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Judgment
M. Shreesha, J
Aggrieved by the order dated 22.11.2012 in CC No. 340 of 2002 passed by the State Consumer Disputes Redressal Commission, Delhi (for short the "State Commission"), the Complainant preferred this Appeal under Section 19 of the Consumer Protection Act, 1986 (for short "the Act"). By the impugned order, the State Commission has dismissed the Complaint observing as follows:-
"The only question to be answered by us in this case is that, whether keeping the amount in a cash bag in a Filing Cabinet duly locked, could be a valid substitute of cashbox in a Steel Almirah as stipulated in the insurance policy?
The agreement stipulates that the cash will be kept in the cash box and in the Steel Almirah, but the Complainant kept the cash in a bag inside the Steel Filing Cabinet. There was as such no conformity with the terms of the agreement. It was argued by the counsel for the complainant that these little variations in the matter of custody of the cash, should not vitiate the agreement, because, what is essentially to be seen is whether within the broad parameters of the Agreement, proper precautions were taken, for the safety of the cash? Even if we go by this criteria the manner of custody of the cash, adopted by the complainant, was not adequate. The cash was not placed in the cashbox, and was placed in a loose bag which violated the basic norms of safety, besides of-course being inharmonious, to the terms of the Agreement. Secondly, the Filing Cabinet cannot be said as Safe as a Steel Almirah. The filing cabinet is not a place for keeping money. The complainant has filed a report of a private engineer which says that the steel of the Filing Cabinet in question is thicker than the Steel Almirah and the Agreement therefore is, that the money was safer in the Filing Cabinet. There is no affidavit in support of the report of the engineer, and mere report of this nature, cannot be taken into account. Besides a Steel Almirah, which is used for keeping money must be made of steel of appropriate thickness. In the circumstances it has to be held that the OP Insurance Company is not liable as the Agreement was not adhered to."
The facts in brief are that the Complainant, a Maruti Showroom, obtained a 'MONEY-IN-TRANSIT INSURANCE Policy' from the Opposite Party (hereinafter referred to as "The Insurance Company"), covering the period from 10.09.1996 to 09.09.1997, for an insured amount of Rs. 10 lakhs, per transaction, covering cash in transit in Safe i.e. "Cash in Safe" (in Cash Box and in Steel Almirah). It was averred that in the intervening night of 10th/11th.12.1996, a burglary took place at the showroom of the Complainant and the Complainant suffered a loss of Rs. 11,50,000/-. An FIR bearing No. 727/96 dated 11.12.1996 was registered at Moti Nagar Police Station and a formal claim was lodged with the Insurance Company. Despite repeated requests, the claim was not settled and vide letter dated 13.01.1997, the Insurance Company informed that the claim would be decided after the receipt of report of two independent Surveyors and Investigators. M/s Atul Kapoor and Co. and Sh. H.L. Ahuja were appointed as independent surveyor and investigator separately. The Complainant provided all the necessary documentation and clarification as and when asked for by the Surveyor and Investigator. After a delay of one year on 11.12.1997, the police gave its final report that the items were untraceable. The certified copy of the final report was also furnished to the Surveyor and Investigator. Despite repeated requests, the Report was not furnished to the Complainant and, therefore, the Complainant approached the Grievance Cell of the Insurance Company on 24.07.1999, but still there was no response.
The Complainant got issued a legal notice dated 27.01.2000 for which the Insurance Company replied on 07.04.2000 that the Surveyor had assessed the extent of the loss at Rs. 9,38,938.76 by applying the average clause but did not settle the claim. Hence the Complainant approached the State Commission seeking direction to the Insurance Company to settle the claim amount of Rs. 10,00,000/- and also award interest @ 24% p.a. from 01.01.1997 till 30.06.2000 together with compensation and costs.
The Insurance Company filed their Written Version admitting the issuance of the policy, the period of coverage and the insured amount. It was averred that a Surveyor was appointed to enquire into cause, nature and circumstances of the loss and the Investigator was also appointed who filed his report dated 17.02.1998 stating that the claim is genuine but the cash kept in a Filing Cabinet was not secure as compared to a proper Iron Safe. The Surveyor in his report dated 12.08.1999 assessed the loss at Rs. 11,49,946/- and the net loss at Rs. 9,38,938.76, after applying the average clause and left it open to the Insurance Company to decide as to whether the cash kept in the Filing Cabinet as against the Steel Almirah mentioned in the policy was covered as per the terms and conditions of the policy.
