DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SAHIBZADA AJIT SINGH NAGAR (MOHALI)

Consumer Complaint No.661of 2016

                                                  Date of institution:  04.10.2016                                             Date of decision   :  17.10.2018

M/s. Manidweep Jewellers through its authorised partner Shri Nipun Gupta, Opp. Telegraph Office, Near Madhu Hotel, Jagadhari Road,  Yamunanagar.

…….Complainant

Versus

United India Insurance Co. Ltd., SCO No.72, Phase-IX, Divisional Office, Mohali through its Branch Manager.

                                                               ……..Opposite Party

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:    Shri G.K. Dhir, President

                Shri Amrinder Singh Sidhu, Member

                Mrs. Natasha Chopra  Member.

Present:     Shri Rakesh Kumar, counsel for the complainant.

                Shri  Madan Lal Choudhary, counsel for the OP .

Order by :-  Shri G.K. Dhir  President.

Order

               Complainant, a partnership firm carrying on business of sale and purchase of branded jewellery, un-branded gold, silver, diamond and precious metals, got its stock insured with OP for covering risk of Rs.13,12,00,000/- by paying premium. Validity period of coverage was from 18.10.2014 to 17.10.2015. This coverage was specifically for mentioned below items:

“Jeweller’s Block Insurance:  On stock of all kind of jewellery and other related to insured trade whilst lying and/or stored and/or displayed in counters and/or show windows and/or almirah inside the show room during business hours and out of business hours in strong room at above said address. Risk covered all Fire, Explosion, Lighting, Riots & Strike, malicious damage, terrorism, earthquake, burglary, housebreaking, theft, robbery, hold up risk. Shop lifting also covered subject to the condition that FIR/Police Report lodged immediately and untraceable report obtained confirming that loss is due to shop lifting only by customer and subject to max. limit + AOA 12 lac and AOY 24 Lacs. CD is made available whenever required subject to exclusion that inventory losses are not covered.”

                On 14.10.2014 at about 1.00 P.M. a person alongwith two women visited shop for purchase of jewellery and they were attended by salesgirl Miss Rosy Verma. Jewellery items were shown by the said salesgirl to these visitors, during process of which they stole chain of 65.99 GM bearing Code No.511160CL11AA00 having worth of Rs.2.00 lakhs, from the shop of complainant. Despite making of strenuous efforts, said gold chain could not be found and thereafter information was given to the police as well as to OP Company. FIR No.656 dated 17.10.2014 at P.S. Yamunanagar City was lodged. Even police remained unable to trace the culprits and that is why untraced report before court of Shri Sumit Garg, Ld. CJM, Yamunanagar at Jagadhri was submitted. That report was accepted vide orders dated 23.04.2015. After receipt of intimation of theft, OP Company appointed investigator for assessing the loss. Complainant submitted all the documents with OP Company as demanded by it. Complainant made number of visits at office of OP Company, but it failed to settle the claim. OP Company kept on lingering the matter on one pretext or the other despite lapse of one year. Ultimately, OP Company after gap of one year closed the claim as ‘No Claim’ vide letter dated 16.09.2015. As per that letter, claim is not payable as per exception under Section 8 (c) and (d) which provides that loss or damage occasioned by theft or dishonesty or any attempt threat committed by or when such loss or damage has been expedited or in any way sustained or brought about by any person lawfully on the premises and any customer or broker or angadias or cutters or goldsmith in respect of the property insured and entrusted to them by the insured, his or their servants or agents, is not covered by the insurance policy. Loss in this case took place due to handing over of chain by salesgirl of the insured to lady customer and that was made basis for repudiation of claim.  Further it is claimed that complainant was never apprised of those terms and conditions of the insurance policy by its officers or agents, while issuing the insurance policy. Complainant had been getting the stocks continuously insured from OP Company for the last couple of years and OP Company never issued the insurance policy to the complainant till today. It is claimed that approach of OP Company in repudiating the claim is malafide and as such by pleading deficiency in service on part of OP, prayer made for directing OP to pay insured sum of Rs.2.00 lakhs with interest @ 12% per annum from the date of theft till realisation. Compensation for mental agony and harassment of Rs.1.00 lakh and litigation expenses of Rs.10,000/- more claimed.

