Haryana

Ambala

CC/32/2017

M/s C.M. Jwelleres - Complainant(s)

Versus

UII - Opp.Party(s)

Shyam Sunder

04 Jun 2018

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

      Complaint Case No. : 32 of 2017

       Date of Institution    : 24.01.2017

        Date of Decision      : 04.06.2018

 

1.M/s C.M. Jewellers, 111-112, Wholesale Cloth Market, Aggarsain Chowk, Ambala City through its Partner Sh.Sachin Aggarwal s/o Sh.Chaman Lal Aggarwal aged about 33 years resident of Ambala City.

 

2. Sh.Sachin Aggarwal s/o Chaman Lal Aggarwal aged about 33 years resident of Ambala City one of the partners of M/s C.M.Jwellers, 111-112, Wholesale Cloth Market, Aggarsain Chowk, Ambala City.

……Complainant.

 

Versus

 

1.United India Insurance Company Limited Polytechnic Chowk Bal Bhawan Road, Ambala City through its Branch Manager.

2.United India Insurance Company Limited. Divisional Office, Opp. Municipal Corporation Office, Ambala Cantt. through its Senior Divisional Manager.

 

……Opposite Parties.

 

Complaint Under Section 12 of the Consumer Protection Act.

 

BEFORE:   SH. D.N. ARORA, PRESIDENT.

                   SH. PUSHPENDER KUMAR, MEMBER.

                                     

Present:       Sh.S.S.Matya, Adv. for complainant.

                   Sh.R.K.Vig, Adv. for OPs.

 

ORDER

 

                   In nutshell, brief facts of the present complaint are that the complainant No.1 is a partnership firm and deals in the business of sale and purchase of gold and sliver. The complainants had taken a Jewelers Block Policy vide cover Note No.985350 dated 10.06.2014 covering all risks including theft etc. regarding golden chains, loose diamonds, pure gold, pure stones etc. on payment of Rs.51391/- for insured amount of Rs.5 crore 40 lacs for the period w.e.f. 11.06.2014 to 10.06.2015. On 31.12.2014, complainant No.2 had gone to market from shop for taking three gold chains worth Rs.5,60,000/- and he put all the three gold chains in the dicky of the scooter and locked the  same and further took all the care and precautions. He went to the house No.1001 Sector 7, Ambala of Atish Aggarwal to handover the same  and parked the scooter just on the gate of the house. When he came back after consulting said Atish Aggarwal, then the lock of the dicky of the scooter was found broken and the chains were not found there. Complainant No.2 and Atish immediately rushed to police post and on his application police registered FIR No.470 dated 31.12.2014 under Section 379 IPC against unknown person.  The complainant No.2, Atish and concerned persons kept on searching thegold chains for 5-6 days but when no clue was found claim was lodged with the OP No.1 vide application dated 05.01.2015. On 06.01.2015, OPs deputed investigator who had submitted his report and found the theft as genuine after recording statements of concerned witnesses and collecting all the concerned records. The OPs vide their letter No.BOAC/2014/386 dated 16.04.2015 repudiated the claim of the complainants wrongly and illegally as per point No.5 under exception of the insurance policy i.e. after about four months of the lodging of the claim. The complainants vide letter dated 09.06.2015 requested the OPs to re-open the file followed by letter dated 19.08.2015 but to no avail. The terms and conditions of the policy were not conveyed or delivered to the complainants; therefore, the exclusion clause was not binding upon them and the OPs cannot take the benefit of the clause mentioned in the policy which was never conveyed to them. The act and conduct of the OPs clearly amounts to deficiency in service. In evidence, the complainant has tendered affidavit Annexure CA and documents Annexure C1 to Annexure C19.

