This complaint coming up before us for hearing on                      19-01-12 in the presence of Sri S.B. Tajuddin, advocate for complainants and of Sri Paladugu V.R., advocate for opposite party, upon perusing the material on record, after hearing both sides and having stood over till this day for consideration, this Forum made the following:

O R D E R

Per Sri M.V.L.Radha Krishna Murthy, Member:

This complaint is filed u/s 12 of Consumer Protection Act praying to direct the opposite party to pay an amount of Rs.3,38,541/- with subsequent interest @12% p.a., from the date of theft till realization and for costs of Rs.10,000/-.

2.   The averments of the complaint in brief are as follows:

        Complainant is Managing Partner of M/s Babu Medical distributors situate at Raja’s Garden, Guntur doing the whole sale medicine business.    The same was insured with the opposite party under a policy valid from 03-06-2008 to 02-06-09, paid the insured amount of Rs.4,338/-.   Out of the said amount Rs.2,250/- is for burglary and house breaking for an assured sum of Rs.9,00,000/-  and rest are section wise premium. 

        On 31-01-09 at about 8.00 pm the 1^st complainant and his partner Shaik Jani Basha closed the shop and went to their houses.  On the next day i.e., 01-02-09 Sunday at about 12.00 noon the complainants came to the shop in order to receive medicines parcel and found the shutter opened and some of the medicines missing.  Both the complainants enquired about the offence but could not get any clues.   Some unknown offenders opened the locks with fake key and committed theft of costly medicines available in the shop and escaped with the same.   The matter was reported to Kothapet Police on 01-02-09 at about 2.00 pm and police registered the same as crime No.20 of 2009.   The complainants informed about the theft to the opposite party with all concerned documents and bills and also demanded for claim of Rs.3,38,541/-.   The opposite party appointed investigator cum surveyor to inquire into the matter.     After enquiry the investigator cum surveyor submitted report to the opposite party in the month of October, 2010.   After receiving the report the opposite party informed the complainant that the report is in favour of complainant and agreed to pay the claimed amount and takes time for submission of higher authorities.    After some time the opposite party refused to pay the claim amount and the same was informed through their letter on 21-03-11 informing that there is no burglary which means forcible entry into the business premises since the loss is not covered under the policy the claim is not payable and closed the file.     The opposite party is avoiding payment of claim amount to which the complainant is entitled under the policy with interest at 12%p.a., from the date of theft till the date of payment.  Due to the said attitude of the opposite party the complainant suffered a lot mentally and financially which falls under deficiency of service. Hence the complaint.

3.   Opposite party filed its version which is in brief as follows:

        Most of the averments mentioned in the complaint are false and the same are not maintainable.    The nature of alleged theft and loss of goods shall not cover the terms of contract of insurance policy.   Hence the claim was repudiated.   The question of deficiency of service on the part of opposite party does not arise.   There are neither tenable grounds nor bonafides on the part of the complainant  in filing the complaint.   The complainants have insured their shop under ‘shop keeper’s insurance policy’.   The complainant had paid premium to cover the risk “burglary, house breaking” under the policy subject to the terms and conditions referred in the policy.    It is manifestly defined under the policy of the term “burglary and/or house breaking” shall mean theft involving entry into/or exist from the insured premises forcible and violent means theft or following assault or violence or threat thereof to the insured or any employee of the insured member of the insured’s family.  So conclude the act of theft under the policy, the ingredients of term ‘burglary, house breaking’ shall be existed and visible at the premises, else the insurer is not liable to indemnify the loss of the insured.   According to the version of the complainant there was no forcible entry into or exit from the insured premises and violent means of theft.   So the alleged theft is not covered under the policy.   The complainants did not state the total loss of amount in the police report and alleged cost of medicines committed theft of mentioned later is only an after thought.   The opposite parties scrutinized the material available during investigation and facts stated by complainant and came to conclusion that the alleged kind of theft was not covered under the policy and rightly repudiated the claim. Hence the complaint may be dismissed with costs.

4.   Complainant and opposite parties filed their respective affidavits in support of their version reiterating the same.  

