CONSUMER DISPUTES REDRESSAL FORUM – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110 016
Case No.480/2011
M/S VICTOR COMPONENT SYSTEMS PVT. LTD.
THROUGH ITS PROPRIETOR MR. PAWAN SHARMA
B-86, OKHLA INDUSTRIAL AREA, PHASE-I,
NEW DELHI-110020
…………. COMPLAINANT
Vs.
M/S NEW INDIA AUSSURANCE COMPANY LTD.
4TH FLOOR, BAJAJ HOUSE,
97, NEHRU PLACE, NEW DELHI-110019
…………..RESPONDENT
Date of Order:29.03.2016
O R D E R
A.S. Yadav- President
It is not in dispute that the factory premises of complainant “as per the description of premises in the policy” was insured by OP for the period from 12.10.2009 to 11.10.2010. The contention of complainant is that on 02.10.2010 burglary took place at the complainant’s insured premises while two guards provided by Security agency namely Worldwide Security System & Consultant Pvt. Ltd. were on duty. The guards were drugged and huge quantity of copper and degaussing coils were stolen by some outsiders. Further two CCTV cameras installed at the factory gate were blocked by pasting stickers on them.
It is further stated that on 03.10.2010, complainant informed OP about the said burglary in the factory premises wherein 150 reels of copper wire have been taken away from the factory and value of goods was approximately Rs.15 lakhs.
It is further stated that on 05.10.2010 OP’s surveyor surveyed the premises and requested for documents like the claim form alongwith statement of loss, copy of FIR & final police report, copy of audited balance sheet for last three years, trading profit & loss a/c etc. As desired, complainant submitted al the relevant documents to OP.
It is further stated that on 09.10.2010 complainant lodged an FIR No.252/2010 at the South East District of Delhi Police Station, Okhla Industrial Estate regarding burglary. For that FIR u/s 381 was lodged.
It is further stated that on 28.10.10 complaint provided all the information/documents as required by OP which included the burglary claim form, copy of the FIR, balance sheet and trading Profit & loss account etc.
It is further stated that on 28.10.10 the concerned police station informed complainant that inspite of their best efforts there is no clue about the culprits and the stolen property and therefore that case has been sent as untraced.
It is further stated that vide letter dated 16.8.11 OP declined the claim of the complaint without there being any reason and it is a complete case of deficiency in service on the part of OP. It is prayed that OP be directed to pay a sum of Rs.1483620/- on account of loss of said goods as per the insured policy and also to pay Rs.2.5 lakhs for deficiency in service, Rs.75,000/- for compensation and Rs.75,000/- for litigation expenses.
OP in the reply took the preliminary objection that OP is not liable to pay any amount of compensation as the same is fictitious and there has been no theft of goods as claimed by complainant. Complainant has failed to provide prima facie proof of the commission of theft. There was no proof that the security guards on duty on the night of occurrence of theft were drugged by the thieves or that there was any forced entry into the factory premises of complainant.
It is further stated that complainant was insured against “actual forcible and violent entry” whereas the alleged theft occurred without any sign of forced or violent entry.
It is stated that alleged theft was not reported to the police immediately. The alleged theft took place on 02.10.2010 but the same was reported to the police on 09.10.2010. It is prayed that the complaint be dismissed.
We have heard Ld. Counsel for the parties and carefully perused the record.
As per complainant burglary took place on the night of 02.10.10 and goods worth Rs.1483620 were stolen. It is very strange that FIR for the burglary was lodged on 09.10.10 that casts a very serious doubt over the incident. It is an admitted fact that in this case a surveyor/investigator was appointed. Before the investigator, it was stated that on 03.10.2010 when the new guard namely Mr. Anil Kumar Sinha came for duty, one night guard namely Mr. Ayush Pandey was missing and other guard namely Mr. Sukh Ram was in sleepy condition and the matter was reported to PCR(100). It is neither stated in the complaint nor was stated in the rejoinder. If the police was called and if the burglary has taken place definitely FIR would have been registered at that very time. In this case, FIR has been lodged after seven days of the incident which is very fatal. It is a settled law that if a matter is not reported to police in case of theft immediately then the same is fatal to the claim of the claimant.
