Oriental Insurance Co. Limited vs BHATTER SILVER SMITH PVT. LTD.

THE present appeal, filed by the appellant, under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ''the Act'') is directed against order dated 8.3.2003, passed by District Forum (Central), Maharana Pratap Bus Terminal, ISBT, Kashmere Gate, Delhi in Complaint Case No. 328/2002 entitled M/s. Bhatter Silver Smith Pvt. Ltd. v. THE Oriental Insurance Company Limited & Anr.

THE facts, relevant for the disposal of the present appeal, briefly stated, are that the respondent M/s. Bhatter Silver Smith Pvt. Ltd. through its Director Shri Roshan Dabriwal, had filed a complaint under Section 12 of the Act before the District Forum, averring therein that the respondent was engaged in the business of fabrication of silver jewellery and a ''Jewellers Block Insurance Policy'' bearing No. 46/45/99/90041 was obtained by the respondent from the appellant for the period from 5.6.1998 to 4.6.1999, covering stocks for Rs. 50,000/- and cash and currency notes for Rs. 2,00,000/-. It was stated that in terms of the policy, issued by the appellant, the appellant had agreed to indemnify the respondent against any loss or damage to the property mentioned in items 1 to 5 of the Policy stored in complainant''s premises, bearing No. 17-A/39, Vardan House, Ajmal Khan Road, Karol Bagh, New Delhi. It was stated that the policy issued by the appellant covered risk against fire, explosion, lightening, riot, strike, malicious damage, burglary, house-breaking, theft and robbery. It was stated that despite all round security, on the night falling between 10th/11th May, 1999, some miscreants broke the exhaust fan, installed in the generator room, and had entered the insured premises and thereafter had also broke open the store gate. It was stated that in the morning of 11th May, 1999 at about 11 a.m. the staff of the responded noticed that though the locks of entrance to the show-room were intact but the store room gate and the almirah lying therein were wide open and cash, amounting to Rs. 2,91,465/-, kept in the almirah, was missing. It was stated that the respondent lodged a report with regard to the above incident with the Police at Police Station, Karol Bagh, where FIR No. 102/1999 was registered. It was stated that thereafter the premises were inspected by the authorities of police. It was stated that on further verification of stocks the respondent came to know that 11 kgs of silver articles were also found missing and an additional report in that behalf was also lodged with the concerned authorities of police on the same date. It was stated that under the policy the respondent lodged a claim with the appellant claiming a sum of Rs. 1,11,000/- being cost of the silver articles stolen and a sum of Rs. 2,19,334/-. It was stated that besides the above amounts, another sum of Rs. 72,131/- was also lying in the almirah which belonged to the sister concern of the respondent by name M/s. Kenro Enterprises Pvt. Ltd.

It was stated that the Security Guard, during the day shift, reported to the respondent on 11th May, 1999 itself that Shri Chander Bahadur, the guard in the night shift, who was a Nepalee, was not there when the security guard tool over the charge from him. As such suspicion feel upon the said Shri Chander Bahadur. It was stated that the Police along with the representative of respondent went to Nepal and recovered a sum of Rs. 95,000/- from various places but the main culprit said Shri Chander Bahadur could not be apprehended.

IT was also stated that the appellant appointed a Surveyor M/s Associate Surveyors and Consultants Pvt. Ltd., who vide letter dated 21.5.1999 sought information and various documents from the respondent which were duly supplied/furnished. IT was stated that the Surveyor recorded the statements of various persons and the Police also after investigation filed a charge-sheet in the Court on 19.6.1999 under Sections 457/380/411/34, IPC and a final report in the above said case was filed by the Police authorities on 4.7.1999. IT was stated that the appellant repudiated the claim of the respondent vide letter dated 28.10.2001, which gave the cause of action to the respondent to file that complaint before the District Forum. The claim of the respondent in the District Forum was resisted by the appellant and in the reply/written version, filed on behalf of the appellant, certain preliminary objections were taken with regard to the maintainability of that complaint. On merits, while admitting the factum of insurance, it was stated that the respondent was guilty of giving delayed intimation about the occurrence. It was stated that the claim of the respondent has been rightly repudiated by the appellant because the same fell within the exclusion Clause 8(b) of the Policy as the alleged theft was the handiwork of a guard who was in the exclusive employment of the insured respondent.

THE learned District Forum, vide impugned order, has held the appellant guilty of deficiency in service and on the basis of above finding has passed the impugned order. Feeling aggrieved, the appellant has preferred the present appeal under Section 15 of the Act. We have heard the learned Counsel for the appellant at length and have also carefully gone through the documents/material on record. On the basis of documents/material on record it is not in dispute that the respondent had taken out the policy in question. it is also not in dispute that the alleged incident of theft took place in the insured premises on the night falling between 10/11.5.1999. It is also not in dispute that an intimation regarding the alleged incident of theft was given by the respondent to the authorities of police and also to the appellant who appointed a surveyor. As already stated, the claim of the respondent, under the policy was repudiated by the appellant vide letter dated 28.10.2001. The operative portion of the above said communication, which is relevant for deciding the controversy between the parties, reads as under: "We draw your reference to the above cash loss claim, under Jewellers Block Insurance Policy occurred on 9.5.1999. In this context we regret to state that we are unable to consider this claim as it falls under exclusion Clause 8(b) of the Policy which states that ''The company shall not be liable under this policy in respect of loss or damage occasioned by theft or dishonesty or any attempt thereat committed by or where such loss of damage has been expedited or in any way sustained or brought about by any servant or traveller or messenger in the exclusive employment of the insured."

Therefore, your above claim has been repudiated by competent authority and file closed as ''No claim''. (Underlined by us)

ON a bare perusal of the contents of the above communication it is apparent that the claim of the respondent under the policy had been repudiated by the appellant solely on the ground that the same fell within the exclusive Clause 8(b) of the policy. The question requiring consideration is, as to whether can it be stated that Security Guard Chander Bahadur was a servant of the respondent exclusively employed by the respondent. ON a perusal of documents/material on record it is further apparent that the services of Security Guard were hired by the respondent from M/s. Cat-Eye Security and Detective Agency Pvt. Ltd. and on the relevant date said Shri Chander Bahadur was acting as an employee of that Security Agency, was answerable to that agency only and used to draw his remuneration from that agency. There was no relationship of ''master and servant'' between said Shri Chander Bahadur and the respondent. The contract of the respondent was with that security agency which had provided the services of one of their employees to the respondent for the purpose of security. In the presence of the above facts it cannot be stated that said Shri Chander Bahadur was a servant of the respondent in the exclusive employment of the respondent within the meaning of Clause 8(b) of the policy and, therefore, the learned District Forum was fully justified in rejecting the said contention of the appellant. The order being impugned in the present proceedings is a well reasoned order which suffers from no infirmity so as to call for any interference by this Commission in exercise of its appellate powers. The present appeal, filed by the appellant is, therefore, devoid of substance. The same merits dismissal. Accordingly, the same is dismissed in limine with no order as to costs. Appeal dismissed.