Karnataka Fisheries Development Co Ltd vs UNITED INDIA INSURANCE CO LTD

CHALLENGE in this revision petition is to the order dated 18.1.2008 passed by the Karnataka State Consumer Disputes Redressal Commission, Bangalore in appeal No.1510 of 2007 whereby the State Commission has dismissed the appeal of the petitioner against the order dated 20.6.2007 passed by the District Forum by which the District Forum had dismissed the complaint (No.278 of 2004) filed by the petitioner. Having contested its grievance unsuccessfully before the two fora below, the petitioner/complainant has now challenged this revision petition before the National Commission.

FOR the reasons stated in the application for condonation of delay, the delay of 30 days in filing this revision petition is condoned.

BRIEFLY stated, the facts giving rise to this revision petition are that the petitioner took an insurance policy from the respondents for the period from 31.1.2001 to 30.1.2002 against the risk of money in transit including robbery, burglary, house breaking etc. while the money is retained at the petitioner''s premises in safe or strong room. As per the allegation in the complaint, an amount of Rs.3,47,091.30P which was kept in the locker of the office of the petitioner was found to be missing on 12.5.2001 and hence immediately a complaint was lodged with the local police reporting the fact of burglary and theft of the cash. Intimation about it was also sent to the Insurance Co. on 14.5.2001. The local police after registering the case investigated the matter but in the final report, the matter was reported as ''undetected'' which report was accepted by the JMFC, Udupi on 29.6.2002. Copy of the final report along with copy of the insurance policy had been sent to the OP followed by reminders to settle the claim early. The OPs vide their letter dated 18.12.2002 expressed their inability to accept the claim on the following ground: "You will kindly observe that the coverage availed of in the policy does not extend to the collections kept overnight in the office premises against burglary risks. In other words the scope of the policy issued to you indemnifies only the loss of monies whilst in actual transit between the places specified."

Treating the failure/default in the settlement of their claim as deficiency in service, the petitioner Co. filed a complaint before the District Forum. The OPs contested the claim of the petitioner mainly on the ground that there was violation of the terms and conditions of the policy in question inasmuch as the money was not kept under safe or strong room by the petitioner and as such it was not admissible. Both the parties led evidence in support of their cases. After hearing the parties and appreciating the evidence adduced before it, the District Forum dismissed the complaint vide its order dated 20.6.2007. Aggrieved of this order, the petitioner challenged the same before the State Commission by filing an appeal which also came to be dismissed vide its impugned order which is now under challenge through the present revision petition.

WE have heard Shri Sampat Anand Shetty, Advocate for the petitioner and Shri A.K. Raina, Advocate for the OP Insurance Co./respondents.

IT is not under dispute that the policy in question was issued by the OP Insurance Co. to the petitioner. It is also not under dispute that the amount in question was found missing from the office premises of the petitioner Co. In view of this, the short point which has arisen for our consideration is as to whether the money stolen was kept in ''safe'' or ''strong room'' as provided in the policy and if so, whether the safe or strong room was broken up or money was taken away by opening of the safe or strong room by a duplicate key. The State Commission has analyzed the position in this regard and reported the following finding in its impugned order which may be reproduced thus: - "The terms of the policy no doubt covers the risk of theft of money kept in locked safer or in a strong room by way of burglary or stolen whether it is during business hours or beyond the business hours.

The insurance company repudiated the claim of the complainant on the ground that the complainant failed to prove the burglary and theft by using force in order to open the locker where the money is kept. This repudiation has made the complainant to file the complaint seeking for a direction to pay the compensation.

Admittedly the money was kept in the locker which is inside the steel Almairah. From the evidence it is seen that no force has been used so as to open the said locker. Further the said almairah was kept in the chambers of the Manager. The door of the Manager Chamber was intact and it was in a locked condition. That means a person who is in possession or a person who got access to the key of the lock of the main door and almairah might have taken away the money. The policy contains the exclusion clause of which one of such exclusion clause No.7 which reads as follows: "Loss of money from safe or strong room following use of the key to the safe or strong room or any duplicate thereof belonging to the insured, unless this has been obtained by threat or by violence."

Reading of the said exclusion clause it is clear that if the safe or strong room is opened by use of key of the insured then the same is not covered. Hence the DF is right in dismissing the complaint of the complainant."

LEARNED counsel for the petitioner has contended that both the fora below have failed to appreciate that the money in question was kept in the safe and lock of the main door of the office room had been tempered with. He further submitted that even if it is assumed that the safe had been opened by a key, the claim of the petitioner would still be admissible because the use of "false key" is not the same as "duplicate key" which is excluded in clause 7 of the policy. According to him, if the duplicate key was used, then only the exclusion clause No.7 would be attracted and support the plea taken by the OP. Learned counsel further argued that the terms of the policy stipulated by the Insurance Co. did not provide that the money should be kept in the strong room. In the absence of definition of the words "locked safe or locked strong room" provided in the policy, it could not be said that the money was not kept in the safe and as such the risk was not covered on account of failure of the terms of the policy. In support of his contentions, learned counsel has relied on the following judgments: National Insurance Co. Vs. Public Tyre College (National Commission''s order dated 10.5.2001 in R.P. No.869 of 2001)

United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers,2004 SAR(Civ) 311.

