BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE                        

Dated this the 21^st JUNE 2017

PRESENT

   SRI VISHWESHWARA BHAT D     : HON’BLE PRESIDENT

   SRI T.C. RAJASHEKAR                  : HON’BLE MEMBER

ORDERS IN

C.C.No.380/2012

(Admitted on 11.12.2012)

Mr. Narayan Dattu Nikam,

Aged 54 years,

S/o Dattu Nikam,

ACID Murchant,

Near Raghavendra Swamy Mutt,

Mangalore, Karnataka.

                                                           ….......COMPLAINANT

 (Advocate for the Complainant: Sri AN)

VERSUS

1. Chairman,

   Universal SOMPO General,

   Insurance Co, Ltd,

   Claims Office: K.L.S. Towers,

   Plat No.EL94, Ground Floor,

   MIDC Mahape,

   Navi, Mumbai  400 710.

2. Manager,

    M/s. Karnataka Bank,

    Dongerkery Branch,

    Mangalore.

                                                                             …..........OPPOSITE PARTIES

(Advocate for the Opposite Party No.1: Smt. HM)

(Advocate for the Opposite Party No.2: Sri MVSB)

ORDER DELIVERED BY HON’BLE PRESIDENT

SRI VISHWESHWARA BHAT D:

      The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite parties alleging deficiency in service claiming certain reliefs. 

The brief facts of the case are as under:

       The complainant claims he availed loan from M/s Karnataka Bank with 2^nd opposite party towards business since 2007 in the name of the Sharmila Jewelry, Kalikamba Road.  Opposite party No.2 had with the consent of the complainant as an intermediary had insured the said jewellery shop as per jewellery block Insurance Policy of 1^st opposite party on 28.2.2011 for one year for Rs.15,02,606/ for a premium of Rs.4,319.48 along with other prerequisites the total amount payable was Rs.5,096/ and the premium payable by opposite party No.2. On 25.09.2011 complainant conducted business in the said premises till about 1.00 noon and later the work at workshop being a Sunday was open only till 6.00 PM closed by complainant by closing the shop. On 26.9.11 at 7.00 AM complainant was informed that some robbery committed by breaking up the doors at the work shop.  It was noticed in the work shop door had been forced to open and the windows were also opened and there were black burnt marks near the door, the lock was broken, when the complainant had gone into the workshop the door connecting the work shop with the jewellery shop which had also been forcibly broken and articles kept in the showcase and the 2 drawers were robbed.  He also tabulate the items of the jewellery stolen.  Including 14 inch TV set and ESSAE made electronic scale total value mention of the goods at Rs.8,00,000.  The complainant was given to the police who had registered a case in crime number 161/11 about the theft was also intimated with opposite party No.1 making claim. Opposite party No.1 however by letter dated 5^th December 2011 had repudiated the claim on the contention that burglary had taken palce at Door No.11/8/200/2, Near Sri Raghavendra Matta, Jodmutt Street, Mangalore1 and location is not covered as the address mention in the policy read as Door No.9.4.307, Renuka Kripa, Opp. Kalikamba Temple, Mangalore.  Hence the loos does not fall within the scope of the policy.   The change in the business premises even though in the policy the addressed mentioned is of Door No.9.4.307, Renuka Kripa, Opp. Kalikamba Temple, Mangalore.   The change in the business shifted to Raghavendra Matta, Jodmutt Street, Mangalore 1 was intimated officially to the Income Tax Department by letter dated 31.03.2008 in regard to change in the name of the firm and also the change the same in the Trade License obtained from the Mangalore City Corporation and income tax returns were also filed from this address.  Contending that complainant suffered loss due to repudiation of claim by opposite parties and there is deficiency in service.  Hence seeks reliefs claimed in the complaint.  

2.     Opposite party in the version admits insurance policy coverage issued to the complainant but the premises noted was Narayan Dattu Nikam D.No.9.4.307, Renuka Kripa, Opp. Kalikamba Temple, Mangalore  1 and the theft occurred was in Door No. 11.3.200/2, Near Shri Raghavendra Swami Matta, Jodumatta Street, Mangalore  1.  The surveyor appointed by opposite party No.1 named Mr. Upendra and has submitted his reports after verifying the survey report and the document is due to the change in the address which is not included to the policy and which is not covered under the policy of the exclusion clause No.13 in the policy opposite party repudiated the claims as per under the loss and/or damage to property insured under Section I whilst in display windows at night and/or whilst kept out of safe after business hours  after hours is not covered.  Hence seeks dismissal of the complaint.

