1. This is an appeal preferred by the appellant/ Insurance Company questioning the correctness of the order dated 23.01.2023, passed by the State Consumer Disputes Redressal Commission, Jaipur, Rajasthan, whereby the complainant’s claim has been partly allowed for indemnifying the claim of burglary in the premises of the claimant that secured the risk under cover.
2. The allegations were  that a burglary  occurred on 05.03.2018, when the locks of the main gate, the godown gate  and the plant gate were broken by unidentified people, who stole several articles  and on coming to know of that an FIR was also lodged, whereafter an insurance claim was also made before the appellant/ Insurance Company.
3. The appellant company deployed a surveyor M/s. Mehta & Padamsey, who submitted a survey report on 25.07.2018. Clauses 5.00 to 9.04 of the said report are relevant which are extracted herein under:

“5.00 INCIDENT/CAUSE

5.01   As per our enquiry and as stated by Insured that production was closed in the said plant since December 2017. Out of total 12 employees had by Insured till December 2017, only two, Lahri Jogi and Pradyuman Maurya are presently employed by Insured as night and day time guards respectively. In the evening of 4^th March 2018, at about 7.00 PM, night duty guard Mr. Lahri Jogi had to visit SMS Hospital, Jaipur to see his relative who was admitted there and left Insured's premises unguarded.

5.02   On 05.03.2018, at about 9.00 am. when day time duty guard, Pradyuman reached the factory, he found that night guard was not present and main gate lock was broken. On enquiring further, he found the locks of production hall and office gate are also broken. He immediately called the night duty guard Lahri Jogi on his mobile, who also reached there at about 10.30 am. They informed to Mr. Harish Gangawat, one of the directors at Mumbai.

5.03   At about 4:00 p.m., Mr. Mukesh, a policeman from PS Kanota, visited the factory. On detailed enquiring it was found that 14 moulds along with some other items are missing from the factory.

5.04   Copies of statements of Insured and guards are enclosed.

6.00   POLICE REPORT

6.01   F.I.R.

On the basis of the complaint lodged by Mr. Harish Gangawat the PS Kanota have registered the said incident vide FIR No. 0160 dated 07.03.2018 under sections 457, 380 of IPC. Copy enclosed.

6.02   Final Police Report

The police investigated the matter but neither culprits could be apprehended nor the items stolen could be recovered/traced. The police submitted their Final Report no. 69/2018 dtd. 31.03.2018 in the court of Upper Civil Judge cum Metropolitan Magistrate, Bassi, Jaipur on 15.04.2018. Copy of the Final Report and Court Order Pertaining to the same are enclosed.

7.00   OUR OBSERVATION

7.01   During our visit (after 14 days of the loss), we enquired Mr. Harish Gangawat (director), Lahri Jogi (night duty guard), Mr. Pradyuman Maurya (day duty guard). They showed us the broken locks. We also found tell-tale marks of forcible entry on the doors etc.

7.02   We found only two moulds (double cavity) which are installed/fitted in the moulding machines. We also found the marks of storing of moulds near the moulding machines from where 14 nos. of moulds were reportedly stolen.

7.03   We are of the opinion that a burglary could have taken place at Insured's factory as stated by the Insured.

7.04   Apart from 14 nos. of moulds, one submersible pump, 108 plastic crates and some spare items like pipes, cables, electric wires etc. are also reportedly stolen in the said incident.

7.05   Modus Operand! The absence of the night duty guard at the factory at the time of incident may be a simply coincidence but it appears that culprits were aware that there was no guard in night on 04.03.2018. Taking the benefit of the same, they first broke open the lock of side door of the main gate and entered the premises. Then, culprits would have broke opened the locks of production hall and other sections also. They might have brought some vehicle inside the premises by breaking the lock at main gate from inside loaded the stolen moulds and other items in it and fled away.

8.00   INSURED'S CLAIM

Insured have claimed a total amount of Rs.19,24,800/- as per details given under:-

Copy of Insured's claim is enclosed.