2.             In reply submitted by OP it is pleaded inter alia as if on account of involvement of intricate questions requiring elaborate evidence, matter should be got decided from civil court of competent jurisdiction and that the complaint has been filed beyond jurisdiction because it is filed in disregard to rules framed under the U.T. Chandigarh Consumer Protection Rules. Moreover, it is claimed that complainant does not fall within the definition of consumer. Admittedly complainant purchased Jewellers Block Policy with validity for period from 18.10.2013 to 17.10.2014 for total insured sum of Rs.15,00,00,000/-. Details of the property insured are alleged to be as under:

                Admittedly complainant informed OP on 14.10.2014 at about 1.00 p.m. that one man alongwith two women visited shop for purchase of jewellery and they were attended by sales girl Miss Rosy Verma. Further it was informed that those visitors in process of seeing different types of jewellery, stole gold chain worth of Rs.2.00 lakhs. On receipt of information, OP appointed Shri Rajan Sharda, Surveyor and Loss Assessor for assessing the loss, who submitted his survey report dated 29.05.2015. At the time of settling the claim, it was found that alleged loss is not covered because of exception clause under section 8 (c) and (d) of the policy.  Claim of complainant was rightly repudiated. Admittedly complainant lodged FIR No.656 dated 17.10.2014, but the same was lodged after unexplained delay of three days. In case any fresh facts comes to the notice of OP, then it claims to be having right to file additional written statement. Admittedly theft of 65.99 gm gold chain was reported by complainant to police and intimation of same given to OP. Admittedly report of untraceability submitted by police, has been accepted by the court of Shri Sumit Garg, Ld. CJM, Yamunanagar at Jagadhari on 23.04.2015. Other averments of the complaint are denied one by one each.

3.             Complainant to prove his case tendered in evidence affidavit Ex.CW-1/1 of Shri Nipun Gupta, authorised partner of the complainant company alongwith documents Ex.C-1 to C-6 and thereafter closed evidence. On the other hand counsel for the OP tendered in evidence affidavit Ex.OP-1/1 of Hemlata Panwar, Deputy Manager alongwith documents Ex.OP-1 to Ex.OP-3 and thereafter closed evidence. 

4.             Written arguments submitted by both the parties. Oral arguments heard and records gone through.

5.             Ex.C-1 is authority letter issued in favour of Shri Nipun Gupta by Tanishq and as such it is obvious that complaint has been filed through competent person, more so when this Nipun Gupta is Partner of complainant concern, as shown by partnership deed Ex.C-2. From the pleadings of the parties as well as written statement, it is made out that insurance policy cover note Ex.C-6 for covering stocks of complainant for amount of Rs.15,12,00,000/- was issued with validity for period from 18.10.2013 to 17.10.2014 and the incident of stealing of gold chain in question took place on 14.10.2014 at about 1.00 p.m. at the show room of complainant, when one person alongwith two women came for seeing jewellery articles. Copy of FIR Ex.C-4 in that respect is produced on record. So certainly the alleged incidence of stealing of gold chain took place during continuance of policy Ex.C-6. Ex.C-3 is policy cover note showing as if complainant got other stocks again insured for amount of Rs.13,12,00,000/- during period from 18.10.2014 to 17.10.2015 from OP. Despite lodging of FIR with police, report of untraceability submitted and the same was accepted by the court of Shri Sumit Garg, Ld. CJM on 23.04.2015 is a fact borne from copy of orders produced on record as Mark-A by complainant. Copy of Jewellers Block Policy also produced as Ex.OP-1 by OP alongwith report of survey and assessment of appointed surveyor Shri Rajan Sharda as Ex.OP-2. So it is obvious that virtually on lodging of claim of insurance regarding loss of gold chain in question, OP deputed surveyor, who submitted report Ex.OP-2. This surveyor through report Ex.OP-2 even has found that after conduct of physical verification of stocks, viz. a viz. entries of stock registers, he found that one gold chain was lifted by lady customer from the shop of complainant. Worth of that chain mentioned as Rs.2,00,587/-  by this surveyor in his report Ex.OP-2 and as such staking of claim for amount of Rs.2.00 lakhs is appropriate because said claim is staked with respect to the lifted gold chain from shop of complainant for an amount less than the amount assessed by surveyor of the insurance company.

