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Judgment
Revision Petition no. 2778 of 2016 has been filed against the judgment dated 04.12.2015 of the Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow (''the State Commission'') in First Appeal no. 1381 of 2015.
The brief facts of the case as per the petitioner/ complainant are that the petitioner took a Jewellers Block Policy effective from 05.05.2008 till the midnight of 04.05.2009. Premium of Rs.1,12,360/- was paid to the respondent/ insurance company and various perils were covered under the policy schedule. It has been alleged by the petitioner/ complainant that during the period of policy on 31.03.2009 certain gold was handed over to the worker Mr Sumanto Adak for preparation of the jewellery which was valued to the tune of Rs.11,74,326/-. The jewellery was to be returned by Sumanto Adak to the petitioner by 02.04.2009. As the jewellery was not returned by the said worker (Karigar) a First Information Report (FIR) was lodged under Section 406 of the IPC against the said worker and Crime Case no. 174 of 2009 was registered. A claim for the jewellery was lodged with the respondent/ insurance company. The liability to indemnify was denied by the insurer and the claim was repudiated by the respondent/ insurance company on 09.03.2010, on the ground that the petitioner did not cooperate with the respondent and requisite papers were not supplied and the alleged incident was not covered under the policy terms and conditions and was specifically barred by condition no. 8 of the Schedule.
The respondent/ insurance company appearing before the District Consumer Disputes Redressal Forum specifically denied the liability of the insurance company under the policy in view of the exception clause with respect to the infidelity of the goldsmith, which according to the appellant was not covered under the policy. It was asserted that in repudiating the claim of the petitioner, no deficiency in service has been committed by the respondent and the complaint case is frivolous and vexatious.
The District Consumer Disputes Redressal Forum, Meerut, vide its order dated 28.04.2015 while allowing the complaint gave the following order: "The complaint filed by the complainant firm against the opposite parties is partially allowed.
The complainant firm is entitled to get Rs.10,00,000/- from the opposite party insurance company by way of compensation amount with simple interest at the rate of 7% per annum from the date of institution of the complaint till the date of realisation. Apart from this, the complainant firm shall also be entitled to get Rs.10,000/- from the opposite party insurance company by way of cost of the complaint.
The opposite party insurance company is directed to pay the aforesaid amount to the complainant firm within a period of one month from the date of the order/ judgment."
Aggrieved by the order of the District Forum, the respondent/ opposite party filed an appeal before the State Commission. The State Commission while allowing the appeal observed as under: "We have heard the counsel for the parties at length and also perused the entire record of the case. The entire gamut of controversy revolves round the interpretation of clause 8 (d) of the Jewellery''s Block Policy together with description 3 of the policy Schedule which is available on record.
The first question which is to be determined by us is whether the respondent was aware of the fact with respect to condition no. 8 of the policy schedule. From the circumstances and the evidence on record, we have no hesitation to say that the terms and conditions stood communicated to the respondent in view of the fact that the complainant/ respondent''s own case is that he always used to take similar policy and policy no. 0406043/46/06/45/00000681 was taken by him for the period commencing from 16.03.2007 to 15.03.2008 and thereafter similar policy was taken with effect from 05.05.2008 to 04.05.2009 in which this claim has been lodged. There is no mention in the entire complaint case that the terms and conditions of the previous year policy and the policy in which the instant claim has been lodged were not explained or communicated to the complainant. There is even not any representation or notice from the side of the respondent prior to filing of the complaint case demanding from the insurance company the terms and conditions which are said not have been communicated to the complainant. Thus the observation of the Learned Forum to the effect that the Terms and Conditions were not communicated cannot be relied rather we are convinced that the respondent was well aware of the Terms and Conditions of the Policy Schedule. Furthermore, the policy schedule discloses that there is no special exclusion clause attached to the policy and in column Special Excess it is specifically mentioned that "As per Policy Condition". Thus a person who is taking a policy for worth more than 1 Crore Rupee is not expected to keep mum and will not demand the terms and conditions if not supplied by the insurance company. Furthermore the nature of occupation shown and disclosed in the Policy is for the Business purpose and therefore it cannot be believed that a person doing a valuable and costly business of jewellery shall not demand the Terms and Conditions of the Policy if not supplied by the insurance company to him. Thus we conclude that the complainant/respondent failed to prove the fact that the terms and conditions of the policy were not communicated to him.
Banking upon the issue which pertains to the repudiation of the claim in view of the condition no. 8 read with description no. 3 of the Policy Schedule, it shall be worth to mention that the contract of indemnity entered into between the parties is as under:
Jewellers Block
Jewellery made by outsiders Gold Smith
Special Exclusion : No
Special Excess : As per Policy Condition
Special Condition : Jewellery & valuables is to be transit all over India by paid employee or Agents against Exceptions.
