Delhi

East Delhi

CC/370/2016

NIRMAN - Complainant(s)

Versus

NIC - Opp.Party(s)

31 May 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI   

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. No. 370/2016     

 

	NIRMAN ASSOCIATES D-279, VIVEK VIHAR, DELHI – 110095	….Complainant
Versus
	THE DIVISIONAL MANAGER NATIONAL INSURANCE COMPANY LTD. DO-28, SCOPE MINAR, 11TH FLOOR, CORE-II, LAXMI NAGAR, DELHI - 110092	……OP

 

 

Date of Institution	:	21.07.2016
Judgment Reserved on	:	31.05.2023
Judgment Passed on	:	06.06.2023

 

                  

QUORUM:

 

Sh. S.S. Malhotra	(President)
Ms. Rashmi Bansal	(Member)
Sh. Ravi Kumar	(Member)

 

 

Order By: Shri S.S. Malhotra (President)

 

 

 

JUDGMENT      

1. By this order the Commission shall dispose off the present complaint filed by the Complainant against OP w.r.t. deficiency in service in not refunding the stolen amount against the insurance policy from the premises/shop of the complainant.       
2. Brief facts as stated by the complainant in the complaint are that the complainant is a partnership firm and is a distributor of Protector and Gamble India Ltd. having its office at different distribution centres at Haryana and Chandigarh.    
3. The Complainant took a money insurance policy from the OP having its office at Laxmi Nagar for covering the risk for money in transit and the distribution centre situated at 3884/9, Kachcha Bazar, Ambala, Haryana and OP issued a policy  No. 36170048157600000240 valid from 21.04.2015 to 20.04.2016 for a sum assured of Rs.10 Crore for ‘transit’ and Rs.8,00,000/- for ‘safe’ and the consolidated premium of Rs.15,646/- was paid.  However, on 14.09.2015 during the existence of the insurance policy, money from their safe from Ambala Distribution Centre was stolen of which an FIR was registered and Complainant suffered a loss of Rs.6,94,586/- which the burglars had taken after breaking the lock of the doors and steal almirahs and even burglars were caught by the police and an amount of Rs.1,48,000/- was recovered from them and thereafter Complainant filed claim before the OP but OP rejected the same illegally citing the reason as mentioned in Annexure-4 and therefore Complainant has filed the present complaint case against OP for refund of loss suffered to the extent of Rs.6,94,000/- compensation of Rs.5,00,000/- and litigation cost of Rs.1,00,000/- along with interest @ 25% p.a.   
4. The OP has filed its reply taking preliminary objection that there is no deficiency in service on the part of OP and the repudiation was done as per the terms and conditions of the policy therefore complaint is not maintainable for the reason that it has not been filed through constituted attorney or the authorized representative, this Commission does not have the territorial jurisdiction to entertain the present complaint, the partnership of the complainant is not registered with the partnership firm, Complainant is not a consumer within the definition of Section 2 (1) D of CPA-2019 as the policy was taken for commercial purpose and even otherwise the claim sought falls under the exclusion clause of the policy and the present matter involves the complicated question of law, therefore complaint is not maintainable.   
5. On merit the activity of the Complainant or having the policy purchased from the OP and recovery of Rs.1,48,000/- from the burglars is not disputed however it is submitted that in view of the preliminary objection and for want of territorial jurisdiction, the complaint of the Complainant is liable to be dismissed and may kindly be dismissed. 
6. Complainant has filed Rejoinder to the Written Statement of OP inter alia stating that this Commission has territorial jurisdiction to entertain the complaint as the policy was purchased from Laxmi Nagar office of OP which is also the regional office of the OP.  The authority letter of the Sh. Naresh Kalra has already placed on record.  The Complainant has not relied any judgment upon which it can be said that the complaint case filed by the complainant under CPA-2019 by Unregistered Partnership Firm is not maintainable, the rejection was without any jurisdiction and the policy itself was not for commercial purpose.  The Complainant has reaffirmed and reiterated the contents of the complaint by denying the contents of the Written Statement. 
7. Both the parties have filed their respective evidence i.e. Complainant has filed the evidence of Sh. Naresh Kalra, who is the authorized representative of the Complainant and has relied upon the partnership deed, as filed on record. The policy documents, FIR registered with Police Station Ambala and the Rejection Letter. 
8. OP has filed evidence of Sh J.S. Jaba, the Divisional Manager of OP. 
9. Both the parties have filed their Written Arguments. 
10. The Commission has heard the arguments and perused the record.      
11. Few facts as mentioned here in above are admitted i.e. Complainant had a policy existing on the date of burglary, the burglary took place in the office of the Complainant, FIR was written and part money was recovered.  There is no dispute on these facts.  The Counsel for OP has raised certain legal objections and the foremost above all is w.r.t. jurisdiction.   
12. The Commission has heard the arguments and perused the record.             

