Punjab

Ludhiana

CC/14/742

Mrs.Bector Foods - Complainant(s)

Versus

United India Ins.Co.Ltd - Opp.Party(s)

Dinesh Kumar

29 Jun 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

                                                                 C.C. No: 742 of 31.10.2014

                                                                      Date of Decision:29.06.2015

Mrs.Bector Food Specialties Ltd.,(Biscuit Division), Theing Road, Phillaur, District Jalandhar-144001, Punjab, through its Director.

                                                                                          … Complainant

                                      Versus

United India Insurance Company Limited, Divisional Office No.1, 455, The Mall, Ludhiana, through its Divisional Manager.

                                                                             … Opposite party

COMPLAINT UNDER SECTION 12 OF THE

CONSUMER PROTECTION ACT, 1986. 

 

Quorum:     Sh.R.L.Ahuja, President

                   Sh.Sat Paul Garg, Member.

 

Present:       Sh.Dinesh Kumar, Advocate for complainant.

                   Sh.Mohinder Singh Jassal, Advocate for Op.

                         ORDER 

(R.L.AHUJA, PRESIDENT)

 

1.                Present complaint under section 12 of The Consumer Protection Act, 1986 (herein-after in short to be referred as ‘Act’) has been filed by Mrs.Bector Food Specialties Ltd.,(Biscuit Division), Theing Road, Phillaur, District Jalandhar-144001, Punjab, through its Director (herein-after in short to be referred as ‘Complainant’) against United India Insurance Company Limited, Divisional Office No.1, 455, The Mall, Ludhiana, through its Divisional Manager. (herein-after in short to be referred as ‘OP’)- directing them to the pay the amount of Rs.9,95,063/- to the complainant alongwith interest @18% p.a. from the date of loss till the full and final payment of loss besides Rs.2 lakh as compensation to the complainant for harassment and mental pain and litigation expenses and other benefits to the complainant.

2.                Brief facts of the complaint are that the complainant has been dealing with OP for the last many years and has been purchasing various insurance policies from OP. As part of the said dealings, the complainant had got the money insurance policy No.200700/48/12/07/00001591 effective from 12.9.2012 to 11.9.2013 and the cash coverage was provided to the complainant to the extent of Rs.20 lakh. There are various divisions of business which are being run by the complainant under the name and style of Mrs.Bectors Food Specialties Ltd., which includes the Biscuit Division, Bread Division and other Divisions. The cash of the said different divisions of the complainant is kept in a locked room in the insured premises. On 13/14.11.2012, the factory of the complainant was closed due to Holiday on account of Diwali festival. In the morning of 14.11.2012, the security guard appointed in the premises of the complainant noticed that the locks of the door of the control room, where the cash is kept in safe custody by the complainant, has been broken and as such, he immediately informed the General Manager (Administration) of the complainant. On getting the said knowledge, the General Manager (Administration) immediately visited the factory of the complainant and noticed that the locks of the control room have been broken open and the locks of the steel almirah kept inside the control room have also been broken and cash is missing from the said locked steel almirah. The intimation was given to the police of P.S.Phillaur and consequently, FIR No.221 of 14.11.2012 u/s 457, 380 IPC was registered against unknown person. The complainant lodged the claim with the OP as an amount of RS.9,95,063/- was stolen by the thieves/miscreants and the same is duly covered under the money insurance policy that had been taken by the complainant from the OP. The OP appointed Sh.Rajan Sharda as the surveyor for assessing the loss caused to the complainant due to the said theft, who duly visited the premises of the complainant and sought information and details of the theft which was provided by the complainant for clearing the claim and for making the payment of the amount under the policy. However, inspite of visit of the surveyor and submission of all the documents, OP did not pay the amount of claim to the complainant inspite of the fact that the representative of the complainant visited the office of the OP time and again, but no concrete information was supplied by the OP. Although, the OP duly informed the complainant that surveyor had already submitted his report dated 6.3.2013, whereby he has found that the claim is payable to the complainant, yet the officials of OP represented that the clearing of the claim is in process and will take some more time. The OP even shared the copy of the report of the surveyor with the complainant which is in possession of the complainant. Even though the report dated 6.3.2013 has been submitted by the surveyor, yet one year has passed  since then, but the amount of claim has not been paid to the complainant. On repeated inquiry, the OP informed the complainant that as per the policy, the amount is to be kept in the control room or in a locked safe and as the complainant has not fully complied with the said condition, so the amount of claim is not payable to the complainant. The refusal to pay the amount to the complainant on the said ground is claimed to be totally untenable by the complainant. As a gesture of goodwill and in view of the past good relations with the OP, the complainant had even made an offer that in case, the amount of loss suffered by the complainant is paid to it immediately, then it will forego its right to claim interest over the said amount which runs into more than Rs.2 lakh. The said offer was made in the notice dated 7.4.2014 and the reminder dated 29.5.2014. However, the said offer was only valid if the amount of claim had been paid to the complainant immediately on the receipt of the notice. However, the said amount was not paid to the complainant. Hence, this complaint.

