New India Assurance Co. Ltd vs Nitin Kamalakar Ahire

M. Shreesha, J

Challenge in this Revision Petition under Section 21 (b) of the Consumer Protection Act, 1986 (in short "the Act") is to the order dated 29.11.2012 passed by the Maharashtra State Consumer Disputes Redressal Commission (in short "the State Commission") in First Appeal No. A/11/422. By the impugned order, the State Commission has concurred with the finding of the District Consumer Disputes Redressal Forum , Nasik (in short "the District Forum") and dismissed the Appeal. The District Forum allowed the Complaint in part and directed the New India Assurance Co. Ltd. (hereinafter referred to as "the Insurance Company") to pay compensation of ₹2,00,000/- for financial loss and ₹15,000/- for mental agony and ₹1,000/- towards cost.

The facts in brief are that the Complainant, Executive Director of Suyan Infrastructure Private Limited Company, was going to the Bank on 15.10.2008 to deposit a sum of ₹2,37,800/- between 12:30 and 13:00 hours, when the theft took place. An amount of ₹2,37,800/- was kept in an Innova car, which was parked at the entry gate of the court. Along with the cash, two Resort Company watches, debit card of Hong Kong Bank, cheque book, member card, etc. were also stolen.

The Complainant lodged an FIR at the nearby Police Station and also informed the Insurance Company regarding the theft. A Surveyor was appointed, who wrote a letter dated 03.11.2008 seeking submission of the FIR, letter regarding the involvement of Shri Mukesh Rajput, the vehicle driver and any other information on which the Company can rely. On 21.11.2008, the Complainant replied that they do not have any ground to substantiate that the driver was involved in the theft. The reminders were also sent on 09.02.2009 and 14.04.2009. While so, the Police came to the conclusion that A Summary Report is to be submitted with the concerned Judicial Magistrate, First Class, Nasik and the same was done on 09.02.2019. On 28.04.2009, the Insurance Company repudiated the claim on the basis that the Complainant did not submit the required documents and also on the ground that the claim was against clause 2 of the Policy, which states that, the Company will not be liable in the event of loss of amount when the cash is entrusted to any person other than the authorised employee of the Insurance Company. On 29.04.2009, the Complainant requested the Insurance Company to reconsider the claim but, the Insurance Company replied on 25.05.2009 that the claim cannot be reconsidered. On 02.09.2009 the Complainant requested the Ombudsman to look into the matter, but received a letter from the Insurance Ombudsman on 12.06.2009, stating that ' the Complainant's claim is not in consonance with his proposal facts and therefore the same cannot be considered'.

It was averred that the Insurance Company had reached a wrong conclusion that the bag containing cash was given/ entrusted to the vehicle driver/ Shri Mukesh Rajput. At no point of time was the cash entrusted to the vehicle driver and therefore the grounds on which the Insurance Company had repudiated the claim, is unjustified. Hence the Complainant approached the District Forum seeking the following reliefs:

"a. the Complaint application may be allowed.

b. The opponent insurance company be directed to consider the claim positively and interest at the rate of 18% p.a. on the amount of RS.2,37,800/- from the date of the incidence till the actual realization of the amount.

c. The opponent be directed to pay Rs.25,000/- for deficiency in service.

d. Rs.50,000/- be directed to be paid for the monetary loss suffered by the complainant company.

e. As a token of respect, an amount of Rs.10,000/- for the cost of this application be directed to be paid by the opponent.

f. Any other order may kindly be passed."

The Insurance Company filed its Written Version stating that the said vehicle was being driven by Shri Mukesh Rajput, a private driver of the Complainant and the said driver was not in service with the Complainant Company. Instead of depositing the cash amount in the Bank, the Complainant came to the District Court for some court work and kept the cash bag in the vehicle and after giving instructions to Shri Mukesh Rajput kept the amount in his custody and went to attend the court work and returned after 40 minutes. At the time of the theft, the amount was not in the custody/ possession of an employee of the Complainant Company. The Insurance coverage was given for an amount of ₹2,00,000/- and if this amount is stolen or lost for any reason, while it is being carried by the insured or any authorised employee of the insured, or stolen from the safe custody of the company only then the claim would be settled. The Insurance Company stated that in two sections of the original policy it is stipulated that loss of money entrusted to any other person other than the authorised employees will not be covered and also if the loss or damage is contributed by the insured having caused anything whereby the risk was unnecessarily increased. It was averred that in the instant case there was negligence of the Complainant as the amount instead of being kept in the Bank was kept in the vehicle for a period of 40 minutes. It is stated that as these facts are squarely covered by Clause 2 of the exclusion terms of the policy, hence the repudiation is justified and there is no deficiency of service on their behalf.

The District Forum based on the evidence adduced allowed the Complaint in part directing the Insurance Company to pay an amount of ₹2,00,000/- with compensation of ₹15,000/- and cost of ₹1,000/-.

