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Oriental Insurance Company Ltd. v/s Candor Biotech Limited & Another

    Revision Petition No. 1648 of 2014 in Appeal No. 456 of 2013
    Decided On, 18 July 2019
    At, National Consumer Disputes Redressal Commission NCDRC
    By, THE HONOURABLE MR. PREM NARAIN
    By, PRESIDING MEMBER
    For the Petitioner: Neerja Sachdeva, Advocate. For the Respondents: R1, Devinder Kumar, Advocate, R2, Ex parte.


Judgment Text

1. This revision petition has been filed by the petitioner-Oriental Insurance Company Limited against the order dated 30.12.2013 of the State Consumer Disputes Redressal Commission, UT Chandigarh, (in short ‘the State Commission’) passed in First Appeal No. 456 of 2013.

2. Brief facts of the case are that the complainant took an insurance policy (No. 64613) w.e.f. 14.6.2007 to 13.6.2008 and Another policy valid from 30.3.2007 to 29.3.2008 covering approximately Rs. 3.5 crores, including plant and machinery, stocks, pharmaceutical goods, packing material and other items, as mentioned in the policy, at the unit of the complainant company situated at village Khera, Tehsil Nalagar, District Solan (HP). On the intervening night of 16/17.9.2007, an incident of burglary and theft took place at the factory premises of the complainant which came to light on 17.9.2007 at about 8.40 a.m. In the said incident, blister aluminium foils valuing Rs. 8.00 lacs and change parts of the machinery valuing Rs. 2.00 lacs were found missing. The matter was immediately reported to the SHO, Police Station Nalagarh on 17.9.2007 after which F.I.R. No. 247 dated 22.9.2007 was registered. During investigation the police arrested four persons and recovered approximately one quintal blister aluminium valuing Rs. 50,000 from their possession. The information regarding incident of burglary was also given to the opposite party on 17.9.2007 itself but still the opposite party vide its letter dated 30.6.2010 repudiated the claim. The complaint was resisted by the opposite party No. 1 in its written reply although it did not dispute that the policies in question were issued to the complainant. However, it has been averred that at the time of incident, Mr. Gulab Singh, Security Guard was on duty and the whole exercise of theft took place with his connivance. It has been denied that it was an incident of forcible entry and burglary. It has been pleaded that after following due process, the claim was repudiated being hit by exclusion Clause 2 of the policy. Pleading that there is no deficiency in service on its part, prayer for dismissal of the complaint has been made.

3. District Forum, however dismissed the complaint by its order dated 19.8.2013. Aggrieved with the order of the District Forum, the complainant preferred an appeal before the State Commission and the appeal was accepted by the State Commission and complaint allowed. The State Commission ordered the Insurance Company to pay Rs. 9.18 lacs to the complainant as settlement of insurance claim.

4. Hence the present revision petition.

5. Heard the learned Counsel for both the parties and perused the record.

6. It is stated by the learned Counsel for the petitioner Insurance Company that the guard Gulab Singh who was on night duty on that day, was involved in the burglary and the police after investigation has arrested four persons including the guard Gulab Singh. Moreover, material worth Rs. 50,000 was recovered from the culprits confirming the involvement of the guard Gulab Singh. In this situation, the exclusion Clause No. 2 is clearly applicable in the present case and therefore, insurance claim is not payable. It was further argued by the learned Counsel that if this Commission comes to a conclusion that insurance claim is payable then the amount assessed by the surveyor can only be awarded.

7. The learned Counsel for the petitioner stated that the terms and conditions were supplied to the complainant and if he had not received the same the complainant should have written a letter to the Insurance Company or should have contacted the office of the Insurance Company for getting the said terms and conditions. The exclusion clause is the expression of the common sense that the Insurance Company would not be liable to pay any insurance claim if the theft/burglary is committed by an employee or any person authorized to be present in the premises of the factory or loss occurs due to his involvement. It was the duty of the complainant to get the copy of the terms and conditions of the policy from the Insurance Company and therefore, the State Commission was not justified in allowing the claim of the complainant on the basis that the exclusion clause was not known to the complainant as the terms and conditions were not received by him. The State Commission has observed that Insurance Company has not filed any evidence for sending the terms and conditions of the policy. In this regard, the learned Counsel stated that it is the general policy of the Insurance Company to provide terms and conditions of the policy along with the policy and the same was also done in the present case. However, if the same was not received by the complainant, he should have contacted the Insurance Company for getting the copy of terms and conditions of the policy. These are standard policies and they can be accessed from the website of the Insurance Company. Thus, the allegation of the complainant cannot be accepted that he was unaware of the exclusion clause.