It was stated by the Complainant that the cash in hand was daily kept in the Filing Cabinet because at that point of time, the Insured did not have any proper Safe in the premises. The Cabinet was found damaged and opened by using force but the outside gate of the showroom was found in-tact in the morning after the incident. It was pleaded that there was no scope for entry of any miscreants through the main gate. Moreover there was a security guard present on duty outside the gate during the night. As per the Investigation Report, the culprits in all likelihood came from the first floor of the neighbouring building and broke into the insured premises through one of the bathroom doors. Once they were inside the premises, they had free access to the various cabins and broke down the Filing Cabinet. When the Manager opened the office at around 10 a.m. he found that the cash was missing from the Filing Cabinet, it was also mentioned that the cash kept in the Cash Box was safe. It was averred that the Complainant was granted insurance cover under the policy in respect of the cash in Safe (in Cash Box and Steel Almirah) to the extent of Rs. 10,00,000/- at any given point of time. The word 'Almirah' is not defined in the Policy and, therefore, it would be synonymous with the word 'Safe'. The Safe as per Oxford English Dictionary connotes a strong lockable repository for valuables. The Cabinet in question was made of steel, but the same was not strong lockable repository for valuables.
In their Written Version the Insurance Company further averred that the term 'Cabinet' is explained in English dictionary as a cupboard or case with drawers, shelves etc., for storing or displaying articles. It is pleaded that if the Insured had followed the stipulations in the policy and kept the cash in 'Steel Safe' or a 'Cash Box' the loss would not have occurred, notwithstanding the fact that miscreants had broken into the insured premises. Loss of cash kept in a bag in a Filing Cabinet within the locked showroom, even if the Filing Cabinet was locked, was not one of the perils insured against and, therefore, the repudiation by the Insurance Company was justified.
The State Commission dismissed the Complaint with the afore-noted observations.
Learned Counsel appearing for the Appellant/Complainant strenuously argued that the Policy covers 'Cash in Safe' (in Cash Box and in Steel Almirah) and in the instant case the Complainant had kept the cash in a 'Filing Cabinet' which had an inter-se lock which is even safer than a Cash Box. He further contended that the Filing Cabinet could be opened only by a key and that the State Commission has erred in arriving at a conclusion that keeping the amount in a Cash Bag in a Filing Cabinet duly locked could not be a valid substitute for a 'Cash Box in a Steel Almirah.' He also argued that the State Commission had ignored the report given by M/s Hite Engineers Private Limited.
Learned Counsel appearing for the Insurance Company relied on the dictionary meaning of 'Safe'. He argued that the 'Safe' means that a fully welded multi-body and that it falls within the definition of 'Business Furniture'. He relied on the judgement of the Hon'ble Supreme Court in Oriental Insurance Co. Ltd. Vs. Samayanallur Primary Agri. Co-op. Bank, AIR 2000 SC 10 in which the Hon'ble Supreme Court has observed that the word 'Safe' does not cover cashiers cash box and, therefore, the burglary which was committed in respect of the jewels and cash kept in the cashiers cash box and not in a Safe is not covered by the Insurance Policy and, therefore, the repudiation was justified. Learned Counsel also relied on the Judgement of the Hon'ble Supreme Court in Vikram Greentech (I) Ltd. & Anr. Vs. New India Assurance Co. Ltd. II(2009) CPJ 34(NC) in which the Hon'ble Supreme Court has observed as follows:-
An insurance contract, is a species of commercial transactions and must be construed like any other contract to its own terms and by itself. In a contract of insurance, there is requirement of uberimma fides i.e. good faith on the part of the insured. Except that, in other respects, there is no difference between a contract of insurance and any other contract. The four essentials of a contract of insurance are, (i) the definition of the risk, (ii) the duration of the risk, (iii) the premium and (iv) the amount of insurance. Since upon issuance of insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risks covered by the insurance policy, its terms have to be strictly construed to determine the extent of liability of the insurer. The endeavour of the Court must always be to interpret the words in which the contract is expressed by the parties. The court while construing the terms of policy is not expected to venture into extra liberalism that may result in re-writing the contract or substituting the terms which were not intended by the parties. The insured cannot claim anything more than what is covered by the insurance policy. [General Assurance Society Ltd. Vs. Chandumull Jain and another, AIR 1966 SC 1644; Oriental Insurance Co. Ltd. Vs. Sony Cheriyan, VI (1999) SLT 565 and United India Insurance Co. Ltd. Vs. Harchand Rai Chandan Lal, IV (2004) CPJ 65 (SC)."
Learned Counsel contended that since the Policy in question covered only 'Cash kept in Cash Box' and in 'Steel Almirah' and in the instant case it was kept in a 'Filing Cabinet', the Courts cannot given a liberal interpretation which is beyond the scope of the policy.
