UNITED INDIA INSURANCE CO. LTD. vs M/S Manik Bhai Jewellers

B .C. Gupta, Member This appeal has been filed under section 19 of the Consumer Protection Act, 1986 against the impugned order dated 14.09.2007, passed by the Delhi State Consumer Disputes Redressal Commission (for short ''the State Commission '') in Consumer Complaint No. C -85/98, ''''M/s. Manik Bhai Jewellers versus United India Insurance Co. Ltd. & Anr. '''' vide which, the said consumer complaint was allowed and the OP was directed to pay a sum of Rs. 5,93,933/ -, being the cost of lost jewellery and also to pay a sum of Rs. 50,000/ - as compensation for mental harassment, including the cost of litigation.

BRIEF facts of the case are that the respondent/complainant had obtained from the appellant/OP Insurance Company a Jeweller ''s Block Policy No. 041201/46/45/11/261/96 -97 commencing at midnight on 30.10.1996 and ending at midnight on 30.10.1997 against a premium of Rs.15,488/ -. It has been stated in the complaint that on 15.02.97 at about 8 PM, when Mr. Lalit, an employee of the complainant was keeping a briefcase containing jewellery in the dickey of the car, two persons snatched the bag containing jewellery from him and escaped at gun -point. An FIR was lodged at Srinivaspuri Police Station. A detailed statement of articles lost in theft was handed over to the OP within 14 days of the theft, stating the estimate of actual value of the articles lost. However, the claim was repudiated by the Insurance Company vide letter dated 06.01.98 on the ground that the loss had occurred outside the insured shop premises and beyond business hours while the jewellery was in transit. The loss was not covered under the terms and conditions of the Policy. Moreover, the jewellery was not kept in safe at the time of theft. The complainant stated that the theft occurred during the usual course of business when the bag containing the jewellery was being taken to show the same to the customers for sale. At the time of theft, the jewellery was in the custody of the complainant and his employees. The insurance policy had been obtained to cover the accidental loss of jewellery/ property. The complainant stated that a sum of Rs.5,93,933/ - should be remitted to him and a compensation for deficiency in service should also be given. In their reply to the complaint filed by the OPs before the State Commission, it was stated that the claim of the claimant was not covered under the terms and conditions of the policy because the complainants were supposed to maintain a burglary proof safe, if the value of the jewellery exceeded Rs.2 lakh at any time. However, the complainants did not maintain such burglary proof safe to secure the jewellery items after business hours. There was, therefore, negligence on the part of the complainant. Moreover, the jewellery in transit had not been insured at all by the complainant and hence, the Company was not liable for loss that occurred during the transit period. The State Commission, after taking into account the evidence of the parties, allowed the complaint saying that a sum of Rs.5,93,933/ - being the cost of the jewellery shall be payable by the OPs to the complainant and a further sum of Rs.50,000/ - shall be payable as lump sum compensation, which included the cost of litigation. The State Commission stated that repudiation of the claim by the OPs was not justified for the following reasons:

''''(i) That at the time of theft the jewellery was being handled by the employee of the complainant. The complainant himself and other employees of the insured -complainant were accompanying him.

(ii) The purpose of carrying the jewellery was to show it to the customer for sale.

(iii) The business hours of sale of jewellery depend upon the convenience of the prospective customers.

(iv) When the employee or the representative of the complainant are dealing with jewellery it cannot be reasonably expected to be kept in safe at all times.

(v) The jewellery was not in transit but in the hand/custody of the employee of the complainant at the time of theft and in usual course of business of the complainant. The reason is simple because he was in front direction from where the robbers came. It was not a ground for rejection of claim as it was pure and simple accident.

(vi) The two thieves who snatched the packet and one more accomplice were arrested by the police and they admitted that they had committed the robbery on their own.

(vii) That the vehicle was not unattended. It was just across the road and Rakesh Makkar as well as four other employees were there and therefore proviso of clauses 4 and 5 of the Insurance Policy was not invokable. ''''

AT the time of hearing before us, the learned counsel for the appellant first explained the delay in filing the appeal, saying that a certified copy of the order dated 14.09.2007, passed by the State Commission was dispatched by them on 15.10.2007 and the same was received in their office on 26.10.07. Thereafter, some time was spent in obtaining approval of the competent authority and movement of the papers between different offices and hence, a delay of 36 days occurred in filing the said appeal, which should be condoned. In reply, learned counsel for the respondent/complainant stated that there was no evidence to say that the certified copy of the order was received by the appellant on 26.10.2007; hence there was a delay of 47 days in filing the appeal. The reasons given that the delay occurred due to movement of files from office to office do not justify the condonation of delay.

