(Delivered on 14/06/2016)
PER SHRI B.A. SHAIKH, HON’BLE PRESIDING MEMBER.
1. This appeal is filed by the original opposite party (for short O.P.) Nos. 1,2&3 against the order dated 19/06/2004, passed in consumer complaint No. 130/2003, by the Additional District Forum, Nagpur , by which complaint has been partly allowed.
2. The facts in brief giving rise to the present appeal are as under,
The complainant is a Gas Agency. It has obtained insurance policy from the O.P. for the period from 16/04/1994 to 15/04/1995. The risk covered under the policy was in respect of the stock laying in the godown of the complainant. During the night of 10/09/1994 and 11/09/1994 210 gas cylinders worth Rs. 1,78,500/- were stolen away from that godown by opening the lock of that godown by thieves. Therefore, the complainant lodged report on 11/09/1994 at Police Station, Sonegaon. Police registered said report and prepared panchanama of the spot on 11/09/1994. The complainant also gave intimation of that theft to the O.P on 10/09/1994 vide letter dated 10/09/1994. The O.P. appointed the surveyor to assess the loss and accordingly the complainant submitted necessary documents to the surveyor as demanded by him. The complainant also submitted claim along with documents to the surveyor on 07/10/1994. The complainant gave consent to the surveyor for settlement of the claim at Rs. 1,34,000/-. The surveyor submitted final report on 21/02/1995 to the O.P.- Insurance Company with recommendation that claim is payable to the complainant. However, the O.P. vide letter dated 16/01/1996 repudiated the claim after 15 months of submission of that claim. Therefore, alleging deficiency in service on the part of the O.P., consumer complaint was filed before the Forum by the complainant and claiming of Rs. 1,78,000/- towards loss of 210 cylinders in the aforesaid incident of theft and further claiming interest of Rs. 1,61,832/- over the aforesaid amount and compensation of Rs. 1,50,000/-.
3. The O.Ps. appeared before the Forum and resisted the complaint by filing their common written version. They admitted that the policy was issued by them. It is their case in brief that the theft of any kind is not covered under the policy. The O.P. admitted that after getting information of the incident, it appointed the surveyor who did survey and submitted the report in which loss is assessed by the surveyor at Rs. 1,34,000/-. But according to the O.P. the said assessment of loss is not just and proper and amount is not payable to the complainant. It is the main submission of the O.P. that theft is not covered under the insurance policy unless the same is caused by external violent visible means and as no external violent visible means were used for committing theft of cylinders and as marks of force were not found by the surveyor on door or the lock of the godown, the repudiation of the claim is justified. Therefore, O.P. prayed that complaint may be dismissed.
4. The District Forum after hearing both the parties and considering evidence brought on record passed the impugned order on 19/06/2004 and thereby partly allowed the complaint. The Forum while partly allowing the complaint observed in the impugned order that the O.P. rendered deficiency service to the complainant by not settling the claim within three to four months and took time of 15 months for settlement of claim. The Forum also observed in the impugned order that the repudiation of the claim does not seem to be correct and therefore Forum on the basis of loss assessed by the surveyor at Rs. 1,34,000/- directed the O.P./appellant under impugned order to pay to the complainant Rs. 1,34,000/- with interest at the rate of 9% p.a. from the date of the complaint i.e. 30/08/1997 till its realization by the complainant and also to pay him cost of Rs. 1,000/-.
5. Thus, the original O.P. has filed this appeal against that order. We heard Advocate Mr. C.A. Anthony appearing for the appellant. None appeared for the respondent /original complainant at the time of final hearing. However, we have considered the written notes of argument filed by the learned advocates of both parties in appeal. We have also gone through the copies of complaint, written version of the O.P., FIR and impugned order as filed by the appellant along with the appeal. The appellants have not filed copies of report of surveyor, insurance policy or insurance cover note and panchanama prepared by the police. The appellants have not given explanation for non production of the said material documents. Thus in this appeal, the appellant has not produced any material showing the terms and conditions of the policy and particularly the details of coverage of the policy.
6. The learned advocate of the appellant mainly argued that the Forum has not properly considered the evidence brought on record and erred in partly allowing the complaint. He relied on observation made by the Hon’ble Supreme Court in the case of United Insurance Co. Ltd. and another Vs. Harchand Rai Chandan Lal, reported in 2004 Legal Eagles (SC) 867. The Hon’ble Supreme Court observed that in order to substantiate a claim an insurer 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.
7. Thus, the learned advocate of the appellant submitted that as there was no proof of theft of cylinders by external violet visible means, the claim has been repudiated rightly by the appellant and that this fact is not properly considered by the Forum. He therefore, requested that impugned order may be set aside and complaint may be dismissed.
8. On the other hand , the learned advocate of the respondent in his written notes of argument filed in appeal supported the impugned order and submitted that appeal may be dismissed.
9. The copy of FIR lodged with the police shows that on 08/09/1994, 300 cylinders were stored in the godown and it was locked and then when on 10/09/1994 it was noticed by the employee of the complainant that the said lock was opened and about 155 gas cylinders worth Rs. 1,31,500/- were stolen away from that godown. Police registered the crime for offence punishable under section 461 of IPC which relates to dishonestly breaking open receptacle containing property.
10. The O.P. had appointed the surveyor who admittedly assessed the loss at Rs. 1,34,000/-. The O.P./appellant relied on that report to show that the surveyor did not notice marks of the force on the door or the lock of godown . However, the said report of the surveyor was not produced before the Forum and even it is not produced in the appeal in support of the aforesaid defence of the O.P./appellant.
11. As per FIR, the lock was found open and then it was noticed that the cylinders were stolen away. There is no evidence to show that the said lock of the godown was opened without use of force. Hence no presumption can be drawn that the lock of the godown was opened without use of the force or violence. Therefore, we find that as godown was actually locked & in the absence of surveyor’s report , showing no marks of violence, the presumption can be drawn that the said lock was opened by using force by the thieves for stealing the gas cylinders. Hence, police rightly registered the crime for the offence punishable under section 461 of IPC which relates to dishonestly breaking open receptacle containing property.
12. In the case relied upon by the learned advocate of the appellant, the insurance policy showing all the terms and conditions of the policy was produced. In the instant case no such policy or cover note was produced before the Forum, to show terms & conditions of the policy. Hence, the aforesaid decision relied upon by the learned advocate of the appellant is not applicable to the present case.
13. We find that no good ground to interfere with the impugned order. Therefore, the appeal deserves to be dismissed.
ORDER
i. The appeal is dismissed.
ii. No order as to cost in appeal.
iii.. Copy of order be furnished to both the parties, free of cost.
