AI Structured Summary
Not yet generated for this judgment
Judgment
THIS is a complaint under Section 17 read with Section 12 of the Consumer Protection Act.
THE complainant Cooperative Society is engaged in the business of granting loans to the agriculturists and others on the security of jewels. THE jewels and cash are kept in the premises of the complainant and a Burglary Policy has been taken by the complainant with the opposite party for the period from 11.5.90 to 10.5.91. THE policy had to be renewed from 11.5.91. According to the complainant on 10.5.91, the complainant wrote a letter to the opposite party with a cheque for premium of Rs. 2,008/- for renewing the policy for another year. THE letter was posted under C.C.P. on 10.5.91 and in the ordinary course, the policy ought to have been renewed from 11.5.91 for a period of one year. On 13.5.91, Monday morning, it was found that the outer lock of the door was broken and some jewels weighting about 312.3 grams and cash of Rs. 1,200/- were missing. THE value of the missing jewels came to Rs. 1,15,551/-. A complaint to the police was given and the claim was made against the insurer. But there was no response from the opposite party No. 1. THE opposite party No. 1 has, however renewed the policy commencing from 15.5.91 instead of from 11.5.91. This is illegal. THE second opposite party has also sent a reply repudiating the claim, as on the date of occurrence, there was no policy. THEre was deficiency of service according to the complainant and hence this claim for recovery of the value of the jewels and cash and compensation in the sum of Rs. 25,000/-. A common counter statement has been filed by the opposite parties. It is contended that the question involved in this case is whether the contract was in force in the date of occurrence and this is a matter beyond the scope of the Consumer Protection Act, and cannot be entertained by this Commission. On merits, it is submitted that the original policy expired on 10.5.91 and there was no response from the complainant for renewal. On 16.5.91, the first opposite party received a cover containing a cheque and a policy was issued for the period from 15.5.91 to 16.5.92. Since the premium has been received only on 16.5.91 the first opposite party has issued a policy commencing from 16.5.91. The opposite parties were informed of the burglary only on 20.5.91. According to the opposite parties, the complainant finding that the premises was burgled on 13.5.91 and realising that the policy had expired, has prepared an anti-dated cheque and sent it to the opposite parties. The claim is, therefore unsustainable.
Exhibits A-1 to A-10 and B-1 to B-4 are marked by consent. Affidavits are also filed. No oral evidence has been let in on either side.
THE points that arise for consideration are: 1. Whether the complaint is maintainable? 2. Whether there was any deficiency of service or negligence on the part of the opposite parties. 3. To what, relief, if any, is the complainant entitled?
Points 1 & 2: The complainant is a Cooperative Society engaged in the business of advancing loans on the security of jewels. It has insured the jewels and cash with the first opposite party under Exhibit A-1, Burglary Policy of insurance which covers the period from 11.5.90 to 10.5.91. It is the case of the complainant that on 10.5.91 a cheque for Rs. 2,008/- being the premium amount was sent with Exhibit A-8, covering letter by C.O.P. for renewal of the policy, Exhibit A-4 is the Certificate of Posting dated 10.5.91. According to the opposite party, the cheque was received only on 16.5.91 and policy was issued for the period from 16.5.91 to 15.5.92. The burglary is said to have the occurred the night of on 12/13/5.91 on which date there was no policy of insurance and the insurance company is not therefore liable. The main question whether there was any policy of burglary on the date of occurrence, according to the opposite parties, is a matter which is outside the purview of the Consumer Protection Act and cannot be enquired into by this Commission. We are unable to accept this contention. In dealing with the question whether there was any deficiency of service or negligence on the part of the opposite parties, the question of the subsistence of the policy of insurance on the date of occurrence arises for consideration and is to be dealt with by this Commission. It cannot therefore be said that the complaint is not maintainable.
EXHIBIT B-2 is the postal cover received by the first opposite party which contained the cheque dated 10.5.91 for the premium amount of Rs. 2,008/-. EXHIBIT A-4 is the C.O.P. dated 10.5.91. EXHIBIT A-3, Cover bears the postal delivery seal dated 16.5.91 and the time of delivery is 15.00 hours. Unfortunately the postal seal on the stamp at the office of the posting has torn and we are unable to find the exact date of posting. The year 91 is alone legible, the month and the date are not visible. According to the complainant the letter was posted by C.O.P. on 10.5.91 on which date the earlier policy expired. Under explanation to Section 64-VB where the premium is sent by postal money order or cheque sent by post, the risk may be assumed on the date on which the money order is booked or the cheque is posted, as the case may be. It is there fore contended by the complainant that the policy gets renewed from 10.5.91 and the opposite party is wrong in issuing the policy under EXHIBIT A-2 for the period from 16.5.91 to 15.5.92. It is argued by Mr. K.S. Narasimhan, the learned Counsel for the opposite party that the C.O.P. bearing the date 10.5.91 is procured for this purpose and is not genuine, but we have no reason to subscribe to this view. No doubt the letter said to have been posted on 10.5.91 has been received by the opposite party No.l only on 16.5.91, but such postal delays are not uncommon in our country. On that ground we cannot hold that EXHIBIT A-4 C.O.P. is a fabricated document and the letter must have been posted only after the discovery of the burglary on 13.5.91. Mr. K.S. Narasimhan, the learned Counsel for the opposite party would rely upon the decision rendered by the Bench of the High Court on'' Karnataka in National Insurance Company Ltd. v. Indirabai & Another, (1992 ACJ 292) i n support of his contention that an accident insurance policy is meant to cover liability incurred by the owner of the vehicle or property as a result of accident taking place in future and not in respect of an accident which has taken place already in view of the provision of Section 64-VB of the Insurance Act. It is also pointed out in that decision that where the premium is received by cheque by post, the insurance company has the right and duty to enquire as to whether the vehicle had already met with an accident or not before issuing the policy. If the insurance company is convinced that the cheque was posted earlier to the accident. Section 64-VB read with the explanation confers power on the insurance company to cover the risk, but if the insurance company finds that actually the cheque was posted subsequent to the accident, it can refuse to cover the liability. In the instant case the question ultimately boils to the point at which the cheque was posted. As already stated, according to the complainant, it was posted on 10.5.91 under Exhibit A-4, C.O.P., while the opposite party contends that it must have been posted after the burglary on the night of 12/13.5.91. We have already stated that we have no reason to doubt the genuineness of Exhibit A-4, C.O.P. Further as pointed by the Supreme Court in AIR 1940 SC 1641, in the case of ambiguity or doubt, the contract is to be construed contra proferentem i.e. against the insurance company. We are therefore inclined to accept the case of the complainant and hold that the cheque for the premium has been posted on 10.5.91 and the policy ought to have been issued for the period from 11.5.91 to 10.5.92. The burglary has taken place on the night of 12/13.5.91 i.e., during the period of the currency of the policy and the complainant is therefore entitled to compensation. There is no dispute about the amount of compensation claimed by the complainant - Co- operative Society. It is stated that the value of the jewels lost comes to Rs. 1,15,551/- and there is also loss of cash of Rs. 1,200/-. The complainant is entitled to claim these amounts from the opposite party. We are not inclined to grant any relief for mental agony and suffering, but however we hold that the complainant will be entitled to costs of Rs. 1,000/-.
IN the result we order as follows: 1. The opposite parties shall pay to the complainant Rs. 1,15,551/- + Rs. 1,200 = Rs. 1,16,751/- with interest thereon at 12% from 13.5.91 till payment. 2. The opposite parties shall also pay to the complainant Rs. 1,000/- as costs. Complaint allowed.