Aggrieved by the said order, the Insurance Company preferred an Appeal No. A/11/422 before the State Commission and the State Commission dismissed the Appeal concurring with the finding of the District Forum and observed as follows:

"7. Admittedly, the cash was taken for being deposited in the bank by the complainant himself in his own car. When he momentarily left the car keeping the bag containing cash in the rear side of the car, he does not lose his possession of said bag containing cash. The cash was not at all entrusted to the driver. It does not mean that the complainant had left the position of the money kept in the car. At the second instance, if complainant did not inform about the cash to the driver, it cannot be said that he was negligent in not informing the driver. It also cannot be said that the cash was kept in an unsecured condition when it was kept in the car. The culprits fooled the driver making him to alight from the car and stolen the cash. The policy investigation found the incident true but culprits not traceable and filed 'A' summary. Considering all these facts and terms & conditions of the policy covered, it can be seen that it is well covered under the above referred clause to make the claim and insurance company was duty bound to indemnify the insurance claim.

(8) Before parting with the order, we made reference to the fact that the learned counsel for the appellant relied on two cases of the National Commission. One in Revision Petition No.2555 of 2005 decided on 19/03/2009 (Quorum : Hon'ble Mr.Justice Ashok Bhan, The President and Hon'ble Mr. B.K. Taimni, Member) and another decision in the matter of - Aggarwal Agencies Vs. United India Insurance Co. Ltd. & anr. - I (2012) CPJ 365 (NC). In the first case, it was the case when the complainant left the equipments at the bus stand without any attendant and in the second case, it was the partner carrying the money. Both these cases are different than the case in hand. Under the circumstances, we do not find any reason to take a different view than what is taken by the District Forum."

Learned counsel appearing for the Revision Petitioner vehemently contended that reasonable care was not taken to safe guard the property insured and drew our attention to condition No. 3 under general conditions, which is reproduced as hereunder:

Reasonable Care: The Insured shall take all reasonable steps to safeguard the property insured against any loss or damage. The Insured shall exercise reasonable care that only competent employees and shall take all reasonable precautions to prevent all accidents and shall comply all statutory or other regulation."

He also drew our attention to the exclusion clauses in which condition no. 2 is stipulates as under;

"2. Loss of money entrusted to any person other than the Insured or an authorised employee of the insured."

Learned counsel submitted that the driver was not a company employee and also that leaving cash in the car for 40 minutes and attending to court work and entrusting the money to a private driver squarly falls within the general condition of 'lack of reasonable care' and also the aforenoted exclusion clause No. 2.

Learned counsel appearing for the Complainant submitted that both the fora below have rightly come to the conclusion that the driver was an employee of the company and that by giving prior intimation to the driver the Complainant had taken proper care and that there was no breach of any terms and conditions of the Policy.

As against this argument, the learned counsel appearing for the Insurance Company contended that the District Forum has observed in its order that even though the driver Shri Mukesh Rajput, present at the time of the incident, was not an employee of the Complainant Company, prior intimation/ clear information was given to the driver about the bag containing the cash which was kept in the vehicle and therefore the finding given by the District Forum was on a wrong premises.

A brief perusal of the repudiation letter shows that the only ground for repudiation is that it attracts exclusion clause No.2 of the policy which reads as 'loss of money entrusted to any person other than the insured or a authorised employees of the insured' and that in spite of letters/ reminders the Complainant did not comply with the required papers. Therefore the contention of the learned counsel for the Revision Petition that 'reasonable Care' was not taken as stipulated in the 'General Conditions' is untenable specially keeping in view the ratio laid down by the Hon'ble Supreme Court in M/s. Galada Power and Telecommunication Ltd. Vs. United India Insurance Co. Ltd. & Anr., (2016) 14 SCC 161, that the Insurance Company cannot travel beyond their grounds of repudiation.

Now, we address ourselves to the second contention of the learned counsel that the driver was not an employee of the Complainant Company. Though the Survey Report states that the said driver is personally employed by Mr. Nitin Kamalakar Ahire, Executive Director of the company and that the letter from the director was also enclosed along with the Survey Report, no such letter was filed. The contention of the Insurance Company that the driver was not a direct employee of the company is based only on the oral information supposedly given by the insured to the Surveyor. The onus is on the Insurance Company to establish if there is any specific breach of the conditions, and in the instant case they did not discharge this onus as there is no documentary evidence to establish any such averment. At the cost of repetition, it is pertinent to note that the purported letter given by the Complainant regarding his driver was not brought on record.

For all the aforenoted reasons, we do not find any illegality or infirmity in the concurrent finding of both the fora below to exercise our limited revisional jurisdiction as envisaged by the Hon'ble Supreme court in Rubi Chandra Dutta Vs. United India Insurance Co. Ltd. 2011 (11) SCC 269.

Needless to add, the amounts, if any, deposited by the Insurance Company shall stand adjusted from the decretal amount.