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Judgment
This First Appeal has been filed by M/s. Mukul Diesel, appellant against the order dated 14.12.2009 of the State Consumer Disputes Redressal Commission, Delhi, (in short ''the State Commission'').
Brief facts of the appellant''s case are that from 1990 to1998, the complainant firm was duly insured with the respondents for an amount of Rs3 crores being annual turnover amount and highest money in transit in one time assured was Rs.2.5 lacs. On 2.10.1998, the complainant firm submitted a proposal form to the respondent Insurance Company to enhance highest amount in transit at one time from Rs.2.5 lacs to Rs.5 lacs. Policy No.483030205774/472 issued on 6.10.1998 by the respondent for the period 7.10.1998 to 6.10.1999 wrongly showed the amount of annual turnover as Rs.30,00,000/- (Rupees Thirty Lacs only) instead of Rs.3,00,00,000/- (Rupees Three crores only) and amount of money in transit at one time Rs.50,000/- (Rupees Fifty Thousand only) instead of Rs.5,00,000/- (Rupees Five lacs only). Premium of Rs.6300/- was
accepted on enhanced amount. On 6.10.1999, renewal notice for the period 7.10.1999 upto 6.10.2000 issued by the respondent to the complainant/appellant showed annual amount of money transit as Rs.30,00,000/- (Rupees Thirty lacs only) instead of Rs.3,00,00,000/- (Rupees Three crores only) and amount of money in transit at one time as Rs.5,00,000/- (Rupees Five lacs only). No original policy for the relevant period was supplied to the complainant/appellant. On 20.10.1999, incident of robbery cum-snatching from the employee of the complainant firm for cash amount of rupees five lacs took place. FIR No.526/1999 dated 20.10.1999 u/s 397/34 IPC was registered at P.S. Timarpur, Delhi and intimation of robbery communicated to the respondent. On 28.12.1999 surveyor was appointed by the respondent who submitted its preliminary survey report confirming the loss to the extent of Rs.5,00,000/- sustained by the insured/appellant. On 20.4.2000, police authorities submitted closure/untraced report. On 6.10.2000, surveyor appointed by the respondent submitted its final survey report thereby admitting that highest amount of transit at one point of time was Rs.5 lacs and assessed the liability of the insurer/respondent to the extent of Rs.5 lacs. On 19.2.2001, the respondent sent the reply through its counsel to the legal notice of the complainant thereby disputing its liability to the extent of Rs.5,00,000/-. Enhancement of highest amount of money in tansit at one point of time from Rs.2.5 lacs to Rs.5 lacs was denied and disputed. On 22.3.2001, the complainant filed the complaint before the State Commission.The State Commission allowed the claim vide its order dated 14.12.2009 to the extent of Rs.2.5 lacs alongwith interest @ 9% p.a. from the date of robbery till the date of realization.
Hence the present appeal by the complainant.
Heard the learned counsel for the parties and perused the records.
Learned counsel for the appellant mentioned that the policy in question, which was valid from 7.10.1999 to 6.10.2000 was not supplied to the insured/complainant. However, in the previous policy valid from 7.10.1998 to 6.10.1999 the annual turnover was mentioned as Rs.30,00,000/- in place of Rs.3,00,00,000/- and highest amount in transit at one time was mentioned as Rs.50,000/- instead of Rs.5,00,000/-. Learned counsel stated that the policy originally was for annual turnover of Rs.3,00,00,000/- and highest amount in transit at one time being Rs.2.5 lakhs. The complainant had given a proposal to increase the highest amount in transit at one time from Rs. 2.5 lakhs to Rs.5,00,000/- and accordingly the Insurance Company had increased the same. However in the policy issued for the period for 7.10.1998 to 6.10.1999, one zero was missed in typing both the amounts and that is why, they figured as Rs.30,00,000/- and Rs.50,000/- only. But, in the renewal notice sent by the Insurance Company on 6.10.1999, the amounts are mentioned as Rs.30,00,000/- for annual turnover and Rs.5,00,000/- for highest amount in transit at one time. The renewal notice clearly shows that there was no ambiguity for the highest amount in transit at one time which was definitely Rs.5,00,000/-. The Insurance Company is agreeing to amount of Rs.3,00,00,000/- instead of Rs.30,00,000/-. But, they are not agreeing to amount of Rs.5,00,000/- instead of printed Rs.50,000/-and they are saying that it is Rs.2,50,000/-. Learned counsel pointed out that this does not stand to reason that for one figure zero is missed from the right side, but for the other figure 2 is missed from the left side. It seems more logical and probable that a zero has been missed out in typing both the figures.