The investigator has specifically stated that no sign of forcible entry was seen at the site. In the FIR it is nowhere stated that force has been applied for entry into the premises. Even the case u/s 381 IPC was registered which itself suggests that no forcible entry is proved form the contents of FIR.
Complainant has failed to prove that the security guards were drugged. On being asked is there anything on record to suggest that the security guards were drugged, Ld. Counsel for complainant stated that there is nothing on the record to show that they were drugged. However, Ld. Counsel for complainant stated that it was for the police to get security guards medically examined. It is significant to note that the matter was reported to the police after seven days of the incident then how police could have got security guards medically examined. It is further significant to note that when the morning security guard came at the premises he found door of the entry locked inside meaning thereby that somebody inside the premises has locked the factory from inside. It is an admitted fact that one of the guard missing till filing of the claim. Even address of the guard furnished to the agency from which it was hired was vague. It clearly suggests that it was the job of insider. As per the terms and conditions of the policy, the company shall not be liable in respect of:-
“Any loss of or damage where any inmate or member of the insured’s household or of his business staff or any other person lawfully in the premises in the business is concerned in the actual theft or damage to any of the articles or premise or where such loss or damage have been expedited or any way assisted or brought about by any such person or persons.”
Complainant has failed to prove that it is a case of goods theft and forcible and violent entry rather in fact it was a handiwork of an insider and if insider is involved then insurance company is not liable as per the clause reproduced above.
The security guards were hired by the complainant. They were on duty. The clause clearly provides that loss or damage where any inmate or member of the insured’s household or of his business staff or any other person lawfully in the premises in the business is concerned in the actual theft or damage to any of the articles or premise or where such loss or damage have been expedited or any way assisted or brought about by any such person or persons, then the insurance company is not liable.
It is relevant to refer to case of United India Assurance Co. Ltd. Vs Harchand Rai Chandan Lal (2004) 8 SCALE 161 - in that case the insurance policy was covering risk against burglary and burglary defined in policy mean theft by forcible and violent means. The Hon’ble Supreme Court has observed that strict interpretation of an insurance contract, where the policy insured against “forced and violent” burglary, a burglary that was not by use of force or violence was held to be outside the purview of indemnity by the insurance company. In that case it was held that the claim was not covered as per the policy. Similarly in this case there is nothing on the record to suggest that there was a forcible and violent entry.
The investigator carried out investigation in detail. He checked the authenticity of the stock registered. He did computation of stock loss as per trading account method and came to the conclusion that there were two trading accounts available i.e. one given by the insured and other one prepared by them. For computation of loss they had considered the closing stock as derived by their trading account and the value of safe stock as per physical verification:-
Corrected closing stock as per trading account 28857669.92
Less value of left over safe stock 35287053.36
Loss as per trading account Nil
The investigator reached the conclusion that there was no loss of stock of the insured as per the trading account method and on their investigation no forcible entry was found as store lock was opened with the original keys and insiders(Security guards) were involved in the burglary. There is no reason to dispute the conclusion arrived at by the investigator and investigator is an independent person. It is settled law that the report of the investigator is to be accepted in the absence of any evidence to the contrary.
In our considered opinion, complainant has firstly failed to report the matter to the police immediately, secondly complainant has failed to prove that his case is covered within the terms and conditions of policy and thirdly complainant has failed to prove that burglary has taken place. Moreover burglary has taken place, if any, in connivance of the insider i.e. security guards. Even otherwise complainant has failed to prove any loss. OP was justified in repudiating the claim. Hence, complaint is not maintainable, accordingly dismissed.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(D.R. TAMTA) (A.S. YADAV)
MEMBER PRESIDENT
