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M/s. Chirag Gold Pvt. Ltd., Thane v/s Bajaj Allianz General Insurance Co. Ltd., Mumbai

    First Appeal No. 416 of 2012

    Decided On, 09 March 2022

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. C. VISWANATH
    By, PRESIDING MEMBER & THE HONOURABLE MR. JUSTICE RAM SURAT RAM MAURYA
    By, MEMBER

    For the Appellant: Monisha Handa, Advocate. For the Respondent: Suman Bagga, Advocate.



Judgment Text

1. The present Appeal is filed against the order dated 27.04.2012 passed by Maharashtra State Consumer Disputes Redressal Commission (in short 'State Commission') in Consumer Complaint No. CC/08/103 whereby the Consumer Complaint filed by the Complainant/Appellant was dismissed.

2. Case of the Complainant is that they obtained "Jeweller's Block Insurance Policy" No.OG-08-1901-4099-8 for Rs.20,00,000/- from the Opposite Party, valid from 13.04.2007 to 12.04.2008. On 15.11.2007, a robbery took place in the shop of the Complainant wherein gold and silver ornaments worth Rs.30,00,000/- were looted. The Complainant lodged a Police Complaint and also submitted a claim for Rs.30 lakhs with the Opposite Party/Insurance Company. The Opposite Party appointed a Surveyor to assess the loss. The Surveyor, vide his report dated 16.01.2008, assessed the loss at Rs.19,01,890/-. The Surveyor observed that the Insured did not have any security system like watchman, CCTV Camera, TV monitor, etc. The Insurance Company repudiated the claim on the ground that Insured failed to take reasonable precautions for safety of the property. Aggrieved by repudiation of claim, the Complainant filed Consumer Complaint with the State Commission with the following prayer:-

"a) By award and order, the Opposite Part directed and order to pay the claim amount found due and payable under the policies bearing No. OG-08-1901-4099-8 for Rs.30,00,000 to grant Interest at 18% p.a. from ____ till payment as per regulation and law.

b) Cost and Expenses incurred at Rs.10,00=00 and Rs.50,000/- for Advocate fees are granted, & mental torture & harassment of Rs.1,00,000/-

c) To Order the erring officers of the Opposite Party's to pay such amount as this Hon'ble Commission deem fit and also direct the Opposite Party to conduct inquiry and take action as per law against such officers/managers.

d) Such other and further reliefs as this Hon'ble Forum deem fit and proper."

3. The Opposite Party resisted the Complaint by filing the written statement. It was stated that repudiation of the claim was based on violation General Conditions of the Insurance Policy as the Complainant failed to install CCTV camera in the premises and deploy a Security Guard/watchman as mentioned in the proposal form. It was stated that General Condition No.2 provided for adequate safeguard as referred to in the proposal form, which was not done by the Complainant. The contract of insurance was, therefore, voidable at the option of Insurer. The Opposite Party also stated that the Complainant had not approached the State Commission with clean hands and the Complaint was liable to be dismissed.

4. The State Commission after hearing the Counsel for the Parties and perusing the record, vide order dated 27.04.2012, dismissed the Complaint. Aggrieved by the order of the State Commission the Appellant/Complainant preferred the present Appeal with the following prayer:-

"a) That the order passed by the Hon'ble Maharashtra State Consumer Disputes Redressal Commission Mumbai be set aside and quashed and Award and Compensation claimed by the Appellant in the original complaint be allowed and granted with interest and compensatory cost.

b) Such other and further order or relief as the Hon'ble Commission deem fit and proper."