5.   On behalf of complainant Exs.A-1 to A-22 are marked.   On behalf of ops Exs.B-1 and B2 are marked.

6.   Now the points for consideration are:

1. Whether there is any deficiency of service on the part of opposite party?
2. To what relief the complainant is entitled to?

7.    POINT No.1:-  The case of the complainants is that they are doing wholesale business in medicines and that their shop was insured with the opposite party and that on 31-01-09 they closed the shop as usual and on the next day i.e., on 01-02-09 (Sunday) at about 12.00 noon when complainants came to their shop in order to receive medicines parcel they found the shutter opened and that some medicines missing, that the unknown offenders opened the lock with fake key and committed theft, that they gave report to the police and also informed the incident to opposite party and claimed Rs.3,38,541/- but the opposite party repudiated the claim on the ground that the incident is not covered under the policy. 

8.   The case of the opposite party is that the incident alleged by the complainant is not covered under the policy and that therefore they repudiated the claim and informed the same to the complainants and that therefore there is no deficiency of service on the part of the opposite party.

9.     It is not in dispute that the complainants are doing business in wholesale medicines and that their shop was insured with the opposite party and that the alleged incident took place during the subsistence of the policy. 

10.    As seen from Ex.A-7 = B-1 policy the burglary and house breaking are covered under the policy and as per terms of policy the opposite party company will indemnify the insured in respect of loss or damage to the contents whilst contained in the insured’s premises by burglary and/or house breaking.  The definition of burglary and house breaking as per Ex.B-1 policy are as follows:

      “The term  burglary and/or House breaking  shall mean theft involving entry into or exit from the insured premises by forcible and violent means or following assault or violence or threat to the insured or any employee of the insured or member of the insured’s family”.

11.   In the decision reported in 2011 (2) CPR 181 the National Consumer Disptues Redressal Commission, New Delhi in a case between New India Assurance Company Limited vs. Chowdary Bababhai Amtharam, held as follows:

                “In case of theft, actual forcible and violent entry is        essential in order to fix liability on the insurance      company”.

12.   In the above said case theft of cash was committed from a society and the opposite party insurance company repudiated the claim on the ground that the cash has been stolen either by the employees of the society or by some one by using duplicate keys.  The National Commission in the said order referred the case – United India Insurance Company Limited vs. Hirachandrai Chandan Roy              AIR 2004 SC 2004 wherein the Apex Court while dealing with burglary defined in the policy as theft preceded by use of force or violence  has stated that if theft is not so preceded by use or force by violence the insurance company is not liable to pay under such policy.    Ultimately the National Commission dismissed the complaint.

13.   Herein in this case on hand also according to the averments of the complaint as already stated above “some unknown offenders opened the locks with fake key and committed theft of costly medicines available in the shop.    Thus the theft was not committed by use of force or violence.  Hence the above decision of the National Commission, in our opinion is aptly applicable to the present case on hand.

14.   In support of their case the complainant filed Exs.A-11 to A-22 monthly returns for value added tax of their shop.  A perusal of                      Exs.A-11 to A-22 shows the VAT claimed and due by the complainants are shown but the closing balance of the stock is not shown in those returns.  Further the said returns reveals the stocks purchased in the month and the sales in the month but not the closing balance of the stocks at the end of each month in order to prove the allegation of the complainant that they lost medicines value worth Rs.3,38,541/- as claimed by them.   The value of the stocks lost by the complainant was also not mentioned in Ex.A-1 FIR given to the police.  Thus the complainant failed to establish that there is stock in the shop as alleged by them at the time of theft.   Therefore in view of the foregoing discussion it can be safely concluded that there is no deficiency of service on the part of the opposite parties in repudiating the claim of the complainants since the repudiation is not against the terms of the policy i.e., Ex.A-7.   Accordingly this point is answered.           

15.   POINT No.2:-  In view of the foregoing discussion the complaint is liable to be dismissed.

        In the result the complaint is dismissed.  But in the circumstances of the case each party shall bear their own costs.   

Typed to my dictation by Junior Stenographer, corrected by us and pronounced in the open Forum dated this the 23^rd day of              December, 2011.

MEMBER                                  MEMBER                           PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite party:   

                                                                             PRESIDENT