Bombay High Court
United India Insurance Company Ltd ... vs Ms Shri Ganesh Agro Industries Through ... on 9 August, 2024
2024:BHC-AUG:17504
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 5475 OF 2024
1. United India Insurance Company Ltd. }
Through its Manager, }
Branch Office at Dayawan Complex, }
2nd Floor, Station Road, Parbhani. }
2. United India Insurance Company Ltd. }
Through its authorized signatory, }
Head Office : 24, Whites Road, Chennai, }
Through its Authorized Officer, }
Manoj Bhaskarrao Pendharkar, }
Age : 38 years,
Occu. : Service as Divisional Manager, }
Having Office at - Divisional Office, }
Osmanpura Circle, Osmanpura, }
Aurangabad. } ... Petitioners
(Orig. Respondents)
Versus
M/s. Shri Ganesh Agro Industries,
Through its Partner,
Omprakash Jagannath Daga,
Age : Major, Occu. : Business,
R/o. Plot No. C/52, M.I.D.C. Area,
Parbhani, Tq. & Dist. Parbhani - 431 401. ... Respondent
(Orig. Appellant)
...
Mr. Swapnil S. Rathi, Advocate for Petitioners.
Mr. Amit A. Yadkikar, Advocate for Respondent.
...
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 24th JULY, 2024
PRONOUNCED ON : 9th AUGUST, 2024
JUDGMENT :
1. Rule. Rule made returnable forthwith. By consent of
parties, heard finally at admission stage.
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2. Petitioners, who are original respondents, in
proceedings initiated by present respondent before Hon'ble The
National Consumer Disputes Redressal Commission (NCDRC), vide
First Appeal No.407 of 2020, has set up following prayers :-
"A] The present writ petition may kindly be allowed;
B] Record and Proceedings may kindly be called for;
C] By issuing appropriate writ, order or direction in the nature of
writ, the Judgment and Award dated 20.03.2024 passed by Hon'ble
National Consumer Dispute Redressal Commission at New Delhi in
First Appeal No. 407 of 2020, may kindly be quashed and set aside and
Consumer Complaint No.36 of 2017 filed by present Respondent before
the Hon'ble State Consumer Dispute Redressal Commission of
Maharashtra State, Bench at Aurangabad, may kindly be ordered to be
dismissed;
D] Pending hearing and final disposal of this Writ Petition, the effect
operation and implementation of Judgment and Award dated 20.03.2024
passed by Hon'ble National Consumer Disputes Redressal Commission
at New Delhi in First Appeal No. 407 of 2020, may kindly be stayed."
E] Ad interim relief in terms of prayer Clause "D" may kindly be
granted in favour of present petitioners.
F] Any other just and equitable relief may kindly be passed in favour
of present petitioner."
BACKGROUND OF THE CASE
3. Present petitioners are the insurer, whereas present
respondent is the insured. Present respondent purchased money
insurance policy from the petitioners covering a period
commencing from 20.12.2012 to 19.12.2013. The total risk
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covered for money in transit was Rs.15,00,00,000/- and for one
instance it was Rs.25,00,000/-.
4. On 18.05.2013, employee of respondent during routine
business course withdrew Rs.25,00,000/- from State Bank of
Hyderabad. The amount was split and kept in two bags i.e. amount
of Rs.24,00,000/- was kept in one bag and remaining Rs.1,00,000/-
in another bag. Said employee was also carrying distinct
Rs.2,50,000/- in a vehicle. The amount of Rs.26,47,000/- came to
be stolen by unknown person, of which crime was registered at
Nava Mondha Police Station, Parbhani by the said employee
Janardan Ghatul on same day.
5. Being insured respondent lodged reimbursement claim
with the insurer - present petitioners to the tune of Rs.25,00,000/-.
Petitioners engaged Surveyor / Loss Assessor to conduct the
survey of the alleged loss and for assessment of the claim. The
Surveyor tendered the report recommending repudiation of the
claim, more particularly, in view of condition no.3 of the terms and
conditions of the policy. On the strength of the said report,
petitioners conveyed respondent about repudiation of the claim.