3.                Upon notice of the complaint, Op was duly served and appeared through Sh.Mohinder Singh Jassal, Advocate and filed the written reply, in which, it has been submitted in the preliminary objections that the present complaint of the complainant is not maintainable as the same has not been filed by a competent and authorized person of the complainant company and no resolution has been passed by the Board of Directors to file the present complaint. The present complaint filed by the complainant against the answering OP is not maintainable. It is submitted that the complainant had taken the Money Insurance Policy NO.200700/48/12/07/00001591 for the period w.e.f.12.9.2012 to 11.9.2013 from the answering OP for a sum of Rs.1,00,000,00/-. It is submitted that the complainant had given the money insurance claim form dated 11.1.2013 to the answering OP and after the receipt of the same, the answering OP appointed Mr.Rajan Sharda House No. 3173, Ist Floor, Sector 27-D, Chandigarh as surveyor and loss assessor, who visited at the spot, inspected the premises, taken the photographs and after thorough inspection of the premises, gave his report dated 6.3.2013 alongwith various documents to the answering OP. After fully study of the report and other documents submitted by the surveyor to the insurance company and after going through the terms and conditions and exclusion clauses of the insurance policy, the claim of the complainant was repudiated by the answering OP as per the terms and conditions and exclusion clauses of the insurance policy. Under the Exclusion clause no.3, the company shall not be liable in respect of loss occurring on the premises, after business hours, unless the money is in a locked safe or strong room. As per the FIR No.221 dated 14.11.2012 lodged by the complainant with the concerned police station and as per claim form and report of the surveyor, the cash stole by some miscreants from the steel almirah which as per the terms and conditions and exclusion clauses cannot be considered as safe or strong room. The claim of the complainant has rightly been repudiated by the answering OP as ‘No Claim’ and the grounds of the repudiation are legal, valid and enforceable and are in accordance with the terms and conditions and exclusion clause of the insurance policy. Reply on facts, it is submitted that as per the report of the surveyor and loss assessor, Mrs.Bector Food Specialties is having its business of manufacturing of biscuits and bakery products. The complainant has unit located at Phillaur, Tehliwal, Noida and Mumbai. It is denied that the cash of the said different divisions of the complainant was kept in a locked room in the insured premises. Further, it is submitted that the claim of the complainant is not payable as per the terms and conditions and exclusion clauses of the insurance policy. Otherwise, similar pleas were taken as taken in the preliminary objections and at the end, denying any deficiency in service and denying all other allegations of the complaint being wrong and incorrect, answering OPs prayed for the dismissal of the complaint with costs.

4.                Both the parties adduced their evidence in the shape of affidavits and documents.

5.                We have heard the learned counsel for the parties.

6.                Learned counsel for the complainant has filed the written arguments, in which, he has reiterated all the contents of the complaint and further, it has been submitted that the complainant had taken insurance policy for the purpose of indemnification of loss and not for any commercial purpose. The version of the OP that the claim is not payable and that the decision has been taken on the basis of report dated 6.3.2013 submitted by the surveyor Rajan Sharda is falsified by the report itself and also by the documents submitted by the OP. The complainant has placed on record the copy of report of surveyor Ex.C3 and the same report has been placed on record by the OP as Ex.R3. A bare perusal of the said report shows that the surveyor had nowhere mentioned that the claim is not payable. Infact, he had mentioned that the claim is covered under the subject matter of policy and he had duly held that the cash that has been stolen was also covered under the policy and that the loss has taken place during the subsistence of the policy and that the theft has duly taken place and the loss has duly been suffered by the complainant. Therefore, if the OP places reliance upon the report of surveyor then they have no other option but to pay the amount of claim to the complainant. The OP has placed on record letter dated 20.3.2013 EX.R6 in which, they have made a mention that the surveyor has reported that peril operate is covered under the subject matter of the policy. However, the OP in a way compelled the surveyor to give a negative report by stating that the cash was not kept in a fire proof cabinet and it was kept in a steel almirah, so the claim cannot be paid. In response to the said letter of Rajan Sharda wrote a letter dated 2.5.2013 as Ex.R5, in which, he gave a report consisting of seven lines and stating that claim of insured is not admissible. However, in the said supplementary report, no mention whatsoever has been made that how the report dated 6.3.2013 is incorrect and what were the reasons and what fresh ground and facts have come into the light on the basis of which, the surveyor had to give a fresh report. Even the letter Ex.R3 is against the terms of the policy itself because it mentions that almirah is not a fire proof cabinet and as such, the claim cannot be paid. However, in exclusion clause 3 which is being relied upon by the OP the only words that have been mentioned are “locked safe or strong room”. Therefore, there is absolutely no mention of a fire proof cabinet or a fire proof safe in the exclusion clause. It is a matter of common parlance the locked steel almirah is considered to be a safe for storage of cash and valuables for all intent and purposes. The complainant had mentioned in para no.8 of the complaint that the OP keeps its cash in steel almirah, but the said fact has not been denied in para no.8 of the written statement. Therefore, under the law a fact which is not denied is deemed to be admitted. The complainant had taken very possible care for the safety of the cash as evident from the sequence of facts because the control room was fully locked and the steel almirah was kept inside the control room and the said steel almirah was also locked. Therefore, under common understanding and under the general definition, the locked steel almirah is equivalent to a locked safe. As per meaning given in various dictionaries a safe is a strong box where valuable can be kept and that said box should be strongly made so that the money or valuable can be locked in the same. Therefore, no further precaution or safety could be taken by the complainant. At the end, made prayer for the relief as claimed for and further, learned counsel for the complainant has relied upon judgments titled as S.D.Lighting vs. Cholamandalam M.S.General Insurance Co.Ltd.-I(2009)CPJ-277(U.T.State Commission); T. Bheem Reddy and another vs. P.Laxmi Bai and others-2012(4)CCC-689(A.P.High Court); Asha vs. Pt.B.D.Sharma University of Health Sciences and others-2012(3)CCC-814(S.C.); Avneet Singh vs. ICICI Lombard General Insurance Company Limited and others -2014(2)CLT-374(Chandigarh State Commission).