3.     Opposite party No.2 in the very contends it is an unnecessary party to this case.  Opposite party No.2 contends that after notice the stand of first opposite party in the letter dated 05.12.2011 to the effect that change of address was not informed to the insurer, opposite party represented the matter to opposite party No.1 and considering this representation and reviewed its earlier decision and sent letter dated 2.2.2012 to complainant and from this letter opposite party it is clear that the insurer did not rest its decision on the non-intimation of change of address.  Hence opposite party No.2 cannot be made liable for the complaint now put forth.  The claim is rejected on the ground that as per clause 13 of the conditions of the insurance policy there is exclusion   as per letter dated 02.02.2012 which relates to how the insured handle his goods within the premises with opposite party.   Hence seeks of the complaint against opposite party No.2.

4.     In support of the above complaint Mr. Narayan Dattu Nikam filed affidavit evidence as CW1 and answered to the interrogatories served on him and produced documents got marked at Ex.C1 to C8 as detailed in the annexure here below.  On behalf of the opposite parties Mr. Piyush Shankar (RW1) Manager Legal, Universal Sompo General Insurance Company Ltd., and Mr. S Upendra (RW2) General Insurance Loss Assessor, also filed affidavit evidence and answered to the interrogatories served on them and produced documents got marked at Ex.R1 to R2 as detailed in the annexure here below.

5.      In view of the above said facts, the points for consideration in the case are:

1. Whether the Complainant is a consumer and the dispute between the parties?
2.  If so, whether the Complainant is entitled for any of the reliefs claimed?
3. What order?

     The learned counsel for complainant filed notes of arguments.  Learned counsel for opposite party No.1 addressed oral arguments and opposite party No.2 filed notes of arguments.  We have considered entire case file on record including evidence tendered by the parties.   Our findings on the points are as under follows:

               Point No. (i) : Affirmative

               Point No. (ii) : Negative              

               Point No. (iii) : As per the final order.

REASONS

6.        POINTS No. (i):       The insurance policy issued to complainant by opposite party and premium paid by him is not at all in dispute. Hence the relationship between the parties as consumer the complainant and opposite party service provider is established.   The claim of complainant is refused by the opposite party No.1 on the ground that the change of address is not intimated to opposite party No.1 and that the jewelleries kept were not kept in safe locker and stolen items were in the showcase.   Hence there is a live dispute between the parties as contemplated under section 2 (1) (e) of C P Act.  Hence we answer point No.1 in the affirmative.

7.     POINT NO. (ii):      Ex.C7 is the CC of the FIR registered on the complaint about the incident of theft.   The FIR contains CC of the complaint given as to the place where the theft was committed the complaint lodged by the present complainant reads thus:

ವಿಷಯ ತಿಳಿದು ನಾನು ನನ್ನ ಅಂಗಡಿಗೆ ಬಂದವನು ವಕ್ ಶಾಪ್ ನ್ ಬಾಗಿಲ ಬಳಿ ಬಂದು ನೇಡೆದೆ. ಬಾಗಿಲನ್ನು ಬಲತ್ಕಾರದಿಂದ ತೆರೆದುಕೊಂಡಿದ್ದು ಬಾಗಿಲಿಗೆ ಚಾಕಿದ ಬೀಗವನ್ನು ಮುರಿದಿದ್ದುದು ಕಂಡು ಬಂತ್ತು. ಬಳಿಕ ಒಳಯೋಗಿ ಪರಿಶೀಲಿಸಿಕೊಂಡಾಗ ಜುವೆಲ್ಲರಿ ಅಂಗಡಿಗೆ ವಕ್ ಶಾಪ್ ನಿಂದ ಹೋಗಿ ಬರುವ ಬಾಗಿಲಿನ ಮೂಲಕ ಕಳ್ಳರು ಯೋಗಿ ಜುವೆಲ್ಲರಿ ಅಂಗಡಿಯ ಶೋಕೇಶ್ನಲ್ಲಿ ಮತ್ತು ಶೋ ಕಪಾಟಿನಲ್ಲಿಯ ಎರಡು ಡ್ರಾವರ್ಗಳಲ್ಲಿ ಇಟ್ಟಿದ್ದ ಈ ಕೆಳ ಕಾಣಿಸಿರುವ

