Before the District Consumer Disputes Redressal Forum, Mandi, H.P.



Complaint Case No.227/2008

Date of Institution.26-8-2008

Date of Decision 13-3-2009





M/S Shiva Jewellers though its Proprietor Sh. Kuldeep Soni,. Jiuni Road Pandoh, Tehsil Sadar, ,District Mandi, H.P.



…Complainant





V/S





1. Oriental Insurance Company ltd through its Divisional

Manager Mandi, Division Mandi, H.P.

2. Manager, the H.P. State Co-operative Bank Ltd Pandoh

Branch District Mandi, H.P. ..Opposite parties



For the complainant Sh.Rajesh Sharma, advocate

For the opposite party No.1 Sh.S.C.Dwivedi ,Advocate

For the opposite party No.2 Sh. Prem Singh Thakur, Advocate



Complaint under Section 12 of the

Consumer Protection Act, 1986.



ORDER.

This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite parties .The case of the complainant is that he is running a Jewellery shop under the name and style of M/S Shiva Jewellers Jiuni Road, Pandoh, H.P. and got his shop alongwith ornaments , machinery and tools lying in the shop insured with the opposite party No.1 in the sum of Rs.1,20,000/- after paying the premium of Rs.661/-. The insurance was valid w.e.f. 23-2-2006 to 22-2-2007 and the limit f or running the said shop was issued by the opposite party No.2. As per the stock statement of the opposite party No.2, on 31-3-2006 there was stock of Rs.4,31,700/-. The copies of insurance cover note and stock statement up to 31-3-2006 were Annexure C-1 and C-II ,respectively. It has been alleged that in the midnight of 15/16-6-2006 a theft was committed at the shop of the complainant and Golden nose pins , weighing 80 grams and old golden ear rings weighing 90 grams and statues of different types silver made, silver ear rings and coins of silver of 5 grams weight were stolen from the shop of the complainant and First Information Report No.236/2006 was registered at Police Station Sadar, Disitrict Mandi in this respect which is Annexure C-III. It has further been averred that till today the stolen things have not been recovered. It has further been averred that the shop alongwith ornaments ,machinery and tolls lying the shop were got insured with the opposite party No.1 in the sum of Rs.1,20,000/-. The complainant submitted the claim with the opposite party No.1 and he was told that the insurance was only for machinery and tools lying and installed in the shop and the insurance was not of the ornaments . The complainant has averred that the value of the machinery was near about Rs.25,000/- and the complainant has paid premium for Rs.1,20,000/- and this was a mistake on the part of the opposite party No.1 because he had asked the opposite party No.1 to insure the ornaments in the shop alongwith tools and machinery . The opposite party No.1 orally told the complainant that they will look into the mater and intimate him . The complainant after the assurance of the opposite party No.1 waited up till 30-10-2006 . Then a written claim was lodged with regard to theft of Rs.2,50,000/- taken place from his shop and a claim of Rs.1,20,000/- for which the shop alongwith its ornaments was insured but the claim made by him has neither been repudiated nor any intimation has been given .The complainant is a consumer of the opposite parties . It has been alleged that non settlement of the claim amounts to unfair trade practice and also deficiency in service on the part of the opposite parties. . The complainant has suffered financial loss and mental tension due to the act of the opposite parties and he had claimed Rs.20,000/- on this score. With these allegations, the complainant had sought a direction to the opposite party No.1 to pay Rs.1,20,000/- to the complainant alongwith interest at the rate of 15% PA from the date of commission of theft in the shop till its payment and had also claimed Rs.20,000/- as compensation apart from costs of litigation.