6.             Ex.C-5 = Ex.OP-3 is letter dated 16.09.2015 vide which insurance claim of complainant was repudiated by invoking exception laid down in Section 8 (c) and (d) of policy terms and conditions. These clauses 8 (c) and (d) are reproduced in the written statement filed by OP as under:

“8.    Loss or damage occasioned by theft or dishonesty or any attempt threat committed by or where such loss or damage has been expedited or in any way sustained or brought about by:

(c)    any person lawfully on the premises;

(d)    and any customer or broker or their customers or angadias or cutters or goldsmith in respect of the property hereby insured entrusted to them by the insured, his or their servants or agents.”

7.             In view of these clauses, it is vehemently contended by counsel for OP that incidence of shop lifting from the shop is not covered by these clauses. Even if these clauses may not be providing for the same, but despite that contents of Ex.C-3 lays that incidence of theft, robbery or of hold up risks or of shop lifting are covered, but subject to the condition that FIR/police report is lodged immediately and untraceability report is obtained for confirming that loss is due to shop lifting by customer.  Limit of this loss to extent of Rs.12.00 lakhs is specifically mentioned in schedule in handwritten note recorded in Ex.C-3. In view of this specific recital contained in Ex.C-3 by insurance company issuing cover note Ex.C-3, now it does not lie in the mouth of OP to claim that loss sustained on account of shop lifting is not covered by Clause 8 (c) and (d) of terms and conditions of the policy. Complainant after receipt of policy schedule Ex.C-3 was bound to have knowledge that incidence of shop lifting even is covered by insurance policy. As loss of Rs.2.00 lakhs of the gold chain in question took place due to shop lifting and as such certainly repudiation of claim is against terms and conditions specifically made known to complainant through policy schedule Ex.C-3. That is an act of arbitrariness and malafide on the part of OP resulting in mental agony and harassment to complainant and as such complainant entitled not only to claim insurance amount, but even to amount of compensation and litigation expenses alongwith interest on the insured amount and also to interest on compensation and litigation amount, if the amount of compensation and litigation expenses not paid within 30 days from the date of receipt of certified copy of the order.

8.             No other point arises for consideration.

10.      As a sequel of above discussion, complaint allowed with directions to OP to pay the claimed insurance amount of Rs.2,00,000/- (Rs. Two Lakhs only)  to complainant within 30 days from the date of receipt of certified copy of the order alongwith interest @ 6% per annum from the date of repudiation of claim namely 16.09.2015 (as mentioned in Ex.C-5) till payment. Compensation for mental agony and harassment of Rs.15,000/- (Rs. Fifteen Thousand only) and litigation expenses of Rs.5,000/- (Rs. Five Thousand only) more allowed in favour of complainant and against OP. Payment of amount of compensation and litigation expenses be made within 30 days from the date of receipt of certified copy of the order, failing which complainant will be entitled to interest on the amounts of compensation and litigation expenses @ 7% per annum after expiry of said period of 30 days of receipt of certified copy of the order till payment.   Certified copies of the order be supplied to the parties as per rules.  File be indexed and consigned to record room.

Announced

October 17, 2018.

                                                                (G.K. Dhir)

                                                                President

(Amrinder Singh Sidhu)

Member

(Mrs. Natasha Chopra)

Member