FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, CHANDIGARH
First Appeal No.659 of 2018
Date of Institution : 21.11.2018
Order Reserved on: 30.04.2019
Date of Decision : 03.05.2019
United India Insurance Co. Ltd. Mansa having its Regional Office at SCO 136, Feroze Gandhi Market, Ludhiana through its duly constituted attorney.
……Appellant/opposite party
Versus
M/s Luxmi Plywood, Opposite Gugga Marih, Gaushala Road, Sunam through its owner Karan Goyal S/o Gobindpal C/o M/s Luxmi Plywood, opposite Gugga Marih, Gaushala Road, Sunam, District Sangrur. …..Respondent / Complainant
First Appeal against the order dated 01.10.2018 of the District Consumer Disputes Redressal Forum, Mansa.
Quorum:-
Mr. J.S.Klar, Presiding Judicial Member
Mr. Rajinder Kumar Goyal, Member
Present:-
For the appellant : Sh.Ravinder Arora, Advocate
For the respondent : Sh.Gaurav Gupta, Advocate
RAJINDER KUMAR GOYAL, MEMBER
ORDER
The instant appeal has been filed by the appellant/opposite party against the order dated 01.10.2018 passed by District Consumer Disputes Redressal Forum, Mansa (in short, ‘District Forum’), whereby the complaint filed by the complainant / respondent herein was partly allowed and opposite party/appellant was directed to pay the amount of Rs.62,755/- with interest at the rate of 9% per annum from the date of repudiation i.e. 17.01.2017.
It would be apposite to mention that hereinafter the parties be referred, as have been arrayed before the District Forum.
2. Brief facts, as averred in the complaint are that the complainant is running a business of Plywood and Hardware goods at Sunam under the name and style of M/s Luxmi Plywood, Sunam. The complainant got his stock insured with the insurance company to cover the risk on the payment of Rs.18,418/- as premium. The policy was in force from 18.04.2016 to 17.04.2017. On 09.05.2016, the complainant after closing his shop went to his home. In the morning of 10.05.2016, he noticed that the backside shutter of shop was broken and some persons have committed theft of articles and cash of Rs.38,000/-. The value of the stolen articles is stated to be Rs.2,71,697/-. Thereafter, an FIR bearing No.53 dated 19.05.2016 was registered under Section 457/380 IPC at P.S.City, Sunam. The complainant then lodged the claim with all the requisite documents with the opposite party. The surveyor deputed by the opposite party also assessed the loss. On 17.01.2017, the opposite party had repudiated the claim which is totally illegal and unlawful. It was averred by the complainant that the claim repudiated by the opposite party is illegal. Police has also registered FIR, as the complainant was earlier making efforts to find out the thieves. Alleging deficiency in service and unfair trade practice on the part of the opposite parties, the complainant prays that the complainant is entitled to compensation to the tune of Rs.50,000/- and Rs.20,000/- as litigation expenses in addition to Rs.2,71,697/- as claim amount along with interest at the rate of 18% per annum.
3. Upon notice, opposite party appeared and filed its reply by taking preliminary objections that the complainant does not fall within the definition of consumer. The complainant has no cause of action and locus standi to file the complaint. The complainant has not come to the Forum with clean hands and has suppressed the material facts from the Forum and filed the complaint on false and baseless grounds. The complaint is bad for misjoinder of the parties and non-joinder of the necessary parties. It was further contended that the terms and conditions of the insurance policy were not complied with. The complainant has failed to intimate the opposite party within time immediately after the occurrence of the alleged theft. The complicated and intricate questions of law and facts are involved in the present case which cannot be adjudicated by the Forum in a summary manner. It was further contended that there was no forcible entry observed at the time of survey, which is a prima facie condition of the theft claim. It was further contended that wrong intimation for theft was given to the police authorities and also the complainant changed the date of theft. The claim of the complainant was correctly and validly repudiated on 17.01.2017. The FIR was lodged on 19.05.2016 whereas the alleged loss / theft occurred on 09.05.2016. On merits, it was denied that the complainant is working for self-employment. It was admitted that insurance policy was obtained by the complainant, subject to the compliance of the terms and conditions thereof. The complainant has also failed to provide the requisite documents at the time of survey. Rest of all the contents as averred by the complainant in his complaint were denied and opposite party prayed to dismiss the complaint being devoid of merits.
