Haryana

StateCommission

FA/157/2016

United India Insurance Company Limited - Complainant(s)

Versus

M/s Geeta Sales Corporation - Opp.Party(s)

15 Nov 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

         

                                                         First Appeal No.157 of 2016

Date of Institution: 19.02.2016

                                                               Date of Decision: 15.11.2016

 

 

United India Insurance Company Limited, 4, New Colony above SBI, Gurgaon through its Divisional Manager, through authorized signatory of United India Insurance Company Ltd., Regional Office, Chandigarh, SCO-123-124, Sector 17-B, Chandigarh.

…..Appellant

Versus

 

 

M/s Geeta Sales Corporation, 144/16, Prem Nagar, Near Bhuteshwar Mandir Chowk,  Gurgaon, through its proprietor Sh.Jai Bhagwan, S/o Sh.Dahiya Ram, R/o 48/21, Raj Nagar, Gurgaon.

                                      …..Respondent

 

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

                             Mrs. Urvashi Agnihotri, Member.                                                                                                                                        

Present:              Shri S.S.Sidhu, Advocate counsel for the appellant.

Shri D.P.Sharma, Advocate counsel for the respondent.

 

                                                   O R D E R

R.K.BISHNOI, JUDICIAL MEMBER:

 

 It was alleged by the complainant that during intervening night of 11/12.12.2007 burglary took place in  his shop and articles worth Rs.4,78,849/- were taken by  burglars.  FIR No. 857 dated 12.12.2007 was registered for the offence punishable under section 380 and 457 of Indian Penal Code of 1860 (In short “IPC”).  He submitted his claim with the Opposite party (O.P.), but, nothing was paid.  He filed complaint before public utility service, Gurgaon on  22.06.2009 but withdrew the same.

2.      O.P. filed reply controverting his averments and alleged that the complainant did not take reasonable steps to safe guard property.  There was gap of one foot in between the door and the floor and any one could enter through the same. Even otherwise no force was used to enter the shop and this incident was not covered by the definition of burglary mentioned in the insurance policy which was as under:-

“The term of Burglary and/or housebreaking shall mean  theft involving entry into or exit from the insured premises by forcible and violent means theft or following assault or violence or threat thereof, to the insured or any employee of the insured or member of the insured’s family.”

Objections about accruing cause of action, limitation, maintainability of complaint etc. were also raised and requested to dismiss the complaint.

3.      After hearing both the parties, District Consumer Disputes Redressal Forum, Gurgaon (In short “District Forum”) allowed the complaint vide impugned order dated  16.10.2015 and directed as under:-

“We, therefore, direct the opposite party-Insurance Company to pay rs.4,78,849/-, as value of the stolen articles, with interest @ 9% p.a. from the date of filing of the complaint i.e. 14.05.2010 till realization.  The complainant is entitled to compensation for harassment and mental agony Rs.20,000/-.  He is also entitled to litigation expenses of Rs.3100/-.”

4.      Feeling aggrieved therefrom, O.P.-appellant has preferred this appeal.

5.      Arguments heard. File perused.

6.      Learned counsel for the complainant vehemently argued that   burglars forced their entry in the shop by breaking the door of stair case and  this incident was covered by burglary, so O.P. was liable to pay this compensation.

7.      This argument is devoid of any force.  Except averments raised in the complaint, there is no evidence on the file to show that there was any sign of forced entry. Complainant lodged FIR dated 12.12.2007 with the police, but, nowhere alleged therein that the burglars entered the shop by breaking the door.  He has not produced any photo or any other evidence to show that door was broken before the entry. Mere pleadings cannot take place of evidence.  There must be some evidence on the file to show that burglary had taken place as per opinion of Hon’ble Supreme Court expressed in United India Insurance Co.Ltd. Harchand Rai Chandan Lal IV (2004) VPJ 15 (SC).  It is specifically opined therein as under:-

“From the above discussion, we are of the opinion  that theft should have preceded with force or violence as per the terms of insurance policy. In order to substantiate a claim an insurer (insured) has to establish that theft or burglary took place preceding with force or violence and if it is not, then the Insurance Company will be well within their right to repudiate the claim of the insurer.”

8.      In case the insurance policy is pertaining to burglary there must be element of force and violation of 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. It has nowhere come in evidence that broken lock were taken into possession by police. All these facts create suspicion about this incident. It is also opined by Hon’ble National Commission in Md. Hafizuddin Vs. United India Insurance Company Ltd. 2005 (4) CPHJ 147 that when complainant has failed to establish forcible entry in premises, it cannot be considered as burglary. The O.P. is liable to re-imburse the amount in case of burglary and not otherwise.  Learned District forum failed to take into consideration all these aspects. So impugned order dated 16.10.2015 is hereby set aside. Appeal is allowed and complaint is dismissed.

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

November 15th, 2016             Urvashi Agnihotri                                R.K.Bishnoi,                                                               Member                                              Judicial Member                                                         Addl. Bench                                        Addl.Bench                

S.K.