M/s Raja & Company vs New India Assurance Co. Ltd. & Anr

Ram Surat Ram Maurya, Presiding Member

Heard Mr. Updip Singh, Advocate, for the appellant and Mr. V.S. Chopra, Advocate, for the respondents.

M/s. Raja & Company (the complainant) has filed above appeal from order dated 08.05.2015 of State Consumer Disputes Redressal Commission, Punjab, dismissing the complaint i.e. CC/18/2011.

The office has reported 3 days delay in filing the appeal. The appellant has filed IA/6229/2015 for condonation of delay. Cause shown is sufficient. Delay in filing the appeal is condoned.

M/s. Raja & Company (the appellant) filed CC/18/2011, for directing the respondents to pay (i) Rs.2717024.95- with interest @18% per annum, as insurance claim, (ii) Rs.50000/-, as compensation, (iii) Rs.20000/-, cost of the litigation; and (iv) any other relief, which is deemed fit and proper in the facts and circumstances of the case.

The facts as stated in the complaint and emerged from the documents attached with it, are as follows:-

(a)  M/s. Raja & Company (the complainant), (the Insured) was a proprietorship and engaged in the business of gold trading and money exchanger, from his shop at Bazar Lachhmansar, Amritsar. The Insured used to purchase gold bars from SBI/ICICI/ open market and sell to private jewellers. In money exchange business, the Insured used to take foreign currency from public and give Indian currency to them, for which, he had licence from RBI since 1997.

(b)  The New India Assurance Company Limited (the opposite party) (the insurer) was a public insurance company and engaged in the business of providing insurance services. The Insured obtained Jewellers Block Insurance Policy No. 360501/46/07//45/00000646, from the Insurer for the period of 21.12.2007 to 20.12.2008, for sum insured of Rs.50.50/- lacs (i.e. Rs.50/- lacs, for the property at the premises, Rs. one lac, for the property in display window, Rs.40/- lacs for the property in locked safe, Rs.9/- lacs for cash and currency, Rs.50000/-, for the property in bank locker and Rs.50000/-, for the furniture, fixture and fitting).

(c)  During night of 21/22.02.2008, burglary was committed by unknown person, in the shop of the Insured through roof, including four other shops in the locality. On the complaint of SI Gurmit Singh, FIR No.31, under Section 457,380 IPC was lodged at police station on 22.02.2008 at 12.10 hours. The Insured informed the Insurer about the incident and loss on 22.02.2008. The Insurer appointed M/s. Baldev Pathania & Company, Amritsar as the preliminary surveyor, who inspected the building and submitted his Preliminary Survey Report dated 28.02.2008, affirming incident of burglary.

(d)  The Insurer instructed M/s. National Detective & Consultancy Services, Jalandhar to investigate this incident. The Investigator submitted his Investigation Report dated 09.08.2008, stating that the Insured had shifted his business from Lachhmansar Market to Shop No.68, Railway Link Road, Amritsar, since long. Lock of the office at ground floor was not broken but opened. No safety precaution was taken. From adjoining shops, nothing was stolen. Investigating Officer of the Police was also of the opinion that nothing was stolen.

(e)  The Insurer appointed M/s. Protocol Surveyors and Engineers Pvt. Ltd., Noida, on 14.03.2008, as the surveyor for survey and assessment of loss. The surveyor inspected the premises on 15.03.2008 and on subsequent dates. The surveyor submitted his Final Survey Report dated 02.02.2009, in which, he affirmed the incident of burglary. But he raised serious doubts that any gold or cash of the Inured was stolen. He submitted that claim was not admissible for breach of warrantee by the Insured. The papers were examined by the competent authority of the Insurer, who vide letter dated 27.06.2011, repudiated the claim, for various grounds, including for breach of warrantee.

(f)  The Insured filed the complaint, alleging deficiency in service as more than three years had passed but the Insurer had not settled the claim. The Insured stated that the Investigating Officer of the Police could not trace out the stolen goods and submitted Final Report dated 22.05.2009, for closer of the case to the concerned Magistrate, which was accepted on 13.07.2010. The Insured supplied all the papers relating to his loss to the surveyor, in April, 2008. But, neither the survey report was supplied to him nor claim was settled.

