Goel Jewellers vs National Insurance Co. Ltd.

M/s Goel Jewellers have filed this original petition/complaint alleging deficiency in service on part of National Insurance Co. Ltd. seeking a compensation of Rs.46,64,957/-. This claim was subsequently reduced to Rs.36,05,200/-, as per the details given in the amended complaint as under :- S.No. Particulars Amounts 1. Value of Goods i.e. 4210.20 grms of (22 ct.) Gold ornaments valued at Rs.16,92,500/- at the rate of Rs.402/- per grams (including Rs.395/- per grams being rate of 22 Ct. Gold in ornaments and Rs.7/- per gram making charges as detailed in annexure C, U and V. 16,92,500.00 2.Interest from date of filing of claim with Insurance Co. i.e. 28.10.97 till the date of filing the complaint (i) Interest at 18 per annum from 28.10.97 to 31.3.2000 on Rs.16,92,500/- (Interest was paid @ 18% during this period) 7,36,240.00 (ii) Interest at 12% per annum from 1.4.2000 to 17.8.2001 on Rs.16,92,500/- (Interest was paid @ 12% during this period) 2,79,260.00 10,15,500.00 3. Damages for Loss of Business. The Business opportunities in 45.5 months during 28.10.97 to 17.8.01 were lost because of non-availability of finance. There is a rise of about 10% every year. There is also an increase in Gold price. The claimant is limiting the claim for damages for loss of Business to Rs. (Certificate from Chartered Accountant is Annexure X) 6,41,730.00 4. Damages for Mental tension and Agony. This Claim can be well explained by the amount of loss suffered by the claimant. The same may now be restricted to Rs. 2,50,500.00 5. Costs of Notice 5,500.00

THE case set up by the complainant is that he has been obtaining the jewellers block insurance policy from the opposite party-Insurance Company ever-since 1995 and had obtained the policy no. 361301 covering the period from 9th of March, 1997 to 8th of March, 1998. THE policy covered the risks of theft, robbery, dacoity, loss by any kind of incident/accident at the place of the business or in transit to Kanpur, Allahabad, Lucknow, Bangalore and Hyderabad as also from these places to their shop and residence with regard to gold, diamond and silver jewellery. It so happened that on the expression of an intention by one M/s Aggarwal Jewellers of Lucknow to commence business dealings with them, the complainant as per the practice in the trade deputed their employee Shri Ashok Kumar to carry some jewellery items for being shown/sold to M/s Aggarwal Jewellers at Lucknow. On 27th of October, 1997 Shri Ashok Kumar first traveled by train to Kanpur by Prayagraj Express from Delhi and reached there at about 3.45 a.m. in the early hours of 28th of October, 1997. According to the complainant, Shri Ashok Kumar was to accompany Shri Anand Goel, brother of Shri Vimal Kumar, a partner of the complainant-firm, from Kanpur to Lucknow in his car. As planned, Shri Ashok Kumar, Shri Anand Goel aong with the driver Shri Krishan Kumar proceeded from Kanpur to Lucknow and reached the house of Shri Pradeep Aggarwal of M/s Aggarwal Jewellers at Aliganj, Lucknow early in the morning at 8.40 a.m. In order to find out as to whether Shri Pradeep Aggarwal of M/s Aggarwal Jewellers was in his house, Shri Anand Goel went upstairs leaving Shri Ashok Kumar and driver Krishan Kumar behind when suddenly three persons came on a motorcycle and one of them snatched the bag containing jewellery from Shri Ashok Kumar by pointing out a pistol to frighten them. THEy shouted for Shri Anand Goel who returned from the house of Shri Pradeep Aggarwal and coming to know as to what had happened, asked the driver to chase the culprits in the direction of the motorcycle. THEy were, however, not able to trace the culprits and, therefore, returned to lodge a complaint at the Police State Aliganj, Lucknow. FIR No. 523 was registered at the police station. THE opposite party-Insurance Company was informed about the incident and a claim of Rs.16,92,500/- was also filed on the very day i.e. 28th of October, 1997. THE opposite party-Insurance Company appointed S.N. Nanda & Co., surveyor, to process the claim. THE requisite information/document required by the surveyor were duly furnished by the complainant. THE opposite party-Insurance Company, however, appointed M.P. Bakshi Surveyors Pvt. Ltd., another surveyor, who again sought some more information which was also provided along with number of additional documents. However, despite the opposite party-Insurance Company having confirmed and satisfied about the incident did not finalize the claim and continued to delay the matter even after repeated approach and number of letters written to them. Irrelevant queries such as whether the incident was publicized in the newspaper etc. were raised to harass the complainant. THE complainant further alleges that in order to carry on their business, they had to obtain loans from the Bank resulting in incurring of huge interest liabilities and non-reimbursement of the claim has resulted in great hardships, business loss, mental tension, agony and harassment apart from financial loss. Alleging that the opposite party has failed to provide the service undertaken by them against the payment of premium, a claim of Rs.36,05,200/-, as stated earlier, has been made. Served with a notice on this complaint, the opposite party-Insurance Company has denied the allegations and have stated that the claim of the complainant has been rightly repudiated as the facts and circumstances leading to the incident revealed that the claim was not genuine. In their rejoinder to the reply filed by the opposite party-Insurance Company, the complainant, however, stuck to its contentions in the complaint and elaborately explained its stand by extensively referring to the reports submitted by the surveyors appointed by the opposite party-Insurance Company.

