TAIYAB BHAI MULLA HAIDER vs ORIENTAL INSURANCE Company

THIS is a complainant''s appeal against order dated 21.8.1997 passed in Case No. 333/1995 by the District Consumer Disputes Redressal Forum, Indore (for short the ''District Forum'').

THE appellant carries on business of Steel Furniture in the name and style of Taiyab Bhai Mulla Haider Bhai Maheedpurwala in the premises at 72, Siyaganj, Indore. THE premises had three floors, the ground floor and the first floor are used as showroom for display and keeping stocks while the second floor is used as godown. THE business hours are from 10 a.m. to 8 p.m. while Sunday is observed as weekly holiday. THE appellant obtained a policy No. 151106/406/00976/46/95/00136 for cash/money insurance covering the risk for the period 4.10.1994 to 3.10.1995 of shop to the extent of Rs. 15,00,000/- and of cash to the extent of Rs. 50,000/-. In the intervening night of 18.10.1994 and 19.10.1994 an amount of Rs. 24,570/- kept in the upper drawer of the table which had locks, was stolen when the premises and lock of the drawer were securely locked. A tape worth Rs. 1,000/- was also stolen. In the morning when the appellant came to know of theft on opening of the business premises at 10 a.m. the lock was found open and the cash missing from the drawer of the table. A police report was lodged at 12.30 p.m. at Police Station Central Kotwali, Indore on that a case was registered under Section 457 and 380, I.P.C. at crime No. 2/94. A claim was lodged with the Insurance Company. THE police made investigation but neither the miscreants could be arrested nor the cash and tape was recovered. THE Insurance Company appointed Surveyor Suresh Kumar Kimtee who vide report dated 6.3.1995 concluded that there was no forcible entry into the premises. THE miscreants might have climbed the second floor and came to the ground floor through staircase and had opened the table drawer with the help of master key where cash alleged to have been kept on 18.10.1994 on closure of the business premises. THEre were no marks of use of force or damage to the cash drawer. THE Surveyor found that policy covers the risk of locked safe or locked strong room while reported loss took place from the drawer of the table which cannot be admitted as the reported loss is beyond the risk covered. THE Insurance Company after considering the report of the Surveyor and due application of mind vide letter dated 23.3.1995 repudiated the claim as ''No Claim'' since the policy covered the risk from ''Locked Safe'' or ''Locked Strong Room'' while the reported loss was from the drawer of the table which was not damaged, hence, reported loss was beyond the scope of cash insurance policy. THE appellant sent letter dated 30.3.1995 stating therein that repudiation of the claim was unjustified as the cash was kept in the table drawer which was locked, which is stronger than the normal iron safe which may be verified. It was specifically designed and manufactured system for the purposes of safe deposit of the cash. THE Insurance Company vide letter dated 16.5.1995 shown its inability to take a different view. The appellant filed a complaint which was resisted. The District Forum after appreciation of evidence on record and the terms and conditions of the policy held that the repudiation of the claim was on justifiable grounds as per survey report, lock of table drawer was opened by master key, the appellant did not take proper steps to keep the cash after business hours in the safe or strong room. The appellant also failed to establish that amount of cash was kept by producing the record of account or sales and of receipt of the amount on the day and at the time of closing of the business hours.

Mr. Deepesh Joshi, learned Counsel for the appellant submitted that entire business premises were in possession of the appellant of which the windows of the first floor are secured by Iron Grills. The second floor was also secured by aluminium Section Sliding Windows. The ground floor was securely locked and closed. The drawers of the table were locked. The appellant used to keep the cash in the drawer of the table which is stronger than the normal iron safe which is specially designed and manufactured system and better for the purposes of safe deposit of the cash. Therefore, even in the absence of forcible entry and the cash was not kept in the Locked Safe or Locked Strong Room, the claim could not have been repudiated.

THE submission of the learned Counsel for the appellant in the facts and circumstances of the case cannot be accepted. THE policy of insurance states the circumstances or situation covering the risk of the cash loss. Condition Nos. 1 and 4 are relevant for the purposes of the cash in hand which we quote : (1) Cash for the payment of wages/salaries and other earnings or for petty cash in direct transit from the Bank to the insured premises from the time the cash is received at the Bank by the insured or the authorised employees of the insured until delivered at the premises or other place of disbursement and whilst there until paid out provided that out of business hours such cash shall be secured in locked safe/locked strong room of the premises, cheques drawn by the insured to provide for such cash are covered in transit from the premises to the Bank. (2) xxx xxx xxx (3) xxx xxx xxx (4). Cash (other than described in item) whilst on the premises during business hours or whilst secured in locked safe or locked strong room on the insured premises out of business hours. From a bare reading of the condition Nos. 1 and 4 it is clear that to cover the risk requirement of keeping the cash in Locked Safe or Locked Strong Room in the premises out of the business hours.

IN the New INternational Webster''s Comprehensive Dictionary, 1996 Edition at page 1167 the meaning of the ''Safe'' is given as : ''Safe'' - A strong iron and steel receptacle usually fireproof, for protecting valuables, as money or jewels. At page 1243 the meaning of the ''Strong Room'' given as : ''Strong Room'' - A room especially equipped for the safe keeping of valuables. In Black''s Law Dictionary, VIth Edition at page 1336 the meaning of the ''Safe'' is defined as - A metal receptacle for the preservation of valuables, untouched by danger, not exposed to danger, secure from danger, harm or loss. In P. Ramanatha Aiyar''s The Law Lexicon IInd Edition, 1997 at page 1704 the meaning of ''Safe'' reads thus ''Safe'' - Webster defines "Safe" to mean free from danger of any kind, as safe from enemies, safe from disease. 1. Free from danger or hurt (Section 431, IPC) 2. affording protection from danger, securing from harm, secure or affording security (1st Sch. App. F. Form No. 7. CPC) 3. a chest or closet (Section 132 (C)(ii), Income Tax Act).

ADMITTEDLY, the safe was not kept in strong room nor it was a safe that is Chest or Closet Hindi meaning of the safe is Tizouri that is an iron safe or chest. In the circumstances, besides the fact, there was no forcible entry in the premises nor any damage to the drawer or its lock wherein the cash was alleged to have kept after closure of business hours.

IN the circumstances, the INsurance Company in our opinion bona fidely repudiated the claim, as the risk was not covered. However, the appellant shall be at liberty to institute civil suit in the Court of competent jurisdiction for redressal of his grievances and if he chooses to do so he can claim the benefit of Section 14 of the Limitation Act to exclude the period spent in prosecuting the proceedings under the Consumer Protection Act, 1986 while computing the period of limitation prescribed for such a suit. In the result, appeal fails and is dismissed with no order as to costs. A copy of this order be conveyed to the parties and a copy be sent to the District Forum along with record of the case. Appeal dismissed.