United India Insurance Company Limited vs SHIVALI CEMENT PVT. LTD.

THIS is an appeal against the judgment and order dated 19.3.1999 passed by District Forum, Meerut in Complaint Case No. 104/1997. The facts of the case stated in brief are that the complainant carries on wholesale business in cement. He takes money from his business premises to his residence on account of which he got cash-in- transit insurance from opposite party, United India Insurance Company Limited. The policy was valid from 13.12.1996 to 12.12.1997. Prior to this he was continuously taking this policy since 9.12.1993. The insurance was for a sum of Rs. 3,00,000/-. During the continuity of the policy, on 1.1.1996 the complainant was going from his business premises to his residence on his scooter No. UP 15 C-3491 and from his scooter a sum of Rs. 2,15,500/- was stolen. The money was kept in the basket and when the complainant was proceedings towards his residence from his office he felt a severe pain in stomach. After parking the scooter, he went for urination and when he came back he found the money missing. He searched a lot but could not trace out the money. On the next day he lodged an F.I.R. but the police did not take any interest in the matter.

THE complainant put a claim on the Insurance Company who sent his Surveyor to investigate. THE Surveyor found the complainant''s case incorrect, therefore, the Insurance Company did not make the payment and hence the complainant had to file this complaint. The opposite party in the written statement has mentioned that the vehicle from which the theft had occurred was not insured and was left unattended when the theft was committed. The Insurance Company is not liable to satisfy the claim because the terms of the policy have been violated by the complainant. The complainant had not taken adequate care which he should have taken for the huge amount which he was carrying. According to the Surveyor he took statement of two witnesses but claimant''s case was not supported and hence the claimant is not entitled to get any amount.

The learned District Forum, after considering the evidence on record and hearing the learned Counsel for the parties, held that the complainant is entitled to get the amount of Rs. 2,15,500/- alongwith interest.

AGGRIEVED against this order, opposite party, Insurance Company, came in appeal and has challenged the correctness of the order passed by the District Forum concerned. We have heard the learned Counsel and perused the evidence. The only point which arises for consideration in this case is whether on account of negligence of the complainant the money was lost or not. According to learned Counsel for the complainant, the scooter was left unattended by the complainant. This is a violation of the condition of the policy. A perusal of the repudiation letter dated 5.2.1997, filed by the appellant, will go to show that the case of the complainant was closed as "no claim". It has been mentioned in the repudiation letter that a huge amount of Rs. 2,15,500/- was kept in the scooter which was left unattended and it is in violation of general condition No. 3 and exclusion No. 11. According to the terms of the insurance policy, if the money is stolen from an unattended vehicle, then the Insurance Company will not be liable. It is one of the exclusions mentioned in the policy alongwith other exclusions. Thus when the vehicle was left unattended it is a clear violation of the insurance policy through which the insurance was done and the complainant is bound by the terms of the policy. This theft is the result of the negligence of the complainant because he should have taken adequate care to see that the money which he kept in the basket of the scooter is not stolen. Usually such a huge amount of money is not kept in basket but should have been kept in the dicky of the scooter under lock. No reason was given by the complainant as to why he did not keep the money in the dicky of the scooter under lock and key and kept it in the basket. This shows that the complainant was not taking adequate care of the safety of money which he is alleged to have been carrying from his office premises to his residence. This fact goes against the case of the complainant.

THE next fact which also speaks for itself is the negligence of the complainant that he did not lodge the F.I.R. immediately and waited for the entire day on which the theft was committed and lodged the report on the next day morning. Had the money been stolen, it was the duty of the complainant to have lodged a report immediately after he had finished his search for the money on the same day. THE report could be lodged at any time of the day as there is no bar in doing so. Even a minute is sufficient for such huge amount to be taken away from the scooter by any person, while the complainant left the scooter unattended for about 2-3 minutes. Thus we find that the complainant himself was negligent in not taking adequate care of the money which he was carrying and is therefore guilty of negligence which also violated the terms of the insurance policy under which the money was insured. Keeping in view these facts we find that the order of the learned District Forum is not sound and deserves to be set aside. The appeal is liable to be allowed. ORDER

THE appeal is allowed and the order and judgment of the learned District Forum are set aside and the complaint is dismissed. In the circumstances of the case, the parties are directed to bear their own cost.

LET copy of this order be made available as per rules. Appeal allowed.