BEFORE THE PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAMBALPUR
C.C NO-16/2014
Present-Sri Dipak Kumar Mahapatra, President, Smt. Smita Tripathy,Member (W).
M/S Anand World, a registered partnership firm,
registered under the Partnership Act, represented
by it’s partner Kishore Chandra Agrawal,
aged about 45 years, having shop complex
in the trade name of “M/S-Anand World”
at VSS Marg, Sambalpur Town,P.S-Town,
Tahasil/Munsif/Dist-Sambalpur. .…..Complainant
Vrs.
Universal Sompo General Insurance Co. Ltd,
a registered company having it’s registered office
at Mumbai, represented through Branch Manager
of Universal Sompo General Insurance Co Ltd,
having its branch office at First Floor,
Kesari complex, 98 Kharabela Nagar,
Bhubaneswar,District-Khurda(Odisha). …………....O.P
Counsels:-
- For the Complainant:- Sri S.K Dash, Advocate & Associates.
- For the O.P:- Sri B.K.Purohit, Advocate & Associates.
DATE OF HEARING : 17.02.2021, DATE OF ORDER : 22.03.2021
SRI DIPAK KUMAR MAHAPATRA,PRESIDENT:- Brief facts of the case is that the
Complainant is a registered Farm running his business in the name of “M/S- Anand World” (the Insured)represented by his active partner Kishore Chandra Agrawal, dealing with Garments, furnishing, Sarees, Gifts, Utensils, Etc. The O.P is an Insurance Company deals in Insurance matters, issues policies with different terms and conditions and receives premium and consideration to protect the property of the Insured. To get protected from different risk the Complainant/ insured has availed a Shop Keeper Insurance Policy bearing No-2939/51736437/00/000 valid from 18.10.2011 to 17.10.2012 and paid premium accordingly. On dtd.27.11.2011/28.11.2011 in between 10.20 p.m to 8.30 am a Burglary was committed in the showroom of the Complainant where many articles including cash were taken away by miscreatants for which the Insured has lodged a FIR vide No- 254(15) dtd. 28.12.2011 in the Town Police Station at Sambalpur. Inquiry was made and Final report has been submitted by the Police. The Petitioner Claimed Rs. 11,74,449.88 under the Policy and requested the O.P to cover the loss through Claim vide Claim no-11034670 dtd. 27.12.2011. The Complainant claims Rs. 5,21,767.81 towards theft of Cameras, Rs. 1,98,354.07 towards the theft of Watches and cash of Rs.4,54,328.00. That the O.P made survey of the said Burglary and the surveyor submitted the final report on dtd. 28.09.2012 admitting the claim, allowing a sum of Rs. 7,20,121.88 to pay to the petitioner and deducted the rest of the claim and adjusted at Rs. 6,02,278/- towards the loss. Again on dtd. 22.03.2012 the O.P informed the Complainant to indemnify the Claim at Rs.6,00,000/- and to sign on Discharge Voucher, Indemnity Bond and Letter of subrogation and a Form with the heading “Consent to Acceptance of Assessment” . Then the petitioner requested the O.P to allow him to receive the aforesaid sum on protest, but the O.P delay the procedure in various ways. The Complainant is entitled to receive the total claim amount but the O.P arbitrarily and illegally deducted the amount of claim without any specific reason. As per the guideline the O.P was to cover Rs.4,00,000/- but the present case the Burglary was for Rs.4,50,000/- in cash. The Complainant urged that he is running his business by taking loan from banks @ 14% interest p.a on the loan hence the claim of the O.P cannot be barred. The O.P is charged with the allegation of deficiency in services and may directed to pay interest @ 18% p.a on the claim amount from the date till the actual date of realisation. The cause of action arose on date when the burglary was taken place i.e dtd.27.11.2011/28.11.2011 at his showroom. Again the O.P informed the Complainant on dtd.22.03.2013 to indemnify Rs.6,00,000/- and subsequently on dtd. 15.03.2014 through e-mail services. The Complainant claims to get the amount of loss of Rs11,74,449.88 + Rs.4,75,651.85(18% interest p.a from the date of burglary till filling of this case)=Rs.1,65,0101.73 along with Rs.3,00,000/- towards mental agony and harassment. The O.P has issued a cheque Rs.6,00,000 on dtd. 30.03.2013 vide cheque no-“101702” in favour of the Complainant but after inquiry in the Bank ,they denied to have receive any cheque from the O.P, thereafter the Complainant quested the O.P to issue a fresh cheque but in vain.
According to the O.P, the Complainant when reached the showroom after the occurrence, he found cash approximately Rs.5,00,000 were found missing along with Camera and Watches approx. Rs.6,00,000. The O.P after receiving information engaged one IRDA Licensed Surveyor and loss assessor to conduct survey who submitted final report and assessed the loss to Rs.6,02,278 after deducting the under Insurance, discount on Watches & Cameras purchased in the year 2009 & 2010, deduction towards anomalies, cause of loss and policy excess. The Surveyor assessed the loss to Rs.6,00,000 as indemnification and kept reinstated premium Rs.1,294/- under Endorsement No-2939/5A36437/01/000 as per policy condition ; totalling the net payable of Rs.6,01,294/- and sent Discharge Voucher to the Complainant. As the Complainant did not submit the same for which the Draft was given to the Financier –“Indian Overseas Bank” as the stocks were under Hypothecation of the Bank. Again the Policy was for commercial purposes not for earning Livelihood; hence it is not maintainable by the way of self employment. According to the O.P a survey report is a statutory document which cannot be brushed aside by Insurance Company. The Surveyor in his final report has specially rejected the claim of loss as the Cash was stolen from the Cash Drawer where as the policy coverage is for “Cash in Safe” only. The “Cash in Safe” means – cash in a strong cabinet within the premises designed for safe and secured storage of valuables items and access to which is restricted. Hence the Complainant is not entitled to receive any claim along with interest as prayed also the claim is already been settled and disposed by the O.P.