6. Respondent knocked the door of State Consumer
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Disputes Redressal Commission of Maharashtra, Bench at
Aurangabad by filing Consumer Complaint No.36 of 2017 seeking
indemnification of loss to the tune of Rs.24,00,000/- and claimed
interest as well as cost.
The claim was contested by present petitioners
principally on the ground that insurance policy prescribed limit of
insurance coverage in respect of specified loss only under the
policy at relevant time and it was specifically asserted that
employee of the respondent was carrying cash to the tune of
Rs.26,47,000/- which was beyond the scope of the coverage of the
policy and that estimated total amount of money in transit during
the policy period was Rs.15,00,00,000/-, however actual amount in
transit was found to be Rs.18,07,65,000/- for which there was no
coverage under the policy and that complainant had already
exhausted the sum insured and exceeded cash transaction beyond
Rs.15,00,00,000/-.
7. The Hon'ble Maharashtra State Consumer Disputes
Redressal Commission, Bench at Aurangabad, on appreciating the
case each of the side, passed Judgment and Award on 06.02.2020
thereby dismissing the claim of present respondent.
8. The above Judgment and Award of Hon'ble State
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Consumer Disputes Redressal Commission was further taken up
before the Hon'ble National Consumer Disputes Redressal
Commission, New Delhi, by filing First Appeal No.407 of 2020 by
present respondent. Present writ petitioners participated there
also and supported findings reached at by Hon'ble State Consumer
Disputes Redressal Commission and prayed to dismiss the first
appeal.
9. The Hon'ble National Consumer Disputes Redressal
Commission by its Judgment and Award dated 20.03.2024 allowed
the appeal directing present petitioners to settle the claim of
Rs.24,00,000/- along with interest and cost.
Feeling aggrieved by the above Judgment and Award of
Hon'ble National Commission, original respondents have preferred
instant writ petition by invoking Article 226 and 227 enshrined in
the Constitution of India and prayed to set aside the impugned
judgment.
10. Heard both sides at length. (For the sake of brevity,
the Hon'ble National Consumer Disputes Redressal Commission is
addressed as "NCDRC''; whereas the Hon'ble State Consumer
Disputes Redressal Commission is addressed as "SCDRC").
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The fundamental grounds of challenge raised by
learned counsel Shri Rathi for the petitioners could be summarized
as under :-
Firstly, Hon'ble NCDRC failed to consider and
appreciate available evidence, affidavits and survey report in its
proper perspective.
Secondly, Hon'ble NCDRC did not consider the terms,
conditions, special conditions and stipulations incorporated in the
policy.
Thirdly, it ought to have been appreciated that by
virtue of condition no.3, it was revealed that, actual money in
transit had exceeded sum insured and as such no liability gets
attract under the policy.
Fourthly, it ought to have been appreciated by NCDRC
that insured had already exhausted the sum insured on the date of
alleged loss and therefore, respondents were not entitled for
asserting any claim.
Fifthly, it ought to have been appreciated that
respondents were carrying cash more than Rs.25,00,000/- which
was not in view of terms and conditions and coverage, and as such
limit having exceeded, beyond the scope of policy, the claim was
rightly turned down by the Hon'ble SCDRC.
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Sixthly, that timeline for supply of requisite
information to the Surveyor, of which the respondent was aware,
was not adhered to and as such respondent was to be solely blamed
for the so called delay. However, such crucial aspect has been lost
sight of by the Hon'ble NCDRC and instead petitioners are
erroneously held responsible.
Lastly, the rulings relied by the petitioners were also
not considered, appreciated or discussed in the impugned
Judgment.
In support of above submissions, learned counsel seeks
reliance on the following rulings :-
1) H.V.P.N.L. v. Mahavir, AIR 2000 SC 3586(1)
2) National Insurance Company Limited v. Chief Electoral
Officer and Ors., (2023) 6 SCC 441
3) M/s. New India Assurance Co. Ltd. and Anr. v.
Shashikala J. Ayachi, AIR 2022 SC 3330.