Learned Counsel appearing for the Appellant also relied on the judgement of the Supreme Court in Oriental Insurance Co. Ltd. (Supra) in which the Supreme Court in paragraph 2 has observed as follows:-
"Learned Counsel appearing for the Appellant Company has contended that the National Commission was not justified in seeking the aid of dictionaries to interpret the meaning of the expression "Safe". It is contended by him that the expression "Safe" in the instant case was required to be interpreted by having reference to the insurance policies and the other connected documents. We find substance in his submission." (Emphasis supplied).
He contended that in that case the Policy covered loss of only Cash and Jewellery in Safe, whereas in the instant case the dictionary meaning of the word 'Safe' shows that it is a 'fully welded multi-body' and that the 'Filing Cabinet' in the instant case was locked and could be opened only with a key.
For effective adjudication of the case the dictionary meaning of the word 'Safe' is being reproduced as hereunder:-
"a strong metal box or cupboard with a complicated lock, used for storing valuable things in, for example, money or jewellery."
Both the surveyor and the investigator admitted the factum of burglary and the loss to the Appellant. The Surveyor also concluded in his report that it is a genuine incident of theft of cash. The claim was repudiated on the following ground:-
"It is quite apparent from the record that you have committed breach of the terms and conditions of the policy in leaving the cash in a bag and leaving it in a Filing Cabinet (through locked), thereby exposing the cash to a greater peril than as envisaged in the policy, wherein it was clearly stipulated that only Cash kept in Steel Almirah and Cash Box were covered under the policy and as such the claim is not payable under the policy, though we have no reasons to doubt the genuineness of the claim lodged by you, and have full sympathy for the resultant hardship and financial loss."
On a pointed query to the Learned Counsel for the Insurance Company as to whether any inspection was carried out prior to the issuance of the Insurance Policy of Rs. 10,00,000/- way back in 1996, when it was a considerably large amount, the Counsel answered in the negative. At the time the Policy was issued, it is an admitted fact by all the parties including the Surveyor and the Investigator, that the Complainant did not possess a Steel Almirah and only had a locked Filing Cabinet in which the Cash Bag was kept.
M/s Hite Engineers Pvt. Ltd. inspected the Filing Cabinet and concluded that the comparison of locking systems and material used of Steel Almirahs and the one used by Complainant for keeping the Cash by them shows that the one used by the Complainant is safer as compared to even the Filing Cabinets generally available in the market. It is not the case of the Insurance Company that the Complainant was negligent or did not take 'reasonable care'. It is only their case that the cash bag ought to have kept in the Steel Almirah and not in a locked Filing Cabinet. In such a situation it is not understood as to why the Policy was issued while admittedly the Complainant did not possess a Steel Almirah. Be that as it may, it is construed that the Complainant had taken reasonable care by locking the Filing Cabinet in which the Cash Bag was kept.
The dictionary meaning of 'Safe' is a strong metal box or cupboard with a complicated lock, used for storing valuable things in, for example, money or jewellery and in the instant case the Filing Cabinet was a strong metal box which was locked and could be opened only with a key.
Having regard to the fact that the Surveyor himself has concluded that the claim was genuine, that the burglary had indeed taken place and the Complainant has suffered loss, I find it a fit case to place reliance on the report of the expert M/s Hite Engineers Pvt. Ltd. which has clearly opined that the 'Filing Cabinet' which was locked is much safer in comparison to a 'Steel Almirah' and one used by the Complainant herein wherein the cash bag was kept was much safer compared to the other Filing Cabinets and can be opened only with a key. Therefore, I also find it a fit case to place reliance on the observations made by the Hon'ble Supreme Court that the expression 'Safe' is required to be interpreted by having reference to the Insurance Policy and other connected documents. In the instant case the Policy covered:-
"Cash in Safe at above.
(In Cash Box & in Steel Almirah). "
Hence I hold that the cash bag in the locked Filing Cabinet cannot strictly construed to be falling outside the scope of the Policy and hence the act of the Insurance Policy in repudiating the same when their own Surveyor admitted that the loss was genuine, amounts to deficiency in service.
For all the afore-noted reasons, this Appeal is allowed and the order of the State Commission is set aside and the Insurance Company is directed to pay to the Complainant the amount, which has been assessed by the Surveyor i.e. Rs. 9,38,938.76 along with interest @ 6% p.a. from the date of repudiation till the date of realization together with costs of Rs. 10,000/-. Time for compliance four weeks from the date of the receipt of the copy of this order failing which the amount shall attract interest @ 9% p.a. for the same period.