Chandigarh

StateCommission

A/161/2015

The Oriental Insurance Company Ltd. - Complainant(s)

Versus

Haryanaa Warehousing Corporation - Opp.Party(s)

Swatantar Kapoor, Advocate

12 Aug 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

              UNION TERRITORY, CHANDIGARH

 

First Appeal No.	161 of 2015
Date of Institution	08.07.2015
Date of Decision	12.08.2015

 

The Oriental Insurance Company Ltd., Surendra Building, SCO 109-111, Sector 17, Chandigarh, through Dy. Manager.

 

                                        ….Appellant/Opposite Party.

                           Versus

Haryana Warehousing Corporation, through its Legal Adviser, Head Office, Bay No.15-18, Sector 2, Panchkula.

                                        ….Respondent/Complainant.

BEFORE:    JUSTICE SHAM SUNDER (RETD.), PRESIDENT

                SH. DEV RAJ, MEMBER

                MRS. PADMA PANDEY, MEMBER

 

Argued by:

 

Ms.Swatantar Kapoor, Advocate for the appellant.

Sh.Mrigank Sharma, Advocate for the respondent.

 

PER PADMA PANDEY, MEMBER         

 

                        This appeal is directed against the order dated 29.05.2015, rendered by District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only), vide which, it allowed consumer complaint bearing No.252 of 2013, filed by the complainant, with the following directions:-

“12]    In view of the above discussion & findings, the repudiation of the claim by the OP stands unjustified and the OP is found deficient in providing services and is held liable to pay the claim. The complaint is allowed against the Opposite Party. The Opposite Party is directed as under:-

1. To pay the claim amount of Rs.1,95,000/-, to the complainant corporation, along with interest @9% p.a. since the date of repudiation i.e. 21.12.2010 till it is paid. 

 

 

2. To pay Rs.20,000/- as compensation for the deficiency in service on the part of the OP.

  

3. To pay Rs.7,000/- towards litigation expenses.

 

         The above said order shall be complied with by the Opposite Party within 45 days of its receipt, failing which it shall be liable for an interest @18% per annum on the awarded claim amount Rs.1,95,000/- from the date of repudiation i.e. 21.12.2010 till it is paid and also on the compensation amount of Rs.20,000/- from the date of filing of this complaint till it is paid, besides paying litigation expenses of     Rs.7,000/-.” 

 

2.             The facts, in brief, are that the complainant (Haryana Warehousing Corporation) entered into a contract for insuring its stocks, stored in the Warehousing Godown at Jakholi, District Kaithal, vide Policy No.231202/48/2010/923.  It was stated that an incident of theft took place at SWH, Jakholi (Kaithal) i.e. the premises of the complainant, which was found out on the physical verification dated 30.05.2009.  It was further stated that in the said incident of theft, 300 bags of HWC wheat were stolen and immediately thereafter, the Opposite Party was duly informed about the said incident of theft on 31.5.2009.  It was further stated that the Police was also informed and FIR No.119, dated 11.06.2009 under Section 380 IPC at P.S.Kaithal Sadar was lodged, copy of which was forwarded to the Insurance Company vide letter dated 01.10.2009 (Annexure C-2) and copy of the FIR is Annexure C-3. It was further stated that the intimation regarding the claim was given to the Insurance Company in the month of May, 2009. Thereafter, a claim of Rs.1,95,000/- was lodged by the complainant Corporation with the Opposite Party (Annexure C-4 & C-5) and all the necessary documents were also supplied, but no action was taken by the Opposite Party.  It was further stated that the complainant was constrained to issue reminders to the Insurance Company dated 08.12.2009, 10.12.2009, 23.12.2009, 12.01.2010, 22.01.2010, 08.06.2010, 24.08.2010, 06.09.2010 & 15.12.2010 requesting for settlement of the claim. Thereafter, the Insurance Company repudiated the claim vide letter dated 21.12.2010 (Annexure C-7) on the frivolous ground that since there was no evidence of any tampering of boundary wall or fencing, therefore, there was no forcible entry and no case of burglary was established. It was further stated that the complainant Corporation duly intimated the Insurance Company that the theft had taken place from the open plinth area at the warehouse, wherein, the wheat bags stored in the open and for their protection Chowkidar had been kept round the clock. It was further stated that the thieves were able to steal the bags from the open plinth area and, therefore, there was no question of any forcible entry by breaking the wall or fence, as the plinths in the open area during that time were not fenced. 

