Per Shri S.R. Khanzode – Hon’ble Presiding Judicial Member:

(1)          This appeal takes an exception to an order dated 08.04.2010 passed in Consumer Complaint No.181/2009, Trimurti Auto Fuel V/s.United India Insurance Co. Ltd., by District Consumer Disputes Redressal Forum, Nashik (‘Forum below’ in short).

(2)          Undisputed facts are that the cash collected at the petrol pump was being taken to the Bank to deposit same in the Bank Account.  It was stolen from the briefcase kept in the vehicle which was left in locked condition.  After  breaking the window of the car, briefcase containing an amount of `1,68,500/- was stolen.  Report to the police was made and it registered an offence.  Thereafter, since Complainant had taken the insurance policy viz. “money insurance policy” from the Respondent/original Opposite Party (hereinafter referred to as the ‘insurance company’), claim was made with the insurance company and it stood repudiated referring to the one of the clauses of the Insurance Policy and feeling aggrieved thereby this consumer complaint was filed.  Forum below dismissed the complaint and feeling aggrieved thereby this appeal is preferred by the original Complainant. 

(3)          Heard both sides and perused the record.  The repudiation letter of the Insurance Company dated 08.05.2009 referring to the clauses of the insurance policy, particularly, Clause I(i) to (iii) stipulates that:

“The Company hereby agrees subject to the terms, conditions and exclusions herein contained, endorsed or otherwise expressed hereon to indemnify the insured against loss of:

(a)             Money in transit, by the Insured or Insured’s authorized employee(s) occasioned by Robery, Theft or any other fortuitous cause as detained in Section I.

(b)             Money by burglary robbery or held up whilst in the insured’s premises as detailed in Section II, in a Safe or Strongroom provided always that the limit of the Company’s liability for any one loss shall in no case exceed the amount specified against the respective section in the said Schedule.

Section I

(i)               Money for payment of wages, salaries or for petty cash in direct transit from the bank to the insured’s premises from the time the cash is received at the bank by the insured or the authorized employee(s) of the insured until delivery at the premises or other place of disbursement and whilst there, until paid out provided that after business hours such cash be secured in locked Safe or locked Strong room on the premises for a period not exceeding 48 hours from the time of arrival of such cash at the said premises or places of disbursements.  Cheques drawn by the insured to provide for such cash are covered in transit from the premises to the bank.

(ii)             Money other than described in (i) in the personal custody of the insured or authorized employee/s whilst in direct transit between the premises and bank or post office.

(iii)          Money other than described in (i) and (ii) above belonging to the insured which is collected by and in the personal custody of the insured or the authorised employee/s of the insured whilst in transit to the premises or bank within a period not exceeding 48 hours from the time of collection.”

(4)          Referring to the circumstances which remain undisputed, viz. it was the cash which was collected at the petrol pump and was being taken to the Bank for making deposit and further that the relevant cash was kept in the briefcase in a car which was momentarily left for depositing one cheque to the broker by the husband of the Complainant,  but, when he returned back he found that, the window glass of the vehicle was broken and then the briefcase containing cash was stolen.  The insurance policy is taken in the name for the business by the Complainant, viz.”SIDBI-A/C Trimurti Auto Fuel”.  Therefore, referring to above referred clause (a), the theft is covered including a ‘theft in the transit’.  Further, the case is covered not by section I(i) or I(ii), but, Clause no.(iii), supra.  As per the said clause, if the theft occurred in respect of money other than the one described in clause nos.(i) and (ii) above, belonging to the insured which is collected and in the personal custody of the Insured or authorised employee/s whilst in transit to the premises or bank within the period not exceeding 48 hours from the time of collection.

(5)          Admittedly, the collection to which a reference is made had occurred in the late evening of the previous day and that incident had occurred in the evening, i.e. within 48 hours from the time of collection.  Further the cash was very much in the personal custody of the insured, since it is in the custody of husband of Complainant who helps the Complainant - wife to carry the business of petrol pump under the name and style of ‘Trimurti Auto Fuel’.  Her husband used to look after the transactions as authorized by her. 

(6)          Further, referring to exclusion clause 5, viz. “money carried under contract of affreightment  and theft of money from unattended vehicle”.  It can be seen that even said clause is not attracted in the instant case.  The dictionary meaning of the Phrase “unattended” means ‘not looked after’.  In the instant case, it is not such case since the vehicle was locked when for momentary absence, supra, husband of the Complainant left the same.

(7)          Thus, we find that the repudiation by insurance company is rather arbitrary and improper.  The Forum below did not appreciate the facts properly and arrived at wrong conclusion.  Thus, the Complainant established deficiency in service on the part of Insurance Company by wrongly and arbitrarily repudiating the claim.

(8)          We find it just and proper to grant compensation, in the given facts and circumstances of the case, equivalent to the stolen cash i.e. `1,68,500/-.  The Surveyor also after verifying the account of the Complainant endorsed that such cash was stolen.  Therefore, we accept the statement of the Complainant that this much cash was stolen.

(9)          Complainant further claimed compensation of `25,000/- towards mental and physical torture suffered by her due to repudiation.  Considering the facts and circumstances of the case and that the money rightfully belonging to the Complainant was wrongfully withheld, the compensation claimed on this count to the extent of `25,000/- cannot be said as unjust.  Complainant further claimed `5,000/- as cost which also we find is reasonable.

(10)       For the reasons stated above, we hold accordingly and pass the following order:

O  R  D  E  R

     (i)       Appeal is allowed.

    (ii)       Impugned order is set aside.

  (iii)       Respondent/Insurance Company do pay `1,68,500/- plus `25,000/- as compensation to the Complainant along with `5,000/- as costs. 

  (iv)       Amount be paid within 45 days from the date of receipt of this order and failing which Respondent/insurance Company is liable to pay interest @12% per annum from the date of filing of the consumer complaint, i.e. from 30.07.2009 till its realization.

    (v)       In appeal both parties to bear their own costs.

  (vi)       Appeal stands disposed of accordingly.