It is not disputed by the OP that the policy was issued from Laxmi Nagar office which policy has been exhibited as CW1/2.  Once the policy has been issued by the OP from the office which is situated within the territorial jurisdiction of this Commission, it gives the cause of action to the complainant to file the present complaint here and therefore this contention of OP is not well found therefore this Commission has the jurisdiction to entertain this complaint.  The next issue is w.r.t. that the firm of the Complainant is not a registered Partnership Firm.  It has already been settled by catena of judgments that the Bar w.r.t. Section 69 of Indian Partnership Act only relates to filing of Suits and is not applicable before the proceedings under Consumer Protection Act. Therefore, this contention of OP is not well found.  As far as contention of OP that it has not filed any authority letter, it is clear that Partnership Deed has been filed on the Commission’s file and Authority Letter has been placed on record which authorizes Sh. Naresh Kalra who filed and signed the present complaint.  Therefore, this contention of the Counsel for OP is also not well found.  Further, the contention of OP that the Complainant is not a consumer as he is running a Partnership Firm for the purpose of Commercial activity and therefore does not fall within the definition of consumer is also not well as this is a settled principal of law that after having the policy from the OP the Complainant is not dealing in selling the policy further or for having some professional or commercial services in exchange of the insurance policy for his benefit.  The business activity for which the policy has been taken cannot be compared with the taking of policy itself for commercial purpose as by just taking a policy by the Complainant for its commercial activity the Complainant is not making profit by utilizing that policy.  Therefore this contention of OP is also not well found.  The policy itself is not being used for a commercial purpose but for the purpose of securing the loss in the commercial activity which is being run by the complainant.  Now, coming to the next aspect w.r.t. exclusion clause, which is the only proper defense raised by the Complainant and in view of the admitted proposition that exclusion clause has been reproduced and reads as under:                 

“Loss of money from safe or strong room following use of the key to the safe or strong room or any duplicate thereof belonging to the insured, unless this has been obtained by threat or by violence”.          

13. Keeping in view the exclusion clause.  It is argued that since the safe has been opened with the duplicate keys as such case of complainant is not maintainable.  In support of this contention the counsel for OP has argued that during the investigation carried out by M/s Duggal Gupta Serveyor Pvt. Ltd. it was found that safe installed in the Almirah was an electric safe and the batteries of safe were lying tampered/uninstalled and the safe was opened with the help of duplicate keys and it is argued that since the loss of money from the safe/strong room has been done by the use of keys/duplicate keys therefore the claim falls within the exclusion clause and as such was not maintainable.  It is further argued by Counsel for OP that safe in which cash was kept was a digital safe and can be opened only in two ways i.e. one by entering digital password/lock number and in case of battery failure by use of keys.  It is further argued that when the loss was noticed the insured’s employee noticed that battery of safe was lying tampered/dismantled and the safe was found open.  It was explained that the safe was found opened with duplicate keys and since duplicate keys have been used the claim is not maintainable. 
14. The Ld. Counsel for Complainant on the other hand has argued that a theft has taken place, police report has been done, police has caught the burglars and even has recovered part of the case property/stolen amount and above all it is sufficient to hold that someone has entered the premises and committed the burglary which is covered in the policy, the policy was taken to cover such risks.  It is further argued that the surveyor has not alleged any allegations of the malafide on the part of the Complainant and therefore in absence of any malafide, the contention of OP is not well found. 
15. The Commission has perused the record.  It is not clarified by the OP as to which employee has given the statement to the surveyor.  Admittedly, when the theft had taken place and when it was observed by the Complainant or its employee, at the first instance in the morning or whenever the shop was opened, a report to the Police would have been made and thereafter it is the Police who has taken the situation under its control by taking the necessary steps for investigation.  The surveyor would reach the spot only once the claim has been lodged by the Complainant and then surveyor would start its function or would enquire certain facts from the Complainant or from the employees to conclude its report.  It has not been reported as to whether such employee has also given such statement to the police.  The final charge sheet has not been placed on record to appreciate as to what had happened.  Therefore apart from the bald assertion of the Surveyor by stating that some employee has informed him such facts, without any other corroborative statement is not sufficient to appreciate the contention of OP.  Therefore, the conclusion of the Surveyor or observation of the Surveyor is not convincing.  However, what are the domains of the Surveyor have i.e. whether he is a simple surveyor or he is also the investigator, has not been explained.  What authorizes the surveyor to be investigator, is a serious encroachment over the jurisdiction he had.  He cannot be allowed to act beyond the jurisdiction, he has been vested with nor he can exceed the jurisdiction vested in him.  Why the surveyor has taken that statement after his appointment as a surveyor is a fact which require deprecation, as the surveyor is not an investigator and cannot collect evidence on behalf of the OP by recording such statement of someone to defeat the claim of the complainant.  In such circumstances saying of the surveyor that too without examining such person who has given that statement before the Commission, cannot be relied upon.  The act of the surveyor in becoming investigator and then not approaching the Police to have a first hand information on that aspect as to what has happened on the spot, as observed by Police, leads to the only one conclusion that the surveyor has acted only in order to protect his insurance company irrespective of it having claimed that he is an independent surveyor.  It is settled principal of law that the surveyor’s report  should be an independent report, w.r.t. the job entrusted to him without any shadow of doubt.  Further, even otherwise the surveyor has not mentioned any malafide on the part of the Complainant and has not denied that theft has not happened.  Theft has happened is an admitted fact by the surveyor even.  Therefore, recording the statement by the surveyor of any such person is of no consequence much less for denying/repudiating the claim of the Complainant.  Therefore, this contention of OP is also not well found.  It is a matter of record that amount of Rs.1,48,000/- has already been recovered by the Police.  The Complainant has a right to get that money released from the Police/Court and if he has obtained then that amount cannot be said to be a loss.  As far as remaining amount is concerned, the OP has rejected the claim for remaining amount without any legal basis and therefore tentamounts the deficiency in service on the part of OP.          
16. The Commission hereby orders as follows: 

• OP to pay Rs.5,46,586/- (Rs.6,94,586 – 1,48,000) to the Complainant with interest @ 6% p.a. from the date of filing the complaint to actual realization. 
• The OP would also pay compensation of Rs.20,000/- to the Complainant and litigation expenses of Rs.7,500/-

This order be complied with within 30 days from the date of receipt of the order and if not complied with then an interest of 9% p.a. would be charged on all the above amounts. 

Copy of the order be supplied / sent to the parties free of cost as per rules.

File be consigned to Record Room.    

Announced on 06.06.2023.