9.00   REMARKS

9.01   We are of the view that factory was closed and there was no production for about last 3 months from incident. No other person, except two guards Lahri Jogi and Pradyuman Maurya have been employed by the Insured for night and day time respectively since December 2017.

9.02   Point No. 2 of Special Condition of the Policy held by the Insured reads as under-

Under any of the following circumstances the insurance ceases to attach as regards the property affected unless the Insured, before the occurrence of any loss or damage, obtains the sanction of the Company signified by endorsement upon the Policy by or on behalf of the Company.

(a) If the trade or manufacture carried on be altered, or if the nature of the occupation of or other circumstances affecting the building insured or containing the insured property be changed in such a way as to increase the risk of loss or damage by Insured Perils.

(b) If the building insured or containing the insured property becomes unoccupied and so remains for a period of more than 30 days.

(c) If the interest in the property passes from the insured otherwise than by will or operation of law.

The Insured have stated as under :-

"Our production is closed since December 2017 due to change in the design of label. During the burglary incident only guard was there on duty and staff members were on holidays since 2017".

From the above it is clear that Insured's factory was unoccupied since December 2017 (about more than 3 months). Also, the Insured have not informed the Insurers and not obtained an endorsement and hence as per the condition mentioned above the Insurance ceases to attach and hence there is no liability.

9.03   The Point No. 4 of General Exclusions applicable to all Sections of the reads as under:-

"Loss, damage and/or liability caused by or arising out of willful act or willful neglect or gross negligence of Insured or his responsible representative".

9.04   On the night of incident, Lahri Singh, the Guard on duty had left the factory unguarded to SMS Hospital Jaipur without informing anybody which is a gross negligence on his part as Insured's responsible representative.”

4. The claim was repudiated on the basis of the said report on 27.08.2018. The repudiation letter is extracted herein under:

“CIN: US6000MH2009PLC190546

46 Pusa Road, 2^nd  Floor

Karal Bagh, Near Metro Station Delhi-110005, India

Website: www.sbigeneral.in

Dated 27/08/2018

M/s. Horizon Breweries Private Ltd.

F-152, Hirawali Ind,

East Kanota, Jaipur,

Rajasthan-303012

Dear Sir.

Re Claim No. 480732, Policy No. 1109019-03, Date of loss on 04/03/2018

This refers to the intimation of the captioned claim dated 16/03/2018 wherein we have deputed IRDA Licensed surveyors M/s Mehta & Padamsey Insurance Surveyor & Loss Assessor for the survey & assessment of claim.

We are now in receipt of survey report wherein it is observed your Unit was closed for last 3 months with no production being carried out since December 2017. Thus said unit had become Silent Risk and no endorsement to that effect had been endorsed in policy, with no such intimation being given to Us/Insurance Company. Only two guards had been employed at the time of incident, however at the time of loss even stationed Security Guard was not found on duty. Since there is material change in risk/occupancy, we are not in position to consider subject claim. In this regard we would like to highlight policy condition reading as:-

“2. Under any of the following circumstances the insurance ceases to attach as regards the property effected unless the insured, before the occurrence of any loss or damage, obtains the sanction of the Company signified by endorsement upon the Policy by or on behalf of the Company:-

(a) if the trade or manufacture carried on be altered, or if the nature of the occupation of or other circumstances affecting the building insured or containing the insured property be changed in such a way as to increase the risk of loss or damage by insured perils."

Also various documents solicited by surveyor have not been provided till date.

We regret consequently to express our inability to proceed further with the claim and are treating this as No Claim. We would like to place on records our concern for the loss and would look forward to serving you once again in future.

The foregoing repudiation by us on liability is issued based on the facts as present. We reserve the right to extend or modify this repudiation in the event of new additional facts or circumstances brought to our knowledge.

Should you believe that we have overlooked any material fact or circumstance, or should you wish to present an alternative interpretation of any relevant policy provision, please draw the same to our attention for our further consideration by contacting SBI GIC GRIEVANCE REDRESSAL COMMITTEE, address of which is given hereunder, with details for resolution.

