M/S. PADMA PLOYCHEM PVT. LTD. v. NEW INDIA ASSURANCE COMPANY LIMITED
1. M/S. PADMA PLOYCHEM PVT. LTD.
THROUGH ITS DIRECTOR MR. RAKESH KUMAR,HAVING ITS OFFICE AT 528/1, KARKARI ROAD,VISHWAS NAGAR
DELHI-110032
Versus
1. NEW INDIA ASSURANCE COMPANY LIMITED
THROUGH ITS MANAGER, DRO-II, 10TH FOOR, CORE I,SCOPE MINAR, LAXMI NAGAR DIRECTOR CENTER
DELHI-110092
Case No: REVISION PETITION NO. 2014 OF 2019
Date of Judgement: 06 December 2023
Judges:
DR. INDER JIT SINGH
PRESIDING MEMBER
(WITH AUTHORIZATION)
MS. AASTHA KAUSHAL, ADVOCATES
Facts
Arguments by Petitioner/Complainant
Arguments by Respondent/Insurer
Referred Laws and Sections
Section 21(b) of Consumer Protection Act. Exclusion Clause 6 and 11 of Insurance Policy. Reliance on precedents like Rubi Chandra Dutta v. United India Insurance.
Download Court Copy: https://dreamlaw.in/wp-content/uploads/2023/12/task-1.pdf
Full Text of Judgment:
1. The present Revision Petition (RP) has been filed by the Petitioner against Respondentas detailed above, under section 21(b) of Consumer Protection Act 1986, against the orderdated 20.08.2019 of the State Consumer Disputes Redressal Commission, Delhi (hereinafterreferred to as the ‘State Commission’), in First Appeal (FA) No.465/2018 in which orderdated 17.09.2018, District Consumer Disputes Redressal Forum, East (hereinafter referred toas District Forum) in Consumer Complaint (CC) no. 47/2016 was challenged, inter aliapraying to allow the present revision petition and set aside the order passed by the State Commission.
2. While the Revision Petitioner (hereinafter also referred to as complainant) wasAppellant and the Respondent (hereinafter also referred to as OP) was Respondent in the saidFA/465/2018 before the State Commission, the Revision Petitioner was complainant andRespondent was OP before the District Forum in the CC no. 47/2016.
3. Notice was issued to the Respondent. Parties filed Written Arguments/Synopsis on01.05.2023 (Petitioner/Complainant) and 01.05.2023 (Respondent/OP) respectively.
4. Brief facts of the case, as emerged from the RP, Order of the State Commission, Orderof the District Commission and other case records are that:-
5. Vide Order dated 17.09.2018, in the CC no. 47/2016 the District Forum has dismissedthe complaint. Aggrieved by the said Order dated 17.09.2018 of District Forum, Petitionerappealed in State Commission and the State Commission vide order dated 20.08.2019 in FANo.465/2018 has dismissed the appeal and the dismissed the complaint.
6. Petitioner has challenged the said Order dated 20.08.2019 of the State Commissionmainly on following grounds:
ii. The dismissal of the claim on the grounds of the vehicle being unattended andunlocked, as well as the alleged inability to explain cash withdrawals, is contradicted bythe observations made by the surveyor. The surveyor conducted a thorough examinationand cross-verified the cash book entries with the bank statements, establishing thelegitimacy of the cash withdrawals. Furthermore, the surveyor verified the ledgeraccounts of specific entities, finding that the statements were consistent with the insuredaccounts. These observations challenge the basis for rejecting the claim and suggest thatthe actions and explanations provided by the insured were valid and supported byevidence.
7. Heard learned counsels of both sides. Contentions/pleas of the parties, on variousissues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing,are summed up below.
8. We have carefully gone through the orders of the State Commission, District Forum,Surveyor’s report, repudiation letter, other relevant records and rival contentions of theparties. In this case there are concurrent findings of both the fora below against thePetitioner/complainant herein. State Commission has given a well –reasoned order after dulyconsidering the contentions of both side and relying on various judgements of the Hon’bleSupreme Court and NCDRC. Extract of relevant paras of orders of the State Commission isreproduced below:-
“9. Short question for adjudication in this appeal is whether there exists anyinfirmity in the impugned order dismissing the complaint as no deficiency wasfound in the subject as against the insurer, warranting interference by thisCommission. The District Forum has passed orders relying on Exclusion Clause 6Clause 11 of the policy. Those exclusion clauses are as under:
Exclusion Clause -6-
‘Money carried under contract of affreightment and theft of money fromunattended vehicle’
Exclusion Clause-11-
‘Loss or damage due to or contributed to by the insured having caused or sufferedanything to be done whereby the risks hereby insured against were unnecessarily increased.’
