F.A.No.1154 OF   AGAINST C.C.NO.35 OF 2009 DISTRICT FORUM-II HYDERABAD

Between:

M/s Sri

Rep. by its Partner, Sri Praveen Kumar

Shop No.4-1-968/1 Opp. To Theaters

                                                        Appellant/opposite party

Bajaj Allianz, rep. by its Manager
General Insurance 3-6-111/8, Street No.18, Main Road

Respondent/opposite party

Counsel for the Appellant                      M/s Counsel for the Respondent                   M/s

          QUORUM:   SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER

                                                AND

SRI THOTA ASHOK KUMAR, HON’BLE MEMBER

THURSDAY THE   DAY OF NOVEMBER

                                TWO THOUSAND TWELVE

Oral Order (As per Sri

                                                ***

1.             The unsuccessful complainant is the appellant. The complainant filed complaint seeking direction to the respondent-insurance company for indemnification to the extent of `9

2.             The appellant, a partnership-firm engaged in the business of gold, diamond and studded `9   on being caused theft, by some unknown offenders and that on complaint lodged by the appellant firm, the police,   to the respondent on 6-11-2008 and filed the complaint.

3.             The claim is resisted by the respondent/insurance company on the premise that the appellant is not a consumer and that the insurance policy was issued for the period from 2-12-2006 to 1-12-2007 covering risk on the property placed in window display during business hours and box was not kept in the window display when it was lost. 

4.             It is contended that the appellant lodged claim with the police on 18-10-2010 and the theft of the property  took place on 8-10-2007 and no complaint was lodged for a period of 10 days and that the cause of loss is  not a peril which is not covered by the terms and conditions of the insurance policy. 

5.             The proprietor of the appellant-firm filed his affidavit and the documents, ExsA1 to A14 and on behalf of the respondent/insurance company,   Senior Legal Executive filed  his affidavit and the documents Ex. B1 to  B5.

6.             The District Forum dismissed the complaint on the premise that the loss of property occurred when the gold was kept in window display and it is not   by the terms of insurance policy as  also the appellant  violated condition of insurance policy by not lodging the complaint with the police and not passing on intimation immediately to the respondent.

7.            The complainant firm has filed appeal contending that the District Forum failed to consider that the proprietor of the appellant firm filed   before the District Forum and lodged complaint with the police concerned and that the respondent – insurance company has not filed the survivor’s report.

8.             At the time of hearing  the counsel for the appellant submitted that certain documents filed before the District Forum could not be marked due oversight.  The documents are called for from the District Forum and marked as Ex. A15 to A25.

9.             The learned counsel for the appellant-firm filed written arguments.

10.            The point for consideration is whether the order of the District Forum suffers from

11.            The appellant-firm obtained insurance policy from the respondent-insurance company far indemnification of loss in case it sustained on account of house burglary  etc.   The property placed in window display if lost by an act of burglary or housebreaking is covered where by the respondent- insurance company is liable to indemnify the appellant subject to that terms and conditions of the insurance policy. 

12.            The relevant terms and conditions of the insurance policy read as

                Section I         

Loss or damage to property Insured under Items (a) to (d) under Section I of the Schedule whilst contained in the premises where the Insured’s business is carried on or at other premises where the Insured property is deposited as specified in the schedule, by FIRE EXPLOSION, LIGHTING, RIOT AND STRIKE, MALICIOUS DAMAGE, BURGLARY, HOUSE-BREAKINTG, ROBBERY AND HOLDUP RISKS ONLY.

                        Section II

Loss or damage to property Insured under items (a) and (b) Section II of the schedule and carried/conveyed outside the specified premises for the purpose of Insured’s business by FIRE, EXPLOSION, LIGHTING, RIOT AND STRIKE, MALICIOUS DAMAGE, BURGLARY, HOUSE-BREAKING,

Section III

Loss or damage to the property insured whilst in transit as specified in

Section IV

Loss or damage to office furniture, fixtures fittings which are the property of the insured being of the insured being used connection with the Insured’s business whilst contained in the premises where the insured’s business is carried on by FIRE, EXPLOSION, LIGHTING, RIOT AND STRIKE, MALICIOUS DAMAGE, BURGLARY, HOUSE-BREAKING, ROBBERY AND HOLDUP RISKS ONLY. 