SBI GENERAL INSURANCE CO. LTD. GRIEVANCE REDRESSAL OFFICER, 101,201,301, Natraj, Junction of Western Express Highway & Andheri Kurla Road, Andheri East, Mumbai-400069 PHONE: 1800 -22-1111 (MTNL/BSNL, users) and 1800-102-1111(Other users) E-MAIL: customer.care@shigeneral.in

Thanking you & assuring you of our best services as always.

Sincerely Yours

Sd/-

Authorised Signatory”

5. Aggrieved by the repudiation the respondent preferred the complaint before the State Commission, which was partly allowed holding that the repudiation proceeded on incorrect facts.
6. Since the claim had been partly allowed and the complainant was dissatisfied with the amount awarded, an appeal was preferred before this Commission, which was belated, being First Appeal No. 645 of 2023 that was dismissed on 11.07.2023 on the ground of delay. The order is extracted herein under:

“The present appeal is filed by the appellant under Section 51 of the Consumer Protection Act, 2019 against the order passed by the Rajasthan State Consumer Disputes Redressal Commission, Jaipur in Complaint no.230 of 2019 dated 23.01.2023.

2.     Along with the appeal, IA no. 7714 of 2023, an application for condonation of delay has been filed by the appellants for condonation of 94 days delay.

3.     I have heard the learned counsel for the appellant and have also carefully perused the record.

4.     The grounds taken by the learned counsel for the appellant is that the certified copy of the impugned order was received by the Appellants on 02.02.2023. On perusal of the order dated 23.01.2023 the State Commission has wrongly failed to allow the complaint to extent of Rs.19,24,800/- and has also failed to award any compensation qua mental and physical hardship suffered by the appellant. Learned counsel for the appellant submits that since many documents were in Hindi the same were sent for translation, which it took considerable time as the documents were detailed and lengthy. The translated documents were received on 15.05.2023 and thereafter the counsel for the appellant drafted the said documents. The said draft appeal was sent to the appellant for execution of the affidavits. Hence, there was a delay of 94 days in filing the present appeal was neither intentional or deliberate. Hence, the learned counsel for the appellant prays for condonation of delay of 94 days in filing the present appeal.

5.     The grounds taken by the appellant to condone the delay of 94 days have been considered. Cause shown is not sufficient. The Hon’ble Supreme Court has held that settled legal proposition of law of limitation has to be applied with all its rigour when the statute so prescribes, though it may harshly affect a particular party. The appeal has not been able to show adequate and sufficient reasons which prevented them to approach this Commission within the limitation.

6.     The Hon’ble Supreme Court has also held that party who has not acted diligently or remain inactive is not entitled for condonation of delay. The Hon’ble Supreme Court in the case of “R. B. Ramlingam vs. R. B. Bhavaneshwari, I (2009) CLT 188 (SC)” has also described the test for determining whether the petitioner has acted with due diligence or not.  The Hon’ble Supreme Court has held as under:-

"We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.”

 7.     Condonation of delay is not a matter of right and the applicant has to set out the case showing sufficient reasons which prevented them to come to the Court/Commission within the stipulated period of limitation.   The Hon’ble Supreme Court in the matter of Ram Lal and Ors. Vs. Rewa Coalfields Limited, AIR 1962 Supreme Court 361 has held as  under:

“It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

8.     The burden is on the applicant to show that there was sufficient cause for the delay.  The expression ‘sufficient cause’ has been discussed and defined by the Hon’ble Supreme Court in the case of Basawaraj & Anr. Vs. The Spl. Land Acquisition Officer, 2013 AIR SCW 6510, as under:

“Sufficient cause is the cause for which defendant could not be blamed for his absence.  The meaning of the word “sufficient” is “adequate” or “enough”, inasmuch as may be necessary to answer the purpose intended. Therefore, the word “sufficient” embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the view point of a reasonable standard of a cautious man.  In this context, “sufficient cause” means that the party should not have acted in a negligent manner or there was a want of bonafide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has “not acted diligently” or “remained inactive”.  However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever he court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the Court that he was prevented by any “sufficient cause” from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay.  The court has to examine whether the mistake is bonafide or was merely a device to cover an ulterior purpose. (See: Manindra Land and Building Corporation Ltd.  V. Bhootnath Banerjee &Ors, AIR 1964 SC 1336; LalaMatadin V. A.Narayanan, AIR 1970 SC 1953; Parimal V. Veena alias Bharti AIR 2011 SC 1150 L2011 AIR SEW 1233); and ManibenDevraj Shah V. Municipal Corporation of Brihan Mumbai, AIR 2012 SC 1629: (2012 AIR SCW 2412).