7.                On the other hand, learned counsel for the Op has filed the written arguments, he has reiterated all the contents of the written reply filed by the OP and further, it has been submitted that after fully study of the report and other documents submitted by the surveyor to the insurance company and after going through the terms and conditions and exclusion clauses of the insurance policy, the claim of the complainant was repudiated by the OP as per the terms and conditions of the insurance policy. As per exclusion clause 3, the company shall not be liable in respect of loss occurred on the premises after business hours, unless the money is in a locked safe or strong room. Moreover, as per the FIR No.221 dated 14.11.2012 lodged by the complainant with the concerned police station, it has been clearly mentioned in the FIR that the cash was stolen by some miscreants from the steel almirah. But as per the term, condition and exclusion clause of the insurance policy, the steel almirah cannot be considered as safe or strong room. The surveyor of the OP company had also taken the photographs of the steel almirah, in which, the cash was kept by the complainant which are Ex.C8 and 9. As per para no.5 of the money insurance claim form submitted by the complainant to the OP which is Ex.R3 which is as under:-

v)In whose custody of money :                            Cash was lying in safe Box

  At the time of loss?                                  of Godrej Steel Almirah.

The claim of the complainant has rightly been repudiated by the OP as ‘No claim’ and the grounds of the repudiation are legal and enforceable and are in accordance with the terms and conditions and exclusion clause of the insurance policy.

8.                We have gone through the written arguments filed by the learned counsel for the complainant as well as learned counsel for the OP and have also gone through the judgments placed on record by the learned counsel for the complainant and have also perused the documents on record very carefully.          

9.                Perusal of the record reveals that it is an undisputed fact between the parties that the complainant had obtained the money insurance policy No.200700/48/12/07/00001591 from OP which was effective from 12.9.2012 to 11.9.2013 on payment of premium against the coverage of Rs.20 lakh. As per the allegations of the complainant that on 13/14.11.2012, the factory of the complainant was closed due to Holiday on account of Diwali festival. In the morning of 14.11.2012, the security guard appointed in the premises of the complainant had noticed that the locks of the door of the control room, where the cash was kept in safe custody by the complainant, had been broken. After receiving this information, General Manager (Administration) of the complainant had immediately visited the factory of the complainant and had noticed that the locks of the control room had been broken open and the locks of the steel almirah kept inside the control room had also been broken and cash was missing from the said locked steel almirah. The General Manager(Administration) of the complainant had immediately given the intimation to the police of P.S.Phillaur and on the basis of which, FIR No.221 of 14.11.2012 u/s 457 and 380 IPC was got registered against unknown persons.

10.              It is further an undisputed fact that the claim was lodged with the OP which was duly registered and processed. Sh.Rajan Sharda was appointed as surveyor and loss assessor by the OP, who had inspected the premises of the complainant and has sought information and details of the theft and after his thorough inspection, submitted his detailed report dated 6.3.2013 Ex.C7(Ex.R3), vide which, he had assessed the loss to the tune of Rs.9,95,063/- qua the theft of cash from the factory premises of the complainant. But through his another letter dated 2.5.2013 which is Ex.R4 on the file, vide which, the aforesaid surveyor and loss assessor had reported to Sh.R.P.Sharma, The Regional Manager of United India Insurance Company that with reference to the letter dated 20.3.2013, they had submitted that as per definition of safe available on internet print of which is enclosed by their goodself with letter, the claim of insured is not admissible as per the policy terms and conditions. The miscreants stole the cash from steel almirah, which as per definition cannot be considered as safe or strong room. The claim of insured is not admissible in light of above facts.