13.            The loss or damage to the prosperity insured is excluded in the following circumstances:

1.       Loss and/or damage to the property Insured which   be sustained whilst the same is being actually worked upon or from any process of cleaning, repairing or restoring and directly resulting therefrom.

2.      (a) Property missing at stock taking in respect of which no claim has been previously notified unless the loss be proved by the insured to be due to a peril covered by the policy.

(b)  Loss of and/or damage to property insured due to mysterious circumstances/disappearance or unexplained reasons.

3.   Loss of and/or damage to the property Insured whilst    the   same is being worn or used by the Insured or member of their families , relatives of friends or whilst in their custody for this purpose.

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

5.   Theft or disappearance of property hereby Insured from road vehicles of every description owned hired by or under the control of the Insured and/or their partners, servants, agents or representatives where such vehicles are left unoccupied.

6.   Loss or damage caused by or arising from depreciation gradual deterioration, wear and tear, moth, vermin and mildew.

7.   Loss or damage to any items of glass crockery, porcelain, chinaware and other articles of brittle or fragile nature unless such loss or damage arises from accident to vessel, train vehicle or aircraft by which such property is conveyed.

8.   Loss or damage occasioned by theft or dishonesty or any    attempt threat

            a)        

            b)          
            exclusive employment of the insured

c)         any customer or broker or broker’s customer or

9          (a)        Loss or damage occurring whilst in transit 
            in India or ultimate destinations outside the
            Geographical area stated in the Schedule.

(b)        Loss or damage to property hereby Insured intended for export from the time such property leaves the insured’s premises in the ordinary course of processing for transit and during transit for delivery to customs or carrier or post office.

(c)        Loss or damage to property imported whilst in transit from the time delivery is taken from the post office or the carrier or customs as the case may be until delivered at the insured’s premises.

10.       Loss or damage arising from detention, confiscation, nationalization, requisition, occupation or willful destruction by or under the order of the Government or any public or local authority. 

11.       Any loss following use of the key to the safe or in built locker or steel cupboard as applicable or any duplicate thereof belonging to the insured or person in whose custody the insured property is, unless such key has been obtained by threat or by violence.

12.       Loss or damage to property insured whilst in window display at night or whilst kept out of safes after business hours.

13.       Any consequential loss or damage including delay.

14.                Loss or damage occasioned by or through or in consequence, directly or indirectly of any of the following occurrences namely earthquake, volcanic eruption, cyclone, typhoon, hurricane, tornado, flood, storm, tempest or other similar convulsion of nature  unless specifically covered by payment of additional premium.

            b)         Subterranean fire or atmospheric disturbances. 

            c)         War, invasion, acts of foreign enemy, hostilities (whether war be declared or not), civil war, rebellion, revolution, insurrection, military or usurped power, martial law.

14.           Thus,   instances where the respondent is liable to indemnify the appellant-firm included Burglary which in defined as  “burglary”  mean theft involving entry to or exit from the premises stated therein by forcible and violent means or following assault or violence or threat thereof to the insured or to his employees or to the members of his family”.