Learned counsel for the appellant also drew our attention to final surveyor''s report dated 6.10.2000, wherein the surveyor has clearly stated that he has examined the records of office of the insurer and has verified that the insurance was for the total turnover of Rs.3,00,00,000/- and highest amount in transit at one time of Rs.5,00,000/-. The surveyor has clearly assessed the loss
of Rs.5,00,000/- and has clearly recommended to the insurer that the same may be paid to the insured. In fact, the learned counsel drew our attention to the following portion of the surveyor report:-
" Verification
On our visit to the Insured''s premises we had discussed the matter with Mr. Mukul Dalmia (partner) and enquired from him the manner & circumstances under which the reported loss of cash had taken place.
We had requested the Insurers to provide us the insurance record of the Insured for the past few years. On receipt of the same we observed the same to be stating as under:
Policy No. Dated Annual Amount Cash in Transit Cash in Transit in one time
48-6911 07-10-99 30,00,000/- 50,000/-
48-5744 06-10-98 30,00,000/- 50,000/-
48-4749 07-10-97 30,00,000/- 50,000/-
48-2688 13-06-94 30,00,000/- 2,50,000/-
48-1089 08-01-90 3,00,00,000/- 2,50,000/-
We observed that an endorsement no. 48- 1502/472 dated : 09-01-92 was passed by the Insurers for increasing the annual cash carrying under Cash in Transit Policy to Rs.4,93,73,830/- instead of Rs.3,00,00,000/- and an additional premium of Rs.3875/-@ Rs.20 per mille) was charged from the Insured.
Further, we were also able to obtain a copy of the proposal form from the Insurers record which stated as under
Highest amount in tansit at any one time which is to be the limit of the company''s liability for any one loss (On page no.1)
Rs.5,00,000/-
How is the money carried? (i.e. whether in bags, Trunks and in how many of them).
(Under point no.4 of the proposal form)
In briefcase and Cloth & leather bag Rate Charged 20 paise per thousand Although the proposal form does not bear any date, however it is evident that the same had been filled by the Insured subsequent to the issue of policy no.48-1502/472 as a reference of the same was found mentioned in the proposal form.
As observed by us after careful scrutiny of the insured''s Insurance record available in the Insurers office, the proposal form and the past insurance policies, we observed that the Sum Insured under various needs under "Cash-in-transit" policy taken by him as under Annual amount of money in transit Rs.3,00,00,000/-.
Highest amount of money in transit at one time Rs.5,00,000/-.
Insurers liability
What remains to be considered is the aspect of insurers liability under the policy issued to them by the Insured. We therefore summarise the various points as under.
The Insured have preferred a claim of loss aggregating to Rs.5,00,000/- i.e. the amount of cash robbed from their employees on gun point whilst being carried from the petrol Pump to the Oriental Bank Of Commerce, Kingsway Camp, Delhi.
The loss of cash amounting to Rs.500000/- had reportedly taken place on the morning of 20-10-19999 and thus falls under the Money Insurance / Cash In Transit policy no.48-6911 from 07-10-1999 to 06-10-2000, issued by the Insurers.
The policy issued to the Insured covers the maximum amount of Rs.3,00,00,000/- & under single carrying i.e. Highest Amount of Money in Transit at one time is Rs.5,00,000/- The Insured have claimed an amount of Rs.5,00,000/- which falls within the limits specified above..............
Thus in the present case, if the Insurers are satisfied that their liability to pay in the present case arises, they may consider paying an amount of Rs.500000/- to the Insured, being the loss claimed to have been sustained by them, subject to the terms & conditions of the policy issued to & held by the insured.
In that case the Insurers liability would be limited to Rs.5,00,000/- i.e. the loss assessed by us above."