Loss or damage occasioned theft or dishonesty or any attempt threat committed by or where such loss or damage has been expedited or in any way brought about by:
a) Any of the insured''s members.
b) Any servant or traveler or messenger in the employment of the insured.
c) Any person lawfully on the premises
d) Any customer or broker or angadias or cutters or goldsmith in respect of the property hereby insured entrusted to them by the insured his or their servants or agents.
The aforementioned clauses are to be read in totality and not in isolation as the schedule 3 provides the description and nature of the risk which the appellant is intending to cover. However the condition no. 8 provides the offence of theft or dishonesty committed by any person angadias or cutters or goldsmith of the property insured, meaning thereby that if any offence of theft or dishonesty is committed by the person entrusted with the property insured the insurance company shall have not liability.
The First Information Report available on record is registered under Section 406 of the IPC. Thus it is a clear case of the misappropriation of property committed by the person who was entrusted the property by the complainant/respondent and the person concerned committed the offence of breach of trust on dishonest misappropriation of the property. Thus on the basis of exceptions clause 8 wherein Loss or damage occasioned theft or dishonesty or any attempt threat committed by (8d) any customer or broker or angadias or cutters or goldsmiths in respect of the property hereby insured entrusted to them by the insured his or their servants or agents is excluded, were of this view that the loss occurred to the complainant in this case is fully covered under the exception clause of the policy and the complainant is not entitled to be compensated by the insurer.
Thus in view of the aforementioned observation we are of the decisive view that the finding and observation of the District Consumer Forum Meerut in complaint case no. 378 of 2011 is not in accordance with law and thus the impugned judgment dated 28.04.2015 is liable to be quashed and the complaint case filed by the complainant requires to be dismissed.
The appeal of the appellant is hereby allowed. The judgment and order dated 28.04.2015 passed by District Forum, Meerut in complaint case no. 378 of 2011 is quashed and the complaint of the complainant stands dismissed. In the circumstances of the case, parties to bear their own cost".
Hence, the present revision petition.
We have heard the learned counsel for the petitioner and have carefully gone through the records of the case. The petitioner/ complainant states that the State Commission has not properly understood the terms and conditions of the insurance policy. He drew our attention to the insurance policy, which is on record, and contended that the Jewellers Block policy covers the jewellery made by outsiders gold smith. Exception clause no. 8 did not apply in this case.
We are of the view the under Section 1 of the policy any loss or damage to property insured under items (a) to ( e) under Section 1 of the Schedule whilst contained in the premises or other place specified in the schedule by fire, explosion, lightening, burglary and theft would be indemnified. It is an admitted fact that the petitioner had assigned the job of manufacturing of gold ornaments of 487.280 grams and diamond ornaments of 58.09 grams to the worker Sumanto Adak who was supposed to return the ornaments on 02.04.2009. For indemnification under section 1 for burglary or theft of gold or ornaments should have been stolen while on the premises of Sumanto Adak. However, in the instant case, the loss has been caused due to dishonesty of the worker/ gold smith and hence, is covered by exception 8 of the terms and condition which reads as under: "Loss of or damage occasioned by theft or dishonesty or any attempt threat committed by or damage has been expedited or in any way sustained or brought about by any customer or broker or angadias, cutter or goldsmith in respect of the property hereby insured entrusted by the insured as their servants and agents."
The gold and diamond was entrusted by the petitioner to the worker/ gold smith Sumanto Aadk to make jewellery, as per the complainant, but the worker Sumanto Adak did not return the ornaments after manufacturing the same. Hence, the petitioner had got registered a case crime no. 174 of 2009 under section 406 IPC against Sumanto Adak at Police Station Delhi Gate, Meerut on 02.04.2009 and also gave a written intimation to the respondent on 02.04.2009 that worker Sumanto Adak had disappeared somewhere taking away the gold and diamond ornaments of the complainant.
Learned counsel for the petitioner has cited a judgment of the Hon''ble Supreme Court in the case of National Insurance Co. Ltd., vs Ishar Das Madan Lal (2007) 4 Supreme Court Case 105 . The facts of the case are not relevant to the case on hand. In this case, the customer had committed the theft and as per the order it was held that when a customer enters into a jewellery shop as of necessity the owner or his agent must allow him to inspect the merchandise, the customer intends to purchase, but "if the customer is not a man of trust or the property had not been entrusted to him, the exclusion clause will not apply". In this case, the gold was entrusted to the worker by the petitioner to make ornaments and he stole the gold and did not return the gold or the ornaments - so exception clause no. 8 would be applicable.
Thus, we find that no jurisdictional or legal error has been shown to us in the impugned order to call for our interference under Section 21 (b) of Act. The order of the State Commission does not call for any interference nor does it suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Thus, the present revision petition is dismissed.