Orissa

Cuttak

CC/187/2012

M/s Siba Alankar,Propriertor Siba Narayan Sahoo - Complainant(s)

Versus

Branch Manager,New India Assurance Co Ltd - Opp.Party(s)

G Kar & associates

10 Jul 2023

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

                                                C.C.No.187/2012

M/s. SibaAlankar,

Represented through its Proprietor,

Sri SibaNaarayan Sahoo,

S/o: Late Biswanath Sahoo,

At/P.S:Mangalabag,P.O:Buxibazar,

Dist:Cuttack.                                                                            ... Complainant.

 

                                   Vrs.

1.      The New India Assurance Co. Ltd.,

Represented through its Branch Manager,

Cuttack Branch-II,NearNishamani Cinema Hall,

Surya Vihar,LinkRoad,Cuttack.

 

2.      The New India Assurance Co. Ltd.,

Represented through its Regional Manager,

Bhubaneswar Regional Office,

                   1^st floor,Alok Bharati Tower,

​                   Saheed Nagar,Bhubaneswar-751007.

 

Present:  Sri Debasish Nayak,President.

                   Sri SibanandaMohanty,Member.

 

Date of filing:      30.07.2012

Date of Order:    10.07.2023

 

For the complainant:          Mr. G.Kar,Adv. & Associates.

For the O.Ps              :         Mr. R.Pati,Adv. & Associates.

 

Sri Sibananda Mohanty,Member.                              

The case of the complainant in short is that he is the owner of a jewellery shop having name and style as “SibaAlankar”, which is situated at Mangalabag of Cuttack Town.  In order to secure his jewellery shop from fie explosion, lightning, burglary, housebreaking, theft, hold up, robbery and riot, strike and miscellaneous damage he had obtained a “Jewellery Block Insurance Policy” bearing no.55030346110700000002 from the O.Ps in respect of his jewellery shop.   The said policy was valid from 28.4.2011 to 27.4.2012.  It is stated by the complainant that on 3.8.2011 at about 11.30 A.M, two young persons came to his shop premises to purchase golden chain and demanded heavy weight gold chain and while his son went to his house to bring some heavy weight gold chain, the said two persons told the Sales Manager of his shop to take advance of Rs.6000/- for heavy weight gold chain and demanded money receipt to that effect.  It is further stated by the complainant that when the Sales Manager was engaged in preparing the money receipt, the said persons ran away by taking away seven numbers of gold chains from his shop and fled away with a motorcycle.   Although the Sales Manager tried to chase the said two persons but he could not catch them and thereafter the complainant immediately informed the said fact to the local police and lodged FIR at about 1.30 P.M. on 3.8.2011.  The complainant alleged to have intimated the O.Ps about the theft of his gold ornaments on 10.8.2011.  It is stated by the complainant that the O.Ps deputed their Surveyor-cum-loss assessor to assess the loss and requested the complainant to submit policy bond, copy of the policy, claim form, stock ledger, stock statement submitted to the bank, transaction statement from the bankon the date of incident for consideration of his claim.  The said surveyor visited the shop of the complainant on 13.08.2011 and verified the stock register and requested the complainant to submit required documents for consideration of his claim.  Thereafter, the complainant submitted all the relevant documents to the surveyor as well as to the O.Ps for consideration of his claim but the O.Ps instead of settling the claim remained silent.  But in their letter dt.29.02.2012, the O.Ps had ultimately repudiated the claim of the complainant by intimating him that the reported loss of jewellery does not come under the purview of the policyand thereby the O.Ps had repudiated the claim of the complainant by closing the file as “No claim”.  Thereafter, the complainant approached the Insurance Ombudsman challenging the decision of the O.Ps but the insurance Ombudsman did not take any step.  Hence, the complainant has filed the present case for a direction to the O.Ps to settle his claim amount, calculated asRs.6,00,000/- towards the value of 7 nos. of gold chains and to pay a sum of  Rs.2,00,000/- towards the compensation amount for mental agony alongwith a sum of Rs.40,000/- towards his litigation expenses.

          In order to prove his case, the complainant has filed copies of several documents alongwith his complaint petition.

2.       The O.Ps have contested this and filed their written version jointly wherein they have admitted to have issued a “Jewellery Block Insurance Policy” in favour of the complainant’s shop i.e. M/s. SibaAlankar at Mangalabag,Cuttack which was valid from 28.4.2011 to 27.4.2012.  It is stated by the O.Ps that as per the exclusion clause no.8( c ) of the policy, the complainant is not entitled to get the claim amount.