6. Heard the Learned Counsel for the Parties and carefully perused the record. Learned Counsel for the Appellant/Complainants submitted that installation of CCTV camera and deployment of Security Guard was not included in the terms & conditions of the Insurance Policy. He further submitted that in the General Conditions of the Insurance Policy it was referred that the Insured shall take all reasonable precautions for safety of the property. General Conditions of the Insurance Policy were not "conditions precedent" and do not absolve the Insurance Policy from its liability. It was also submitted that breach of General Condition cannot be a ground for repudiation of the claim. Learned Counsel submitted that in alternative the Appellant was entitled 75% claim on "Non Standard Basis." Learned Counsel relied on the judgment of Hon'ble Supreme Court in Amalendu Sahoo vs. Oriental Insurance Co. Ltd. [(2010) 4 SCC 536] wherein Hon'ble Supreme Court held that in case of any variation from the Policy Document/any breach of the policy document, the Insurance Company cannot repudiate the claim in toto and the claim of the Complainant ought to be settled in non-standard basis. The claim of the Complainant, therefore, should not have been repudiated on the aforesaid grounds. It was further submitted that Appellant had installed CCTV camera and deployed watchman at the shop but the State Commission failed to appreciate this fact.

7. Learned Counsel for the Respondent/Opposite Party submitted that in the proposal form the Complainant had stated that the insured premises had safety measures. On the basis of this statement, the Opposite Party issued the Insurance Policy. General Conditions of the Policy also provided that the Insured shall be entitled for indemnification of loss if the insured premises had adequate safety measures. It was submitted that on 18.11.2007, the Surveyor visited the spot and during investigation he found that the Appellant did not have any security system like Security Guard and CCTV Camera etc. This fact was told to the Surveyor by the Appellant. As the Respondent obtained the Insurance Policy by misrepresentation of fact, they are not entitled for any relief.

8. Admitted facts of the case are that the Complainant obtained Jeweller's Block Insurance Policy No.OG-08-1901-4099-8 from the Opposite Party. The incident of robbery is also admitted by the Parties. It is also admitted that on the date of robbery the Policy was in existence. The Surveyor assessed the loss at Rs.19,01,890/-. The only dispute relates to the repudiation of claim in violation of the General Conditions of the Insurance Policy. It is necessary to go through General Condition No.2, which reads as follows: -

"(2) The insured shall take all reasonable precautions for the safety of the property as regards selection and supervision of employees, securing all doors and windows and other means of entrance or exit otherwise and shall not withdraw or vary the protection and/or safeguards as are referred to in the proposal form to the detriment of the interest of the Company without its consent."

9. From the above, it is clear that the Complainant was required to take reasonable precautions for the safety of gold and silver ornaments. The case of the Opposite Party is that the Complainant had not taken precautions for safety of the Insured shop. In this regard, para 7.7 of the Survey Report is relevant, which reads as follows: -

"7.7. The Insured conveyed that they do not have any type of security system like watchman, CCTV camera, TV Monitor, etc. as the volume is too less, they cannot afford the cost of these security charges. They had fixed a camera but it was unconnected and rest of system not yet purchased/installed. However the Insured in the proposal form they have stated that the above items were in place. The Insured conveyed that the agent had considered society watchman and wrongly taken CCTV. However Insured's shop was on road and not inside society compound."

10. Reading of the above shows that the Complainant had not deputed the Security Guard/Watchman nor they installed CCTV camera, TV Monitor, etc. and this fact was conveyed to the Surveyor by the Appellant themselves. The Complainant had also given the reasons for not installing CCTV camera and deploying the Security Guard. It is not disputed by the Complainant that while making the proposal form, they had undertaken to install CCTV camera and deployment of the Security Guard, which they failed to do. Parties are bound by the terms & conditions of the Insurance Policy. There is, thus, clear violation of the Gen

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eral terms & conditions of the Policy. State Commission held that General Condition No.2 appended to the Insurance Policy required to be read together with the contents of the proposal form submitted by the Complainant. Violation of General Condition No.2 as well as the undertaking given by the Complainant in the proposal form is established. Judgment in Amalendu Sahoo (supra) relied by the Complainant is distinguishable on facts as the issue in that case was related to theft of the Insured vehicle. 11. For the foregoing discussion, we find that the Insurance Company was not liable to pay the Insurance claim in case of breach of the conditions of the Insurance Policy. The State Commission rightly dismissed the Complaint. Complainant/Appellant failed to point out any infirmity or irregularity in the impugned order. The Appeal is, therefore, dismissed with no order as to cost.
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