15.            The proprietor of the appellant firm lodged complaint with the police    This is to inform you that missing the incident happened around 11.30 A.M. on 8-10-2007 I removed the plastic box containing plain gold and studded gold ornaments and kept it on my table.  After a few minutes I was shocked to see the box missing from the counter table.  On that day only two outsiders one Vijay working with a wholesaler of   Another businessman Manish of Jaipur came to the shop and left.  Apart from   my employees namely ”

16.            The appellant submitted form Burglary” which is silent as to whether burglary was committed at the premises of the appellant firm.  In the column “  dealing with  as to how the entrance was effected is kept blank.  The statement in the claim form that the   was broken opened at 10.45 A.M. 8-10-2007 is contrary to the contents of the FIR.  In the FIR dated 18-10-2007 the appellant has stated that at 11.30 A.M. on  8-10-2007 the plastic box containing  plain gold and studded gold ornaments were kept on the table whereas in the claim form it is stated that the premises was break opened at 10.45 A.M. on 8-10-2007, when the box was kept on the table at 11.30 A.M. on 8.10.2007, the question or breaking open of the locks of the premises at 10.45 A.M.,  as mentioned in the claim form does not arise. 

 17.           A   by the police  after receiving he complaint from the appellant firm.  The FIR and   would disclosed that no burglary or housebreaking taken place at the premises of the appellant firm.  The learned counsel for the appellant has submitted that as per the terms of the insurance policy, theft of   is covered and the appellant orally informed the police on 8-10-2007 and lodged complaint on 18-10-2007 and the police could detect the offenders and that the respondent insurance company has not disputed the FIR.

18.            The claim was repudiated on the premises that the   lodged by the appellant with the police , the survivor’s report proved that no burglary was committed in the premises of  the appellant firm and the theft of the armaments  is not a peril covered  by the insurance policy.

19.            The notice dated 6-11-2008 got issued by the   firm would support the ground for repudiation of the claim that theft and not burglary was committed and theft is not covered by the terms of the policy.  It is mentioned in the notice

While so on 8.10.2007 around 11.30 A.M. unknown persons committed theft of the plastic box containing plain and studded gold ornaments weighing about 9.50 grams valued at Rs.9,50,000/- (Rupees Nine Lakhs Fifty Thousand Only) accordingly a complaint has been lodged with Police at

20.           The appellant has not satisfied the terms of the insurance policy that the incident said to have been occurred on 8-10-2007 falls within the definition of  housebreaking or burglary or attempted thereat  and that immediate intimation was  passed on to the respondent-insurance company.  The appellant, on terms of the Insurance Policy is obligated to immediately inform the respondent so as to enable it to investigate.  The appellant has not given opportunity by not intimating the respondent to look into the matter by conducting enquiry as to know about the cause of theft of the gold. 

21.            The appellant-firm lodged complaint with the police 10 days after the incident.  The appellant informed the respondent-insurance company about the theft of the property 10 days after the occurrence of the incident. The inordinate delay on the part of the appellant in lodging compliant with the police would disentitle the appellant to claim the amount from the respondent-insurance company as the delay would deprive the insurance company to investigate into the incident. The New India Assurance Company Ltd   held that the delay of 9 days from the date of theft in lodging complaint with the police by the insured would disentitle the insured from claiming the amount under the insurance policy as it is a violation of the terms of the insurance policy. The National Commission held

In the case of theft where no bodily injury has been caused to the insured, it is incumbent upon the respondent to inform the Police about the theft immediately, say within 24 hours, otherwise, valuable time would be lost in tracing the vehicle. Similarly, the insurer should also be informed within a day or two so that the insurer can verify as to whether any theft had taken place and also to take immediate steps to get the vehicle traced. The insurer can coordinate and cooperate with the Police to trace the car. Delay in reporting to the insurer about the theft of the car for 9 days, would be a violation of condition of the Policy as it deprives of a valuable right to investigate as to the commission of the theft and to trace/help in tracing the vehicle.

 22.           For the foregoing reasons, the appellant-firm is not entitled to claim the amount from the respondent-insurance company and the respondent-insurance company is held to have not rendered any deficient service in repudiating the claim. The appeal is liable to be dismissed.

23.           In the result, the appeal is dismissed confirming the order of the District Forum.  The parties shall bear their own costs.

                                                                MEMBER

                                                                MEMBER

                                                              Dt.08.11.2012

KMK*