The parties thereafter were called upon to lead their evidences. On behalf of the complainant, affidavits of Shri Vimal Goel (one of the partners of M/s Goel Jewellers), Shri Anand Goel (brother of Shri Vimal Goel), Shri Pradeep Aggarwal (partner of M/s Aggarwal Jewellers of Lucknow) and that of Shri Ashok Kumar have been filed along with 27 exhibits. On behalf of the opposite party-Insurance Company, affidavits of Shri N.S. Dhillon, Dy. Manager and that of Shri S.B. Agrawal, surveyor, only have been filed.

SHRI Madan Gera, learned counsel for the complainant has criticized the conduct of the opposite party-Insurance Company contending that they first appointed S.N. Nanda & Co., surveyor, to verify the claim and thereafter appointed M.P. Bakshi Surveyors Pvt. Ltd., another surveyor, to investigate into the matter. Finding that the investigator had found the claim to be genuine, the opposite party-Insurance Company appointed yet another surveyor, S.B. Agrawal & Co., which was not justified. Learned counsel contends that such repeated appointment of surveyors till the report as desired by the insurer is not received, defeats the very purpose of indemnification and is, therefore, totally illegal. He has invited attention of this Commission to the observation made by the investigator M.P. Bakshi Surveyors Pvt. Ltd. and has argued that each one of the points on which the opposite party-Insurance Company have relied to contend that the claim was not genuine, have been very effectively answered by the said surveyor. There was absolutely no scope thereafter for the opposite party-Insurance Company to have referred the matter to yet a third surveyor which only exposes their malafide intention to frustrate the genuine claim of the complainant and obtain a report of their choice. The investigator having clearly held that they had thoroughly investigated the matter and not come across any adverse facts and circumstances to warrant denial of claim left no scope at all for the opposite party-Insurance Company to reopen the matter by referring to a third surveyor and, therefore, contends that the claim having been fully established to be genuine the complaint be accepted. Per contra, Shri Kishore Rawat, learned counsel for the opposite party-Insurance Company has justified their stand that the claim was bogus, fabricated and, therefore, has been rightly repudiated. In support of his contention, he has pointed out that while the incident of snatching of the jewellery occurred at 8.40 a.m. on 28th of October, 1997, the FIR at the police station was lodged at 4.10 p.m., after 7 hours. The contents of the FIR, which could be the nearest to the truth, interestingly do not refer to any snatching of the bag containing the jewellery by any miscreant at the point of a pistol. A subsequent letter dated 30th of October, 1997 has been sent to the police station making out a totally different case of the bag being taken away by three goondas at the point of a revolver. Further, the FIR was lodged by Shri Anand Goel who stated that the jewellery belonged to him. These discrepancies/contradictions clearly point out that a case of snatching of the jewellery has been made out and in any case it belonged to Shri Anand Goel and not to the complainant. Further developments have been improvised to bring the case in the domain of the complainant. Learned counsel has also justified their contention that neither the police authorities nor the local press was serious about such an incident. Referring to the terms and conditions of the policy, he has contended that the Insurance Company had granted cover under Section 2 of the Policy from the shop to Kanapur, Allahabad, Lucknow, Bangalore, Hyderabad and vice versa; meaning thereby that once the jewellery has reached Kanpur, indemnification thereof ceases. According to him, since Ashok Kumar terminated his journey at Kanpur, his travel from Kanpur to Lucknow with Shri Anand Goel by car will be a new destination from Kanpur to Lucknow, which was not covered under the policy. Shri Kishore Rawat has contended that the claim has been very correctly held to be not genuine and, therefore, has been rightly repudiated.

