Haryana

StateCommission

A/613/2015

NEW INDIA ASSURANCE CO. LTD. - Complainant(s)

Versus

DR.NITIN MEHTA - Opp.Party(s)

NITIN GUPTA

02 Aug 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

                                                         First Appeal No.613 of 2015

Date of Institution: 20.07.2015

                                                               Date of Decision: 02.08.2016

 

1.      New India Assurance Company Limited,  having Branch Office at Kaithal, through its Branch Manager at SCO No.510/14, Ambala road,Govind Nagar, Kaithal.

2.      Managing Director, The New India Assurance Company Limited, Head office at the New India Assurance Building, 87, Mahatama Gandhi Marg, Fort, Mumbai-400001. 

          Appellants No.1 and 2 are now represented through the duly authorized signatory of regional office, SCO No.36-37, Sector 17-A, Chandigarh.

….. Appellants

Versus

 

Dr. Nitin Mehta C/o New Holy Family Hospital, Near DAV School (Junior Branch), Ambala Road, Kaithal.

                                      …..Respondent

 

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                             Mrs. Urvashi Agnihotri, Member.                                                                                                                                        

Present:              Shri  Nitin Gupta, Advocate counsel for appellants.

                             Shri Madan Jassal, Advocate for respondent.

 

                                                   O R D E R

R.K.BISHNOI, JUDICIAL MEMBER:-

          It was alleged by complainant that he installed a MBD machine in his hospital with X-posure Card (inserted) valuing Rs.5,50,000/-  and obtained policy schedule under Doctors Protection shiled scheme from the opposite parties (O.Ps.) which was valid from 24.09.2009 to 23.09.2010. On 12.04.2010 when he was to conduct test a message blinked from the machine as X-posure Card not inserted.  When checked it was found that X-posure Card was missing.  He lodged report with the police on that very day regarding burglary of the X-posure Card. On 11.05.2010 O.P.No.1 was intimated and claim was preferred.  He submitted all the documents with the insurance company, but, claim was repudiated on the ground that the theft was not covered by the policy.

2.      O.Ps. filed reply admitting the insurance cover, but, alleged that his claim was repudiated on the following grounds:-

“i.       During survey/inspection there was no sign of   forcible entry form.

ii.       As per copy of FIR No.285 dated 13.05.2010, Dr.   Mehta stated that when he was trying to perform the test on 12.04.2010, he received the message that the  xposure Card missing. FIR reveals that there was no forcible attempt made for the said mishap.        

iii.      Copy of non traceable/final report also reveals that   there is no forcible entry has been made and file is closed. From the above said reasons the said loss does not fall under the preview of the policy, hence it may be treated as no claim.”

As there was no evidence of burglary, so his case was not covered by the insurance policy.

3.      After hearing both the parties, learned District Consumer Disputes Redressal Forum, Kaithal (In short “District Forum”) allowed the complaint vide order dated 21.05.2015 and directed as under:-

“We allow the complaint and direct the OPs to pay Rs.1,54,875/- along with interest @ 8% p.a. from the date of repudiation of claim i.e. 18.05.2011 till its payment to the complainant and further to pay Rs.3,000/- as lump sum compensation on account of harassment, mental agony and cost of litigation charges.”

4.      Feeling aggrieved therefrom, opposite parties-appellants have preferred this appeal.

5.      Arguments heard. File perused.

6.      Learned counsel for the complainant-respondent vehemently argued that on 12.04.2010 when he was going to perform test it was found that X-posure Card was missing.  Thereafter DDR Ex.C-6 was lodged with the police on 13.04.2010, on the basis of which FIR Ex.C-12 was registered on 12.05.2010 for the offence punishable under section 380 of Indian Penal Code of 1860 (In short “IPC”).  As the room was not accessible easily so it can be safely presumed that it was a case of burglary and he was entitled for compensation as opined by Learned District Forum.

7.      This argument is of no avail.  It is opined by Hon’ble Supreme Court in  United India Insurance Co. Ltd. Vs. Harchand Rai Chandan Lal IV (2004) CPJ 15 (SC) that policy is contract between the parties and both the parties are bound by the terms and conditions of the same. In case the insurance policy is pertaining to burglary there must be element of force and violence condition precedent for burglary or house breaking if this fact is missing then insured cannot ask to accept his claim.  It means that if there is no evidence qua use of force then claim under head of burglary cannot be allowed.  Neither it is pleaded in the complaint nor it was stated by complainant anywhere that there was use of force.  There is no evidence on the file to come to conclusion that somebody forced entry in the room where machine was installed.  It was mentioned by complainant in letter Ex.C-10 that there was no house breaking or forced entry in the room in which the machine was installed. Relevant portion of the same is reproduced as under:-

“I conduct the BMD test myself. There is no house breaking but the room in which the test is done is most of the times locked unless we conduct the test or for other official purpose. The patient does not have access to the room.”

This document was produced by complainant in evidence and he cannot get out of the same.  As per admission of complainant when there was no evidence of burglary he was not entitled for compensation under this policy which is EX.R-2.  Learned District Forum failed to take into consideration this aspect and fell in error while allowing the complaint.

8.      As a sequel to above discussion, impugned order dated 21.05.2015 is set aside. Appeal is allowed and complaint is dismissed.

9.      The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellants against proper receipt and identification in accordance with rules.

 

August 2nd, 2016        Urvashi Agnihotri                                R.K.Bishnoi,                                                               Member                                              Judicial Member                                                         Addl. Bench                                        Addl.Bench