3.             It was further stated that the complainant vide letter dated 13.01.2011 (Annexure C-8) requested the Insurance Company to reconsider the claim. Requests were also made vide letters dated 17.08.2011, 31.01.2012 and 02.03.2012 (Annexure C-9 Colly.). It was further stated that the Insurance Company was requested vide letter dated 22.01.2013 (Annexure C-10) that as per the Final Investigation Report (Annexure C-11) dated 12.05.2010, it was found that theft was committed, and the Police Authorities gave their finding that inspite of investigation, they had not been able to trace the accused and there was absolutely no involvement of any employees of the complainant Corporation. It was further stated that the Opposite Party was requested to re-examine the case, but to no avail.  It was further stated that the Opposite Party was deficient, in rendering service, as also indulged into unfair trade practice. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the “Act" only), was filed.

4.             In   its   written statement,   the Opposite Party, stated that the Policy, in question, was issued to the complainant alongwith its terms & conditions (Annexure R-1).  It was further stated that there was no documentary evidence on record, which proved that there was a loss of Rs.1,95,000/-.  It was further stated that after receiving the intimation regarding theft, the Opposite Party immediately deputed a Surveyor to assess the loss and the said Surveyor submitted his survey report to it (Opposite Party). It was further stated that after receiving the survey report, the Opposite Party came to know that the loss, as claimed by the complainant, could not be indemnified, as it did not fall within the purview of the operative clause of Insurance Policy because as per the relevant Policy conditions, the claim could only be indemnified against loss by theft, where there was entry or exit by forcible and violent means, whereas, in the present case, there was no forcible or violent entry or exit, which fact was also admitted by the complainant, in his complaint and, as such, the claim of the complainant was repudiated vide repudiation letter (Annexure R-2). It was further stated that the complainant had taken coverage under Burglary Standard Policy Schedule and the element of force or violence was a condition precedent for burglary and housebreaking. It was further stated that the Opposite Party was neither deficient, in rendering service nor indulged into unfair trade practice.

5.                     The parties led evidence, in support of their case.

6.             After   hearing   the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, allowed the complaint, as stated above.

7.                     Feeling aggrieved, the     instant appeal, has been filed by the appellant/Opposite Party.

8.             We have heard the   Counsel for the parties, and have gone through the evidence and record of the case, carefully.

9.             The Counsel for the  appellant/Opposite Party submitted that the District Forum failed to consider that the complainant is a Corporation having its legal Advisor and it would not enter into any contract, without going through the terms and conditions thereof. She further submitted that the Surveyor’s Report could not be traced, despite best efforts, as the record was old. She further submitted that the complaint was barred by limitation because the alleged discovery of theft was made on 30.05.2009 and the complaint was instituted on 07.06.2013  i.e. after more than 4 years of the theft. She further submitted that even if the delay was counted from repudiation on 21.12.2010, the complaint was barred by limitation. She further submitted that the District Forum committed a grave error in condoning the delay without hearing the Opposite Party and without recording the reasons for condonation of delay in the impugned order. She further submitted that the element of force or violence is a condition precedent for burglary and housebreaking and in the absence of violence or force,  the complainant could not claim indemnification of the claim for theft. She further submitted that the complainant gave no justification for the alleged theft, despite round the clock security of one guard during the day and two at night. She prayed for setting aside the impugned order and allowing the appeal.

10.            The Counsel for the respondent/ complainant submitted that the respondent/complainant Corporation took an Insurance Policy from the Opposite Party for the stocks stored in the Warehousing Godown at Jakholi, District Kaithal vide Policy No.231202/48/2010/923. He further submitted that the incident of theft took place at the insured premises, which got noticed on the physical verification conducted on 30.05.2009, finding that 300 bags of HWC Wheat were stolen and the Insurance Company was intimated on 31.05.2009. He further submitted that the matter was intimated to the Police, and FIR was lodged, copy of which was also forwarded to the Insurance Company vide letter dated 01.10.2009.  He further submitted that as per the Final Investigation Report of the Police, dated 12.5.2010, theft was found to have been committed and it recorded the findings that inspite of investigation, it was unable to trace the accused and there was absolutely no involvement of any of the employees of the Corporation in the active incident of theft. He further submitted that the claim of Rs.1,95,000/- was lodged with the Insurance Company, but it wrongly repudiated the genuine claim of the complainant.  He further submitted that the District Forum rightly passed the impugned order and prayed for dismissal of the appeal, filed by the Opposite Party.

11.                   After giving our thoughtful consideration, to the submissions, raised by the Counsel for the parties, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be accepted, for the reasons, to be recorded, hereinafter.