It is a settle legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes.  The Court has no power to extend the period of limitation on equitable grounds.  “A result flowing from a statutory provision is never an evil.  A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation.”  The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same.  The legal maxim “dura lexsedlex” which means “the law is hard but it is the law”, stands attracted in such a situation.  It has consistently been held that, “inconvenience is not” a decisive factor to be considered while interpreting a statute.

………..

The law on the issue can be summarized to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the “sufficient cause” which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay.  No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever.  The application is to be decided only within the parameters laid down by this court in regard to the condonation of delay.  In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature”. 

 9.     Also in the case of Anshul Aggarwal Vs. New Okhla Industrial Development Authority (2011) 14 SCC 578, the Hon’ble Supreme Court has warned the Commissions to keep in mind while dealing with such applications the special nature of the Consumer Protection Act.  The Hon’ble Supreme Court has held as under:

“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this court was to entertain highly belated petitions filed against the orders of the consumer foras."

10.   In view of the above, we find no sufficient ground to condone the delay.  The application for condonation of delay is accordingly dismissed. As a consequence, Appeal is also dismissed in limine being barred by limitation.”

7. Thus, in so far as the respondents claim for enhancement or even the challenge on merits is concerned, the same attains finality with the dismissal of the said appeal. Needless to mention that in terms of Section 24 of the Consumer Protection Act, 1986 which provision has been retained as Section 68 in the Consumer Protection Act, 2019, the said order has become final.
8. However, the Insurance Company had also filed this appeal questioning the correctness of the merits of the order that was entertained and after hearing the learned counsel for the parties the delay of 114 days was condoned vide order dated 20.12.2023 and the appeal was admitted for hearing.
9. Mr. Navneet Kumar, learned counsel for the Insurance Company had urged that the special conditions particularly clause 2 (a) and (b) of the policy conditions read with clause 4 of the general exclusions have been erroneously construed by the State Commission and therefore the impugned order deserves to be set aside. He submits that the manufacturing unit had already closed and was not undergoing production for almost three months, when the incident took place and hence there was an alteration in the functioning of the unit which was never informed to the Insurance Company. This violated special condition no. 2 (a), in as much as, such altered condition amounted to a change that had increased the risk involved regarding the premises and the goods stored therein. He submits that non-production resulted in total un-occupation of the premises and there was nobody physically present. This unoccupied status was also a violation of special condition no. 2 (b), in as much as, admittedly the production had stopped for three months which was more than 30 days.
10. Turning his guns towards the findings recorded by the State Commission, he submits that the State Commission diverted towards what is wilful neglect and interpreted it to mean that there was no such neglect on the part of the complainant. He submits that the surveyor as well as the repudiation letter both categorically recorded lapses on the part of the complainant on the basis of the unchallenged fact that the night guard Mr. Lahri Jogi, who was supposed to be guarding the premises at night, when the burglary occurred, had absented himself from duty leaving the premises unattended at 7 p.m.  and returned back next day at about 9 a.m. Learned counsel submits that this fact that the factory premises was left unguarded for almost 12 hours was a clear negligence thereby increasing the risk and an open invitation to burglary. It is in these circumstances that the exclusion clause no. 4 of gross negligence apart from the special conditions was clearly attracted.
11. He therefore submits that on all scores the State Commission has committed an error by not appreciating the aforesaid facts, the surveyor’s report and the reasons recorded in the repudiation letter.
