Karnataka

Tumkur

CC/161/2019

Sri. NALINA - Complainant(s)

Versus

The Manager , Malabar Gold and Diamonds - Opp.Party(s)

SUNDARARAMU D R

29 Oct 2020

ORDER

Complaint filed on: 18-09-2019

                                                      Disposed on: 29-10-2020

 

BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, TUMAKURU

 

CC.No.161/2019

 

DATED THIS THE 29^th DAY OF OCTOBER, 2020

 

PRESENT

 

SRI.C.V.MARGOOR, B.Com, L.L.M, PRESIDENT

SRI.KUMARA.N, B.Sc., L.L.B, MEMBER

SMT.NIVEDITA RAVISH, B.A., L.L.B, LADY MEMBER

Complainant: -

Smt.Nalina

W/o late Chandrashekar

Aged about 55 years,

R/at Mithra, 6^th Main,

1^st Cross, Sadashivanagara,

Tumakuru city

 

(By Advocate Sri.Sundara ramu.D.R,)

 

V/s

Opposite parties:-    

1. The Manager

Malabar Gold and Diamonds, Door No.30/37, Mahaveer Mansion,

Ground and 1^st Floor,

B.H. Road, Tumakuru

City-572 102

2. The New India Insurance Co. Ltd, Divisional office

2^nd floor, Fair Mont Building, Eranhipalam, Kozhikode, Kerala state,

Pin No.673 006

Reptd.by the Manager

 

(OP No.1 by advocate Smt.T.Kavita)

(OP No.2-by Advocate Sri.K.V.Sudarshan Kumar)

      

ORDER

 

SRI.C.V.MARGOOR, PRESIDENT

 

        This complaint is filed to direct the Opposite party No.2 to pay the insured gold ornaments value of Rs.59,145=00 with interest @ 18% p.a. from the date of theft of gold ornaments  plus Rs.50,000=00 compensation towards mental agony and torture.

 

          2. It is the case of complainant that her late husband Chandhrashekar had purchased gold ornaments on 19-5-2017 valued Rs.1,04,500=00  from OP No.1-Malbar Gold and Diamonds shop situated at Tumakuru. On the same day late husband of complainant had insured the purchased gold ornaments with the OP No.2-the New India Insurance Co. Ltd. by paying premium amount for the period from 19-5-2017 to 19-5-2018.

 

          3. It is the case of complainant that her late husband had purchased two gold bangles of 22K for their daughter’s marriage weighing 9.230 grams and 9.110 grams total value of Rs.59,145=00 and bracelet weighing 15.604 grams valued Rs.48,207=00. The complainant’s daughter marriage was arranged at Sri Siddarameshwara Samudaya Bhavan, Hosadurga town, Chitradurga district on 1-6-2017. On the same day the gold bangles were stolen. The complainant and her husband have made search of the stolen bangles and enquired with the relatives but their efforts went in vain. Thereafter, the complainant’s husband relatives by name Mallikarjunappa has reported to Hosadurga police and in turn they registered in Crime No.292/2017 on 10-7-2017. The complainant has got issued legal notice to OPs to pay insurance amount of the theft gold ornaments but the OP No.2 has repudiated the claim. Hence, this complaint filed alleging deficiency in service and negligence on the part of OP No.2.

 

          4. The OP No.1 has filed version admitting that late husband of complainant had purchased gold ornaments on 19-5-2017 and as per their business policy the late husband had insured the purchased gold with the OP No.2. This OP is not liable to pay any amount hence, there is no deficiency in service or negligence on the part of this OP. Further there is no claim against the OP No.1 consequently, asked to dismiss the complaint.

