NATIONAL INSURANCE COMPANY LTD. vs Bhuniya Book Distributor

PETITIONER /opposite party has filed this revision petition under Section 21(b) of Consumer Protection Act, 1986 (for short, ''Act'') against impugned order dated 30.3.2012, passed by State Consumer Disputes Redressal Commission, West Bengal, Kolkata (for short, ''State Commission''). Respondent/Complainant case is that it is reputed bookseller and publisher. It had insured its business with the Petitioner, vide Policy -No. 101800/48/03/7601968 dated 10.8.2004 valid till 19.1.2010. During course of the business, respondent issued a cheque of Rs. 5,03,698 in the name of M/s. Prantik. However, the said cheque was dishonoured. Thereafter, on 24.5.2004 respondent himself carried an amount of Rs. 6,50,000 in cash to be paid to M/s. Prantik. But the money was snatched away by the robbers on the way. On the next day, respondent lodged an FIR with the local police station and informed the petitioner also about the incident on 25.5.2004. The respondent made several correspondences with the petitioner to expedite its claim but petitioner did not take any step to settle the claim. Ultimately, petitioner on 22.3.2006 refused the claim of the respondent. Finding no other alternative, respondent filed a consumer complaint before Consumer Disputes Redressal Forum, Unit -I, Kolkata (for short ''District Forum'') against the petitioner claiming sum of Rs. 6.5 lakh towards loss and a sum of Rs. 5,000 as compensation.

PETITIONER in its written statement admitted that respondent is the holder of the policy in question. According to the contract no coverage is allowable exceeding Rs. 22 lacs but the pass book showed that the total transaction were for Rs. 39 lacs if any point made by the third party of this contract found to be false the whole contract will be void and Insurance Company shall not be liable to pay any claim. Consumer Forum, vide order dated 28.7.2010, allowed the complaint and ordered as under; "The O.P. is directed to pay the sum of Rs. 6,50,000.00 and compensation of Rs. 3,000.00 and Litigation Cost of Rs. 2,000.00 to the complainant making a Grand Total of Rs. 6,55,000.00 positively within 45 days from the date of communication of this Order failing which it will carry interest and 10% per annum till full realization."

BEING aggrieved, petitioner filed an appeal before the State Commission which did not find any merit in it and dismissed the same.

HENCE , the present revision. We have heard learned Counsel for the parties and gone through the record.

IT has been submitted by learned Counsel for the petitioner, that both the fora below have failed to consider the policy of insurance. The policy covered transactions of Rs. 22,00,000 only. Before the date of the alleged incident, as per bank statement transactions amounting to Rs. 39,00,000 had already been exhausted. Thus, petitioner company is not liable to indemnify the respondent.

ON the other hand, it is submitted by learned Counsel for the respondent that there are concurrent findings of facts given by both the Fora below. There is no ambiguity or infirmity in their orders. Hence, present revision petition is not maintainable. District Forum in its order has held: "It appears from the evidence of Madan Mohan Bhuniya, the Proprietor of the Complainant -Company wherein he has categorically stated that in order to save his business he made arrangement of cash money of Rs. 6,50,000.00 by taking personal loan to satisfy M/s. Prantik and on 24.5.2004 the entire money contained in a bag was snatched away by robbers in the way. He lodged an FIR and reported the matter on the next day to the O.P. And in his additional evidence he has also, categorically stated that a Police Case was started and on 13th January, 2005 the Officer -in -Charge in Amherst Street P.S. submitted the Charge -sheet marked Annexure -F and on 21.11.2005 the Complainant wrote a letter to the O.P. Annexure -H and on 31.3.2005 the O.P. asked the Complainant to furnish the documents to their Surveyor of the snatched amount, vide Annexure -1, and the Petitioner as per the direction of the O.P. filed the Bank Statement of M/s. Bhuniya Book Distributors, marked Annexure -J and thereafter the O.P. directed the Complainant to furnish all the documents in his favour by letter marked Annexure -K.

From the above Annexures it reasonably appears to us that when the O.P. asked the Complainant for all those documents including the documents to be submitted to the Surveyor, the petitioner submitted Annexure -I and the Bank Statement of M/s. Bhuniya Book Distributors, Annexure -J, in that event the logical presumption is that the O.P. did not thoroughly disbelieve the incident of robbery to the extent of Rs. 6,50,000.00 which the Complainant was carrying with him for depositing the same to the office of M/s. Prantik.

In view of this position we cannot subscribe to the argument of the O.P. that according to the terms & conditions of Insurance Policy the Complainant is not entitled to have the relief as prayed for. Further, the question that the total value of money in transaction was to the extent of Rs. 39,00,000.00 whereas the specified maximum amount of money in transaction to be Rs. 22,00,000.00 i.e. the sum assured and so there was an excess transaction of Rs. 17,00,000.00.