11. Per contra, learned counsel for respondent Shri
Yadkikar, who canvassed in favour of NCDRC supported the Award
and Judgment passed by Hon'ble NCDRC. He took this court
through the policy at Exhibit-'A' and would point out that, it is
explicit from the very policy that, estimated total amount of
coverage was well within Rs.25,00,000/-. Claim asserted and set up
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was of Rs.24,00,000/-. He pointed out that, by virtue of policy
insurer had undertaken the responsibility to indemnify the
insured. Premium has been accepted, and therefore, insurer is
liable to honour terms and conditions of policy. According to him,
there was improper assessment by Surveyor. There was no
personal consultation by the so called Surveyor with the
respondent. Said Surveyor misinterpreted the terms and
conditions of the policy and also failed to appreciate the liability of
the insurer having accepted the premium. Surveyor also delayed
the process of survey. Learned counsel pointed out to the dates
reflected in the Surveyor's report and would submit that
respondents are not to be blamed for any delay.
12. According to learned counsel for respondent, the claim
asserted was well within the means and scope of the policy.
Hon'ble SCDRC had failed to consider and appreciate the liability of
the insurer, and therefore, appeal was preferred before Hon'ble
NCDRC, which has correctly assessed the available evidence,
appreciated the cases of each of the side and also correctly
interpreted the terms and conditions of the policy and committed
no error in declaring liability of petitioners - insurer.
Consequently, he prays to dismiss the writ petition for want of
merits.
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13. After considering the submissions, in the considered
opinion of this court, only two aspects need to be studied and
ascertained i.e. whether terms and conditions of the policy are
breached and whether Surveyor's report is in alignment with the
policy.
Admittedly, present petitioners are dissatisfied by the
Judgment and Award of Hon'ble NCDRC, which has accepted the
present respondent's version regarding their entitlement to be
indemnified for the loss incurred by them. There is no dispute that
money policy was drawn by present respondent on paying
requisite premium and policy was in force at the time of loss
incurred by respondent. In such situation, it is only to be got
satisfied whether respondent was entitled to be indemnified and
whether Hon'ble NCDRC erred while allowing their claim.
14. For proper comprehension of the issues and dispute, it
is necessary to reiterate some factual aspects. Present respondent,
namely M/s Shri Ganesh Agro Industries, which are based in
Parbhani M.I.D.C. had drawn 'Money Insurance Policy' from
present petitioners, copy of which is annexed herewith at
Exhibit-'A'. The policy period as is reflected from 20.12.2012 to
19.12.2013. The schedule of the policy also reflects that by virtue
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of Section IA, limit of any one loss is shown to be Rs.25,00,000/-
(i.e. Rupees Twenty Five Lacks). There is also provision for
estimated total amount of money in transit showing limit to the
tune of Rs.15,00,00,000/-. There is also a column under the head of
total amount of money help per annum as Rs.25,00,000/-.
The policy shows that insurer company had agreed,
subject to the terms and conditions to "indemnify the insured
against loss of, (a) money in transit, by the insured or insured's
authorized employee(s), occasion by robbery, theft or any other
fortuitous cause as detailed in section 1".
The policy cover also provides special conditions and
relevant are condition nos.2 and 3, which read as under :-
"2. Sum Insured -
The sum insured should represent the estimated annual
turnover, which should not be lesser than the previous years'
turnover of money in transit plus 15%.
The insured has the option of increasing the sum insured as
and when required during the currency of the policy.
3. Liability of the Insurer -
If at the time of loss, it is found that the actual money
in transit has exceeded the sum insured under the
policy, no liability shall attract. However, this does not
apply to the case in the premises during business
hours."
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There is also no dispute regarding the above
stipulations, conditions and features of the policy. Equally there is
no dispute that present respondent set up claim by tendering
requisite documents. Insurer after engaging and procuring
services of Surveyor by invoking clause 3 of special condition,
conveyed to the respondent that based on Surveyor's report and its
recommendation that actual transaction having exceeded the sum
insured, the claim is liable to be repudiated.
15. It is the above communication of repudiation of claim
triggered filing proceedings by invoking section 12 of Consumer
Protection Act and being unsuccessful before such fora, doors of
Hon'ble NCDRC were knocked, where claim has been granted.
