(1.)THIS appeal takes an exception to an order dated 04/10/2011 in Consumer Complaint No.14/2011, (1.Consumer Welfare Association & anr. Vs. Bajaj Allianz General Insurance Co.Ltd.), passed by Central Mumbai District Consumer Disputes Redressal Forum at Parel, Mumbai ('District Forum' in short). While allowing the consumer complaint, the District Forum has directed the appellant/opponent to pay an amount of Rs. 11,26,437/ - together with interest @9% p.a. from the date of filing consumer complaint till realization. The District Forum also directed to pay an amount of Rs. 5,000/ - as costs of litigation. All these amounts were directed to be paid within a period of 30 days. Aggrieved by the impugned order, the opponent preferred this appeal on the ground that there was clear breach of policy conditions bearing No.188.8.131.52 which clearly stipulates that "the keys are to be kept at secured place away from the Safe or strong room". At the time of theft, there was no force whatsoever use to break open the safe. The safe was opened without any resistance whatsoever with duplicate key. The District Forum did not consider the breach of material condition incorporated in the policy documents.
(2.)HEARD and perused the record placed before us. There is no dispute about subscription of policy to provide insurance to the cash stored in the safe. The policy also provides five fold cover for different contingencies like money for payment or wages, salaries and another earnings or for petty cash, cheques drawn by the respondent/complainant in transit from the bank or the premises specified. Against the first contingency, sum assured is Rs. 1,00,000/ -. Second contingency of money in transit covered for sum assured for Rs. 5,00,000/ -. Third contingency of money in safe at the office of the complainant at Khar West office (where the incident of theft occurred) for Rs. 5,00,000/ -. Fourth contingency of money at safe in Vile Parle East office for Rs. 30,00,000/ - and cash in drawer at Pune Office Rs. 5,00,000/ -. Admittedly, the theft took place at the Khar West office of the complainant. The amount of theft from the safe was reported to be Rs. 11,37,000/ - (which includes Rs. 8,61,000/ - INR and foreign currency Rs. 2,64,000/ -). The incident was intimated to the police and FIR was filed. So also, the insurance company was also informed and subsequently, claim was filed for the amount stolen away. Accordingly, surveyor. Sudhir Tandon and Co. was appointed who reported that duplicate key of safe was kept in the insured premises only. The surveyor filed his survey report on 28th September, 2007. Admittedly, theft was taken place at Khar West Office of the complainant. The sum insured is limited to Rs. 5,00,000/ - only. However, the District Forum considered deficiency in service against the insurance company and awarded Rs. 11,26,437/ - which is in excess of the sum assured of Rs. 5,00,000/ - covering contingency at Khar West office.
(3.)DURING the course of arguments, the learned advocate for the respondent/complainant tried to explain that there was no breach of conditions as alleged as the key of the insured safe was kept as usual in place of whether it was required to be kept. As against this, it is the contention of the appellant/opponent that the keys of the safe were kept in the insured premises and not away in the secured place as required in policy condition no. 184.108.40.206. The contention is supported by surveyor's report. It is also further pleaded by the learned advocate of the appellant/opponent that the policy condition no.3.7 excludes "any claim for loss of money from the safe or strong room following the use of a key belonging to the insured and/or combination and/or codes to gain access, unless this has been obtained by threat or violence against employees." The complainant could not establish by adducing documentary evidence whether the key was obtained by threat or violence against the employee of the complainant. The police report says none of the employee was aware of incident. The District Forum overlooked the provisions contained in terms and conditions which are material to decide the claim. Not only this, but also exceeded awarding claim over and above the sum insured for the contingency in dispute admittedly occurred at Khar West office of the complainant. The respondent/complainant could not adduce any documentary evidence to establish that the key of the insured safe was kept away at the safer place as required under the policy conditions. The District Forum erroneously held the deficiency in service against the insurance company for repudiating the claim for breach of vital conditions which are germen to the main contract of insurance. Therefore, the impugned order of the District Forum deserves to be quashed and set aside. We hold accordingly and pass the following order.
(1) The appeal is allowed.
(2) The impugned order dated 04/10/2011 in Consumer Complaint No.14/2011, passed by Central Mumbai District Consumer Disputes Redressal Forum at Parel, Mumbai is quashed and set aside. Consequently, Consumer Complaint no.14/2011 stands dismissed.
(3) Under the circumstances, parties to bear their own costs.