12.            The first question, that falls for consideration, is, as to whether, the objection of the appellant that the complaint was time barred, before the District Forum, is justified or not. It is, no doubt, true that there was a delay of 134 days in filing the complaint, before the District Forum, for which, the complainant filed an application under Section 24-A of the Consumer Protection Act, 1986 read with Section 5 of the Limitation Act, for condoning the same. The District Forum condoned the delay of 134 days, in filing the complaint, vide order dated 03.07.2013. Thereafter, Sh.Sukaam Gupta, Advocate appeared on behalf of the Insurance Company (Opposite Party), on 07.08.2013, and a perusal of the zimini orders shows that neither the Counsel for the Opposite Party raised any objection regarding allowing the application for condonation of delay nor the appellant/Opposite Party filed any revision petition, challenging before this Commission legality of the order dated 03.07.2013. The order dated 03.07.2013, thus, attained finality. So, we are of the view that the plea raised by the Counsel for the appellant/Opposite Party, at this stage, that the complaint was barred by time, has no force, at all, and is, therefore, rejected.

13.            The next question, that falls for consideration, is, as to whether, the appellant/Opposite Party rightly repudiated the claim of the complainant. The answer, to this question, is in the affirmative. Admittedly, the complainant (Haryana Warehousing Corporation) took the Insurance Policy No.231202/48/2010/923 from the appellant/Opposite Party for the stocks stored in the Warehousing godown at Jakholi, District Kaithal. It is also the admitted fact that 300 bags of HWC Wheat were stolen at SWH Jakholi (Kaithal) i.e. the premises of the complainant, during the currency of the said Policy and the said theft was noticed on the physical verification dated 30.05.2009. Thereafter, the complainant Corporation informed the Insurance Company about the theft on the next day i.e. 31.05.2009. Simultaneously, the matter was also intimated to the Police and FIR No.119 dated 11.06.2009 (Annexure C-3) under Section 380 of IPC was lodged at P.S. Kaithal Sadar and copy of the same was forwarded to the Insurance Company vide letter (Annexure C-2). The claim amounting to Rs.1,95,000/- was lodged by the complainant, vide claim form (Annexure C-5), for the loss occurred, with the Opposite Party but it (Opposite Party) repudiated the claim of the complainant vide letter dated 21.12.2010 (Annexure C-7), on the ground that “There is no evidence of any tempering of boundary wall or fencing, therefore, burglary has not been established. Hence, claim has been repudiated as there was no forcible entry established as per policy condition.”

14.            The next question, that falls for consideration, is, as to whether, the claim of the complainant was covered under the terms and conditions of the Policy. The operative clause from the Burglary & Housebreaking Policy (Business Premises), Annexure R-1, is extracted below :-

   

              “Operative clause

              xxxxxxx

(a) Any loss or damage to property or any part  thereof whilst contained in the premises described in the schedule hereto due to Burglary or House-breaking (theft following upon an actual forcible and violent entry of and/or exit from the premises) and Hold-up.”

 

From the perusal of contents of the afore-extracted clause, presence of ingredient of actual forcible and violent entry of and/or exit from the premises, was required to be established for maintainability of the claim.  In the instant case, as is evident, from the contents of the F.I.R. there was reportedly theft.  There is not even a slightest allegation, in the F.I.R, that the theft was on account of forcible and violent entry. It is not understandable when a Chowkidar was deputed round the clock to guard the bags in the open plinth area at the Warehouse, then how could theft of so many bags had taken place, without any violence. In the face of the facts and evidence, on record, by no stretch of imagination, it could be said that the incident of theft in the absence of force and violent entry, could be said to be relating to burglary.  When there was no evidence, to prove the act of burglary, the question of entertaining the Insurance claim did not arise. In National Insurance Co. Ltd. Vs. Vasundhara Sales Pvt. Ltd., Revision Petition No.3490 of 2007, decided by the National Consumer Disputes Redressal Commission, New Delhi, on 30.03.2012, a case based on almost identical facts and terms and conditions of the Policy, as in the present case, it was also held that element of force or violence was a condition precedent for burglary and housebreaking. Thus, the District Forum erred in allowing the complaint against the Insurance Company/Opposite Party, granting claim amount of Rs.1,95,000/- alongwith interest, compensation and litigation expenses.

15.            For the reasons recorded above, the appeal, filed by the appellant/Opposite Party, is accepted, with no order as to costs. The order of the District Forum is set aside. Consequently, the complaint, qua it (appellant) is dismissed, with no order as to costs. 

16.            Certified Copies of this order be sent to the parties, free of charge.

17.            The file, be consigned to Record Room, after completion.

Pronounced.

12.08.2015                                                         Sd/-        

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

Sd/-

 (DEV RAJ)

MEMBER

 

Sd/-

(PADMA PANDEY)

        MEMBER