2 The opposite party No.1 filed reply and resisted the complaint by raising preliminary objections that there is no deficiency in service on the part of the opposite party No.1, that the claim lodged by the complainant was got investigated and verified and when the same was not found to be genuine claim , the same was repudiated by the competent authority and decision was communicated to the complainant, that the complainant has not come before this Forum with clean hands and the complaint is liable to dismissed in limini, that neither the jewellery theft has been covered nor the same is proposed to be covered nor any premium to cover the loss due to theft of jewellery lying / kept in the premium of complainant has been received by the opposite party No.1. ,that the claim made by the complainant regarding theft of jewellery is not only illegal and unjustified but also unwarranted by law. , that the complainant is estopped to file the present complaint on account of his own act and conduct and that the controversy between the parties cannot be resolved in summary proceedings and this Forum has no jurisdiction to entertain and try the decide the present complaint .On merits . the opposite party No.1 has admitted the case of the complainant to the extent that he is running a shop in question and rest of the contents of para No.1 has been denied . It has been averred that the opposite party No.2 ( Bank ) for the first time got insured the complainant’s machinery and tools lying and installed in the premises of complainant at Jiuni road Pandoh for the period from 23-2-2005 to 22-2-2006 and the sum insured was Rs.1,00,000/- or the actual loss suffered which is less as per Annexure R-1. Thereafter the opposite party No.2 asked the opposite party No.2 to renew the policy for further one year in the sum of Rs.1,20,000/- and the opposite party No.1 renewed the policy of insurance for the period from 23-2-2006 to 22-2-2007 and and premium to cover the Jiuni road Pandoh was paid by the opposite party No.2. It has been averred that neither any policy or cover note to cover the ornaments of complainant lying in the shop of the complainant was issued nor the opposite party No.1 received the premium to cover the ornaments under reference . The submission made by the complainant in this behalf is false .The opposite party had received Rs.661/- as premium of complainant .Contents of para No. 4 has been denied as wrong. The contents of para No. 5 of the complaint had been admitted to the extent that after one month from the date of alleged theft , the complainant vide application dated 26-9-2006 had lodged the claim for indemnifying him for the loss suffered by him due to theft of jewellery lying in his shop and the opposite party No.1 after getting the loss investigated and after going through the documents submitted , had repudiated the claim vide letter dated 10-11-2006 Annexure R-4on the ground that the property stated to be stolen has not been got insured by the complainant or by the opposite party No.2 and the same is not covered under the policy. The opposite party No.1 had denied that the value of the tools and machinery was Rs.23,000/- as alleged by the complainant .The contents of para No.7 to 9 had been denied being wrong .The opposite party No.1 had prayed for dismissal of the complaint qua it.

3. The opposite party No.2 resisted the complaint by filing reply wherein preliminary objections have been raised that the complaint is not legally maintainable against it and the complainant has no enforceable cause of action or any right to sue against it and the complaint is liable to be dismissed. On merits , it had been admitted that the opposite party No.2 had sanctioned limit of Rs.1,00,000/- to the complainant for the period from 1-4-2006 to 31-3-2007 as per Annexure R-1 . It has been denied that the complainant had ever intimated the opposite party No.2 regarding alleged theft or damages to his property. It has been averred that the complainant had never defaulted in C.C.limit during its subsistence. It has been averred that the sum insured was Rs.1,20,000/- and the premium has been paid by the complainant . The opposite party No.2 had denied any deficiency in service on its part . The opposite party No.2 had prayed for dismissal of the complaint qua it.

4. The complainant had filed rejoinder reiterating the contents of the complaint and denying those contrary to the complaint.

5. We have heard the ld. counsel for the parties and have carefully gone through the record. On analyzing the rival submissions as well as the material available on record , the short controversy need redressal in this complaint is as to whether the opposite party has rightly repudiated the insurance claim lodged by the complainant on the ground that the property stated to be stolen has not been insured with it or not. In order to answer the poser supra , we have to go through the contents of the insurance policy which is material documents for adjudication of the controversy The complainant has not adduced in evidence the policy, However, the opposite party had adduced in evidence insurance policy Annexure R-3. The perusal of the insurance policy ( Burglary)shows that the same is in the name of M/S Shiva Jewellers , Jiuni Road Pandoh,District Mandi, The perusal of the insurance policy further depicts that the insured sum was Rs.1,20,000/- and the same was valid with effect from 23-2-2006 to 22-2-3007 In the policy, against column ,description of the property insured “On the Machinery and tools lying and installed at above said insured premises” has been written . Below the column Specification of property or articles insured and the Sum Insured the opposite party has written as under:-



“Stock -in -Trade ” Rs.1,20,000/-

The perusal of the insurance policy makes it ample clear that the stock in trade was insured with the opposite party in the sum of Rs.1,20,000/-.However, the opposite party No.1 has repudiated the claim on the ground that the policy does not cover the theft of the ornaments lying in the shop of the complainant. It is settled law that the terms of the policy shall govern the contract between the parties and they have to abide by the definition given therein. The contract of the insurance is a bilateral contract between the parties and the parties cannot be allowed to interpret the words used in the contract in the way they like . The contract has to be definite and certain . It is also settled law that when there is a question of interpretation and when two interpretations of a clause in the insurance policy are possible , one benefited to the insured has to be accepted. The Hon’ble National Consumer Disputes Redressal Commission in Life Insurance Corporation of India Vs Ram Singh Tanwar 2007(1)CPR-449( NC) has held as under:-

