Order dictated by:
Sh.Anoop Sharma, Presiding Member
1. Mandeep Singh has brought the instant complaint under section 11 & 12 of the Consumer Protection Act, 1986 on the allegations that he purchased a mobile set bearing Samsung Galaxy S6 Edge G-925 Gold vide bill No. 160 dated 12.6.2015 for a sum of Rs. 55,000/- from opposite party No.1 and the same was duly insured with opposite party No.2 for a period of one year by giving premium of Rs. 2000/- which was received by opposite party No. 1 being agent of opposite party No.2 vide separate Invoice No. 161 dated 12.6.2015. In this respect no separate policy or terms and conditions or any other documents were supplied to the complainant. The aforesaid mobile set was stolen by some unknown person from the car of the complainant while it was being parked in the District Court Complex, Amritsar on 9.9.2015. The complainant made all efforts to find out the impugned mobile but to no avail. The complainant lodged report with the police post District Court Complex, Amritsar , who recorded FIR No. 23/2015 under section 379 IPC . The opposite parties were also informed about theft of impugned mobile set. In this respect mobile handset Insurance Claim form of opposite party No.2 was duly filled by the complainant and all the formalities as required were complied with and all the relevant documents were also supplied to the opposite parties. Thereafter the complainant visited opposite party No.2 so many times but to no avail and the impugned claim still remains unsettled and unpaid though a period of more than 7 months have been lapsed. The complainant has sought for the following reliefs vide instant complaint:-
(i) Opposite parties be directed to pay a sum of Rs. 55000/- being insured value of the impugned mobile set bearing Samsung Galaxy S6 Ede G-325 Gold.
(ii) Compensation to the tune of Rs. 20000/- may also be granted to the complainant.
(iii) Opposite parties be also directed to pay litigation expenses to the tune of Rs. 10000/-.
Hence, this complaint.
2. Initially Sh.Jasbir Singh,appeared on behalf of opposite party No.1 & Sh.P.N.Khanna,Adv. on behalf of opposite party No.2 on 10.6.2016 and the case was adjourned for filing written version on behalf of opposite parties No.1 & 2. But on 23.6.2016 written version on behalf of opposite parties No.1 & 2 not filed and the case was adjourned for the purpose to 8.7.2016. Thereafter none appeared on behalf of opposite party No.1 on the adjourned date and also on three other adjourned dates. As such, opposite party No.1 was ordered to be proceeded against ex-parte vide order dated 9.8.2016.
3. Opposite party No. 2 appeared and filed written version taking certain preliminary objections therein inter alia that complainant has alleged that he had obtained insurance from opposite party No.2 but the said allegation is not correct because the insured is M/s. Unicorn India Pvt.Ltd., who had obtained the Insurance policy . But the complainant has not made the said company as party to the present case, therefore, the complainant is not covered under the definition of consumer ; that the complainant has not approached this Forum with clean hands and has tried to conceal the material facts. This concealment stands proved on the part of the complainant from information lodged with the police authorities in which he has clearly stated that the window door of his car was left open and as such his mobile and pen drive both were stolen ; that on receipt of intimation regarding alleged occurrence, opposite party No.2 deputed Mr. J.S. Malhotra to verify the facts and also to assess the price of the mobile at the relevant time. The said surveyor submitted his report dated 26.12.2015 in which he has confirmed that as informed by the complainant “ while parking the car in hurry he left the door glass open and also left his mobile phone and one pen drive on the left front seat of the car and on returning he found that both the pen drive and mobile set stolen”. As far as loss is concerned, after applying depreciation and excess clause, the price of mobile at the relevant date was assessed at Rs. 41,250/-. However, the said surveyor referred the relevant condition of the policy and recommended to close the claim as “No claim” being not payable by the company as the complainant has violated the basic condition No.5 of the policy which reads as under:-
“That the Insurance policy does not cover if loss resulting from or caused by theft, or attempted theft of insured equipment, left in unattended vehicle or room except car of fully enclosed saloon type or room, having at the time all the doors/windows and other opening securely locked and properly fastened”
In the light of aforesaid circumstances and condition No. 5 of the policy, it is submitted that the duty is cast upon the insured to take proper care of the insured equipment so that any improper act may not become cause of loss. In the present case, the complainant has violated the said basic condition to take proper steps to safeguard the insured equipment by leaving the window glass open , as such he is not entitled to any claim from opposite party No.2 ; that opposite party No.2 has already repudiated the claim in the light of aforesaid circumstances and the same was conveyed to the insured M/s. Unicom India Pvt.Ltd. and there is no deficiency on the part of the opposite parties. On merits facts narrated in the complaint have been specifically denied and a prayer for dismissal of complaint was made.
4. In his bid to prove his case complainant stepped into the witness box and tendered his duly sworn affidavit Ex.C-1, his additional affidavit Ex.C-2 alongwith documents Ex.C-3 to Ex.C-8 and closed his evidence.
5. To rebut the aforesaid evidence Sh.P.N.Khanna,Adv.counsel for the opposite party No.2 tendered into evidence affidavit of Sh.Jaswant Singh Dhaap , Div.Manager Ex.OP2/1, affidavit of Sh.J.S.Malhotra,Surveors and Loss Assessor Ex.OP2/2 alongwith documents Ex.OP2/3 to Ex.OP2/10 and closed the evidence on behalf of opposite party No.2.