ON merits, the learned counsel for the appellant has drawn our attention to the copy of the insurance policy in question, saying that the loss/theft of jewellery during transit was not covered under the terms and conditions of the Policy. Moreover, it has been clearly provided in the policy that any item(s) whose value was more than Rs.2 lakh were required to be kept in a burglary proof safe after business hours, but it was not done. Moreover, in order to justify the claim, burglary should have been committed inside the premises of the shop and hence, the claim was not payable. It has been made clear by the appellants in their repudiation letter that the complainants had given two versions about the theft - one version says that the robbery took place at the shop at the gunpoint whereas, the other version says that the theft took place when a bag containing jewellery was being kept in the dickey of the car. The learned counsel further argued that the definition of business hours as given by the State Commission that the business hours depended upon the convenience of the prospective customer was too elastic and should not be accepted. The theft should have occurred during the normal business hours to justify the claim. In reply, the learned counsel for the respondent/complainant stated that at the time of theft, the said jewellery was in the custody of an employee of the complainant. The claim for theft during transit was fully covered as per Section -II of the Insurance Policy under which the insurance cover was upto Rs.6 lakh. The learned counsel further argued that in this business, the deals are made many a time, outside the business hours and hence, it was not possible to keep the jewellery in safe vault all the time. The learned counsel pointed out that the State Commission had passed a well -reasoned order and allowed the claim of the complainant after thorough analysis of the facts and circumstances on record and hence, the order of the State Commission should be sustained. In their written submissions, the complainant/respondent have also taken the same line of argument, saying that the claim was validly covered in Section II of Schedule B of the Policy, because this section covers the burglary for property carried outside the premises of business to the extent of Rs.6 lakh.

WE have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. There is a delay of 36 days in filing the present appeal as admitted by the appellant himself. They have stated that the delay occurred because of obtaining approvals from the competent authority and movement of papers between different offices. In view of the position explained in the application for condonation of delay and as stated during the course of arguments, the delay in filing the present appeal is ordered to be condoned.

A perusal of the insurance policy in question reveals that Section - I of Schedule B of the said policy states that the property insured in display window shall be covered upto Rs.15 lakh and the property insured in locked safe shall be covered upto Rs.10 lakh besides cash and currency notes upto Rs.2 lakh. Section -II of the said schedule B states as follows: - ''''Section II Limit for any one loss (a) Property Insured whilst in the custody of the Insured is partners or his employees. Rs. 6,00,000/ -

(b) Property Insured excluding cash and currency notes whilst in the custody of persons not in regular employment of the Insured such as brokers or cutters or goldsmiths. Rs. 2,00,000/ -

(I) WARRANTED THAT IF STOCK WITH ANY ONE PERSON SPECIFIED IN SECTION II OF THE SCHEDULE EXCEEDS Rs. 2 LAKHS IT SHALL BE SECURED IN A BURGLAR PROOF SAFE AFTER BUSINESS HOURS AT ALL TIMES.

(II) WARRANTED THAT THE SUM INSURED UNDER THIS SECTION UNDER THIS SECTION SHOULD NOT EXCEED THE GROSS SUM INSURED UNDER SECTION I. ''''

It is made out from a plain reading of Section -II of Schedule B that amounts of Rs.6 lakh and Rs.2 lakh have been separately provided in Section II in addition to the amounts of Rs.15 lakh and Rs.10 lakh as stated in Section I of the Policy which relate to the Insurance on the premises of the shop. It can be safely presumed, therefore, that Section II of the Policy deals with the insurance cover for the loss occurring outside the premises of the shop. It is quite evident that at the time of theft, the jewellery/property in question was in custody of the employees of the complainant and this fact has not been denied anywhere. It has also been stated that the purpose of carrying jewellery was to show it to the customers for sale. The State Commission have also observed that the two thieves and one more accomplice were arrested by the Police and they admitted that they had committed the robbery on their own. Moreover, the vehicle was not unattended as one Rakesh Makkar who lodged the FIR and four other employees were there when the robbery took place. We, therefore, find no justification to interfere in the well -reasoned order passed by the State Commission that the claim of the complainant was covered under the terms and conditions of the Policy. It is true that it has been stated that stocks worth more than Rs.2 lakh should be secured in a burglary proof safe after business hours at all times but in the present case, the State Commission have rightly observed that the jewellery cannot be reasonably accepted to be kept in safe at all times when the employees or representatives of the complainant were dealing with or handling jewellery.

BASED on the discussion above, we do not find any illegality or infirmity in the orders passed by the State Commission. There is, therefore, no merit in the present appeal and the same deserves to be dismissed and we order accordingly. There shall be no order as to costs.