12.  He has cited the dictionary meaning of the word ‘unoccupied’ with the help of Oxford Advanced Learner’s Dictionary  and the Britannica Dictionary, respectively, contending that the word means not being used  with nobody living there or using the premises. He has further submitted that the surveyor’s report has to be given credit and has cited the order of this Commission in the case of Oriental Insurance Company Limited vs. Mehta Wool Store,   III (2007) CPJ 317 (NC). He has also cited the decision in the case of Export Credit Guarantee Corpn. of India Ltd. v. Garg Sons International, (2014) 1 SCC 686,  where the Apex Court has held that the terms of  an insurance contract should always to interpreted in the words in which the contract is expressed and the court should avoid rewriting or substituting the terms and conditions thereof.
13.  He therefore submits that there was an alteration and there was a breach and violation of the special conditions as the premises was left unoccupied for more than 30 days and finally the absence of the night guard is clearly covered under the exclusion clause of gross negligence.
14. He has then urged that in the written submission certain arguments have been advanced regarding the complainant having no knowledge of the terms and conditions of the policy. He submits that this cannot be accepted, in as much, as the complainant was paying premium, which was being debited from his account and for this proposition he has relied on paragraph 6 of the order passed by this Commission in the case of New India Assurance Co. Ltd. v. Durga Bricks Industries, 2020 SCC OnLine NCDRC 357. He has further relied on two other decisions to contend that this excuse of not having knowledge of the special condition or the terms and conditions is unfounded and he has cited the order passed by this Commission in the case of Gas Ghar  Vs. Oriental Insurance Company Ltd., III (2006) CPJ 377 (NC)  and the order passed in the case of  Aman Kapoor v. National Insurance Co. Ltd., 2017 SCC OnLine NCDRC 1130. 1130
15. Learned counsel for the respondent however, submitted that there is no negligence much less a gross negligence and so far as the premises is concerned the same cannot be treated to be the unoccupied as the concerned guard had left the premises in an emergency to a hospital. This is not negligence and consequently the circumstance as alleged by the learned counsel is without any substance. He has further submitted that there was no alteration and even if there was cessation of production and manufacture, the word ‘alter’ does not cover any such stoppage of production. He submits that the factory has not started any other activity which may amount to an alteration. He therefore submits that neither the special conditions nor the exclusion clause in any way applied on the facts of the present case.
16. Learned counsel for both the parties have also raised their submissions with regard to the assessment of loss and the compensation awarded. As noted above the question of enhancement does not arise as the appeal filed by the respondent/ complainant has been dismissed as being barred by limitation.
17. Having heard learned counsel for the parties, the arguments have been advanced on the strength of the two categories of clauses under the insurance policy. Clause 2 (a) and (b) of the Special Conditions is extracted herein under:

“Special Condition

2. Under any of the following circumstances the insurance ceases to attach as regards the property effected unless the Insured, before the occurrence of any loss or damage, obtains the sanction of the Company signified by endorsement upon the Policy by or on behalf of the Company.:-

(a) If the trade or manufacture carried on be altered, or if the nature of the occupation of or other circumstances affecting the building insured or containing the insured property be changed in such a way as to increase the risk of loss or damage by insured perils.

(b) If the building insured or containing the insured property becomes unoccupied and so remains for a period of more than 30 days.”

          The second clause on which the arguments have been advanced, the General Exclusions applicable to all Sections of the Policy, namely, clause 4 thereof, which is extracted herein under:

4. Loss, damage and/ or liability caused by or arising out of the willful act or willful neglect or gross negligence of the insured or his responsible representatives.

