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Whether the ‘business hours’ did not include the lunch break?. an incident of theft, which took place in the shop premises of the Complainant/respondent on 8.5.2003 during the lunch hours. Gold ornaments allegedly worth over Rs.21 lakhs and some cash were stolen. Acting on the FIR lodged in this behalf, the Police recovered ornaments worth Rs.12,47,300/-. Therefore, as observed by the State Commission, there is no dispute about the fact of theft.— “Perused the record and documents tendered by the parties. There is no dispute regarding theft of jewelry occurred during the lunch hours. The Police were able to recover only Rs.12,47,000/-. However, total loss due to theft was valued to Rs.22,93,500/-. The Respondent/ Complainant subscribed to the insurance policy providing insurance cover to the ornaments in the shop. The policy document covers display window of the jewelry [included in the total section 1 Sum Insured] and also provided insurance cover for the jewelry kept elsewhere. Total sum Insured under the policy is Rs.21,51,000/-. The survey report mentioned that AC unit had fallen on the floor and on top of it chair has been kept to entire into the shop with intention to burglary. A big ply had also been placed behind the AC grill and AC grill had been cut opened so as to get access for burglary. The survey report is an important piece of document and cannot be ignored. Therefore, intent of burglary of the jewelry by breaking open the shop is clearly established form the record. Theft of jewelry is undisputed fact.” 3. Yet, the claim of the Complainant for the remaining value of Rs.10,46,500/- was rejected by the OP/revision petitioner.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

New India Assurance Building

New India Assurance Building (Photo credit: Wikipedia)

NEW DELHI

 

REVISION PETITION NO. 2833 OF 2012

(Against the order dated 14.03.2012 in First Appeal No.

A/06/2448 of the State Commission, Maharashtra)

 

 

The New India Assurance Co. Ltd.,

Having office at 87, M.G. Road, Fort,

Mumbai, Maharashtra

Having its Regional office at

Delhi Regional Office-II,

Level-V, Tower-II, Jeevan Bharti Building,

124, Connaught Circus,

New Delhi– 110001

Through its Manager                                                                                                                                               ……….Petitioner

 

Versus

M/s. Panchsheel Jewelers

Through its Proprietor,

Mr. Sunil Ganesh Mehta

Ruchir Tower, Opp. ICICI Bank,

60 Ft. Road, Bhayander (W),

Tal & Dist. Thane- 401101

Maharashtra                                                                                                                                                                 …..Respondent

 

BEFORE

HON’BLE MR. JUSTICE  J. M. MALIK,

                              PRESIDING MEMBER

HON’BLE MR. VINAY KUMAR, MEMBER

 

 

For the Petitioner                        :  Mr. Pramod Dayal, Advocate

                                                       & Mr. Nikunj Dayal, Advocate

PRONOUNCED ON:  14.12.2012

 

 

ORDER

 

PER MR.VINAY KUMAR, MEMBER

The New India Assurance Co. Ltd. has filed this revision petition against concurrent orders of the District Consumer Disputes Redressal Forum, Thane which had allowed the complaint of M/s. Panchsheel Jewellers in complaint No.339 of 2004 and of the Maharashtra State Consumer Disputes Redressal Commission dismissing the appeal of the revision petitioner in FA No.A/06/2448.

 

2.      The matter, as seen from the case record, arose from an incident of theft, which took place in the shop premises of the Complainant/respondent on 8.5.2003 during the lunch hours.  Gold ornaments allegedly worth over Rs.21 lakhs and some cash were stolen. Acting on the FIR lodged in this behalf, the Police recovered ornaments worth Rs.12,47,300/-. Therefore, as observed by the State Commission, there is no dispute about the fact of theft.—

“Perused the record and documents tendered by the parties. There is no dispute regarding theft of jewelry occurred during the lunch hours.  The Police were able to recover only Rs.12,47,000/-. However, total loss due to theft was valued to Rs.22,93,500/-. The Respondent/ Complainant subscribed to the insurance policy providing insurance cover to the ornaments in the shop.  The policy document covers display window of the jewelry [included in the total section 1 Sum Insured] and also provided insurance cover  for the jewelry kept elsewhere.  Total sum Insured under the policy is Rs.21,51,000/-.  The survey report mentioned that AC unit had fallen on the floor and on top of it chair has been kept to entire into the shop with intention to burglary.  A big ply had also been placed behind the AC grill and AC grill had been cut opened so as to get access for burglary.  The survey report is an important piece of document and cannot be ignored.  Therefore, intent of burglary of the jewelry by breaking open the shop is clearly established form the record.  Theft of jewelry is undisputed fact.” 