10. Exclusion Clause 6 envisages that cash- huge cash- is supposed to be kept dulyattended by somebody. In the subject matter the cash was being carried withoutobserving proper care inasmuch as the cash was lying on the back seat of the carand the door were kept opened. This is clear case where exclusion clause 6 ismanifestly applicable.
11. Point that remains unanswered is whether the due and necessary precaution ascontemplated under the aforesaid clause 6 was observed. The answer to this wouldbe, as analysed by the District Forum, in negative.
12. It is a trite law that the insurer is liable to indemnify the loss only in the eventthe insured has been found to be acting in conformity with the terms of the policy.Terms of policy are like any other contract enforceable keeping in the view theterms thereof.
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19. Having regard to the legal position explained 1 am of the considered view thatthere exists no infirmity in the orders passed by the District Forum assailed beforethis Commission and accordingly upholding the said order, the appeal is dismissedleaving the parties to bear the cost. Ordered accordingly.”
9. District Forum has also given a well-reasoned order, extract of relevant observations ofDistrict Forum are reproduced below:-
“To analyse the exclusion clause 6, we have seen that complainant was carryinghuge case without proper care in his car and the cash was lying at the back seatand car doors were open. We have also seen the policy issued by OP (EX CW1/3)as Anne. C3 which specify that cash has to be kept during and after business hoursand limit was sum insured Rs. 10 lacs.
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Here cash was kept in a bag which was lying on the rear seat of the car and doorswere unlocked.
Here money was carried by the complainant from office to residence withoutproper care and custody.
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Here money collected by the complainant had exceeded 48 hours and as per hisown statement before FIR and surveyor does not correspond with the policy terms.We have also seen the Anne.CW1/5 page 20 where complainant had submittedstatement of account up to date 09.02.2015 which showed Rs 10,72,223.56/- andon 11.02.2015 incident of theft occurred in the evening, but there was no statementof account for 10.02.2015 and also no explanation for taking Rs 9,65,000/- andleaving Rs 1,07,223/ in the office.
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Complainant being in PVC trading business and dealing in huge cash transaction,should had been more vigilant for carrying huge cash, but after seeing the factsand evidences of the case there is no concrete evidence on record to provedeficiency of OP or has taken due care for the cash. It is clear that OP workdepend upon policy terms and condition and final report from their appointed surveyor. Here these points were found to be as per policy norms. So, neitherdeficiency of OP seen in their working nor any element of unfair trade practicewas proved by the complainant.”
10. Extract of relevant para/conclusion of Surveyor’s report is reproduced below:-
“7. Loss is though justified from cash balance as per cash book, but due to insuredinability to provide appropriate clarification for withdrawing the cash from bankson various dates despite having adequate cash balance in cash book to meet day today expenses creates doubts about the actual cash balance with the insured as onloss date. In such circumstances, I am of the opinion that the loss could not beestablished and so, the case may be closed as No Claim.”
11. As was held by Hon’ble Supreme Court in
Rubi Chandra Dutta Vs. United IndiaInsurance Co. Ltd.
[(2011) 11 SCC 269], the scope in a Revision Petition is limited. Suchpowers can be exercised only if there is some prima facie jurisdictional error appearing in theimpugned order. In
[AIR (2022) SC577] held that “
the revisional jurisdiction of the National Commission under Section 21(b) ofthe said Act is extremely limited. It should be exercised only in case as contemplated withinthe parameters specified in the said provision, namely when it appears to the NationalCommission that the State Commission had exercised a jurisdiction not vested in it by law, orhad failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdictionillegally or with material irregularity.
”12. The Hon’ble Supreme Court in Rajiv Shukla vs Gold Rush Sales And Services Ltd.
Civil Appeal No. 5928 of 2022, decided on 8 September, 2022, held that:-
“13. As per Section 21(b) the National Commission shall have jurisdiction to callfor the records and pass appropriate orders in any consumer dispute which ispending before or has been decided by any State Commission where it appears tothe National Commission that such State Commission has exercised its jurisdictionnot vested in it by law, or has failed to exercise a jurisdiction so vested, or hasacted in the exercise of its jurisdiction illegally or with material irregularity. Thus,the powers of the National Commission are very limited. Only in a case where it isfound that the State Commission has exercised its jurisdiction not vested in it bylaw, or has failed to exercise the jurisdiction so vested illegally or with materialirregularity, the National Commission would be justified in exercising therevisional jurisdiction. 14. In exercising of revisional jurisdiction the NationalCommission has no jurisdiction to interfere with the concurrent findings recorded by the District Forum and the State Commission which are on appreciation ofevidence on record. Therefore, while passing the impugned judgment and order theNational Commission has acted beyond the scope and ambit of the revisionaljurisdiction conferred under Section 21(b) of the Consumer Protection Act.’
14. The pending IAs in the case, if any, also stand disposed off.