhs, then only the claim is maintainable. Admittedly the claim made by the Complainant is less than 10 lakhs i.e a sum of Rs.6,62,430/-. Therefore the claim made by the Complainant is not in accordance with the excess clause found in the policy.

          8. The Complainant contended that the previous policy do not have the Excess clause and only the policy for the period 2014 -2015, the Excess clause unilaterally stipulated without the consent of the Complainant and whenever the policy renewed the same condition only prevail and to support his contention he relied on the judgment of the Supreme Court reported in (2001) 6 SCC 477(BIMAN KRISHNA BOSE Vs. UNITED INDIA INSURANCE CO.LTD. AND ANOTHER) and he is entitled for the claim made by him.

          9. The renewal policy Ex.B1 provides Excess clause which has been accepted and acted upon by the insured by paying the premium of Rs.1,49,000/-. The renewal policy came in to force on 10.05.2014. Till the claim was made on 15.10.2014 and the same was repudiated on 08.06.2015.  The Complainant had not chosen to raise any objection to the Excess clause in the renewed policy. Hence the above referred judgment is not applicable to the facts of the case in hand. Further the Complainant also relied on the orders of the National Commission in First Appeal No.787 of 2007 dated 22.04.2014 (UNITED INDIA INSURANCE COMPANY LIMITED AND ANOTHER Vs. M/s. MANIK BHAI JEWELLERS), Maharashtra State Commission order in Complaint case.No.CC-06/1999 dated 12.08.2013 (SHRI.PRAVIN KUMAR RAMANI SOLE PROPRIETOR OF M/s. PRAVIN JEWELLERS Vs. UNITED INDIA INSURANCE CO.LTD) to support his case. The orders of the State Commission & National Commission do not deal with Excess clause and therefore those orders do not support the case of the Complainant.

10. Moreover the judgment of the Supreme Court  in SLP (c)No.23557 of 2008 dated 15.04.2010 (The Amravati District Central Co-operative Bank Ltd., Vs. United India fire & General Insurance Co. Ltd.,) deals with the Excess claim in para 10 of the judgment. Since, it limits the liability of the insurer the same is applicable to the facts of this case. Therefore we hold that as per excess clause contained in the policy, the claim of the Complainant was repudiated by the Opposite Party is sustainable and accordingly this point is answered.

 

 

          

11. POINT NO: 2

          Since the opposite party has not committed any Deficiency in Service, the Complainant is not entitled for any relief in this Complaint and the Complaint is liable to be dismissed without cost.

          In the result the Complaint is dismissed. No costs.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 26^th    day of July 2016.

 

MEMBER – II                                                               PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated NIL                     Renewal policy from 2011 to 2014

Ex.A2 dated NIL                     Renewal policy from 2014 to 2015

Ex.A3 dated 10.08.2013                   Appointment order of Mr.Surrender Singh

Ex.A4 dated NIL                     Guidelines of Jewellers Block policy

Ex.A5 dated 15.10.2014                   FIR No.1310/2014

Ex.A6 dated NIL                     Claim Form submitted by the complainant to the

                                                Opposite Party

 

Ex.A7 dated NIL                     Grievances Management System

 

Ex.A8 dated 08.06.2015                   Letter from the Opposite Party to the Complainant

                                                for claim repudiated

 

 

 

 

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY:

Ex.B1 dated NIL                     Jewellers Block Insurance Policy with terms and

                                                Conditions

 

Ex.B2 dated 20.04.2015                   Survey Report dated with Annexure

 

Ex.B3 dated 08.06.2015                   Repudiation Letter

 

Ex.B4 dated 15.07.2015                   E-mail from the Opposite Party settling the

                                                grievance of the Complainant

 

 

 

MEMBER – II                                                               PRESIDENT