POINTS OF DETERMINATION:-
- Whether the Complainant is comes under the purview of Consumer Protection Act.2019?
- Whether the O.Ps has committed any Deficiency in Service to the Complainant?
From the above discussion and materials available on records we inferred that the Complainant comes under the purview of Consumers as he has availed an insurance policy from the O.P so as to cover different risks in his business on payment of consideration. As per the policy condition the Complainant’s claim for loss of money from the cash counter was repudiated as they are contrary and not covered under the policy. As per the O.P cashier's box could not be equated with the safe within the meaning of the insurance policy. The alleged burglary and the removal of the cash box containing the cash was not covered by the insurance policy between the parties. The para-2 of section -2 of the policy terms specified for Burglary & Robbery have expressly excluded the loss of money not kept in "safe or strong room", the "safe" which was required to be provided in the office for keeping the money has to be such as would constitute a suitable replacement for a "strong room". It has already been seen that as per Webster Dictionary, the meaning of Safe is "a strong fireproof cabinet with a complex lock". It is also clear that the articles kept in other space than the space described in the policy are not to be considered while deciding the claim as held by the Hon'ble Supreme Court in United India Insurance Company Ltd. Vs. Orient Treasures Private Limited (supra). Even in the common parlance, a normal steel alimirah is not referred as 'Safe' and a 'Safe' is understood to be a cabinet where valuables are Safe as it cannot be opened without key. As per the survey report of the O.P in the complex of the Complainant there cash was stolen from 2 nos of drawers opened forcible but there was no sign of any forcible entry inside the premises. According to the policy terms it is stated that “any contents from the Safe following the use of a key to gain access to the Safe or any duplicate there of belonging to you unless such key has been obtained by aggressive or violent means”. As the Burglary was taken place at night the Cash were lying in the Counter drawers which could not be indemnify such loss which according to him was not insured and specially excluded from the insurance policy.
But according to Complainant the terms of the policy contains certain ambiguous words which merely confusing and not properly interpreted to the insured at the time of filling of proposal form or even not communicated to him. The O.P is availing the benefits of ambiguous condition defeating the rights of the Insured Complainant making them unable to claim their rights. But it is denied by the O.P as there is neither any ambiguity nor any vagueness in the language/note in the policy terms/conditions formulated by the O.P. The Insurance comply has followed the precision and clarity having no ambiguity in the policy terms. Hence where the language/wording used in relevant clauses on insurance policy was plain, clear and unambiguous and carrying one meaning, the rule of “contra proferentem” has no application. The O.P has relied on a judgment by Hon’ble Supreme Court of India in the case of United Insurance Co. Ltd. vrs. Orient treasures Private Ltd. Again the O.P relied on the decision of this Court in United India Insurance Co. Ltd. vs. Harchand Rai Chandan Lal. Construing the terms of the exclusion in a policy of insurance against burglary and/or house breaking, this Court had held that where the loss or damage was caused without forcible and violent entry to and/or exit from the premises, the claim could not be maintained. But it was the specific contention of the appellant that the exclusionary conditions in the policy document had not been communicated by the insurer as a result of which the terms and conditions of the exclusion were never communicated. This matter has been well settled in the case of Bharat Watch Company Through Its ... vs National Insurance Co. Ltd. ... on 12 April, 2019, by the Hon’ble Supreme Court(Daily orders). The court has opined that “as the conditions of exclusion under the policy document were not handed over to the appellant by the insurer and in the absence of the appellant being made aware of the terms of the exclusion, it is not open to the insurer to rely upon the exclusionary clauses. Hence, it was urged that the decision in United India Insurance Co. Ltd. vs. Harchand Rai Chandan Lal will have no application since there was no dispute in that case that the policy document was issued to the insured.” Basing on the above discussion we conclude that the O.P has committed deficiency in rendering necessary services and unfair trade practice and we order as under:-
ORDER
The Complaint petition is allowed. The O.P directed to refund the Cash of Rs. 4,54,328/-which was kept in the cash drawer on the date of occurrence to the Complainant along with interest @ 7% per annum till the date of realisation. The O.P is further directed to pay Rs.10,000/- (Rupees Ten Thousand) towards the cost of litigation. All the orders are to be carried out within 30 (Thirty) days of receiving of this order, failing which, failing which the amount of Rs.4,54,328/- will carry an interest at the rate of 9% p.a. from the date of this order till realization.
Order pronounced in the open Court today i.e, on 22nd day of March 2021 under my hand and seal of this Commission.
Office is directed to supply copies of the Order to the parties free of costs receiving acknowledgement of the delivery thereof.
I agree,
-sd/-(22.03.2021) -sd/-(22.03.2021)
Smt. S.Tripathy Sri. D.K. Mahapatra
MEMBER.(W) PRESIDENT
Dictated and Corrected
by me.
-sd/-(22.03.2021)
Sri. D.K. Mahapatra
PRESIDENT