2.                          On notice OPs appeared and submitted that the claim lodged was repudiated in view of the exception No.5 of the policy which is applicable in the present case. The relevant condition is as follows:

“The company shall not be liable under the policy in respect of theft or disappearance of property hereby insured from road vehicles of every description owned or hired by or under the control of the insured and/ or their partners, servants, agents, or representative where such vehicles are left unattended”

 

The claim is not legally maintainable as per terms and conditions of the policy. In the present Sh.Sachin Aggarwal, partner had left the scooter unattended with gold chains outside the house of his brother and there is no justification why Sachin Aggarwal kept the scooter and put the chain in the dicky. There is no deficiency in service on the part of OPs and even the claim has been lodged after a delay of five days. No arbitrarily act was committed by the insurance company while repudiating the claim as nothing was kept undisclosed from the insurer. As per Article 299 of the Constitution of India, both the parties are bound to follow in letter and spirit the terms and conditions of the policy and there is no breach of agreement while settling the claim turning into rejection. Other contentions have been controverted and prayer for dismissal of the complaint has been made. In evidence, the OPs have tendered affidavits Annexure RA, Annexure RB and documents Annexure R1 to Annexure R13.

3.                We have heard learned counsel for the parties and gone through the record very carefully.

4.                Learned counsel for the complainants has argued that the policy in question Annexure C1 was for covering all risks including theft etc. regarding golden chains, loose diamonds, pure gold, pure stones etc. having insured amount of Rs.5 crore 40 lacs for the period w.e.f. 11.06.2014 to 10.06.2015. On 31.12.2014, the complainant No.2 had put three gold chains worth Rs.5,60,000/- into the dicky of scooter after taking from market and when the scooter was parked before the gate of the house Atish Aggarwal at Sector 7, Ambala some unknown person had stolen the said gold chains after breaking the lock of the dicky of scooter, therefore, FIR Annexure C4 was registered regarding this theft with Ps Baldev Nagar against unknown person.  The complainant No.2, Atish and concerned persons also searched the gold chains for 5-6 days but when no clue was found claim was lodged with the OP No.1 vide application dated 05.01.2015. Learned counsel for the complainant further argued that the loss had occurred during the subsistence of the policy but the insurance company has repudiated the claim wrongly and illegally. Moreover, the terms and conditions of the policy were not conveyed or delivered to the complainants; therefore, the exclusion clause was not binding upon them and the OPs cannot take the benefit of the clause mentioned in the policy which was never conveyed to them. The act and conduct of the OPs clearly amounts to deficiency in service. In support of his contentions he placed reliance of case laws titled as Muddasani Venkata Narsaiah (D) Vs. Muddasani Sarojana 2016 (3) RCR (Civil) 236 (SC), Babu Lal Vs. Indu Devi  2015 (4) RCR (Civil) 163 (Punjab & Haryana High Court),  Vishnu Bhagwan Mittal Vs. Bharti Axa General Insurance Company Limited & Anr. 2016 (2) CPR 899 (NC), Smt.Dharmista Bhagat Vs. State of Karnataka & Anr. 1990 (3) RCR Criminal 130 (SC), Manjit Singh Grewal @ Gogi Vs. Union of India and others 1990 (Sup) SCC 59, Om Parkash Vs. Reliance General Insurance and Anr. 2018 (1) Civil 42, Ashok Tyre House Vs. Oriental Insurance Company Limited 2004(1) CPJ 82,  Manjeet Singh Vs. National Insurance Company Ltd. 2018 (1) RCR (Civil) 192 (SC), D.Srinivas Vs. SBI Life Insurance Company ltd. decided by Hon’ble Supreme Court in Civil Appeal No.2216 of 2018 on 16.02.2018, Oriental Insurance Company Limited Vs. Om Parkash Gupta 2009 (2) CLT (NC), Pratap Singh Vs. National Insurance Company Limited 2007 (2) CPJ 312 (Delhi State Commission) and United India Insurance Company Ltd. and Anr. Vs. Manik Bhai Jewelers through proprietor  2014 (2) CPR 525 (NC).