WE have heard learned counsel for the parties and have carefully perused the records of the case. The case set up by the complainant is that he dispatched 4210.400 grams of gold jewellery through their employee Ashok Kumar to explore the possibilities of entering into the business deals with a new client M/s Aggarwal Jewellers at Lucknow. The value of the jewellery is stated to be Rs.16,92,500/-. The mode of travel of Shri Ashok Kumar, however, was planned, firstly by train in Prayagraj Express from Delhi to Kanpur and thereafter by car alongwith one Anand Goel, the brother of a partner of the complainant firm, to Lucknow. The overnight journey undertaken by Shri Ashok Kumar terminated at Kanpur in the early hours at 3.45 a.m. of 28th of October, 1997, whereafter he contacted Shri Anand Goel and along with driver Krishan Kumar, they reached Lucknow in the car of Shri Anand Goel at about 8.40 a.m. Say of the complainant is that when Shri Ashok Kumar and Shri Anand Goel reached the house of Shri Pradeep Aggarwal of M/s Aggarwal Jewellers of Lucknow, Shri Anand Goel went out looking for Shri Pradeep Aggarwal in his house located at the first floor of the building leaving Shri Ashok Kumar and driver Krishan Kumar behind and at that very moment three persons came on a motorcycle. One of them pointed his pistol on Shri Ashok Kumr and the other snatched the bag containing the jewellery and drove away. While the complainant contend that Shri Ashok Kumar and driver Krishan Kumar though in a state of non plus shrieked for Mr. Anand Goel who came down running and they chased the culprits, the evidence on record specially the FIR lodged with regard to the incident and the detailed description given by M.P. Bakshi Surveyors Pvt. Ltd. are at great variance. In an incident of this nature of costly jewellery having been snatched, it would be expected of the victim to lodge a complaint/FIR with the police narrating the complete incident. In this case, even though the complainant themselves contend that the incident occurred at about 8.40 a.m. in the morning and on their failure to trace the culprits after the chase, they went to the police station; the FIR was lodged at about 4.10 p.m. in the afternoon. Thus, the complainant had sufficient time not only to reduce their complaint in writing with details but also to narrate the complete occurrence to the police. In this background, it would be of relevance to go through the FIR, though allegedly entered belatedly, a translation of which reads as under :- On 28.10.97, at around 7.00 A.M. I Anand Goel, Son of Shri Ram Kumar Goel, Resident of G-21, Shanti Nagar, Kanpur went in Maruti Esteem Car No. MP-20/F 4248 along with driver Kishan Lal, Son of Late Rama Lal resident of E-25, Khanda Godam, Kanpur and Ashok Kumar Son of Shri Banwari Lal resident of RZE-13, Gali No. 24, Sat Nagar-II, Palam Colony, New Delhi who is working in Delhi based M/s Goel Jewellers 1167, Kucha Mahajani, Chandni Chowk, went from my residence at Kanpur for Lucknow. WE were carrying for business, gold ornaments in a bag. At Lucknow, I was to supply them to my dealers, that around 8.40 A.M. in front of Sector 2, B II, Aliganj, stopped the, handed over the bag to Ashok Kumar, kept in car, went for Shri Pradeep Agarwal. As soon as I came back, I saw that the bag is missing from the car. I along with my companions searched for the bag but the bag in which ornaments were kept could not be found. WE got very disappointed and have come today for registering the F.I.R. It has not been contended by the complainant that the FIR was not correctly recorded or that the police authorities had missed out any details which they narrated. It is to be noted that in this FIR there is no mention or reference to any miscreants coming on a motorcycle duly armed and