6. We have carefully gone through the pleadings of the parties, arguments advanced by the ld.counsel for the complainant as well as counsel for opposite party No.2 and have appreciated the evidence produced on record by both the parties with the valuable assistance of the ld.counsel for the parties as well as written arguments submitted by the complainant as well as opposite party No.2.
7. Ld.counsel for the complainant has vehemently contended that complainant has purchased mobile set bearing Samsung Galaxy S6 Edge G-925 for a sum of Rs. 55000/- vide bill No. 160 dated 12.6.2015, copy of which is accounts for Ex.C-1 on record, from opposite party No.1. The said mobile set was duly insured with opposite party No.2 for a period of one year and in this respect premium to the tune of Rs. 2000/- was paid by the complainant and the same was received by opposite party No.1 being agent of opposite party No.2 vide separate invoice No. 161 dated 12.6.2015, copy of which is Ex.C-2 on record. As such the premium was paid by the complainant and the mobile of the complainant was insured. Even if any insurance was purchased in the name of M/s. Unicorn , the complainant is not aware about this fact, even then as the mobile of the complainant was insured and the complainant paid the premium, as such complainant being beneficiary is a consumer. It has further been contended by the complainant that his mobile set was stolen on 9.9.2015 by some unknown person from his car while the same was parked in the District Court Complex, Amritsar. In this regard complainant lodged report with the Police post, District Court Complex, Amritsar and FIR No. 23/2015 was got registered by the police authorities. Complainant also intimated the opposite party about the said theft by fulfilling all the requirements as desired by the opposite parties. But the opposite parties did not settle the claim of the complainant.
8. On the other hand ld.counsel for opposite party No.2 has vehemently contended that on receipt of the intimation regarding the alleged loss, independent surveyor Mr.J.S. Malhotra was deputed by the Insurance company, who assessed the loss to the tune of Rs. 41250/- after applying the depreciation and excess clause but at the same time he recommended the claim to be closed as “No claim” for the reason that the loss has resulted on account of improper care taken by the insured as he left the vehicle unattended by leaving the window glass open and also leaving the insured equipment i.e. mobile alongwith his pen drive. These facts stand proved as per affidavit submitted by the complainant as well as intimation recorded by the police authorities in which it has been clearly confirmed that on 9.9.2015 when he went to the court premises, Amritsar, the window mirror of his car was left open and his mobile Samsung S-6 Edge alongwith Pen drive were taken by some persons which were lying on the seat of the car. In the light of aforesaid circumstances, it is apparent that the said occurrence took place solely on account of gross negligence on the part of the complainant, who failed to take reasonable care and safeguard of the insured equipment and also left the same unattended by keeping the window glass of his car opened . As such the claim of the complainant has rightly been closed and there is no deficiency on the part of the opposite party.
9. From the appreciation of the facts and circumstances of the case, it becomes evident that the insured mobile set of the complainant was stolen due to the negligence on the part of the complainant. This fact stands proved by his own document Ex.C-5 which is an application given to the police vide which he admitted that on 9.9.2015 he went to District Court in his car for some work and the window glass of the car left open and his mobile Samsung S-6 and Pen Drive were stolen by some unknown person and he tried his best to trace out the same but to no avail. In this way the complainant cannot wriggle out from his own admission duly mentioned in Ex.C-5 . Moreover it is the duty of the complainant to keep his belonging in safe custody. As per Exclusion Clause 5 of the policy terms and conditions that “the company shall not be liable to pay any claim if the loss resulted from or caused by theft or attempt theft of the insured equipment left in unattended vehicle or room except car of fully enclosed saloon type or room having at the time all doors/windows and other openings securely locked and properly fastened”. Now the question arises as to whether due to violation of the terms and conditions of policy, the complainant was entitled for grant of Insurance claim or not ? Answer to this query finds recorded in M/s. Suraj Mal Ram Niwas Oil Mills (P) Ltd-Appellant Vs. United India Insurance Co.Ltd. & another –Respondents 2010(4) RCR (Civil), wherein it has been laid down that in a contract of insurance , rights and obligations are strictly governed by the terms of the policy and no exception of relaxation can be given on the ground of equity. It has further been held in this judgement that in construing the terms of a contract of insurance, the words used therein must be given paramount importance, and it is not open for the court to add,delete or substitute any words. In this judgement it has been further held by the Hon’ble Supreme Court that where there is breach of conditions of the insurance contract by the insured, the insurance company is not liable to pay compensation in case of loss.
10. From the aforesaid discussion, it transpires that complainant has not been able to prove his case rather it is the complainant, who is negligent to safeguard his belongings. As such insurance claim filed by the complainant has rightly been filed as “No Claim” by the opposite party. There is no deficiency in service on the part of the opposite party.
11. Consequently, instant complaint fails and the same is ordered to be dismissed accordingly. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced in Open Forum (Anoop Sharma)
Dated : 4.1.2017 Presiding Member
/R/ (Rachna Arora)
Member
