ORIENTAL INSURANCE CO. LTD. vs DELHI ASSAM ROADWAYYS CORPORATION

This revision petition is directed against the order of the State Commission, UT Chandigarh dated 01-03-2012 whereby the State Commission dismissed the appeal preferred by the petitioner-insurance company against the order of the District Forum-I, UT Chandigarh in CC No.589 of 2011. Undisputed facts, as apparent from the record in this case are that the respondent-complainant has purchased a money insurance policy from the petitioner-opposite party valid with effect from 11-08-2009 to 10-08-2010. During the currency of the insurance policy on the night intervening 14/15-08-2009, a theft occurred in the premises of the complainant resulting in loss of Rs.4,02,936/-. FIR in this regard was lodged with the police on 15-08-2009. The theft was reported to the insurance company. The surveyor was appointed. As per the surveyor''s report, the loss was assessed to the tune of Rs.4,02,936/-. The surveyor observed the closing cash balance in the account books of the complainant as on 14-08-2009 was Rs.4,04,580/- which in the morning of 15-08-2009 was found to be Rs.1,01,644/-. The surveyor in his remarks

observed that as per his inquiry there was no sign of violence at the office premises on the date of the incident and he concluded that the theft might have committed by using fabricated keys and/or similar vices. Hence, the liability under the claim was left to the discretion of the insurer.

The petitioner-opposite party on consideration of the surveyor''s report repudiated the claim in view of the exclusion clause 7 of the insurance policy which reads as under: "EXCLUSIONS

The company shall not be liable in respect of:

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

The District Forum on consideration of the pleadings of the parties and the evidence allowed the complaint and directed the petitioner/opposite party as under: "In view of the above discussion, we are of the considered opinion that the repudiation of complainant''s claim by the OP company is totally unjustified. The complaint has merit. The same is accordingly allowed. The OPs are directed to pay Rs.4,02,936/-, the loss suffered by the complainant as well as assessed by the Surveyor vide Ann.C-4, along with interest @9% p.a. from the date of repudiation i.e.23-06-2011 (Ann.C-5) till it the date of order. The OPs are also directed to pay Rs.15,000/- as litigation costs. The order be complied with by the OPs within a period of 30 days from the date of receipt of copy of this order, failing which they shall be liable to pay interest @12% p.a. on the above said awarded amount from the date of repudiation i.e. 23-06-2011 (Ann.C-5) till its actual payment, besides paying litigation cost of Rs.10,000/-."

Being aggrieved from the order of the District Forum the petitioner preferred an appeal and the State Commission, UT Chandigarh on consideration of the record and submissions made by the parties did not find merit in the appeals. Consequently, the order of the District Forum was affirmed. This led to the filing of the present revision petition.

Learned counsel, Mr. Vishnu Mehra has drawn our attention to the surveryor''s report wherein it is recorded that, Mr. Bansal also stated in his statement that culprits might have opened the office and almirah by using fabricated keys or vices and contended that from this it is clear that the theft committed by opening the safe with a duplicate key. It is argued that in view of the aforesaid fact the insurance company was justified in repudiating the claim in view of the exclusion clause 7 which is reproduced above. We do not find merit in the submissions made by the learned counsel for the petitioner.

The learned counsel for the respondent on the contrary has argued in support of the impugned order. From the line of the argument adopted by the learned counsel for the petitioner it is clear that theft of sum of Rs.4,02,936/- from the safe of the complainant in the night intervening 14/15-08-2009 is not disputed. The entire emphasis of the petitioner is on the exclusion clause 7 which is reproduced above. On reading of the above exclusion clause it is clear that the insurer would be entitled to decline to honor the insurance claim if it is established that the theft was committed without any use of force by using the keys or the duplicate keys belonging to the insured. From the statement of Mr. Bansal given to the surveyor the fact which is established is that he admitted that the culprits might have opened the office and almirah by using fabricated keys or similar vice. The statement of Mr. Bansal cannot be taken as his admission that the fabricated keys or similar vice used by the culprit belonged to him. Since the insurance company is relying upon the exclusion clause the onus lies squarely upon the insurance company to establish the requirements of the exclusion clause. The petitioner-opposite party has failed to show us any evidence which could lead us to the conclusion that the theft was committed by opening the cash box with the use of keys or fabricated keys belonging to the insured. Therefore, in our considered view the exclusion clause is not applicable in this case and the repudiation of the claim on misinterpretation of the exclusion clause amounts to deficiency in service. In view of the above discussion we find no infirmity or jurisdictional error in the impugned order which may call for interference or exercise of the revisional jurisdiction. The revision petition stands dismissed.