Manasi Jewellers (P) Ltd vs Oriental Insurance Co. Ltd

(1) The complainant company obtained an insurance policy from the opposite party, which inter-alia covered the stock and stock in trade consisting of jewellery, gold or silver ornaments etc. belonging to and/or held in trust or on commission by the complainant. The aforesaid policy inter-alia provided insurance in respect of the jewellery in the custody of employees to the extent of Rs.1,90,00,000/- (Rupees one crore ninety lacs only). The case of the complainant is that its employee Mr. Kalyansingh V. Rao was returning from Bangalore to Mumbai in a Volvo Bus carrying gold jewellery/gold weighing 81.08 gm, kept in four plastic boxes kept in a hard suitcase, which had three locks. The suitcase had been chained by him to his seat, as a matter of precaution. When the bus stopped at Natraj Hotel, Varve, just before Mumbai, at about 6.30 a.m. on 17.12.2009, it was parked in the compound of the Hotel. The cleaner informed the passengers that it was a halt for toilet and breakfast, and advised all the passengers to get down. The bus was then locked. This is also the case of the complainant that when the employee namely Mr. Kalyansingh V. Rao returned to the bus, it was still locked. When the bus was unlocked by the cleaner, andMr. Kalyansingh V. Rao came to his seat, he found that the bag had been displaced. He lifted the bag up and placed it on his seat and he discovered that though the bag was locked, and its upper and lower part of the suitcase had been separated by use of force. Three out of four plastic boxes containing jewellery/gold were missing. He raised an alarm and the bus was taken to the concerned police station where an FIR under Section 406 of IPC was registered at the instance of Mr.M.N.Jain, Director of the complainant company who had reached the complainant at about 10.30 a.m. The incident having been informed to the insurer, a surveyor was appointed. The surveyors assessed the loss to the complaint at Rs.90,55,928/- , subject to terms of the insurance policy. It was opined by the surveyors that policy condition No.5 would be breached in their opinion. They also opined that in view of the application of exclusion No.5 and breach of condition No.10, there would be no liability under the policy.

(2) The claim was repudiated vide letter dated 18.03.2013 which, to the extent it is relevant, reads as under :

Dear Sir,

Re : Claim No. 122300/2010/000972 under Jeweller's Block Policy No.

122300/48/2009/10856

Date of Loss : 17.12.2009

This is reference to the claim intimated by us on our Jeweller's Block Policy No. 122300/48/2009/10856. In this connection please note that the Competent Authority has repudiated your claim on the basis of the following observation:

Claim falls under exclusion No. 5 of the policy which reads as under:

'Theft or Disappearance of property hereby insured from road vehicle of every description owned or hired by or under the control of the Insured and / or their partners servants, agent or representatives where such vehicles are left unattended and also our condition no. 10 of the policy reads as under:

"The Insured shall use due diligence and concur in doing all efforts reasonable, practicable to avoid or diminish and loss under this policy.'

Based on the above we are closing our claim file as 'No Claim' which please note.

(3) Being aggrieved from the repudiation of the claim, the complainant is before this Commission seeking payment of Rs.96,13,450/- alongwith interest @ 12% per annum and Rs.5 lac as compensation.

(4) The complaint has been resisted by the insurer inter-alia on the ground that there was breach of exclusion clause No.5 of the insurance policy.

(5) The exclusion clause, on the basis of which the claim is being repudiated reads as under :

'Theft or Disappearance of property hereby insured from road vehicle of every description owned or hired by or under the control of the Insured and / or their partners servants, agent or representatives where such vehicles are left unattended.'

(6) The first question which arises for consideration in this case is as to whether the vehicle in which the employee of the complainant was travelling alongwith the jewellery had been left unattended or not, at the time the jewellery is alleged to have been stolen. This is complainant's own case that all the passengers were requested to get down from the bus and thereafter the bus was locked, meaning thereby that neither any passenger nor the driver or conductor had remained inside the bus during its halt at Nataraj Hotel, Varve. In his statement recorded by the investigator, Mr.M.N.Jain, Director of the complainant company inter-alia stated that he had been told by his employee Mr.Kalyansingh V.Rao that at Natraj Hotel, the conductor had locked the bus and thereafter they had gone to the tea and bathroom. When he returned he waited for the conductor to come back since the bus was found locked. After 10 to 15 minutes, the bus driver and conductor came and opened the door. This is contrary to the averment made in para 14 of the complaint where it is alleged that it was the cleaner who had unlocked the bus, after the employee of the complainant had returned to the bus. Ignoring the aforesaid discrepancy as to who had opened the locked bus, this is not the case either in the consumer complaint or in the statement made to the investigator by the Director of the complainant company, that the driver, conductor or cleaner of the bus had remained present outside the bus throughout its halt at Nataraj Hotel, Varve. This was not claimed even by the employee who was initially arrested by the police under Section 406 of IPC, in his bail application which is available on record. Therefore I have absolutely no hesitation in holding that the bus, even if locked, was left unattended during its halt at Hotel Nataraj and neither driver nor conductor or cleaner of the bus had remained present throughout its halt at the said hotel. In any case, had the driver, conductor or the cleaner of the bus remained present outside the bus throughout at Natraj Hotel, no one could possibly have entered the bus which had been locked, since entry to the bus could have been gained only by opening the lock of the bus which no one would have dared in the presence of driver, conductor or cleaner. Had the driver, conductor or the cleaner been present outside the bus. In fact, no one would have dared to remove the jewellery in the manner it is alleged to have been removed from the suitcase, had the conductor, driver or cleaner of the bus been present outside the bus throughout its halt at Natraj Hotel, Varve. Therefore, there was a clear cut breach of condition No.5 of the insurance policy on account of the vehicle having been left unattended at the time the jewellery is alleged to have been stolen.

(7) Condition No.10 of the insurance policy required the insured to use due diligence and do and agree in doing of efforts reasonable, practicable to avoid any loss under the policy. The employee of the complaint was carrying jewellery worth crores of rupees with him. Therefore, he ought not to have taken risk and should either have continued to sit in the bus through its halt at Natraj Hotel or he ought to have taken the suitcase with him, so as to prevent or avoid any loss in his absence. It is rather surprising that an employee carrying jewellery worth crores of rupees would leave the same in a bus when neither driver/conductor of the bus nor any passenger remains sitting in the bus. In fact, the theft in such a situation could be possible only by or with the connivance with the person who had the keys of the bus with him provided he stays back outside the bus when the passengers have gone inside the hotel to ease themselves or take refreshments. However as noted earlier, this is not the case of the complainant that the conductor, or the cleaner who locked the bus had remained present outside the bus when the passengers had gone inside the hotel to ease themselves and/or to have refreshment. At no stage, the complainant or its employee lodged any report against the conductor or cleaner of the bus, despite the fact that according to the complainant it was the conductor who had locked the bus and retained the key and the bus was still found locked when the employee of the complainant returned to the bus from the hotel. Rather, the FIR was lodged against the employee, who was carrying the jewellery.

(8) The learned counsel for the complainant relies upon the decision in First Appeal No.787 of 2007 in United India Insurance Co. Ltd. & Anr. -vs- M/s Manik Bhai Jewellers decided on 22.04.2014 & First Appeal No.664 of 2012 in M/s Modern Jewellers -vs- New India Assurance Co. Ltd. decided on 14.09.2018. However neither of these decisions will apply since they were rendered on altogether different facts.

(9) For the reasons stated herein above, I hold that the complainant having breached the mandatory terms of the insurance policy taken by it, the insurer is not liable to pay the aforesaid claim.

The consumer complaint is therefore, dismiss with no order as to cost.