4. The parties produced the evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsels appearing on their behalf, partly allowed the complaint, vide impugned order. Hence, this appeal is by the appellant/opposite party.
5. Notice of this appeal was issued to respondent being complainant.
6. We have heard learned counsel for the parties and have carefully gone through the records of the case.
7. Learned counsel for the appellant/opposite party argued that the order passed by the District Forum has wrongly and illegally allowed the complaint of the complainant/respondent without going into the evidence tendered. It also failed to appreciate the terms and conditions of the policy, which the complainant has not complied with. The main point which the District Forum did not take into consideration was that the occurrence took place on night of 09/10.05.2016 and the FIR was lodged on 19.05.2016 which is after 9 days from the date of occurrence, whereas the Forum has held that the delay has been fully explained in the case by insured. The main condition for theft of burglary is that there should be a forcible entry in the insured premises whereas in the premises of the complainant there was no sign of any forcible entry. In the specific condition of policy, it was stated that a complaint with the policy was to be lodged forthwith so that all practical steps be taken to apprehend the guilty person or persons and to recover the property lost forthwith. There is no deficiency on the part of the appellant/opposite party and the claim of the complainant/respondent was rightly repudiated. Learned counsel for the appellant/opposite party prayed to allow the appeal and to set aside the order passed by the District Forum and dismiss the complaint filed by the complainant before the District Forum.
8. On the other hand, learned counsel for respondent /complainant argued that there is no illegality in the order passed by the District Forum and the order has been passed by it after considering all the facts and circumstances of the case. It was argued that the complainant prayed before the District Forum to allow the claim by directing the opposite party to pay Rs.2,71,697/- against the loss occurred along with the compensation and litigation, whereas the District Forum has partly accepted the complaint by directing the opposite party to pay Rs.62,755/- along with interest, which was required to be enhanced but no appeal was filed by the respondent/complainant by considering the decision of the District Forum as final. Learned counsel for the respondent/ complainant further argued that there was no delay in giving the intimation to the insurance company as well as police authorities. It is submitted that the complainant firstly tried to find out the person who has made the theft. There is no need of interference in the order of the District and prayed to dismiss the appeal.
9. Admittedly, the respondent/complainant purchased a Shopkeeper’s Insurance Policy bearing No.2004032616P-100912444 for the period from 18.04.2016 to 17.04.2017 (Ex.OP-2) and paid a premium of Rs.17,160/-, to the appellant/opposite party. On the intervening night of 09/10.05.2016, a theft took place in the insured shop, the complainant lodged the claim with the appellant-Insurance company for Rs.2,71,697/-. However, the insurance company repudiated the claim of the respondent/complainant vide Ex.OP-3 with the following reasons:
“1. There was no forcible entry at the time of survey which is being prime condition for theft claim.
2. There was wrong intimation of theft to the police authorities.
3. FIR was lodged after 9 days of occurrence (late intimation to the police authorities).
4. Non-submission of documents at the time of survey.”
As per the policy general conditions clause 5 claim procedure is given as under:-
“Claim Procedure
(i) The Insured shall upon the occurrence of any event giving rise or likely to give rise to a claim under the Policy:
(a) In the event of theft, lodge forthwith a complaint with the police and take all practicable steps to apprehend the guilty person or persons and to recover the property lost.
(b) give immediate notice thereof to the Company and shall within fourteen (14) days thereafter furnish to the Company at his own expense, detailed particulars of the amount of the loss or damage together with such explanations and evidence to substantiate the claim as the Company may reasonably require.”