18. A perusal of the special conditions indicates that under any of the conditions mentioned therein the insurance ceases to attach. This obviously means that the protection or risk coverage under the policy will cease to operate if the trade or manufacture carried on is altered. Mr. Navneet Kumar, learned counsel emphasised that this fact of the production having been stopped for three months amounts to alteration in the status of the factory. This is silent risk for which an endorsement separately is needed. The word ‘alter’ means to make a thing otherwise or different in the same respect or make some changes in character, shape, condition, position, quantity, value, etc. without changing the thing itself for another. In essence it is to modify or to change the appearance. All this therefore connotes undergoing some change in character or appearance. The question is as to whether the stopping of production in a factory amounts to an alteration of the trade or manufacture carried out in the factory. The said condition of stoppage of production in the factory has been described in the repudiation letter quoted hereinabove as ‘the unit had become silent risk’. The letter of repudiation states that no endorsement to that effect had been endorsed in the policy nor any intimation was given to the Insurance Company.
19. Applying the ordinary meaning as indicated above, it is not the case of the Insurance Company that there was any change in the nature of manufacture or the trade of the complainant. The factory had stopped production on account of certain change in the design of label which is not disputed. This has been recorded by the surveyor in Para 9.02 of the report quoted above. There was no evidence to the effect that the factory had started producing any other material or it had been converted into a manufacturing unit of some different product. The nature of the trade and manufacture nowhere had been altered. To further understand this, the survey report nowhere indicates an alteration in the manufacture or the trade of the business by the complainant except that it had stopped manufacturing. The unit had not been converted into some other manufacturing unit or had brought about any change in trade. The argument of Mr. Navneet Kumar, on this score on behalf of the appellant therefore does not stand to reason or logic and is accordingly rejected.
20. It has then been argued that the nature of the occupation or other circumstances affecting the building insured had changed. The contention raised is that with the production having stopped there was no activity and it was not occupied and for that the contention raised is that combined with this and clause 2 (b), the premises became unoccupied and remained so for almost three months that was beyond thirty days. This was a silent risk situation.
21. The aforesaid contention has to be understood in the background that it was not physical humans occupying the premises that was subject matter of insurance. The insured goods were the building and the entire machinery etc. stored inside it. Learned counsel for the appellant has urged that the word ‘unoccupied’ means not put to use and uninhabited. In this regard the word ‘unoccupied’ means not occupied or empty or engaged in some work or pursuit. The word can also mean lying idle or not being put to use. It can also mean uninhabited. In the present context, it is not the case of the Insurance Company that the complainant had removed its effects and had made any declaration of disuse about the factory. The building and the goods and machinery etc. inside the premises pertaining to the manufacturing process of the unit was very much inside it. It had not been abandoned. The burglary resulted in the stealing of the goods inside that were catalogued and reported to the police and were also indicated in detail to the Insurance Company through the surveyor’s report in Para 5.03, 7.02 and 7.04. It is correct that the manufacturing process had been halted, but neither the machinery had been dismantled by the insured nor the effects inside the building had been removed. The same original equipments were housed inside the premises, part of which was stolen. The Complainant had not commenced a new venture or altered the unit to any different form. They continued to occupy the space of the building and the goods remained inside the building. The insured machinery and the goods therefore were occupying the premises. There is no change of location nor any alteration so as to treat the property to have been abandoned. Even if the production had been stopped for three months as alleged, the premises was not empty or unoccupied and had remained temporarily unproductive. The non-production or cessation of the manufacturing process for the time being in the factory cannot be equated as being unoccupied.
22. Coming to the issue of the physical presence of human heads in a factory, even assuming that since there was no production going on, yet the fact remains that as per the surveyor report the factory was a manufacturing unit of selling of packaged drinking water that was premised in a building in a single block with different sections of bottle manufacturing, testing, water purifying, bottling, packing, storage and dispatch. The surveyor had also submitted photographs. The unit had 12 employees but at the time of inspection there were only 2 employees deputed as guards, namely, Mr. Lahri Jogi and Mr. Pradyuman Maurya. One of them used to perform the duties during day time and the other at night hours and hence the aforesaid position does indicate that the factory was being looked after and had not been abandoned or left unoccupied. The conditions therefore on the strength of said contentions, cannot be construed to treat the premises unoccupied nor can it be held that the status of the premises had been changed in a way that would increase the risk of loss or damage of insured perils. Clause 2 of the special conditions read as a whole therefore does not get attracted on the facts of this case. The Police Head also reported theft but at the same time, the surveyor in Para 7.05 of its report has observed that theft might have taken place and the goods might have been loaded on a vehicle with which the culprits fled away.