Learned counsel emphasised that in the present case, the surveyor has not only verified the loss but also verified the policy documents from the insurer''s office and he has categorically stated in his report that the highest amount of cash in transit at one time was Rs.5,00.000/- based on the records of the insurer''s office. It is not clear as to on what basis the insurer is denying these facts and the report of the surveyor who was appointed by the Insurance Company itself.
Learned counsel for the respondent Insurance Company has stated that it is quite clear that the policy for the relevant period mentioned Rs.30,00,000/- as annual turnover and Rs.50,000/- as highest cash in transit in one time. In fact the previous two polices also right from 7.10.1997 mentioned the same amount i.e. Rs.30,00,000/- for annual turnover and Rs.50,000/- as highest cash in transit at one time. The insurance policy is a contract and both parties are bound by the terms and conditions of this contract. The amounts mentioned in the policy documents are sacrosanct and cannot be interpreted by the insured or the insurer as they have to be considered as such. Learned counsel emphasised that if there was any mistake in the policy, the appellant should have got them corrected. In fact the complainant has accepted these amounts for three years continuously and they cannot be taken to be wrong in the 3 year. rd
The learned counsel also asserted that no proposal was ever accepted by the Insurance Company to enhance the amount of highest cash in transit at one time from Rs.2.5 lakhs to Rs.5,00,000/-. Until the same was accepted, there could be no liability fastened on the Insurance Company for making the payment of the enhanced amount. To support his contention, the learned counsel cited the following judgment:- i. "New India Assurance Co. Ltd Vs. Punjab National bank & Ors., RP No.1011 of 2010, decided on 20.03.2015 (NC) , wherein the National Commission has observed:
9 . More importantly, even if we presume, despite our finding to the contrary, that the above referred letter dated 22.11.2004 was dispatched by the Bank to the Insurance Company, the said company will not be liable to reimburse the insured under the policy unless the change was actually allowed by it and carried out in its record......."
So far as the surveyor report is concerned, learned counsel stated that the surveyor has given his report based on the assertions made by the complainant. The surveyor has nowhere written that the proposed enhancement in the highest cash in transit at one time from Rs.2.5 lakhs to Rs.5,00,000/- was ever accepted by the Insurance Company and proper order was issued. The surveyor has given his report on the presumptions only.
Learned counsel for the respondent stated that in respect of the renewal notice dated 6.10.1999, it was clearly stated in the written reply filed before the State Commission that the figures mentioned in the renewal notice are Rs.30,00,000 and Rs.50,000 respectively based on the aforesaid policy for the year 1998-99 and not for Rs.3,00,00,000 and Rs.5,00,000 as alleged by the Complainant. Learned counsel also emphasised that the renewal notice in question is disputed and there is overwriting in this notice as well as the amounts are written in hand with ink which are not clearly readable. Learned counsel also stated that this has been forged by complainant himself. This does not bear the official stamp of the issuing office of the Insurance Company.
The learned counsel submitted that an amount of Rs.4,86,250/- had been paid by the respondents to the appellant in compliance of the order dated 14.12.2009 of the State Commission. The appellant had accepted the aforesaid amount in full and final satisfaction of its entire claim, without protest, vide discharge voucher dated 20.04.2010. In these circumstances, the present appeal is liable to be dismissed outright. Learned counsel for the respondent in support of his argument also referred to the following judgement. ii. United India Insurance Vs. Ajmer Singh Cotton & General Mills & Ors., AIR 1999 SC 3027, wherein the following has been held by the Hon''ble Supreme Court:-
" Consumer ?absence of evidence- Sections 2 and 14 of Consumer Protection Act, 1986- respondent had procured two insurance policy from appellant-suffered losses on account of fire regarding which surveyors were appointed and on submissions of their report payments were made- matter relating to making further claim from insurer after accepting insurance claim amount in full and final settlement of claims by executing discharge vouchers voluntarily without any protest or objection- Court upheld order of State Commission that discharge vouchers were admittedly executed voluntarily and complainants had not alleged execution under fraud or undue influence."
