Present (1) Nisha Nath Ojha,
District & Sessions Judge (Retd.) President
(2) Smt. Karishma Mandal,
Member
Date of Order : 16.06.2016
Nisha Nath Ojha
- In the instant case the Complainant has sought for following reliefs against the Opposite parties:-
- To direct the opposite parties to pay the claim amount Rs. 7,92,429/- along with 12% interest.
- To direct the opposite parties to pay Rs. 50,000/- ( Rs. Fifty thousand only ) as litigation costs.
- The facts of this case lies in a narrow compass which is as follows:-
The complainant has asserted that M/s Galaxy Care is a proprietorship firm and doing business through proprietor Mr. Kishor Kunal relating to repair work of mobile specially for Nokia company (vide annexure – 1&1/1).
The complainant has asserted that complainant’s shop situated at main road, kankarbagh was insured vide policy no. 40170019399 where under the electric goods were insured by opposite parties for which a premium of Rs. 26,903/- was to be paid and aforesaid insurance covered period since 13.01.2009 to 12.01.2010 as will appear from annexure – II & II/I.
It has been further asserted by the complainant that on 24/25.02.2009 an occurrence of burglary was committed in complainant’s shop for which an F.I.R. was lodged on 25.02.2009 vide kankarbagh P.S. Case no. 54/09 as will appear from annexure – III and thereafter charge sheet was submitted against accused Mantu Kumar and kailash Kamath U/s 461,379/411 IPC as will appear from annexure – III/I. After aforesaid occurrence, the information of burglary was communicated to opposite parties on the same day by telephone as well as in writing and thereafter a surveyor of the company came to the shop of complainant and inspected the place of occurrence. The complainant thereafter submitted a written claim to the said surveyor on 25.02.2009 as will appear from annexure – IV. After that, the complainant has written several letters on different dates to the opposite parties but there was no result from other side. The photo copy of aforesaid letters have been annexed as annexure – V, V/1 and V/2.
The complainant has further asserted that a written letter dated 08.09.2009 was received by complainant through post whereby and where under the claim of the complainant was rejected on three grounds mentioned in the aforesaid letters which has been annexed as annexure – VI.
The complainant after receiving the aforesaid letter i.e. annexure – VI has written a letter to the opposite parties on 24.09.2009, 25.09.2009 and 23.11.2010 but his claim has not been settled. The copy of the letters has been annexed as annexure – VII, VII/1, VII/2, VII/3 and VIII, VIII/1. Thereafter no reply was received by the complainant.
The complainant has asserted that dues to said burglary he was put to loss of Rs. 7,91,429/- and this amount the complainant is entitled to receive from the opposite parties.
On behalf of opposite parties i.e. ICICI Lombard General Insurance Co. Ltd. and others a show cause/ written statement has been filed stating therein that there is no deficiency or latches on the part of opposite parties in service to the complainant.
It is further stated that the complainant is not the consumer as the complainant is a shop and engaged in commercial activities.
It has been further stated in Para – 9 that the complainant lodged a claim before Insurance Company for burglary in insured shop on 25.02.2009 and thereafter the matter was processed and for settlement of claim as per terms and conditions of the policy and a surveyor was deputed by the insurance company for assessment of the loss.
In Para – 11 of the show cause opposite parties has asserted the following facts, “that the said surveyor and loss assessor vide report dated 06.07.2009 observed that there was breach of special condition and warranties of the policy since the shop was not guarded 24 hrs, no burglary alarm was fitted in shop and as cash was covered only in business hours. As per report of the surveyor the claim is not admissible under the said policy. The insurance company also deputed an investigator to investigate who also found breach of policy condition.”
The surveyor report has been annexed as annexure – A.
On behalf of complainant several documents have been filed by way of evidence U/s 13(4) (iii) of the consumer protection Act, 1986 which is in the record.
On behalf of complainant a written notes of arguments has also been filed.
Heard the learned counsel for the parties in detail.
From bare perusal of the annexure – A it is crystal clear that the claim of the complainant has been rejected on the following grounds, “ that the shop was not guarded 24 hrs. The shop remained unguarded for 3 hrs in the morning (6 to 9 A.M. ) and 3 hrs in the evening (7 to 10 P.M.). hence out of 24 hrs., the shop remained unguarded for 6 hrs, which is a clear breach of the warranty period in the policy. Hence it was found that the insured did not take reasonable care in safe guarding the property as per the warranty provided in the policy.
No burglary alarm was fitted inside or outside the shop.
As per the policy the coverage the cash is covered only during business hours but the loss of cash (if any) took place after business hours.
So far the maintainability of the case is concerned. It is needless to say that the claim of the complainant had denied vide letter dated 08.09.2009 and this case has been filed on 06.06.2011 i.e. within the period of 2 years from the date of cause of action because cause of action arose on 08.09.2009. hence this complaint is maintainable.
It is the case of the complainant that his premises was safe guarded by a private guard despite the fact that appointment of a private guard was not in terms and conditions of the policy.
The complainant has asserted on affidavit that he has kept a private guard for safety of his shop. The opposite parties has not been able to show that the aforesaid assertion on affidavit is not true. The very fact that shop was properly locked and lock and grill portion was broken by burglars, definitely points out towards the fact that complainant had taken steps for safe guarding his shop.
It is needless to say that the word safe guard denotes proper protection of the premises.
In our opinion the aforesaid fact coupled with the fact that the complainant had employed private guard for protection of his shop clearly proves that the complainant has taken much care in safe guarding his shop and the aforesaid fact cannot be brushed aside in the light of surveyor report which is without basis and based on personal assessment.
Apart from it, the opposite parties have raised objection that the complainant has not installed burglary alarm in his shop. In this regard the complainant has asserted that he has installed burglary alarm, and in support of which he has annexed as Annexure –VI/1 and VI/2 stating therein that at the time of insuring the premises one Vinay Singh and Vikas Padadhikari and other person had visited the shop and made enquiry and put a certain question which was replied by the complainant and after being satisfied that all the conditions of the insurance has been fulfilled, the shop of the complainant was insured. The complainant has asserted the aforesaid facts in details in Annexure – VII. The opposite party has not brought any chit of paper on the record which could prove that the aforesaid annexures of the complainant are wrong and fabricated.
In this regard we think it proper to mention Annexure – II on page 26 of complaint petition. The burglary has been defined and the case of the complainant comes under the definition of burglary.
Apart from it the complainant filed several documents by way of evidence under section 13(4) (iii) of Consumer protection Act, 1986 annexing several job sheets as well as loss stock of LCD and has asserted that he has been put to loss Rs. 7,91,429/-. The opposite parties have not denied or have been able to prove that the aforesaid documents are not genuine.
Before parting with case we would like to mention that police has also found the entire occurrence true.
We have briefly discussed the entire facts and circumstances of the case and perused several documents aduced before us under the provision of law and we find and hold that by rejecting the claim of the complainant the opposite parties have committed serious deficiency in their service.
We direct the opposite parties jointly and severally to pay Rs. 7,92,429/- ( Rs. Seven Lakh Ninety Two Thousand Four Hundred Twenty Nine only ) to the complainant within a period of two months from the date of receipt of this order or certified copy of this order failing which the opposite parties will have to pay an interest @ 12% on the aforesaid amount till its final payment.
Opposite parties are further directed to pay Rs. 50,000/- ( Rs. Fifty Thousand only ) to the complainant by way of compensation and litigation costs within the period of two months.
Accordingly this case stands allowed to the extent indicated above.
Member President