11.              On the basis of this letter dated 2.5.2013 Ex.R4, the claim of the complainant was repudiated by the OP vide repudiation letter dated 2.4.2015 Ex.R7.

12.              The bone of contention between the parties is qua the report of the surveyor dated 6.3.2013 as well as letter dated 2.5.2013 of surveyor Sh.Rajan Sharda. It is an undisputed fact between the parties that the complainant had purchased the insurance policy in question from the OP in order to get his premises insured including the cash coverage of Rs.20 lakh for the business during the working hours. Further, it is an undisputed fact between the parties that as per Exclusion clause 3 of the insurance policy that loss occurred on the premises after business hours, unless the money is in a locked safe or strong room shall be reimbursed. Since, it is the plea of the complainant that cash was lying in the locked steel almirah which was lying in the locked control room and that the locks of the control room have been broke open and the locks of the steel almirah kept inside the control room have also been broken open.

13.              Perusal of the evidence of the complainant reveals that the complainant has furnished affidavit of Sh.Parveen Kumar Goel, Executive Director of complainant company, who has deposed that cash coverage that was provided to the complainant under the said policy was to the extent of Rs.20 lakh. On 13/14.11.2012, the factory of the complainant was closed due to holiday on account of Diwali festival. In the morning of 14.11.2012, the locks of the door of the control room, where the cash is kept in safe custody by the complainant, has been broken and General Manager immediately visited the factory of the complainant and found that the locks of the control room have been broke open and the locks of the steel almirah kept inside the control room have also been broke open and cash was missing from the said locked steel almirah. The General Manager had also lodged the FIR with P.S.Phillaur. He has further deposed that the words “Locked safe” can duly mean and construe the locked steel almirah because as per the meaning given in various Dictionaries, a safe is strong box where valuables can be kept and that the said box should be strongly made so that the money or valuable can be locked in the same. As the amount had been kept in a box/almirah made of steel which is quite a strong material and the same was duly locked. The said locked almirah was kept inside the locked control room of the complainant. No further precaution or safety measures could have been taken by the complainant to meet with the terms and conditions of the policy. On the other hand, Op have furnished the affidavit of Sh.H.S.Bedi, Divisional Manager of D.O.NO.1, United India Insurance Company Ltd., Ludhiana as Ex.RA, in which, he has specifically deposed that claim of the complainant was repudiated by United India Insurance Company Limited as per the terms and conditions and exclusion clause 3 of the insurance policy which provides that loss occurring on the premises, after business hours, unless the money is in a locked safe or strong room. He has further deposed that as per the report of the surveyor and loss assessor, the miscreants had stolen the cash from steel almirah, which as per definition cannot be considered as safe or strong room, so the claim of insured is not admissible. Since, the cash was lying in a steel almirah but the evidence qua putting the cash in the said almirah and locking of the same is missing. The complainant has not adduced any evidence of any officials of their company/cashier who after counting the cash, put the cash in the almirah and locked the same. Perusal of the evidence of the complainant further reveals that the complainant has not furnished the affidavit of any of his cashier/manager who were dealing with the cash of the company and had been putting the cash inside the almirah or locking the same. The complainant has further not furnished the affidavit of any security guard in support of his complaint. The complainant has also not adduced any evidence by producing any statement of account showing the credit balance of amount of Rs.9,95,063/- which was allegedly stolen by someone and the complainant has also not placed on record any statement of account of the bank or any statement of account prepared by their Chartered Accountant qua the balance outstanding of credit/cash in hand on the date of occurrence. The complainant has only relied upon the report of the surveyor dated 6.3.2013 Ex.C7 which is not sufficient to the complaint of the complainant as the surveyor vide his letter dated 2.5.2013 Ex.R4 had categorically reported to the insurance company that claim of the complainant is not covered under the perils of the policy and the same is not payable.

14.              So, it appears from the evidence of the complainant that complainant has failed to adduce the entire cogent and convincing evidence on record in order to prove his case and further to prove that almirah, in which, the cash was lying was a strong room to keep the cash in safe custody.

15.               In view of the above discussion, we hereby dismiss the complaint of the complainant being devoid of any merits. Copy of this order be made available to the parties free of costs. File be completed and consigned to record room.

 

                             (Sat Paul Garg)              (R.L.Ahuja)

                             Member                         President.   

Announced in Open Forum.

Dated:29.06.2015

Gurpreet Sharma