BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

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M/s K.M. Gold through its partner Sh. Rishu Jain, SCO No.858, NAC Shivalik Enclave, Manimajra (UT), Chandigarh.

….…Complainant

                           V E R S U S

1.      Berkley Insurance Brokers Limited through Sh. P.N. Bhat (its Principal Officer) ‘BERKELEY HOUSE’ SCO NO.42, Sector 26, Madhya Marg, Chandigarh 160019.

2.      Berkley Insurance Brokers Limited through its Branch Manager ‘BERKELEY HOUSE’ Plot No.40, Industrial Area, Phase-II, Chandigarh 160002.

3.      United India Insurance Company Limited through its Branch Manager at # 2^nd Floor, Tirloki Chambers, Opp. Municipal Committee P.B. No.84, Ambala Cantt 133001 Ambala.

4.      United India Insurance Company Limited through its Divisional Manager at # 2^nd Floor, Tirloki Chambers, Opp. Municipal Committee P.B. No.84, Ambala Cantt 133001 Ambala Cantt.

5.      United India Insurance Company Limited through its Managing Director having its Registered & Head Office at #24 Whites Road Chennai 600014.

                                  ..…Opposite Parties

CORAM:  SH.JAGROOP SINGH MAHAL PRESIDENT

              SH. RAJINDER SINGH GILL   MEMBER

Argued by: Ms. Anita Sharma, Adv. for complainant.

Sh. Sandeep Jasuja , Adv. for OPs 1 & 2.

Sh. Parminder Singh, Adv. proxy for Paul S. Saini, Adv. for OPs 3 to 5.

PER SHRI JAGROOP SINGH MAHAL, PRESIDENT

             Succinctly put, the complainant purchased the Jewellers Block Policy of OPs 3 to 5 from OPs 1 & 2 for the period from 9.6.2008 to 8.6.2009.  On 11.9.2008 at about 5:00 p.m three ladies came to the complainant’s shop, desired to buy gold set and one of them stole one set about which the complainant came to know when the stock was counted in the evening and the same was also proved by the CCTV video recording of 11.9.2008.  On 15.9.2008 a written complaint was made to the P.S. Mani Majra and the complaint for theft was registered.  The total assessed value of the stolen set was Rs.88,200/-. After lodging the DDR the complainant also intimated OPs 1 & 2 with regard to theft who vide their letter dated 22.9.2008 informed that the claim was forwarded to OPs 3 to 5.  However, the OP-4 vide letter dated 10.12.2008 rejected the claim. Hence this complaint alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice.

2.             In their written reply the OPs 1 & 2 admitted the factual matrix.  However, it has been submitted that the complainant was not entitled to the insurance amount as the theft committed in the premises as per his version was such where no force was applied.  It has been denied that the answering OPs have any role in rejecting the claim of the complainant as OPs 4 & 5 were the authorities to settle the claim. Denying all the material allegations of the complainant and pleading that there has been no deficiency in service or unfair trade practice on their part prayer for dismissal of the complaint has been made. 

3.             In their separate written reply OPs 3 to 5 also admitted the factual matrix.  It has been denied that the alleged theft took place at the shop of the complainant on 11.9.2008. However, it has been submitted that on receipt of intimation regarding the claim, the answering OPs deputed an independent surveyor and loss assessor who submitted his report dated 21.10.2008. It has been pleaded that the alleged loss was caused due to the admitted negligence on the part of the employee of the complainant and as the same was not covered under clause 8 of the policy, therefore, the claim was rightly repudiated by passing detailed and speaking order dated 10.12.2008.  Denying all the material allegations of the complainant and pleading that there has been no deficiency in service or unfair trade practice on their part prayer for dismissal of the complaint has been made. 

4.             Parties led evidence in support of their contentions.

5.             We have heard the Learned Counsel for the parties and have also perused the record. 

6.             The Learned Counsel for the OPs have argued that as per the report Annexure R-4 lodged with the police the ladies had asked for a gold set of 30 gms only and therefore the question of stealing a 70 gms gold set did not arise.  There is no merit in this contention because it is based on presumptions and conjectures.  If a person goes to a jeweler and wants to purchase a set weighing 30 gms, he does not stop there but wants to see other sets also which may be costlier than the set to be purchased by him/her.  Moreover in the present case the intention of the ladies was to commit the theft which could be of a gold set of 30 gms or 70 gms, whatever was possible and heavier the better.  The Learned Counsel for the complainant has referred to the statement Annexure R-5 of Rani Sharma who deposed that she attended three ladies customers but they puzzled her and stole one necklace set regarding which she came to know subsequently when they counted their boxes.  Annexure R-6 to Annexure R-18 show the footage of CCTV in this respect. It therefore cannot be said that the gold necklace weighing 70 gms could not have been stolen.

7.             In order to ascertain the incident the OPs would have appointed their investigator but the report thereof has not been placed on file and therefore we cannot say if the OPs doubt the theft of the necklace.

8.             Annexure R-2 is the report of the surveyor who assessed the loss to the extent of Rs.32,781/- on the ground that the stock at risk was worth Rs.36580152/- whereas the insurance had been obtained by the complainant for the jewellery worth Rs.32500000/- and therefore it was a case of under insurance.  It is no where opined by the surveyor if theft had not taken place.

9.             The Learned Counsel for the OPs also argued that the theft in this case is not covered under the insurance policy because it is excluded in view of explanation 8 (d) of the insurance policy Annexure R-1 which provides as follows:

    8 (a)  ………

(b)  ………

(c)  ………

(d) Any customer or broker or angadias or cutters or   

     goldsmiths in respect of the property hereby        

     insured entrusted to them by the insured, his or        

     their servants or agents.

              This question has been settled at rest by the Hon`ble Supreme Court in case “National Insurance Co. Ltd., Vs. Ishar Das Madan Lal, (2007) 4 Supreme Court Cases 105”.  In that case also similar clause in the policy of insurance issued by the insurance company was interpreted to mean that it was a case of theft and therefore the insurance company cannot evade its liability to pay compensation on any such ground.

10.           In view of the above discussion, we are of the opinion that the present complaint must succeed.  The same is accordingly allowed.  The OPs are directed to pay to the complainant Rs.32,781/- alongwith litigation costs of Rs.5,000/- within 30 days from the date of receipt of copy of this order failing which the OPs would be liable to pay the same alongwith penal interest @12% p.a. since the filing of the present complaint i.e. 9.11.2009, till the payment is actually made to the complainant.

              Certified copies of this order be sent to the parties free of charge.  The file be consigned.