The opposite parties filed its written reply on 12.10.2011, in which, the material facts have not been denied. It has been stated that as soon as information of the incident of burglary was received, the Insurer appointed M/s. Baldev Pathania & Company, Amritsar as the preliminary surveyor on 23.02.2008, who inspected the building on 23.02.2008 and submitted his Preliminary Survey Report dated 28.02.2008. The Insurer instructed M/s. National Detective & Consultancy Services, Jalandhar to investigate this incident. The Investigator submitted his Investigation Report dated 09.08.2008, stating that the Insured had shifted his business from Lachhmansar Market to Shop No.68, Railway Link Road, Amritsar, since long. Lock of the office at ground floor was not broken but opened. No safety precaution was taken. From adjoining shops, nothing was stolen. The Insurer appointed M/s. Protocol Surveyors and Engineers Pvt. Ltd., Noida, on 14.03.2008, as the surveyor for survey and assessment of loss. The surveyor inspected the premises on 15.03.2008 and on subsequent dates. The surveyor submitted his Final Survey Report dated 02.02.2009, in which, he affirmed the incident of burglary. But he raised serious doubts that any gold or cash of the Inured was stolen. He submitted that claim was not admissible for breach of warrantee by the Insured. The papers were examined by the competent authority of the Insurer, who vide letter dated 27.06.2011, repudiated the claim, for various grounds, including for breach of warrantee. There was no deficiency in service on the part of the Insurer.

The Insured filed Affidavit of Evidence of Sh. Gagandeep Singh and Sh. Rajinder Singh and various documents. The Insurer filed Affidavits of Evidence Sh. A.L. Madan, the Manager and Sh. B.S. Sharma, the Investigator and Sh. Vivek Johar, the surveyor and various documentary evidences.

State Commission, by impugned judgment dated 08.05.2015, held that from the report of Investigator, it was proved that the Insurer had shifted his business from premises at Lachhmansar to shop No.86, Railway Link Road, Amritsar. Only one worker, namely Gagandeep used to come to this shop off and on. Iron safe from which the gold was allegedly stolen was lying at first floor, which always remains open. The stolen gold was allegedly purchased 15 days earlier and there was no reason to keep it at this place instead of in bank locker. From the evidence on record, it was proved that no stock was stored at this place at the time of incident. On these findings the complaint was dismissed. Hence, the Insured has filed above appeal. Both the parties have filed their written arguments also.

I have considered the arguments of the counsel for the parties and examined the record. Jewellers Block Insurance Policy No. 360501/46/07//45/00000646, contained following warrantees:-

“Warranted that all property including cash and currency note whilst at the premises specified in the schedule shall be secured in locked safe of standard make at all times out of business hours.

It is further warranted that if numerical safe is used for storage then the combination number of safe shall be known and used only by partner/directors and nominated employees at all times during the currency of the policy.

Class-II- Warranted that insured having stated in the proposal form that all the premises specified hereinabove are fully protected by employment of a common watchman for the whole building whether during daytime, night time or 24 hours at the premises of the Insured. They will be so continued.”

Supreme Court in Rajkumar & Brothers (Impex) Vs. Oriental Insurance Company Ltd., (2020) 4 SCC 364, held that on account of breach of warrantee, liability of the Insurer is discharged.

First ground of the repudiation letter dated 27.06.2011 is that “you have violated the terms & conditions of the policy. The policy warrants that there should be 24 hours security for the insured property which had been breached by you.” This finding has not been challenged by the appellant either in the complaint or in memorandum of the appeal. On the other hand, from the fact that on the complaint of SI Gurmit Singh, FIR No.31, under Section 457,380 IPC of the incident of burglary was lodged at police station on 22.02.2008 at 12.10 hours. If the watchman of the Insured was there, he would have lodged FIR of the incident, much earlier. The Insured has raised only ground that the terms and conditions were not communicated to him. This ground raised by the Insured is incorrect inasmuch as the Insured himself has filed Policy document as Annexure-A-5, which contained this warrantee on front page. It does not inspire confidence that a person will keep gold of about Rs.26/- lacs at unattended place as this fact that the Insured had shifted his business from this premises at Lachhmansar to shop No.86, Railway Link Road, Amritsar is also not disputed. The repudiation letter and the order of State Commission do not suffer from any illegality. No interference is required in the appeal.

ORDER

In view of the aforesaid discussion, the appeal has no merit and is dismissed.