5.                On the other hand learned counsel for the OPs has argued that the claim was repudiated in view of the exception No.5 of the policy which says that “The company shall not be liable under the policy in respect of theft or disappearance of property hereby insured from road vehicles of every description owned or hired by or under the control of the insured and/ or their partners, servants, agents, or representative where such vehicles are left unattended” The claim is not legally maintainable as per terms and conditions of the policy. In the present Sh.Sachin Aggarwal, partner had left the scooter unattended with gold chains outside the house of his brother and there is no justification why Sachin Aggarwal kept the scooter and put the chain in the dicky. There is no deficiency in service on the part of OPs and even the claim has been lodged after a delay of five days. No arbitrarily act was committed by the insurance company while repudiating the claim as nothing was kept undisclosed from the insurer. As per Article 299 of the Constitution of India, both the parties are bound to follow in letter and spirit the terms and conditions of the policy and there is no breach of agreement while settling the claim turning into rejection. Prayer for dismissal of the complaint has been made.

6.                          Undisputedly, the complainants had purchased policy in question Annexure C1 from Ops having validity from 11.06.2014 to 10.06.2015 and the theft of three gold chains which were allegedly lying in the dicky of the scooter was also occurred during the subsistence of the policy and regarding this FIR Annexure C4 was also lodged with police station Baldev Nagar, Ambala.  Learned counsel for the complainants has heavily stressed on the point that terms and conditions were not supplied to the complainants at any stage, therefore, no exclusion clause which has been the base of repudiation of their claim is not binding upon them and the insurance company has wrongly and illegally repudiated the genuine claim by taking shelter of the said exclusion clause.  This plea appears to be not plausible because perusal of the insurance policy issued to the complainants reveals that the said policy was subject to the usual terms and conditions of the company policy.  Therefore, in ordinary course, the terms and conditions forming part of the policy would be attached when the policy is issued to the policy holder. When in the policy itself there is specifically mentioned that the risk specified in the policy would be subject to the terms and conditions, therefore, the complainant is ceased to raise this plea. On this point reliance can be taken from case law titled as LIC Vs. Ram Phal  decided by Hon’ble National Commission on 04.10.2016 in Revision Petition No. 1479 of 2016.   Moreover, if the complainants have any doubt qua the terms and conditions of the policy same could have been obtained because they had paid the premium qua purchasing of the policy in question and in whole of the proceedings the complainants have not alleged that the terms and conditions were demanded by them. Another strange factor which this Forum has noticed that the complainant No.2 has even failed to show on the case file by leading cogent and reliable evidence that he had gone to the house of Atish Aggarwal for some business purpose and even there is no explanation on the case file as to why he had left three gold chains in the dicky of the scooter which was parked in front of the gate of said Atish Aggarwal. The complainants have not even produced said Atish Aggarwal into the witness box to support the case of the complainants. Even otherwise, the version made in the FIR is different than the version made in the complaint. In the FIR the complainant No.2 has mentioned that he had gone to see his brother in his house but in para No.3 of the complaint it has been mentioned that the complainant No.2 had gone to the house of Atish Aggarwal in order to consult him regarding the reliability of the person to whom the said gold chains were to be handed over in the market. This clearly shows that the present complaint is an afterthought exercise just to cover up the carelessness of the complainant No.2. The insurance company has legally and rightly repudiated the claim of the complainant by exercising the exclusion clause No.5 wherein it has been specifically mentioned that The company shall not be liable under the policy in respect of theft or disappearance of property hereby insured from road vehicles of every description owned or hired by or under the control of the insured and/ or their partners, servants, agents, or representative where such vehicles are left unattended.  The verdict made in the case laws relied upon by learned counsel for the complainant is not disputed but the same is applicable to the case in hand, therefore, the same are distinguished.

7.                          Keeping in view the facts and circumstances of the case we are of the view that the complainants have failed to prove their case against the Ops by leading cogent and reliable evidence. Hence, there is no substance in the complaint and it deserves dismissal. Accordingly, we dismiss the present complaint leaving the parties to bear their own costs. Copies of the order be sent to the parties, free of costs, as per rules.  File be consigned to the record room after due compliance.

 

Announced on: 04.06.2018                                  (D.N.ARORA)

                                                                               PRESIDENT

                                                         

 

 

(PUSHPENDER KUMAR)                       

        MEMBER