8. On the other hand the learned Counsel for the respondent No. 1 stated that the case is not covered under the exclusion Clause No. 2 because the guard Gulab Singh was not an employee of the insured company. Learned Counsel for the respondent No. 1 further stated that the State Commission has allowed the appeal of the complainant relying upon his assertion that the complainant did not receive the copy of the terms and conditions of the policy and therefore, the complainant was not aware of the exclusion clause under which the claim has been repudiated. The State Commission has given the correct finding and without receipt of any terms and conditions of the policy, the complainant cannot be subjected to those terms and conditions.

9. It was further argued by the learned Counsel for the respondent No. 1/complainant that even if the Security Guard Gulab Singh is considered as a person employed by the Security Agency, then also he is an outsider and cannot be covered under the provision of exclusion Clause No. 2. He has to be treated as outsider who was involved in the burglary and left. Thus, this is a simple case of burglary and theft which is totally indemnifiable under the policy.

10. I have considered the arguments advanced by both the learned Counsel for the parties and have examined the record. First of all, it is seen that the District Forum has observed the following:

“9. In view of the above discussion, we are of the opinion that the repudiation of the claim by opposite party No. 1 was just and legal and there was no deficiency in service or unfair trade practice on its part. Hence, the present complaint is dismissed leaving the parties to bear their own costs.”

11. From the above, it seems that Insurance claim of the complainant is covered under the exclusion Clause No. 2 of the policy. However, the State Commission has not agreed with this assertion of the Insurance Company on the ground that the exclusion clause was not in the knowledge of the complainant as terms and conditions were not supplied to the complainant. The State Commission has not dealt with the issue of exclusion Clause No. 2 and has based its judgment only on one issue that the complainant was not provided with the terms and conditions of the policy and therefore, exclusion Clause No. 2 shall not be applicable in the present case. This is a very simple view to be taken as it is very easy to deny the receipt of the policy or its terms and conditions. These are standard policies and the draft can be seen on the website of the Insurance Company. The State Commission has relied upon the judgment of the Hon’ble Supreme Court in Modern Insulators Ltd. v. Oriental Insurance Co. Ltd., I (2000) CPJ 1 (SC)=II (2000) SLT 323=(2000) 2 SCC 734, wherein the insurance claim was allowed by the Hon’ble Supreme Court on the ground that the terms and conditions were not supplied to the complainant. But in that case, exclusion related to a special condition relating to titles which cannot be known without seeking the actual exclusion clause whereas in the present case, exclusion is the statement of the obvious. It appeals to common sense that if the burglary or the theft has been caused on account of the involvement of some of the authorized persons then the loss cannot be indemnified. Thus, in my view, the present case is on a different footing than the case in Modern Insulators Ltd. v. Oriental Insurance Co. Ltd. (supra). Once a policy is taken, a person running an industry or business is definitely supposed to have knowledge of the terms and conditions of the policy as no prudent person would pay the premium without knowing as to what risks are being covered and under what terms and conditions. If the terms and conditions of the policy were not received by the complainant, the complainant should have made special efforts to get the same from the office of the opposite party or atleast should have corresponded with the opposite party in this regard. Thus, I am not in agreement with the finding of the State Commission that the complainant was not aware of the terms and conditions of the policy.

12. The main issue in the present case is the involvement of the guard Gulab Singh who was on duty from 8 p.m. to 8 a.m. It is immaterial whether he was employed by the complainant or by some Security Agency because the fact of the matter is that he was there to guard the premises of the complainant and that he was duly authorized to do this job. Though the opposite party No. 1 and opposite party No. 2 both have stated that Gulab Singh was not their employee, but the question arises as to who authorized him to do the watch and ward duty during night of the fateful day. As the complainant has not spoken about any other alternate arrangement for the security of the premises, it has to be believed that the guard Gulab Singh was duly authorized to do the guard duty during the night of that day. Exclusion Clause No. 2 reads as under:

“2. Loss or damage where any inmate or member of

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the Insured’s household or of his business staff or any other person lawfully if he has been expedited or in any way assisted or brought about by any such person or persons.” 13. From the above, it is clear that a person doing the guard duty will definitely come under the said provision and if he is involved directly or indirectly in the burglary, subject clause would be applicable. 14. On the basis of the above examination, it is clear that exclusion Clause No. 2 is fully applicable in the present case and applicability of the exclusion clause cannot be overshadowed by the assertion of the complainant that the terms and conditions of the policy were not received by him. Thus, in my view, the order of the State Commission cannot be sustained. On the contrary, the order of the District Forum is based on correct appreciation of the evidence and the law and therefore needs to be upheld. Consequently, the Revision Petition No. 1648 of 2014 is allowed and the order of the State Commission dated 30.12.2013 is set aside confirming the order of the District Forum. Revision Petition allowed.
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