BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, KAPURTHALA.
Complaint No. 01 of 2021
Date of Instt. 04.01.2021
Date of Decision :25.11.2024
Neeraj Kumar Prop. CS Jewellers, Amrit Bazar, Near City Police Station, Kapurthala (M.No. 9569565319)
..........Complainant
Versus
IFFCO Tokio General Insurance Company Ltd. Regd. Office Iffco Sadan C-1, District Center Saket, New Delhi 110017 through its CM/CEO/MD/Authorized Signatory.
IFFCO Tokio General Insurance Company Ltd. Plot No. 2B & C Sector 28-A, Madhya Marg, Chandigarh 160002 through its Branch Manager.
IFFCO Tokio General Insurance Company Ltd. 2nd Floor, Nirmal Complex, EH 198, GT Road, Civil Lines Jalandhar through its Manager/ authorized person.
.........Opposite parties
Complaint Under Consumer Protection Act.
Quorum: Before: Sh. Rajesh Bhatia (President)
Mrs. Rajita Sareen (Member)
S. Kanwar Jaswant Singh (Member)
Present: Sh. Manish Luthra, Adv. Counsel for the complainant.
Sh. A.K. Gandhi counsel for Ops.
Order
Sh. Rajesh Bhatia (President)
1. The complainant has preferred this complaint under Consumer Protection Act. As per version of complainant, the complainant in order to earn his livelihood, had started his new shop under the name and style of CS Jewellers, Amrit Bazar, Near Thana City, Kapurthala. In order to secure his shop from theft, burglary or any type of mishappening, purchased an insurance policy No. 48021453 which was valid from 9/11/2019 midnight to 8/11/2020. The amount secured under the said policy was of Rs. 20,00,000/- for a one time premium of Rs. 10,500/- for one year. After purchasing the policy, a theft was committed in the shop of the complainant during the night between 28/29.02.2020, wherein some unknown persons had stolen gold, silver articles, which were lying in the locked drawer of the shop and artificial jewellery was stolen from the locked showcase of the shop of the complainant. The said shop was also under the lock and key of the complainant. On the next date when the complainant came to the shop, he was surprised to see the theft committed in his shop by the unknown persons and in this respect, he lodged FIR bearing No. 63 dated 29/2/2020 U/s 457/380 IPC at Police Station City Kapurthala. According to complainant he originally has suffered a loss of Rs. 8,33,000/- in the said theft. Thereafter complainant informed the opposite parties about the above said incident and lodged the claim vide claim form Ex-C5. Thereafter opposite parties appointed a surveyor who contacted the complainant on 7/3/2020 and who prepared the loss/ theft report on 11/3/2020, the concerned surveyor sent an email by stating that the relevant documents should be provided to them as said email was Ex C6.
2. As per version of complainant, the complainant provided the required documents to the opposite parties and then the said surveyor sent another mail that the total loss of the complainant comes to Rs. 4,10,163/-. Thereafter the complainant refused to accept the loss assessed by the surveyor, because originally the loss of the complainant is much higher than the report of the surveyor and the surveyor was assessing under value/ lower value of the stolen articles. Then again the surveyor sent another mail to the complainant on 27/8/2020 by assessing the value of loss of Rs. 4,95,188/- Ex. C10 and he also prepared his surveyor report. As per version of complainant, on 05.09.2020 one Manu Malhotra agent of the opposite parties sent a mail stating that the company has assessed the damages value of the stolen articles of the complainant as Rs. 3,48,696/-, so they can only accept the claim of above said amount of the complainant. The complainant sent an email on 30/9/2020 requesting therein to accept the genuine claim of the complainant. As Per para no.7 of the complaint the opposite parties sent an email on 15/10/2020 stating that the stolen property was of out of safe limit and the said articles were stolen from the shop of the complainant are not covered under the said policy. Thereafter nothing was done by the opposite parties despite the repeated request of the complainant. But to the surprise of the complainant, the opposite parties again sent an email to the complainant in which the opposite parties refused to accept the claim of the complainant. According to complainant, this amounts to unfair trade practice and deficiency in service on the part of OPs. Hence this complaint has been filed by complainant and he has prayed that complaint of the complainant may kindly be accepted and OPs be directed to pay the insurance amount of Rs. 8,33,000/- along with interest @18% per annum from the due date till its actual realization.
3. Notice of the complaint was issued to the opposite parties and opposite parties No. 1 to 3 appeared through counsel and filed its written reply by taking preliminary objections. As per version of opposite parties the present Complaint is not maintainable against the answering opposite parties and is liable to be dismissed. The claim of the complainant has been rightly repudiated by the Opposite Parties vide letter dated 26/11/2020. As per the record, the alleged theft took place in the intervening night of 28 and 29th February 2020 and the surveyor M/s Puri Crawford Insurance & Loss Assessors India Pvt Ltd was duly appointed by the opposite parties to assess the loss. As per survey Report some gold and Silver Jewellery/ornaments were kept in display window and/or for repair purpose were left lying in wooden shelves/glass display after the business hours on 28/2/2020 by the complainant without exercising any safety measures to secure the insured articles at the night of alleged occurrence, in violation and breach of the warranty Clause no.9 of the insurance policy in question. Moreover, the claim of the complainant also falls under the terms “out of Safe Limit” as described under the policy in question hence not payable. According to opposite parties, the claim of complainant is not maintainable due to breach of the Warranty Clause no.9 as well as due to falling under the terms of “Out of Safe Limit” of the policy. Hence, the loss does not falls under the purview of the terms and conditions of the insurance policy. According to opposite parties, the National Commission in a similar matter recently upheld importance of adherence to the warranties of a policy. In the case of Dharmanandan Diamonds Pvt. Ltd. and Ors vs New India Assurance Co. Ltd. and Ors. decided on 28/8/2020 the Hon'ble National Commission held that in a policy where the warranty provided that the subject of the policy i.e. the diamonds were to be kept under a locked safe and were not so kept was a material breach of the warranty condition of the policy based on the breach of the warranty of the policy the Hon'ble National Commission held that the insurance claim was not payable upholding the warranty.