10. In the instant case, the theft took place on the intervening night of 09/10.05.2016, the respondent/complainant immediately intimated the insurance company and subsequently the surveyor of the insurance company visited the premises of the respondent on 11.05.2016. Therefore, there is no delay in intimating the incident to the insurance company. An FIR was lodged with the police on 19.05.2016, Ex.OP-8. In the FIR, it was explained by the respondent that he was investigating the matter at his own level but could not find out the guilty and after that he intimate the police to lodge the FIR. As per the judgment of Hon’ble Apex Court in the case of Om Parkash Vs. Reliance General Insurance IV (2017) CPJ 10 (SC), Hon’ble Supreme Court examined the effect of delay and observed as under:-
“It is common knowledge that a person who lost his vehicle may not straightaway go to the Insurance Company to claim compensation. At first, he will make efforts to trace the vehicle. It is true that the owner has to intimate the insurer immediately after the theft of the vehicle. However, this condition should bar settlement of genuine claims particularly when the delay in intimation or submission of documents id due to unavoidable circumstances. The decision of the insurer to reject the claim has to be based on valid grounds. Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy-holders in the insurance industry. If the reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay.”
11. In view of the above, the claim on account of late intimation to the police cannot be repudiated.
12. Secondly, the respondent-complainant lodged the claim under burglary. The burglary is the criminal offence of breaking and entering a building illegally for the purpose of committing a crime. Burglary, at common law, is the trespassory and breaking and entering on the building of another at night with an intent to commit a felony therein. It is an offence against possession and habitation. The trespass is an offence signifying that it must occur without the consent of the victim. If the thieves gain entry by misrepresenting his or her identity, the element of trespass is satisfied, as there is no consent to entry. Breaking consists of creating an opening for entry into the building. It can be accomplished by removing an object i.e. blocking an entry or by blast to open wall. The breaking element is satisfied, if access is obtained by opening a closed door or window, whether these are locked or not. Although, the element of force is not required, yet the element of breaking and entering a building illegally for the purpose of committing a crime are the essential ingredients to constitute the offence of burglary. Therefore, the repudiation of the claim on account that there was no forcible entry observed at the time of survey is not accepted.
13. Another point mentioned in the letter while repudiating the claim that there was wrong intimation of theft to the police authorities. In this regard, we have perused the FIR, Ex.C-3 carefully and found that incident which the complainant got recorded in the FIR is correct and he specifically mentioned in the FIR that the intimation could not be given immediately because he himself was making an inquiry regarding the theft so that guilty person could be arrested by the police authorities and when he failed to do so he got registered the FIR in the police Station on 19.05.2016. Also, the appellant/opposite party has failed to prove that on what basis the opposite party raised an objection that wrong intimation was given to the police authorities by the complainant.
14. The last objection raised by the opposite party for repudiation of the claim of the complainant was that the complainant did not submit the documents at the time of survey. In this regard, we perused the report of the surveyor, Ex.OP-12, wherein the surveyor clearly mentioned in the last para of the survey report, the list of documents submitted by the Insured includes trading account, purchase bills and VAT returns, balance sheets and claim form etc. On the basis of submitted documents, the surveyor has assessed the loss of Rs.62,755/-. The District Forum has rightly allowed the claim of Rs.62,755/- as assessed by the surveyor.
15. Sequel to the above discussions, the appeal filed by the appellant/opposite party is hereby dismissed being devoid of merits and the order passed by the District Forum is upheld.
16. The appellants/opposite party No.2 had deposited a sum of Rs.25,000/- at the time of filing of the appeal. It deposited another sum of Rs.54,043/- on 15.02.2019 in compliance of the order dated 30.01.2019. Both these sums, along with interest which has accrued thereon, if any, be remitted by the registry to the District Forum, after the expiry of 45 days of the sending of certified copy of the order to them. The entitled party thereto may approach the District Forum for the release of the above amount as per the order passed by this Commission and the District Forum may pass an appropriate order in this regard.
17. Arguments in this appeal were heard on 30.04.2019 and the order was reserved. The certified copies of the orders be communicated to the parties, as per rules.
.
(J.S.KLAR)
PRESIDING JUDICIAL MEMBER
(RAJINDER KUMAR GOYAL)
MEMBER
May 03, 2019
parmod