8.     Thus it is clear the gold and silver item stolen from the showcase and from the Almira.  Ex.C3 is the policy issued to complainant it mentions the name and address of the insured as Narayan Dattu Nikam, Door No.9-4-307, Renuka Kripa, Opp. Kalikamba Temple, Mangalore, Mangalore-Karnataka, Pin  575001. There is no other place mentioned as to be the place of this premises.  This policy Ex.C3 which is Jewellers Block Insurance Policy in the column of what we cover section (a) I what the cover as what to be covered and in the column on what we exclude reads:

What we cover:

1. Section I:

(On the Premises)

Loss or Damage directly caused to your stocks comprising of jewellery, gold and silver ornaments or plates/bars, pearls, precious and semi-precious stones, Currency notes and cash and any other similar contents pertaining to your business whilst kept and lying in the insured premises by perils listed hereunder and subject to its not being otherwise excluded.

What we exclude:

1....

2....

3....

4.  Loss of and/or damage to the property hereby insured whilst and Public Exhibition whether promoted or financially assisted by any Public Authority or by Trade Association or otherwise. 

9.     Thus it is clear as pointed out for opposite party No.1 that at the time when the theft took place the items in question were kept in showcase and almira there is no mention made by the complainant in the complaint they were lock and key and kept in safe locker.  In fact the column pertaining to special warranty mention as the conditions precedent to liability how these items would be kept in safe and the Ex.C3 of Special Warranty reads:

Conditions Precedent to Liability:

1. Book Keeping:

You shall keep a daily record of the property (quality, quantity & value) both on the premises and with a designated person.  Such record shall be deposited in a secured place in the insured premises.  It is also required  that a copy be maintained at a place other than the premises insured hereunder. The record shall be needed as documentary evidence in support of a claim, if any, under the policy.

2. Maintenance of Keys:

The keys of the safe and the duplicate keys of the premises should not be left in the premises after business hours and in case the premises is occupied by the authorized representatives, the keys of the safe should be deposited in a secured place or with a designated person. 

10.     Thus on going through these condition it is clear it is nowhere mentioned the complainant kept these jewellery and gold and silver items in safety locker out of business hours.  Admittedly the incident of theft took place out of business hours.  Hence the observation made by the surveyor in his report against complainant as at Ex.R2 is justified.   Hence the repudiation of the claim by the complainant in the circumstance is accepted.   Hence there is no deficiency on the part of the opposite parties.  Hence we answer point No.2 in the negative.  

POINT NO.  (iii):   Wherefore the following

ORDER

The complainant is dismissed.

      Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.

     (Page No.1 to 10 directly typed by steno on computer system to the dictation of President revised and pronounced in the open court on this the 21^st June 2017)

             MEMBER                                                PRESIDENT

     (T.C. RAJASHEKAR)                         (VISHWESHWARA BHAT D)

D.K. District Consumer Forum                   D.K. District Consumer Forum

 Additional Bench, Mangalore                     Additional Bench, Mangalore

ANNEXURE

Witnesses examined on behalf of the Complainants:

CW1  Mr. Narayan Dattu Nikam

Documents marked on behalf of the Complainants:

Ex.C1:  Bank statement copy of M/s Karnataka Bank from 06.03.2008 to 17.02.2012

Ex.C2: Bank statement copy of M/s Karnataka Bank from 01.04.2007 to 17.02.2012

Ex.C3: Original insurance copy

Ex.C4: Letter of opposite party No.2

Ex.C5: Letter of opposite party No.2

Ex.C6: Letter of opposite party No.2

Ex.C7: Copy of FIR in Crime No.161/11 of Mangalore North P.S

Ex.C8: Copy of Vijaya Karnataka News Paper

Witnesses examined on behalf of the Opposite Party:

RW1  Mr. Piyush Shankar, Manager Legal, Universal Sompo General Insurance Company Ltd.,

RW2   Mr. S Upendra, General Insurance Loss Assessor

Documents marked on behalf of the Opposite Party:

Ex.R1: Policy issued by the opposite party with condition

Ex.R2: Survey report issued by Shri S Upendra

Dated: 21.06.2017:                                    PRESIDENT