United India Insurance Co. Ltd. Vs. Harchand Rai Chandan Lal, 2004 8 SCC 644

Skandia Insurance Co. Ltd. Vs. Kokilaben Chandravadan and Ors., 1987 2 SCC 654

Life Insurance Corporation of India Vs. Raj Kumar Rajgarhia and Anr., 1999 3 SCC 465

WE have carefully considered the issue involved in the light of the documents placed on record. In order to appreciate the limited issue, it would be appropriate to reproduce the relevant terms and conditions contained in the policy: - "THE Company hereby agrees subject to the terms, conditions and exclusions herein contained endorsed or otherwise expressed hereon, to indemnify the insured against loss of money in transit, by the Insured or Insured''s authorised employee (s), occasioned by Robbery, Theft or any other fortuitous cause. Further the Company shall also indemnify loss of money by Burglary, House -breaking, Robbery or Hold -up, whilst money is retained at insured''s premises, in safe (s) or strong room, more particularly described in the Schedule, provided always that the limit of the Company''s liability for any one loss shall in no case exceed the amount specified against the respective section in the said Schedule.

Definition:

Money shall mean and include Cash, Bank Drafts, Currency Notes, Treasury Notes, cheques, Postal orders and Current Postage Stamps. Bank shall mean and include Bank of every description, Post Office, Government Treasury.

THE COMPANY SHALL NOT BE LIABLE IN RESPECT OF

Shortage due to error or omission.

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

Loss of money where the insured or his employee is involved as principal or accessory, except loss due to fraud or dishonesty of the cash carrying employee of the insured, occurring whilst in transit and discovered within 48 hours.

Loss occurring on the premises, after business hours, unless the money is in a locked safe or strong room.

Loss occurring by Riot Strike and Terrorist Activity.

Money carried under contract of affreightment and theft of money from unattended vehicle.

Loss of money from safe or strong room following use of the key to the safe or strong room or any duplicate thereof belonging to the insured, unless this has been obtained by threat or by violence."

BASED on the testimony of the employees of the petitioner Co., namely, Surendra Kanchan and Rmaesh Jeppu, the District Forum has convincingly held that the petitioner had no "safe" or "strong room" in terms of the conditions of the policy to cover the claim and as such the petitioner has not complied with the terms and conditions of section II of the insurance policy. We have perused the statements of the two employees of the petitioner Co. and after going through them, we do not find any fault with the finding of the District Forum. Both of them have confirmed that the money was kept in the locker of the steel cupboard kept in the room of the Executive Officer. It is thus clear that the money was not kept in a strong room. Coming to the point as to whether the ordinary steel cupboard having locker inside could construe "safe" with reference to the present insurance policy, it has to be appreciated that the expression "safe" mentioned in the policy has to be construed by having reference to the requirement under such a policy. When the expression "safe" is used as an alternative to the strong room in the policy, the safe obviously cannot be taken to mean the cashier''s box which is easily removable or one also cannot go by the ordinary dictionary meaning of the word "safe" which would mean "a mettle respectable for the preservation of the valuables". In this context, the observations of the Apex Court in 200 SAR (Civil) 61 may be reproduced thus: - "A. Insurance Claim - Burglary insurance policy and cash insurance policy taken by bank -pledged jewellary and cash in "safe" not insured and covered under the policy -Meaning of Expression "Safe" mentioned in the insurance policy must be construed by having reference to the insurance policies and other documents connected therewith - No dictionary or artificial for fetched meaning to be given to the word "safe" cashiers cash box which is easily removable cannot be covered under the expression "safe" Burglary of or from cashier''s cash box gave no cause of action for claim under the policy -Cashier''s cash box could not be equated with the "safe" within the meaning of Insurance policy in question."

AS per the settled position of law the condition or the term in a particular document has to be construed and understood with reference to the nature of document and the context in which the term has been used. When condition Nos.4 and 7 have expressly excluded the loss of money not kept in "safe or strong room", the "safe" which was required to be provided in the office for keeping the money has to be such as would constitute a suitable replacement for a "strong room". In the present case admittedly it was an ordinary Godrej steel cupboard with a locker inside. This being the admitted position emerging from the testimony of the witnesses of the petitioner Co., we are convinced that no fault could be found with the findings of both the foras below in regard to the exclusion of the claim of the petitioner Co. We have glanced through the judgments cited by learned counsel . However, none of them provide any comfort to the petitioner Co. in the facts and circumstances of this case. The ratio laid down by the Apex Court in the case of Harchand Rai Chandan Lal where it has been held that the terms of the policy shall govern the contract between the parties and the parties have to abide by the definition given therein and all the expressions appearing in the policy have to be construed as it is and something cannot be added, subtracted or substituted, cannot be applied to the present case while interpreting the word "safe" and the same has to be interpreted and understood by inviting the reference to the context in which the expression has been used in the policy and also by understanding the meaning of this expression when it is used in other similar policies or situations as well. Keeping this aspect in view, the plea of the counsel for the petitioner that the locker fixed inside the normal Godrej steel cupboard is the same thing as a safe or a strong room referred to in the present policy is not acceptable. The scope of our revisional jurisdiction under section 21 (b) of the Consumer Protection Act under which this petition has been filed being very limited, we do not find any justification to interfere with the impugned order. Revision petition, therefore, stands dismissed with the parties bearing their own costs.