23. Consequently, there was no alteration and all precautions had been taken by the complainant to guard the premises. The premises therefore cannot be said to have remained unoccupied for more than 30 days so as to attract the special clauses.
24. After all even a factory which may have 8 working hours a day, in the present case a bottling plant for mineral water, is not supposed to nor is it alleged to be running during night hours. No argument therefore can be raised, that during night hours the factory remains unoccupied and therefore if a burglary takes place during night hours, the special conditions would be attracted. The insurance cover does not exclude liability of non-working hours. This is only to test the argument of the learned counsel for the appellant for applying the special conditions as suggested. Nonetheless, the special conditions are attracted only if the premises remains unoccupied for more than 30 days. In the instant case, firstly there was no such abandonment so as to construe the premises to be unoccupied as already reasoned out hereinabove and secondly the guards who had been deployed are not stated to have been absent for more than 30 days.
25. This takes us to the next argument which has been advanced vehemently based on clause 4 of the general exclusions extracted hereinabove. On this count, the State Commission has adverted to the phrase “wilful neglect”  as alleged on the part of the complainant and it has been held by the State Commission that no such neglect is perceivable. It is correct that so far as the complainant is concerned no neglect can be attributed on them as they had deployed the guards for day and night duties. If the night guard absented himself as alleged, there is no evidence that the complainants had any knowledge or had relieved the night guard from duties. There is no voluntary conduct of the complainants to demonstrate that the night guard on the date of the incident had absented on account of any default that can be attributed to the complainant. The guard seems to have left in some medical emergency. It is correct that the absence of the guard is not for a few moments but overnight nonetheless this was not a wilful neglect by the complainant. The guard is a responsible representative and his absence was on account of his personal cause of some medical attendance.
26. The argument of the learned counsel for the appellant is that the absence of the guard, which fact remains  unchallenged, was clearly a gross negligence which is attributable to the complainant, in as much as, the guards are responsible representatives of the complainant. The contention is that the guard, namely, Mr. Lahri Jogi, who was to be on duty on the night of the incident had left the factory unguarded to visit his relative at SMS Hospital, Jaipur without informing anybody. According to the learned counsel the guard being a representative of the insured had the responsibility to inform either the complainant or to have made arrangements before relieving himself from duty voluntarily and leaving behind the premises unguarded. The negligence was not for a short time but almost for 12 hours which was sufficient to have allowed the burglars to have forced themselves inside the premises with an open opportunity to cause the damage and the loss. This therefore according to the appellant was gross negligence and the conduct of the guard cannot be diluted on the ground that he had to leave in an emergency to the hospital.
27. The ordinary meaning of negligence in such complaints is the absence of taking due care. This simple definition of negligence in civil matters and torts has been adopted for long. The question is as to whether the complainants had failed to take due care or not. As per the survey report itself the guard had absented without informing anybody. This is categorically recorded in clause 9.4 of the report which has been extracted hereinabove. The complainant therefore cannot be blamed for having not taken due care as they had deployed a night guard, who absented without informing them.
28. The question is as to whether the phrase ‘his responsible representatives’ makes the complainant liable for the same or not.
29. On enquiry from the learned counsel, there is no specific endorsement in the terms and conditions of the policy for deployment of guards at the premises as a condition precedent for covering the risks.
30. Learned counsel for the appellant urges that the guards were responsible representatives and the fact of the absence of the guard during night hours as recorded by the surveyor and accepted by the Insurance Company has nowhere been challenged or assailed either before the State Commission or before this Commission, where the appeal of the complainant had already failed. In these circumstances, the aforesaid facts leads to an undeniable probability of the burglary having happened during the absence of the night guard whose responsibility lay in guarding the premises and as per the records he had admittedly left the premises unguarded for almost 12 hours. The aforesaid fact having been demonstrated by the Insurance Company therefore leads to a conclusion that the burglars might have found this opportunity to have forced their entry inside the premises in the absence of the night guard, whose duty and responsibility as a representative of the complainant was to secure the premises and not leaving it unguarded.   
31. The aforesaid arguments could have been appreciated had this issue of gross negligence as contained in Exclusion Clause No. 4 been specifically referred to in the letter of repudiation dated 27^th August, 2018. The repudiation letter nowhere refers to any act of gross negligence as per Exclusion Clause No. 4 extracted hereinabove. The absence of any such reason for repudiation disallows the Insurance Company to take a stand beyond what has been stated in the letter of repudiation.  The law in this respect was considered by the Apex Court in the case of Galada Power & Telecommunication Ltd. v. United India Insurance Co. Ltd., (2016) 14 SCC 161. In that case, the issue was regarding delay in the period referred to in the duration clause. The Apex Court after reproducing the relevant clause observed that the letter of repudiation does not whisper a single word with regard to delay or the duration clause.  Paragraph 13 of the judgement is reflective of this proposition and therefore is extracted hereinunder:

“13. The National Commission has relied upon Clause 5 and on that basis has rejected the claim by putting the blame on the complainant. The letter of repudiation dated 20-9-1999, which we have reproduced hereinbefore, interestingly, does not whisper a single word with regard to delay or, in fact, does not refer at all to the duration clause. What has been stated in the letter of repudiation is that the claim lodged by the complainant does not fall under the purview of transit loss because of the subsequent investigation report. It is evincible, the insurer had taken cognizance of the communication made by the appellant and nominated a surveyor to verify the loss. Once the said exercise has been undertaken, we are disposed to think that the insurer could not have been allowed to take a stand that the claim is hit by the clause pertaining to duration. In the absence of any mention in the letter of repudiation and also from the conduct of the insurer in appointing a surveyor, it can safely be concluded that the insurer had waived the right which was in its favour under the duration clause. In this regard, Mr Mukherjee, learned Senior Counsel appearing for the appellant has commended us to a decision of the High Court of Delhi in Krishna Wanti v. LIC [Krishna Wanti v. LIC, (2000) 52 DRJ 123 : 1999 SCC OnLine Del 898] , wherein the High Court has taken note of the fact that if the letter of repudiation did not mention an aspect, the same could not be taken as a stand when the matter is decided. We approve the said view.”

32. The Apex Court held after quoting authorities in paragraph 14, 15, 16 & 17 of the report and finally in paragraph 18 held that this amounted to a positive action whereby the Insurer has waived its right to advance the plea on the ground of the duration clause. The sum and substance of the said proposition therefore is that the Insurance Company cannot travel beyond the reasons given in the repudiation letter even though a reference in this case to the same had been made by the surveyor. Learned counsel for the Appellant therefore cannot be permitted to improve upon the reasons given in the repudiation letter nor can the Appellant Company be permitted to advance a submission by crossing the said legal bar. The ratio of the Apex Court therefore on the facts of the present case having regard to the terms of the repudiation letter dated 27^th August 2018 squarely applies as there is no recital in the letter of repudiation about any allegation of gross negligence on the part of the Complainant or his responsible representative invoking Exclusion Clause No.4. Consequently, Exclusion Clause No. 4 cannot be pressed into service to legally suspect the impugned order as infirm on that ground.
33. Coming back to Clause 2 of the special conditions the increase in risk of the loss or damage in the said clause is only related to any alteration of the nature of occupation of the building or other circumstances affecting it. As already indicated above, neither the nature of manufacture was changed nor the building was utilised for any other purpose and nor was it made accessible by the Complainant so as to increase any risk. As noticed in the surveyor’s report the burglary was committed after breaking open the locks of the main gates, the godowns and other parts of the factory. The premises was therefore secured at the end of the Complainant and in such circumstances, it cannot be said that the risk factor had heightened in terms of Special Condition Clause No.2.
34. For all the reasons hereinabove, the Insurance Company has been unable to dislodge the conclusions drawn by the State Commission which are hereby confirmed. The Appeal is accordingly dismissed and the order of the State Commission is upheld.