 

          5. The OP No.2–Insurer has filed written version contending that the policy coverage only when the jewellary in the custody of the insured person, spouse/children/ parents. Insured should keep the jewellary with utmost care and under safe custody when not in use. According to claim intimation of the jewellary was in the insured’s sister-in-law as such the OP No.2 is not liable to answer the claim of the complainant. It is further contention of the OP No.2 that the policy issued by this OP covers only for burglary/theft and not for losses due to mysterious/ unexplained disappearance of valuables and insured items. Insured items were kept carelessly in open place and insured has failed to take proper care and precaution for safe custody of ornaments which indicates carelessness/negligence on the part of insured. It is the case of OP No.2 that though theft had taken place on 1-6-2017 but report has been filed before the police on 10-7-2017 after gap of 40 days which shows afterthought the complaint has been lodged before the police to get benefits of the insurance policy. The insured has violated the terms and conditions of the policy by keeping the bangles in open place without taking care and caution and also it was in the custody of third party. Hence, the complaint is liable to be rejected.

 

          6. The complainant has filed her affidavit evidence and produced thirteen documents. On behalf of the OP No.1 its Manager Vivek.M.V has filed affidavit evidence. That one S.Balaji S/o late K.Santharam, Regional Manager, of OP N.2 filed affidavit evidence and got marked Exs-R1 and R2 Memorandum of Understanding and Certificate of Insurance.

 

          7. We have heard the oral arguments advanced by the learned counsel for the complainant and OP No.1 and 2 in addition to written brief submitted by the OP No.1 and 2 and the points that would arise for determination are as under:

1)      Whether the complainant proves the deficiency in service on the part of OP by rejecting her claim application?

2)      Is complainant entitled to the reliefs sought for?  

8. Our findings on the aforesaid points are as follows:

Point No.1: In the negative  

Point No.2: In the negative for the below

 

REASONS

 

          9. Point No.1 and 2: The learned counsel for the complainant has vehemently argued that the OP No.1 has forced to take insurance policy for the purchased gold ornaments on 19-5-2017. The learned counsel further argued that the complainant has not violated the terms and conditions of the policy. The complainant and her late husband have made search of the theft gold bangles after 1-6-2017 and enquired with their relatives who attended the marriage as such there is delay in reporting to the police. As against this the learned counsel for the OP No.1 argued that the OP No.1 has not forced the complainant and her husband to take the policy for the purchased gold ornaments. The learned counsel for the OP No.2 has vehemently argued that the bangles said to have been kept in the open place i.e. choultry and the insured has not taken care and caution when the bangles were kept in the open place which is accessible to public.  The learned counsel for the OP No.2 further submitted that missing of the ornaments is not covered under the policy issued to the late husband of complainant.

 

          10. The complainant nowhere in the complaint or affidavit evidence whispered that the OP No.1 or 2 have used force on the complainant or her late husband to take insurance policy for the purchased gold ornaments. Therefore, the arguments of learned counsel for the complainant not hold water that the OPs have used force or threat to take insurance policy for the purchased gold ornaments.

 

          11. The OP No.1 and 2 have not disputed taking insurance policy for the purchased gold ornaments by late husband of complainant on 19-5-2017. The OP No.2 insurer has produced Ex-R2-Insurance Certificate dated 19-5-2017 which is in the name of Chandrashekhar late husband of complainant for Rs.1,04,500=00. Ex-R1 dated 20-1-2017 Memorandum of Understanding entered between the OP No.2 and Malabar Gold Pvt. Ltd. and this memorandum of understanding was in force for the period of one year. Clause No.5.6 of memorandum of understanding says that this MOU shall be valid for a period of one year from the date of execution i.e. 20-1-2017. Therefore, the terms of MOU entered between the OP No.1 and 2 cannot be relied upon.

 

12. Ex-R2 Certificate of Insurance issued in the name of late husband of complainant is for the period from 19-5-2017 to 19-5-2018. Terms and conditions of the policy reads as the insurance covers loss or damage to the insured items as specified in the above invoice number by fire, riot and strike, malicious damages, burglary, theft, snatching and by accidental, external and visible means when the jewellery is in the custody of the insured person, spouse/children/parents. Ex-R2 Certificate of insurance contains exclusion clause that insurer is not liable if loss by Misfortune (Fortuitous Losses, Loss due to Carelessness). Next clause is that jewellery should be kept with utmost care and under safe custody when not in use. The complainant has also produced certificate of insurance issued by the OP dated 19-5-2017 which at Sl.No.7 of list of documents filed along with the complaint.    

