Per Shri Narendra Kawde, Hon’ble Member
This appeal takes an exception to the order dated 15/07/2006 passed in consumer complaint No.339/2004, (M/s.Panchsheel Jewelers V/s. The New India Assurance Co. Ltd.) by District Consumer Disputes Redressal Forum, Thane (‘District Forum’ in short). The District Forum allowed the complaint of the respondent/complainant and directed the present appellant/Insurance Company to pay an amount of `10,46,500/- to the complainant. Aggrieved thereby the appellant/Insurance Company has preferred this appeal on the ground that the policy terms and conditions did not cover the claim of the complainant of theft of the insured jewellery as incident of theft took outside the business hours. It is further stated that this fact has not been properly appreciated by the District Forum. Window display out of business hours is not covered which is clearly mentioned in the exclusion clause 12 of the policy conditions. The incident of theft took place during the lunch hours from 1.30 p.m. to 4.00 p.m. on 08/05/2003 and the repudiation of the claim of the respondent/complainant is rightly done after carefully going through the survey report and the terms and conditions of the insurance policy issued by them.
2. This is an old appeal placed on Board for hearing and disposal. Accordingly, office has issued notices to both the parties and finally the matter was taken up on Board for hearing and disposal. At the time of hearing Learned Advocate of the appellant was present. However, respondent/complainant and their Advocate preferred to remain absent. Since, this being an old matter, it was decided to reserve for orders in the absence of respondent/complainant. Learned Advocate for the appellant pleaded that theft of the jewellary took place during lunch hours which is not covered under the policy issued by the opponent/Insurance Company. On receipt of intimation of the theft, Surveyor was appointed by the Insurance Company who has submitted his report stating that theft occurred during lunch hours i.e. beyond the business hours is not covered under the terms and conditions of the policy. On the basis of survey report and on verification of the terms and conditions of the policy, the claim of the respondent/complainant for payment of `10,46,500/- was repudiated. However, aggrieved by the repudiation, the respondent/complainant preferred a consumer complaint which was decided by allowing the complaint by the District Forum. The impugned order thus suffers from lacuna about appreciation of the facts in relation to terms and conditions of the policy.
3. Perused the record and documents tendered by the parties. There is no dispute regarding theft of jewellary occurred during the lunch hours. The Police were able to recover only `12,47,000/-. However, total loss due to theft was valued to `22,93,500/-. The respondent/complainant subscribed to the insurance policy providing insurance cover to the ornaments in the shop. The policy document covers display window of the jewellary [included in the total section 1 Sum Insured] and also provided insurance cover for the jewellery kept elsewhere. Total sum Insured under the policy is `21,51,000/-. The survey report mentioned that AC unit had fallen on the floor and on top of it chair has been kept to enter into the shop with intention to burglary. A big ply had also been placed behind the AC grill and AC grill had been cut opened so as to get access for burglary. The survey report is an important piece of document and cannot be ignored. Therefore, intent of burglary of the jewellery by breaking open the shop is clearly established from the record. Theft of jewellery is undisputed fact.
4. The District Forum has properly appreciated all the material and documents placed before it and arrived at a conclusion that the claim of the respondent/complainant falls within the terms and conditions of the policy. In the facts and circumstances, there is no reason to take a different view than what has been taken by the District Forum, Thane while allowing the complaint. We find there is no merit in the appeal and thus, is devoid of truth. We hold accordingly and pass the following order :-
-: ORDER :-
1. Appeal stands dismissed.
2. In the circumstances, parties to bear their own costs.
3. Copies of the order be furnished to the parties.
Pronounced
Dated 14th March 2012.