The O.Ps had disputed the compensation amount as claimed by the complainant.  It is stated by the O.Ps that after receiving information from the complainant as regards to theft, theyhad deputed a surveyor-cum-Loss Assessor to conduct the survey of the shop of complainant, who had assessed the loss at Rs.2,07,329/- only subject to the merits of the case and policy condition and submitted his survey report on 17.1.2012.  It is stated by the O.Ps that the customer who had come to the shop of the complainant to purchase gold ornaments fled away with the jewellery kept at the counter.  It is alleged by the O.Ps that  the loss due to theft or dishonesty of the customers is excluded under the policy clause-8(c ).As the loss does not come under the purview of the policy, the O.Ps have stated that they are not liable to pay the claim amount and accordingly had treated the claim of the complainant as “No claim” as it does not come under the purview of the policy and thereby had intimated the complainant this fact on 29.2.2012.  Hence, in view of the above, the O.Ps have prayed for dismissal of the complaint case.

          The O.Ps have also filed some documents as well as evidence on affidavit in order to prove their stand.

3.       This Commission vide its order dt.18.12.2013 had dismissed the complaint case on contest.  The complainant being aggrieved by the order passed by this Commission had preferred F.ANo.25 of 2014 before the Hon’ble State C.D.R.Commission, Odisha,cuttack and the Hon’ble State C.D.R.Commission, Odisha,Cuttack vide its order dt.9.3.2023 remanded the case to this Commission with a direction to dispose of the case after hearing both the parties afresh.  Hence, the case is taken up accordingly.

4.       Keeping in mind the averments as made in the complaint petition and the contents of the written versions of the O.P, this Commission thinks it proper to settle the following issues in order to arrive at a definite conclusion here in this case.

i.          Whether the case of the complainant is maintainable?

ii.         Whether there was any deficiency in service on the part of the O.Ps ?

iii.        Whether the complainant is entitled to the reliefs as claimed by him?

Issue no.II.

Out of the three issues, issue no.ii  being the pertinent issue is taken up  first for consideration here in this case.

The O.Ps have admitted to have issued “Jewellery Block Insurance Policy” bearing No.55030346110700000002 in favour of the complainant, which was effective from 28.4.2011 to 27.4.2012.  During the policy period, there was a theft in the shop of the complainant on 3.8.2011 which is not disputed by the O.Ps.  The O.Ps have stated that as per clause-8( c ) of the policy condition they have repudiated  the claim of the complainant.

The exclusion clause no.8 of the insurance policy is quoted below for reference:

          “Loss or damage occasioned by theft or dishonesty or any attempt there at committed by or where such loss or damage has been expedited or in any way sustained or brought about by.

1. Any of the insured’s family members.
2. Any servant or traveller or messenger in the employment of the insured.

(c )       Any customer or broker or broker’s customer or angadias, cutter or goldsmiths in respect of the property hereby insured entrusted to them by the insured, his or their servants or agents.”

 It reveals from the case record as well as FIR that the customers who had come to buy some gold ornaments alleged to have stolen the gold chains.  So also, the said customers admitted to have given advance of Rs.6000/- to the Sales Manager of the complainant.  Hence, it can safely be concluded that two persons who had come to the shop of the complainant as customers had stolen away the gold chains from the shop of the complainant.  The Clause-8( c ) of the policy is an exclusion clause.  In the present case, it appears that the customer of the complainant had stolen away 7 nos. of gold chains from the shop of the complainant as such in view of the exclusion clause-8( c ) the complainant is not entitled to get any claim amount.  Hence there is no deficiency of service on the part of the O.Ps.

Issue no.i& iii.

From the discussions as made above, the case of the complainant is not maintainable and the complainant is not entitled to the reliefs as claimed by him.  Hence, it is so ordered;

                                              ORDER

Case is dismissed on contest against the O.Ps and as regards to the facts and circumstances of the case without any cost.

Order pronounced in the open court on the 10^th day of July,2023 under the seal and signature of this Commission.          

                                                                                                                                                                                                                                                        Sri Sibananda Mohanty

                                                                                           Member

                                        

                                                                                  Sri Debasish Nayak

                                                                                         President