snatching the bag containing jewellery at the gun point. It only refers to the missing of the bag from the car when Shri Anand Goel returned from the house of Shri Pradeep Aggarwal and the FIR was lodged when the bag was not traced after a thorough search. The other aspects which flow from this report is that the FIR has been lodged by Shri Anand Goel and not by Shri Ashok Kumar, the carrier of the jewellery on behalf of M/s Goel Jewellers, the complainant, and Shri Anand Goel in categorical term states that he was to supply the jewellery to his dealers at Lucknow. According to this FIR, the bag containing the jewellery was handed over to Shri Ashok Kumar before he went up to look for Shri Pradeep Aggarwal in his house. Subsequently, however, Shri Anand Goel sent a letter to the SHO, Aliganj Police Station, Lucknow on the 30th of October, 1997 making out a story that three goondas came on a motorcycle and snatched the bag containing the gold ornaments at gun point from Shri Ashok Kumar. It further gives the details with regard to the value of the jewellery. The contention of the learned counsel for the opposite party-Insurance Company that the subsequent letter of 30th October, 1997 was only an afterthought to cover up the gap and make out a case for the complainant, appears quite convincing. We are, therefore, not inclined to place full reliance on this letter even though strangely the police authorities have subsequently given a letter to the complainant, which is in the nature of communicating the progress of the case. This is again very unusual and appears to have been obtained by the complainant to strengthen their otherwise weak case. In this background, we would like to comment upon the report of the investigator M.P. Bakshi Surveyors Pvt. Ltd. On the point of snatching incident, they have reported as under :- 3.2.3 The jewellery was kept in a military green coloured thick canvas bag which was brought by Ashok Kumar and which was kept by him whilst he was sitting on the left side of the driver. As Mr. Anand Goel got down and left for the residence of Shri Agarwal, the driver also came out to stretch his legs as he had driven non-stop from Kanpur to Lucknow. The time was about 8.40 AM on 28.10.97. Three persons on a motorcycle came from the front side. It was learnt that these 3 persons were waiting at the site for sometime. One person continued to keep the engine of the motorcycle running in idle position. Two other persons reached both sides of the car. Both had revolvers. One of them told Kishan Lal not to move and not to raise alarm or else he would be shot. The other showed the gun to Ashok Kumar and got the door forcibly opened. He was similarly threatened and asked, to let go of the bag carried by him. Ashok Kumar as well as Kishan Lal were scared for their lives. The snatchers took the bag and got on to the motorcycle. The one with the bag sat in the middle. These were young persons and the incident occurred within 1 to 2 minutes giving no time to Ashok Kumr and Kishan Lal to react. The motorcycle moved, crossed one building and turned right towards the city. The motorcycle in this process went on the wrong side of the road. The road has the driver in between and when they turned right on the main road they continued to go on the wrong side of road. By this time, Shri Anand Goel came down after confirming that Shri Pradeep Aggarwal was at his residence and he was willing to receive the jewellery. It was a Dhanteras Day just before Diwali and on this day jewelers have maximum sale in this part of India. 3.2.4 When Shri Anand Goel reached his car, Ashok Kumar and Kishan Lal somehow told him that the bag was lost. He also sat in the car and asked Kishan Lal to follow the miscreants. The car reversed and went looking for the miscreants.