Maxim of insurance is to cover the risk. It appears from the insurance policy, Annexure -A filed by the Complainant, particularly from its exclusion clause starting from Item No. 1 -11 loss of money by way of snatching or robbery has not been excluded within the exclusion clause. Said in other words, loss of money by way of snatching/robbery can very well be claimed by the insured. In the instant case it has not been excluded from the insurance, we do not find any reason whatsoever to deprive the Complainant from his legitimate claim. Moreover, we have already said that the claim of the Complainant is only for snatched amount of money to the extent of Rs. 6,50,000.00. So the repudiation or denial of the claim of the Complainant which we have observed justified cannot be defeated and accordingly, the Complainant is entitled to get the relief as ordered hereunder."

THE State Commission while dismissing the appeal observed: "Admittedly, the Respondent was insured under an Insurance Policy being No. 101800/48/03/7601968 issued by the Appellant. Since the snatching/robbery is covered by the terms and conditions of the said Insurance Policy, the Respondent had claimed the insured amount in respect of the snatching/robbery of Rs. 6,50,000 from him. The Appellant took the plea that there was no such evidence regarding the snatching so that it can be construed to be true. According to the Appellant, mere filing of an FIR is not enough to prove a case of snatching/robbery. But there is no valid reason to hold that the FIR is not sufficient proof of any incident. In this case, the FIR as well as the FRT bears the testimony of the claim of the Complainant - Respondent in respect of the snatching of Rs. 6,50,000. Moreover, the Appellant -Insurance Company did not dispute regarding the coverage of snatching/robbery.

It also appears from the Surveyor''s report that the incident of snatching took place. Therefore, it is not true that Complainant never filed any case before any legitimate authority because he filed an FIR and accordingly a police case was started."

IT is well settled that under Section 21(b) of the Act, scope of revisional jurisdiction is very limited. Under this section, this Commission can interfere with the order of the State Commission where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. Hon''ble Supreme Court in Mrs. Rubi (Chandra) Dutta v. United India Insurance Company, : II (2011) CPJ 19 (SC) : IV (2011) SLT 303 : 2011 (3) Scale 654, has observed; "Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21(b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view that what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken, by setting aside the concurrent finding of two Fora."

IN the present case, the claim of respondent was rejected by the petitioner, vide its repudiation letter dated March 13, 2006 (copy placed at page 91 of the paper book), which read as under: "We find from your cash book statement that up to the date of occurrence of incident i.e. on 17.5.2005, the total value of money in transaction was to the tune of Rs. 39 lacs, whereas the policy specifies the maximum amount of money in transaction to be Rs. 22 lacs i.e. Sum Insured.

Therefore, at that given point of time, client''s money in transaction exceeded the Sum Insured and the risk ceased to exist

Under the circumstances, we are not liable to make good the loss suffered by you."

AS per above repudiation letter, the petitioner in the present case has taken the date of occurrence of incident as "17.5.2005" and it appears in that context, the petitioner has taken total value of the money in transaction to the tune of Rs. 39,00,000. Thus, date of occurrence taken as "17.5.2005" has no bearing on the facts of the present case. Admittedly, the date of incident is "24.5.2004" and not "17.5.2005". The surveyor, appointed by the petitioner in its survey report has also mentioned the date of incident as "24.5.2004". As per survey report, on that date there was forcible snatching of big shopper bag containing Rs. 6,50,000 from Mr. Madan Mohan Bhuniya. Surveyor has also observed in his report, that on "24.5.2004" respondent had sufficient cash balance to carry Rs. 6,50,000 and respondent had lost a sum of Rs. 6,50,000 during transit on that date.

NOW coming to the insurance policy in question, the "Estimated Total Annual Amount of Money in Transit" is Rs. 17,00,000 only. In the present case, the total amount involved in transit is much less than Rs. 17,00,000. Thus, the claim of the respondent was wrongly repudiated by the petitioner. Therefore, in view of the concurrent findings of fact given by both the Fora below, we do not find any infirmity or illegality in the impugned order passed by the State Commission. Accordingly, present revision petition stand dismissed with cost of Rs. 5,000 (Rupees five thousand only).

PETITIONER is directed to deposit the cost by way of demand draft in the name ''Consumer Legal Aid Account'' of this Commission, within four weeks from today. In case, petitioner fails to deposit the cost within the prescribed period, then it shall be liable to pay interest @ 9% p.a., till realization. List for compliance on 17.10.2014.