16. After hearing both sides and on perusing the record,
and more particularly, the policy cover, it is palpable and evident
from the Schedule under section IA that, sum insured was to the
tune of Rs.25,00,000/-. On visiting Surveyor's report at Exhibit-'D',
it is noticed that, even said Surveyor has noted that the insured
were covered for a sum of Rs.25,00,000/- for a period from
20.12.2012 to 19.12.2013.
On studying the findings and conclusions reproduced in
the report under the head of occurrence also, it is evident that, on
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relevant day, employee of claimant - respondent herein had
withdrawn cash worth Rs.25,00,000/- from State Bank of
Hyderabad. The employee had split up amount in two bags which
also included another distinct sum of Rs.2,50,000/-, which was
handed over by claimant before going to the bank for withdrawal of
Rs.25,00,000/-. Even it is observed by the Surveyor "the total cash
in white bag was Rs.26,47,000/- (Rs.2,47,000/- belonging to M/s.
Maheshwari Oil Industries and Rs.24,00,000/- belonging to M/s.
Shri Ganesh Agro Industries). Therefore, it is explicit that, amount
stolen included Rs.24,00,000/- belonging to M/s. Shri Ganesh Agro
Industries, who is the policy holder in the case in hand. Obviously
and apparently, the said amount is lesser than Rs.25,00,000/- and
by no means can be said to be exceeded.
17. Approach of Surveyor seems to be that, he has
considered distinct amount which were not covered in the policy
and were under different head and entity. It is also evident that, in
the title cash laying in large white bag, cash belonging to M/s. Shri
Ganesh Agro Industries is noted as Rs.24,00,000/-. Even in the
heading to the report titled as loss, the amount of loss is quantified
to the tune of Rs.24,00,000/-. With such findings and conclusion
on survey, it is clear that present respondent was required to be
indemnified for the cover taken to the tune of Rs.25,00,000/-.
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18. The second limb of argument raised by learned counsel
for petitioners is that, timeline prescribed by IRDA has not been
adhered to by claimant - respondent and as such according to him
they are to be blamed at. Learned counsel for respondent invited
attention of this court to the documents at Exhibit-'C', which are
communications interse between Surveyor and claimant -
respondent. It is also evident from the same that, first
communication by the Surveyor is since May 2015 onwards i.e.
regarding occurrence of loss having taken place on 18.05.2013.
Surveyor's report under the head of extent and loss confirms that
Surveyor was appointed on 22.05.2013. Telephonic conversation
is shown to be established on 24.05.2015 and personal visit is
shown to be paid on 04.06.2013. Even as pointed by learned
counsel for respondent, claim papers have been sent by the insured
to the insurer on 15.08.2013, 18.11.2015 and 09.03.2016 and it is
so reflected in the footnote clause 3(iv). Taking such dates into
consideration, in the considered opinion of this court, the timeline
prescribed by IRDA, which is a nodal body, has not been adhered
to. Even this aspect of the matter has been dealt and discussed by
the Hon'ble NCDRC in paragraph no.9 of the Judgment and Award.
Consequently, even this court of the considered opinion that,
claimant cannot be blamed.
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19. Learned counsel for the petitioners also made a faint
attempt to point out that, some observations in paragraph no. 7 of
the Judgment and Award are out of context. Though there is text
regarding cash limit under section 1 to be Rs. 30,00,000/- for
payment of wages, salaries etc., it seems to be due to inadvertence
and cannot be used to hold that there is complete improper
appreciation of cases advanced by each of the side.
20. Perused citations. With due respect fact therein being
distinguishable cannot be taken aid of.
21. Resultantly, there is no illegality or error in the
impugned Judgment and Award so as to interfere in the same.
Consequently, petitioners fail.
22. The writ petition stands dismissed.
23. Rule stands discharged.
(ABHAY S. WAGHWASE, J.)
24. After pronouncement of judgment, the learned counsel
Shri Swapnil Rathi for the petitioners prays for extension of
interim relief. Learned counsel Mr. Amit Yadkikar for
respondent strongly opposes.
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25. Interim relief granted by this court vide order dated
14.06.2024 to continue for a period of six (6) weeks from today.
(ABHAY S. WAGHWASE, J.)
Tandale