IT is very surprising that the investigator narrates in a dramatic fashion complete details, including the driver Krishan Kumar having been moved out to stretch his legs and two of the culprits having confronted them with revolvers and the whole operation being completed within 1 or 2 minutes giving no time to Shri Ashok Kumar and Shri Krishan Kumar to react. As to from where and how these details were obtained has not been stated by the investigator but in the concluding sentence it states that Ashok Kumar and Krishan Kumar somehow told Shri Anand Goel on his return from upstairs that the bag was lost. There is a lot of difference between the missing of a bag and the bag being snatched on the threat of a gun point. Had the story as reported by the investigator being true, they ought to have been reflected in the FIR. Interestingly, the narration in the complaint also does not match with the report of the investigator. While the investigator states that Shri Anand Goel came down after confirming that Shri Pradeep Aggarwal was at his residence and was willing to have the jewellery and only thereafter that he was told about the loss of the bag, the version in the complaint, however, states that Shri Ashok Kumar and driver Krishan Kumar though in a state of non plus shrieked for Mr. Anand Goel who came down running. These are not minor discrepancies and in the absence of any reference to the snatching of the bag at gun point in the FIR, the story propounded by the complainant does not carry conviction.

ON the point of the incident not having been reported in the local press while the complainant would have us believe that no importance could be attached to the non-reporting of such incident as it was for the press to pick and choose whatever they like and the police not having responded or investigated to such an important event of robbery to prevent any panic being created and to improve their records as it was a day of Dhanteras, it could be said that on such occasions the press normally looks for sensational news and an incident of this nature ought to find place at least in the local vernacular press. However, non-publication of such an item may not lend any support to the case of the opposite party-Insurance Company. But the contention that the police authority has minimized the importance of incident as it was a day of Dhanteras, the sanctity of the day can only go against the complainant, inasmuch as a jewellery dealer of Delhi would in the normal course look forward to brisk business on that day at Delhi itself and not dispatch his jewellery to explore the possibility or to enter into a business with a new party at a far off place. If at all such attempts would be expected to have been made prior to such important occasion/day or subsequent thereto but certainly not on the very day when the whole of north India goes crazy in the pursuit of purchase of metals. Yet another point which does not lend credibility to the case of the complainant is that if Shri Pradeep Aggarwal of M/s Aggarwal Jewellers at Lucknow had received a message that M/s Goel Jewellers had sent their representative Shri Ashok Kumar with gold items for being shown to him, why was it that Shri Anand Goel who himself is a jeweler of Kanpur went up to meet Mr. Pradeep Aggarwal without being accompanied by Shri Ashok Kumar along with the bag. When compared with the contents of the FIR lodged by Shri Anand Goel where he states that he was traveling with the jewellery but at the nick of the moment he handed over the same to Shri Ashok Kumar before going up to look for Mr. Pradeep Aggarwal, the whole episode gets murky. It is also so in view of the fact that Shri Anand Goel is not only an independent jeweler of Kanpur but is also the husband of Smt. Archana Goel, a partner of the complainant firm. Besides, the contention that the complainant had obtained gold ornaments on loan from their partner and their wives does not appear very convincing. In the normal course, when needed a jeweler may borrow on loan from another dealer any item for which he may have an order but rarely will he ask the family members to part with their ornaments for the sake of trading or business. There is, therefore, absolutely no doubt that there are a number of discrepancies in the story set up by the complainant which point a finger on the veracity of the complaint.

The only point on which much stress has been laid by the learned counsel for the complainant is that the opposite party-Insurance Company has resorted to the appointment of a series of surveyors and investigators till it obtained a report in its favour, which was illegal. On this, we would only like to state that the Honble Supreme Court in the case of Sri Venkateswara Syndicate vs. Oriental Insurance Company Ltd. and Anr. [2009(8) SCC 507] has dealt with this aspect in great detail and has laid down the law, in which it has been held that Surveyor/surveyors are appointed by the insurance company under the provisions of the Insurance Act and their reports are to be given due importance and one should have sufficient grounds not to agree with the assessment made by them. The insurance company cannot go on appointing surveyors one after another so as to get a tailor-made report to the satisfaction of the officer concerned of the insurance company; if for any reason, the report of the surveyors is not acceptable, the insurer has to give valid reasons for not accepting the report. The option to accept or not to accept the report is with the insurer. However, if the rejection of the report is arbitrary and based on no acceptable reasons, the courts or other forums can definitely step in and correct the error committed by the insurer while repudiating the claim of the insured. We hasten to add, if the reports are prepared in good faith, with due application of mind and in the absence of any error or ill motive, the insurance company is not expected to reject the report of the surveyors. The first surveyor S.N. Nanda & Co. after making a number of observations had concluded that they are unable to recommend the payment of the claim and it was on the request of the complainant to appoint another surveyor that M.P. Bakshi Surveyors Pvt. Ltd. were asked to investigate the claim. However, the report of the investigator made sweeping comments/observations on the happenings without referring to the source from where such information was gathered. The finding of the investigator does not find support from the factual position and it was precisely for this reason that the opposite party-Insurance Company had to appoint yet another investigator namely M/s S.B. Agrawal & Co. The report of the investigator, therefore, was unacceptable to the Insurance Company which appointed yet a third investigator M/s S.B. Agrawal & Co. and the said investigator has given report which is in conformity with the observations made by the first surveyor. It, therefore, cannot be said that the opposite party-Insurance Company had been appointing one surveyor after the other without any reason or that such appointments were arbitrary.

IN the totality of the facts and circumstances, therefore, we do not find any merit in this complaint and the same is dismissed. However, with no cost.