“In our view , this would be the reasonable interpretation and in conformity with the principle that if the terms of the policy are vague it should be interpreted for the benefit of the assured as it would serve the purpose and object of getting the insurance coverage Re. Skandia Insurance Co. Ltd vs Kokilaban Chandravadan and others ( 1987) 2 SCC-654 Shashi Gupta vs LIC of India ( 1995) Suppl 1.SCC-754, B.V. Nagaraju vs M/S Oriental Insurance company Ltd

( 1996) 4 SCC-648 and LIC vs Raj Kumar Rajgarhia and another ( 1999)3 SCC-465, ”( emphasis supplied)



6. In the present case, the opposite party No.1 had failed to furnish any explanation as to why the term “stock in trade” has been mentioned against column Specification of property or articles insured . Had only machinery and tools been insured with the opposite party No.1 then there was no occasion for it to have the words “stock in trade “ mentioned in the policy. In our opinion once the insurance company has used the words “Stock in trade” against the column Specification of property or articles insured , then the ornaments are definitely covered under the insurance policy because it has not been denied by the insurance company that the complainant is running a jewellery shop. If the complainant is running jewellery shop then in our opinion, the stock in trade means “ ornaments ” lying in the shop for the purpose of business . Therefore , we have no hesitation to conclude that the theft of the ornaments was also covered under the policy and the opposite party was not justified in repudiating the claim of the complainant which act on the part of the opposite party No.1 amounts to deficiency in service.

7 Now the next point arises for determination is that to what amount the complainant is entitled on account of insurance claim due to incident of theft. The complainant in his complaint in para No.6 has alleged that on 30-10-2006 he had lodged claim of theft of Rs.2.50,000/- taken place in his shop and claimed Rs.1,20,000/- for the shop and the ornaments insured with the opposite party. Be it stated that the opposite party in its reply has not denied the theft in the shop of the complainant. The complainant in support of his claim has placed on record copy of First Information report No.236 dated 16-6-2006 lodged by the complainant Sh.Kuldeep Soni wherein against column No.10, total value of properties stolen / involved has been given as Rs.60,000/-. In the letter dated 30-10-2006 Annexure V the complainant has mentioned that the articles / which were stolen were in the sum of Rs.2,50,000/-. The opposite party had not assessed the amount of the loss suffered by the complainant with respect to the theft of the ornaments in question. A perusal of the First Information shows that the same was lodged promptly by the complainant himself on 16-6-2006 at 12.30 PM. In the First Information Report , it has been specifically mentioned that the total value of property stolen is Rs.60,000/- but the complainant has failed to explain as to how later on he had stated that the amount of stolen ornaments was Rs.2,50,000/- as per letter dated 30-10-2006 Annexure V, or Rs. 2,55,000/- as per the amount stated by the complainant before the investigator as per his report Annexure R-6 which means that the complainant had given three different versions regarding the value of the property stolen. The First Information report has been lodged by the complainant himself and it is nowhere the case of the complainant that the value of the stolen property mentioned in the First Information report has wrongly been mentioned. No objection has been raised either by the complainant or the opposite party with regard to the contents of the First Information report. The first information report is the very first version recorded about the incident and the contents therein carry much weightage and it being a public document is ex-facie admissible in evidence. Since there are three different versions of the complainant regarding the value of the property stolen, and the first information report being a material document. , we are left with no other alternative except to admit the contents of the first information report . So we hold that the complainant had sustained loss of ornaments in the sum of Rs.60,000/-.

8 The complainant had claimed Rs.20,000/- as compensation on account of mental tension, torture and agony as well as financial loss suffered by him due to deficiency in service on the part of the opposite party. As discussed above the opposite party has been deficient in providing service to the complainant , therefore he is entitled to some reasonable compensation on this score . Hence , It would be in the interest of justice if we award a sum of Rs.10,000/- as compensation.

9 In the light of above discussion, the complaint is partly allowed and the opposite party is directed to pay Rs.60,000/- to the complainant with interest at the rate of 9% p.a. from the date of filing of the complaint till realization ,to pay Rs.10,000/- as compensation on account of harassment and Rs.5000/- as costs of litigation.



10 Copy of this order be supplied to the parties free of cost as per Rules.

11. File, after due completion be consigned to the Record Room.

Announced (Sushil Kukreja) President