We have carefully considered the arguments advanced by both the parties and have gone through the records. The complainant is relying on basically three things. The first one is renewal notice dated 6.10.1999 wherein amount of Rs.5,00,000/- is mentioned as highest cash in transit in one time according to the complainant. This renewal notice has been disputed by the opposite party/respondent. The opposite party in their written statement have stated that the amounts mentioned in this notice are Rs.30,00,000/- and Rs.50,000/- and not Rs.3 crore and Rs.5,00,000/-. The State Commission in its order dated 14.12.2009 have mentioned as follows:-
"12. The complainant reply on Ex-CW1/2- the copy of proposal Form dated 2.10.1998, Ex-CW 1/3- Cover Note dated 6.10.1998 and Ex-CW 1/4- Notice for Renewal dated 6.10.1999. Ex CW-1/4 is purported to have been issued by the Office of the OP-Insurance Company, who dispute its authenticity on the ground that it has been fabricated by the complainant, as it did not bear the OP''s official stamp. They rely on the Policy in question which is Ex RW-1/8.
Having considered the facts in entirety, Renewal Notice Ex CW 1/2 does not appear to us a reliable document. There is inter-polition of dates recorded at two places. Digit ''11'' for the month is overwritten to read as ''10''. There is no other document produced on record by the complainant to establish that during the currency of policy in dispute (Ex RW 1/8) amount in transit at one time was enhanced to Rs.5,00,000/- from Rs.2,50,000/- which was continuing since its inception i.e. 8.1.1990. Thus, there is no cogent evidence or proof to hold that the OPs are liable to indemnify the loss suffered by the complainant to the extent of Rs.5 lacs as claimed. They, are at the most liable to make good the loss to the extent of their admitted liability i.e. Rs.2,50,000/- for which the complainants were insured with them."
We also find that the figures are handwritten with ink and the notice does not contain any seal of the office. We agree with the observations of the State Commission in this regard. Hence, we find that this document is not helpful to the complainant.
The second document on which the appellant had relied is the surveyor''s report. The surveyor himself has observed that the policy for the relevant period and for previous two years was for Rs.30,00,000/- as annual turnover and for Rs.50,000/- for highest cash in transit at one time. Though, the surveyor has claimed that he examined from the records of the respondent''s office and has concluded that insurance was for Rs.5,00,000/- for highest cash in transit at one time. Surveyor has nowhere stated when was this amount increased from Rs.2.5 lakhs to Rs.5,00,000/- and whether any endorsement or order was issued. The policy document is a direct evidence and when direct evidence is available, we would not like to resort to secondary/indirect evidence. Hence, we are of the view that no benefit can be given to the appellant on the basis of the surveyor''s report in contradiction to the actual policy document.
Thirdly, the appellant has presumed that one zero has been missed in typing in both the amounts and that is why annual turnover is appearing as Rs.30,00,000/- and highest cash in transit at one time is appearing as Rs.50,000/-. The insurance policy is a contract based on trust and in this case the opposite party/respondent is not supporting the belief of the appellant/complainant. In this situation, we hold the view that the policy should be interpreted strictly in its terms mentioned in the policy. As the complainant has not bothered to get corrected the two previous policies for the years 1997-98 and 1998-99, his version cannot be relied upon as there was enough time for him to bring this to the knowledge of the Insurance Company for issuing the correct policy documents. The policy for the year 1999-2000 is only an extension of the previous policy. Hence, we are unable to accept the complainant''s version based on only some circumstantial evidence in utter disregard to the direct evidence of the actual policy that continued for three years.
We have also noted the fact that the appellant has received the payment of Rs.2.5 lakhs along with interest as ordered by the State Commission (in total Rs.4,86,250/-) by signing the voucher dated 20.04.2010. Relying on the judgment of United India Insurance Vs. Ajmer Singh Cotton & General Mills & Ors. (supra), we are of the view that the demand by the complainant for the additional amount of Rs.2.5 lakhs cannot be sustained.
Based on the above discussions, we find that the appellant has not been able to establish his case and the order dated 14.12.2009 of the State Commission is based on correct appreciation of facts and evidence on record. Accordingly, we find no force in the appeal and the same is dismissed. No order as to costs.