The National Commission also observed that:-
“From the above authoritative judgement, it is clear that a consumer forum or any court for that matter, does not have power to relax the warranty clause or any terms and conditions of the policy”.
According to the written statement filed by opposite parties, the complainant is estopped by his own acts and conducts from filing the present complaint. The insured in a written statement given to the Surveyor has admitted to leaving the gold jewellery on the display set and the counter in the the intervening night of 28 and 29 February 2020 when the theft took place. The alleged loss in question took place due to own negligence of the complainant as the complainant failed to exercise safety measures, to protect the stock in his possession in subtle violation of the terms and conditions of the policy in question. So, the complainant cannot be allowed to take the benefits of his own wrong. The Opposite parties had also taken plea that the loss assessed by surveyor i.e 705680 which is also not payable as the insured property damage whilst in window display at night or whilst kept out of safe by complainant after business hours. So there is breach of warranty No.9 of terms and conditions of policy in question, moreover the claim of complainant fall under the terms of “ Out of Safe Limit ” of policy in question. No cause of action arose against the answering opposite parties to file the present complaint, so the opposite parties seek the dismissal of complaint.
4. The complainant filed rejoinder to the written statement of OPs reiterating the allegations made in the complaint and controverting those made in the written statement.
5. To prove his case, complainant submitted affidavit alongwith documents Ex. C1 to Ex. C23.
6. On the other hand, OPs No. 1 to 3 submitted affidavits Ex. OP/A, Ex. OP/B alongwith documents Ex. OP1 to Ex. OP6.
7. We have heard the counsel for the parties and also gone through the written arguments made by learned counsel for the parties.
8. That the complainant purchased an Insurance Policy from opposite parties with a premium of Rs. 10,500/- for one year from 9/11/2019 to 8/11/2020 to secure his shop from theft, Burglary and for other type of mishappening. After purchase of policy, a theft was committed in shop of complainant for which he informed to the opposite parties but the opposite parties rejected or repudiated the claim of the complainant. As per the Surveyor Report the gold and silver jewellery/ ornaments were kept in display window and/ or for sale purpose were left lying in wooden shelves/ glass display after business hours on 28/2/2020 by complainant, without exercising any safety measures to secure the insured articles at the night. We have observed that this version of the opposite parties is proved as per document Ex. C4. Copy of FIR which is silent about the breaking of any locked safe also proves that the complainant kept the ornaments at display at the counter on that night and the complainant has not rebutted this plea of the opposite parties. As per opposite parties, document Ex OP 1/4 another document by Opposite party Ex OP 1/3, the complainant breached the warranty clause 9 of the policy. Which is as follows:-
“9. Damage to the property insured whilst in window display at night or whilst kept out of safe after business hours except as provided in Out of Safe Limit Provision given below”
Limit of Liability
Out of Safe Limit: It is a condition of this insurance that our liability shall not exceed 20% of total sum insured under Item A, Section 1 of the Schedule for stocks kept out of locked safe and/or strong room outside business hours. However, no such property can be kept on display windows outside business hours. Also, this limit is available only for premises having security/ protection arrangement as per Class I or Class II in warranty below. For premises having no security/ protection arrangement (Class III) no cover is available for stocks kept outside safe out of business hours.
SPECIAL WARRANTIES
It is warranted that
All stocks whilst at premises specified in the Schedule shall be secured in a locked burglar proof safe at night and at all times out of business hours except as stated in the “Limit of Liability” provision above.
The securities/ protection arrangements for the insured premises comply with the appropriate class as described below:
Class1: The insured premises specified in the Schedule of the policy are protected by employment of exclusive watchman/ watchmen all 24 hours of the day and that they will so continue to be employed during the currency of the policy.
ClassII: The insured premises specified in the schedule of the policy are protected by the employment of common watchman/watchmen for the whole building or night watchman/watchmen as the case may be at the insured premises and they will continue to be so employed during the currency of the policy.
In short the above warranty clause 9 says that if the insured places the property in the display windows outside Business hours and employs no watchman for the protection of premises then no cover is available for stocks kept outside safe.
On the night dated 28/29, the jewellery was not in the safe lock as per warranty clause No.9 of policy nor any security personnel was deployed by the complainant as per policy clause No. 9 as the complainant has taken plea that his shop is near to Police Station as per Para No. 11 of complaint and Para No.2 of the rejoinder filed by the complainant proves the contention of the opposite parties as true that the complainant has not deployed any security person on that night. And stolen articles were lying outside the locked safe as per policy clause No. 9 has already proved in present complaint. As per Ex. OP1/3 as produced by opposite parties, the complainant has himself admitted in the said document that he placed the gold jewellery at the display set and the counter of his jewellery shop that he forget to take with himself to his home. The other item i.e. silver items worth Rs. 11,80,000/- that was kept inside the safe (locker) of the jewellery shop was not stolen as it was kept in the safe but the gold jewellery that was kept at the display set and counter of the shop were stolen. This shows that the complainant has himself breached the warranty clause 9 of the policy. Therefore, this Commission is of the view that the present complaint is dismissed for lack of evidence with no order as to costs.
9. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated
25/11/2024
S. Kanwar Jaswant Singh Rajita Sareen Rajesh Bhatia
Member Member President