 

3.      Yet, the claim of the Complainant for the remaining value of Rs.10,46,500/- was rejected by the OP/revision petitioner. From a perusal of the records it is evident that the  repudiation of the claim rested solely on the assumption/contention  of  the OP/revision petitioner that in this case, for the purposes of the insurance policy, ‘business hours’ did not include the lunch break.

 

4.      The case of the Complainant, as seen from the complaint petition before the District Forum was:-

“The complainant respectfully submits that the business hours of the complainant are from 10.00 to 10.00 p.m. so also according to normal business practice lunch hours are the part of working hours of business.  About the gold ornaments kept in the showcase it is not possible every time, when the shop is closed for lunch time during business hours, to keep the ornaments again in the locker, unless during the night time.   The ornaments were intact in the shop which were properly and diligently locked.”

 

5.      On the other hand, as per the affidavit evidence before the District Forum, the contention of the OP was:-

“The opponent vide its reply dated 18.09.2003 had clearly stated to the complainant that as per the survey report it can be observed that on 08.05.2003 at 1.30 pm after noon the shop was closed locking the main gate and the shutter.  The gold ornaments displayed in the showcase were being kept as it is i.e. in the show case and were not kept back in the locker.  The warranty applicable as per the policy states that warranted that all property including cash currency notes while at the premises specified in the schedule of the policy shall be secured in the locked safe of standard make at all time out of business hours.  In view of the above the claim preferred by the complainant falls under exclusion 12 of jewellers block insurance policy and hence the same is not admissible.”

 

6.      District Forum rejected the contention of the OP/insurance company that the lunch hours are to be excluded from the business hours.  The State Commission has agreed with the view taken by the District Forum.  Now, the present revision petition has been filed raising the same contention.

 

7.      From a perusal of the revision petition, we find that the decision of the State Commission has been challenged on the ground that the terms of the policy have to be strictly construed and no exception or relaxation can be made while interpreting the same. In support, the revision petitioner has citied rulings of Hon’ble Supreme Court in the following cases:-

“Deokar Export (P) Ltd. Vs. New India Assurance Co. Ltd., (2008) 14 S.C.C. 598,

Polymat India (P) Ltd. Vs. National Insurance Co. Ltd., (2005) 9 S.C.C. 174

Suraj Mal Ram Niwas Oil Mills (P) Ltd. Vs. United India Insurance Co. Ltd., (2010) 10 S.C.C. 567.”

 

8.      The law as laid down by the Apex Court is very clear.  In the present case, as in any other case, the terms of the policy need to be strictly construed. However, the problem arises from the interpretation given by the revision petitioner to the same.  We have heard the counsel for the revision petitioner/New India Assurance Company, who forcefully argued that under the terms of the policy all property, including cash at the scheduled premises, should necessarily be secured in locked safe,  at all times out of business hours.  Loss or damage to property in window display after business hours is not covered.

 

9.      It was further argued that during lunch time, if the shop is kept open for attending to customers and if the staff go out for lunch by turns, then the jewellery need not be shifted into the safe. But in the present case, considering the duration for which the shop was closed for lunch hours, the jewelery should have been shifted into the safe. A similar argument is raised in the revision petition also.  However, neither the revision petition nor the counsel point to any provision in the policy, which would permit such an interpretation of the lunch hours.  In its absence, their argument amounts to bringing a stipulation into the policy which is not expressly contained in it. We therefore, have no hesitation in rejecting this contention of the revision petitioner.

 

10.    For the details examined above, we do not find any merit in this revision petition. It is therefore dismissed for want of merit. No Orders as to costs.

.…………………………

(J. M. MALIK, J.)

PRESIDING MEMBER

 

………………………….

(VINAY KUMAR)

                                                                                            MEMBER

s./-

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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