This order shall dispose of Revision Petition No.1006/2006 filed by New India Assurance Company Limited, which was the opposite party before the District Forum and the Revision Petition No.3520/2007 filed by M/s Dolphin Offset which was the complainant

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before the District Forum.  Since both these Revision Petitions have been filed against the same order passed by the State Commission in Appeal No.A-226/2000, both the Revision Petitions are being disposed of by a common order. 

Facts are being taken from Revision Petition No.1006/2006.

Respondent/complainant purchased computer, printer and UPS after obtaining a loan from Delhi Financial Corporation and the equipments, so purchased, were mortgaged to latter.   These equipments were used in the office-cum-workshop of the complainants situated at the second floor of the flat in which the parents of the complainant reside.  Theft took place on 16/17.1.1995 and the said equipments were stolen.  Complainant lodged a claim for Rs.2.2 Lacs which was repudiated by the petitioner insurance company vide its letter dated 20.10.1995 stating that “As per FIR lodged by you, the door to the stair case from the street as well as door from the staircase to the second floor premises where the goods were kept were left open during the night, thus, leaving the insured goods unattended and exposed to perils insured against amounts to a clear breach of General Exclusion clause (d) of the policy”.     

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The complainant alleging the repudiation as arbitrary filed the complaint before the District Forum seeking a direction to the petitioner insurance company to pay Rs.2.2 Lacs along with Rs.4.50 Lacs as damages/loss as well as costs.

Respondent had appointed an Investigator and, thereafter, a Surveyor.  Petitioner insurance company took in the Written Statement the stand that the respondent had kept the insured goods unattended and exposed to perils in breach of General Exclusion clause D of the policy and, therefore, the insurance company was not liable to compensate the respondent for the loss suffered by him.

District Forum after taking into consideration the pleadings as well as the evidence which had been led before it, allowed the complaint and directed the petitioner insurance company to pay a sum of Rs.1,43,859/- as per recommendation of the Investigator/Surveyor, along with interest @ 12% p.a. from 01.9.1995 till its payment and costs of Rs.2,000/- within 60 days of receipt of copy of the order.

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Petitioner being aggrieved filed an appeal before the State Commission.  The State Commission partly allowed the appeal of the petitioner and directed the petitioner to pay the sum of Rs.1,43,859/-  along with the sum of Rs.10,000/- as compensation within one month.  Direction given by the District Forum to pay the interest @ 12% p.a. and the costs were deleted.  Being aggrieved by the order of the State Commission, petitioner as well as the respondent have filed the present revision petitions.

Counsel for the parties have been heard at length.

It was a case of theft and FIR was lodged for theft of goods.  It was not a case of lurking house trespass which falls under                        Section 457 of Indian Penal Code.  Sh.  H. L. Ahuja, former Deputy Superintendent of CBI who was appointed as an Investigator in his report concluded as follows:

“It is a case under All Risks Policy.  Therefore, the offence of burglary is not necessary as is applicable in the burglary (business premises) insurance.  However, as is apparent from the aforesaid discussions, there are certain material contradictions.  On the other hand, the insured gets support from the police investigation who have given a clean chit concluding the investigation by submitting an

Untrace Report (which means that the incident is genuine), after due consideration and taking into account the contents of the letter addressed by the undersigned, already reproduced.  Under the circumstances, therefore, the competent authority of the Insurance Co. may consider the advisibility of legal scrutiny of the case, before taking final decision in the matter.  It appears that no surveyor has been appointed.  The services of a licenced surveyor are necessary in each case where the loss is reported to be of more than Rs.20,000/-.  

Petitioner, thereafter, appointed Sh. Deepak Bharihoke as Surveyor.  After narrating the facts, the Surveyor concluded as under:

“Result of Survey :

1)                                        The investigation report of M/s H L Ahuja in the concluding para states the insured get support from the police investigation who have given a clean chit concluding the investigation by submitting an untrace report (which means that incident is genuine).

2)                                        The cause of loss therefore falls within the scope fo the policy and none of the Eclusions apply in our opinion.

3)                                        Even though no evidence of forcibleentry exists and is a case of simple theft the claim falls within the scope of the EE policy.

4)                                        Loss Assessment:

Keeping in mind the present market rates the following Assessment of loss is made as fair & reasonable.

Cost of HP Laserjet 4M+      =       Rs.1,14,400/-

Cost of 1.5 KVA ups with

Maintenance free Batteries   =     Rs.45,000/-

          Total                              =       Rs.1,59,400/-

Less Depreciation @ 5%     =       Rs.    7,970/-

Assessed Loss                     =       Rs.1,51,430/-

Less Excess @ 5%              =       Rs.    7,571.5

                                                          Rs.1,43,858.5

Net Adjusted Loss Say                  =       Rs.1,43,859/-

          Conclusion :   The Net Adjusted loss is Rs.1,43,859/- subject to policy, Terms, Conditions & Amount.

          Issued without Prejudice.

The Surveyor as well as the Investigator concluded that the respondent had taken a policy which was ‘All Risk Policy’; that it was a simple case of theft and not of burglary.  The District Forum had directed the petitioner to pay a sum of Rs.1,43,859/- as had been assessed by the Surveyor.  The claim was repudiated by the

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petitioner on the ground that the insured goods had been lying unattended and exposed to perils in breach of General Exclusion Clause D of the policy.  General Exclusion Clause D of the policy reads as under:

“(d)    Wilful act or willful negligence of the insured or his representative.

In the FIR lodged by the respondent, it was stated by him that the door (from the street) which opens in the staircase was open.  The room in which the above machines were kept was also without any lock but was just shut (bhira hua tha).  When I came back at 10.45 AM, I went up the room where the machines were kept, I found that all the above three machines were missing.

Even if the contents of FIR of the respondent are accepted, still the element of willful act or willful negligence has not been proved.  The grandfather of the respondent was living in the ground floor and the parents of the respondent were living in the first floor.  The house was inhabited by the family of the respondent on the ground floor as well as the first floor.  Leaving the door open cannot be held to be a willful act of negligence.  By adopting the statutory definition of ‘Theft’

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provided under the Indian Penal Code, the FIR was registered Section 380 IPC which shows that it was a case of ‘Theft’ and not of burglary or house trespass.  The police also gave a clean chit to the respondent by submitting an ‘Untraced’ report which means that the incident was genuine.  The Investigator as well as the Surveyor found that the petitioner was liable to compensate the respondent for the loss suffered by him; that the loss suffered by the respondent was covered under the policy.

For the reasons stated above, we do not find any merit in Revision Petition No.1006/2006 filed by the insurance company. 

Revision Petition No.3520/2007 

Counsel appearing for the complainant/petitioner has pressed for restoration of order of the District Forum.  It is contended by him that the complainant is entitled to the interest on the amount awarded.  The State Commission has set aside the order of the District Forum directing the payment of interest and instead awarded a sum of Rs.10,000/- by way of compensation.  In the given facts and circumstances of the case, we feel that the compensation awarded by

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the State Commission in lieu of the interest awarded by the District Forum is just and appropriate and calls for no interference. 

For the reasons stated above, both the Revision Petitions stand dismissed leaving the parties to bear their own costs.