BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

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Sawan Jewellers, SCO No.97, Sector 35, Chandigarh, through one its partners Mohinder Singh.

…..Complainant

                           V E R S U S

Oriental Insurance Co. Limited, SCO No.45, 1^st Floor, Sector 20C, Chandigarh through its Senior Branch Manager

                                  ……Opposite Party

CORAM:  SH.JAGROOP SINGH MAHAL        PRESIDENT

              SH.RAJINDER SINGH GILL   MEMBER

Argued by: Sh.Parmod Jain, Adv. for complainant.

 Sh.R.K.Bashamboo, Adv. for OP.

PER SHRI JAGROOP SINGH MAHAL, PRESIDENT

             Succinctly put, the complainant paid a sum of Rs.19,718/- to the OP for Block Insurance (JBI) No.231110/48/2009/215 dated 11.07.2008 which was issued to the complainant from the period 11.07.2008 to 12.07.2009. On 2.09.2008 theft took place in the premises of the complainant and the matter was immediately reported to the police on the same day, on which FIR No.240 dated 6.09.2008 was recorded by the police station, sector 36, Chandigarh. On 26.09.2008 he lodged the necessary claim of Rs.2.65 lacs with the OP.  All the necessary documents required for the claim were also submitted by him to the OP. The matter was thoroughly investigated by the police but was of no use and the police issued untraced certificate dated 20.01.2009.  on 23.03.2009, the OP had demanded from the complainant copy of FIR/non traceable report to process the claim which was supplied to them immediately. He received a letter dated 22.05.2009 from the OP in which it was mentioned that his claim was repudiated on the ground that the cause of loss is shoplifting which was beyond the scope of the policy.   He served a legal notice upon the OP but was of no use at all.  Hence this complaint alleging that the aforesaid acts of the OP amount to deficiency in service and unfair trade practice.

2.             Notice was served to the OPs. In their written reply the Learned Counsel for the OP submitted that after lodging of the claim by the complainant, they had appointed surveyor as well as investigator. The surveyor had assessed the loss for a sum of Rs.2,06,728/-.  However, he concluded that it seems to be a case of shoplifting and advised them that the claim could be considered as per the terms and conditions of the policy.  Similarly, the investigator also visited the shop of the complainant and requested them to produce stock register, sale record and purchase record etc. but the complainant had not produced the same.  The complainant was also requested to prove inventory register but the same was also not produced by the complainant.  The investigator stated that there were no signs of forcible entry or breakage of the show case and these things were found to be intact.  As per the version of the complainant himself the missing gold articles were kept in stand and stand was displayed in the show window for public exhibition but there was no force or breakage seemed to have taken place and some one within the shop might be responsible for the reported incident or it may be fake incident to avail insurance claim. The Learned Counsel submitted that as per the various conditions of the policy the claim was rightly repudiated by them. Denying all the material allegations of the complainant, the OP pleaded that there has been no deficiency in service or unfair trade practice on their part and prayed for dismissal of the complaint. 

3.             The Parties led evidence in support of their contentions.

4.             We have heard the parties and have also perused the record. 

5.             There is no dispute about it that the complainant has lodged FIR copy of which is Annexure C-3 but the FIR by itself is neither a proof of theft nor the FIR is perse admissible in evidence.  The theft of the gold articles therefore cannot be presumed simply because FIR has been lodged.

6.             The OP deputed an investigator to examine whether any theft took place in the premises or not.  He submitted his report copy of which is Annexure R-1.  It was noticed that there was no show case in broken condition, no signs of forcible entry were found in the shop and the theft by itself was therefore doubtful. The contention of the OP in preliminary objections number 1 of their reply is that they are not liable to pay compensation if loss or damage is occasioned by insured family members or any servant, traveler or messenger in their employment. It was also alleged in the said para that the reported incident is a sham/fake incident to avail insurance claim.  The investigator therefore doubted the authenticity of theft.

7.             Since there was no forcible entry or breaking of the show case, the OP alleged that it may be a case of shop lifting.  No doubt shop lifting may also amount to theft but in order to prove shop lifting, it was necessary for the complainant to produce the records before the investigator about the existence of the gold articles which are alleged to have been stolen.  Mere lodging of the FIR or submitting the claim with the OP that the gold articles are stolen from their shop is not enough.  It was necessary for the complainant to produce before the arbitrator, the relevant record and receipts to show that the gold articles existed in their records before the alleged incident and now they are not existing nor the same have been sold to anybody.  The investigator vide his report Annexure R-1 has mentioned that they visited the premises of the complainant may times and asked for stock record, sale record, purchase record, stock register etc., but the complainant did not produce the same for verification. They concluded that without stock record it was not possible to find out as to how much stock was present in the shop at the time of the incident.  It was also opined that without verifying the register it was not possible to know whether the said jewellery items were lying in the shop at that time or not.  According to them despite their various visits and telephonic talks insured did not produce the required documents. The said records have not been produced even before this Forum.  It is intriguing to note as to why the complainant has not produced the said records which is essential for reaching a just conclusion as to whether the jewellery items allegedly stolen from their premises were ever in their stock or had not been sold to their customers and a bogus claim had not been lodged with the insurance company to get the claim amount.

8.              It is true that in their repudiation letter Annexure C-6 the OP has mentioned that as per the investigation report the competent authority has repudiated the claim as none of the insured perils has occurred and the cause of loss is shop lifting which is beyond the scope of the policy.  Needless to mention that this letter was issued on receipt of the report of the investigator as mentioned in Annexure C-6 itself. Annexure C-6 therefore does not presume the occurrence of theft which was yet to be established on production of documents.  Merely because Annexure C-6 was issued repudiating the claim cannot be construed to mean that shop lifting has been admitted, especially when in Annexure C-6, they no where admitted that such an incident took place nor have they admitted the incident in their reply.

9.             The OP could be guilty of deficiency in service if the complainant had produced all the documents/record before the investigator as required by him.  There is no deficiency in service on the part of the OP. There is therefore no merit in this complaint and the same is accordingly dismissed.

10.           It is however made clear that the complainant would be free to produce the records demanded by the investigator as mentioned in the report Annexure R-1 on receipt of which the OP would be free to examine the case afresh and take a decision accordingly.

              Certified copies of this order be sent to the parties free of charge.  The file be consigned.