 

          13. The complainant has produced copy of complaint dated 10-7-2017 filed by one Mallikarjunappa S/o Murugayya resident of Hosadurga town before the Hosadurga police for theft of two gold bangles kept in Siddarama Samudaya Bhavana on 1-6-2017. It is stated in the complaint that two bangles were weighed 20 grams valued at Rs.48,000=00. It is further stated that he has enquired with the relatives and known persons but did not succeed to trace the same as such there is delay in lodging this complaint. Further the complainant has produced copy of FIR and Mahazar drawn by the police on 10-7-2017. The complainant has produced Un-detected C-Report notice issued to the complainant in the year 2018 by Hosadurga police. The OP No.2 has issued repudiation intimation letter dated 6-10-2018 to the husband of complainant stating that it is understood from your statement and investigation that two bangles kept in an open plate which was carried by a relative of him while performing rituals in connection with your son’s marriage were lost. Condition No.(e) of the policy which states that jewellery should be kept with utmost care and in safe custody when not in use. Please note that loss by Misfortune, Fortuitous loss and loss due to carelessness are excluded under exclusion No.(d) of the policy. Death certificate produced by the complainant shows that her husband Chandrashekhar was expired on 4-12-2017.

 

          14. On perusal of the complaint, affidavit evidence and copy of complaint filed before the Hosadurga police and FIR show that two gold bangles were kept in the open place without proper care and safe custody. The complainant who reported to the Hosadurga Police not aware the value of gold bangles.  According to version, complaint and invoice issued by the OP No.1 value of two gold bangles is Rs.59,145=00 but the complainant stated that both bangles were valued at Rs.48,000=00. Terms and conditions of the policy that jewellery should be kept with utmost care and under safe custody when not in use. When the bangles said to have been used for performing ritual ceremony in the daughter’s marriage, the complainant or her husband should have taken proper care and should have informed any of their relatives to watch the bangles till ritual ceremony was completed. The complainant has kept the valuables in the open place which is accessible to public since it is marriage choultry or hall. Thus the complainant has violated the terms and conditions of the policy Ex-R2 as such repudiation of the claim made by OP No.2 is justifiable.

 

15. The alleged theft has taken place on 1-6-2017 and relative of complainant has reported to the police on 10-7-2017 after gap of 40 days from the theft of bangles. Explanation given in the complaint that they enquired with their relatives and known persons when they did not succeed in their efforts thereafter reported to the police. The complainant or her husband would have taken maximum one week time to enquiry the persons who attended the marriage with regard to missing of one pair of gold bangles. The relative of complainant has reported after 40 days from the alleged theft and explanation given by the said person for delay in filing report of the theft is not acceptable by any ordinary prudent man. The complainant or her husband has not intimated the theft of gold bangles immediately to the OP No.2-Insurance Company. Contrary they have reported only after filing the complaint before the police. The repudiation or rejection of the claim of complainant made by the OP is proper on two fold reasons. Firstly the complainant and her husband have violated the terms and conditions of the insurance policy by not taking utmost care and custody of the bangles which were not in use and when they were not in use they were kept in open place. Further loss due to carelessness of complainant as such it is excluded under the policy condition. Secondly there is inordinate delay of 40 days in reporting the theft of bangles to the police and the reasons stated in the complaint for delay is not acceptable. Therefore, the complaint is liable to be dismissed. Accordingly, we proceed to pass the following;

 

 

 

 

ORDER

 

The complaint filed by Smt.Nalina W/o late Chandrashekar is dismissed without cost.

 

Furnish the copy of order to the complainant and opposite parties at free of cost.

 

          (Dictated to the Stenographer, got it transcribed, corrected and then pronounced in the Open Commission on this the 29^th day of October, 2020).