Per Mrs. Jayashree D Yengal, Hon’ble Memebr

1.      This appeal takes an exception to the order dtd.11.04.2007 passed by the District Consumer Forum, Nagpur, (in short ‘Forum’)  dismissing the complaint bearing No.331/2006, M/s Afzal Cold Storage & Ice Factory Pvt. Ltd. Vs. National Insurance Co Ltd. The original complainant has filed this appeal.

2.      The issue, which requires our adjudication, is whether the Forum committed any error in law by passing the impugned order and whether the appellant /complainant was entitled to the insurance claim under the Burglary and House Breaking policy.

3.      The admitted facts of the case are that the appellant M/s Afzal Cold Storage & Ice Factory Pvt Ltd is a company registered under the Companies Act, it had taken an Insurance policy (Burglary & House Breaking policy) from the respondent - National Insurance Co Ltd., for business premises bearing No.281100/46/04/7500037 subsisting for the period from 01.05.2004 to 30.04.2005.

4.      It is the contention of the appellant that there was a theft at his cold storage unit (business premises) on 13.10.2004 about which he was informed by the security guard, who was posted at the premises to safeguard the building, plant and machinery. The appellant immediately lodged a FIR and Police recorded a spot Panchanama at his premises.  The appellant also lodged his claim for insurance with the respondent on 03.11.2004.

5.      The respondent, after conducting a survey, communicated to the appellant by a letter dtd. 31.03.2005 that although the surveyor assessed the alleged loss to the tune of `3,81,900/- insurance claim was repudiated as per the policy condition No.9, which reads as :-

“FRAUD:  If any claim under this Policy shall be in any respect fraudulent or if any fraudulent means or devices are used by the Insured or any one acting on the insured’s behalf to obtain any benefit under this Policy, all benefit and rights under the Policy shall be forfeited.”

6.      The appellant therefore, filed the complaint before the Forum, alleging deficiency in service on the part of respondent and claiming relief of compensation to the tune of `10 lacs towards the loss incurred in the alleged theft and litigation charges.

7.      The Forum dismissed complaint on two counts; they being (1) the theft alleged was not followed upon an  actual forcible and violent entry of & / or exit from the premises and (2) the alleged theft was that of heavy machinery from the premises which is not probable when two  security guards were deputed in the premises.  Therefore, it amounts to breach of terms and conditions of the policy.

8.      Heard both the parties and perused the documents on record.

9.      The appellant has filed the copy of the FIR, copy of the spot Panchanama, Insurance claim form, list of the stolen items and other documents.  Admittedly the appellant was having “Burglary and House Breaking Policy” (Business Premises). The FIR dated 03.11.2004 makes a mention that there was a theft between 11.04.2004 to 14.10.2004 about which the appellant was informed by his security guard and the loss was estimated approximately of `9.28 lacs.

10.    Spot Panchanama dtd.03.11.2004 also makes mention that aluminum doors and windows were found removed and it seems unknown thieves had removed them.

11.    The appellant on the same day i.e. on 03.11.2004 also wrote a letter to the bank, saying that the loss incurred as a result of theft, was to the tune of `12,28,940/-. 

12.    The insurance claim under the Burglary & House Breaking Policy makes a mention of operative clause, which says that:-

“The Company hereby agrees subject to terms, conditions and exclusions herein contained or endorsed or otherwise expressed hereon to indemnify the Insured to the extent of intrinsic value of:

(a)     Any loss of or damage to property or any part thereof whilst contained in the premises described in the Schedule hereto due burglary or housebreaking (theft following upon an actual forcible and violent entry of any / or exit from the premises) and Hold-up.”

13.    When the alleged theft is spread over a period of 4 months it cannot be assumed that there was a forcible and violent entry into the premises and in our opinion it is a well planned operation carried out to get an undue claim under the Burglary & House Breaking Policy.

14.    This is clearly a breach of the insurance policy condition and therefore the respondent has rightly repudiated the claim.

15.    We find much substance and weightage in the contention of the respondent that machinery stolen is weighing 15 tons and stealing or removing such huge machinery, would require some conveyance and it is not possible for thieves to commit theft of such enormous nature, by making forcible and violet entry.  It is well planned act by  everybody’s consent and cooperation. 

16.    Therefore, we hold that the appellant, while claiming insurance claim under the Burglary & House Breaking Policy, did not come with clean hands and the respondent – insurance company has rightly repudiated the claim for breach of policy conditions. 

17.    The Forum has rightly dismissed the complaint. We find no error or illegality committed by the Forum while dismissing the complaint.  Hence, we concur with the finding of the Forum and pass the

following order:-

ORDER

1.      The appeal is dismissed.

2.      The order passed by DCDRF, Nagpur in CC No.331/2006 dtd.11.04.2007 is upheld.

2.      Parties to bear their own cost.

3.      Copies of this order be supplied to the parties free of cost.

          Pronounced on 06.04.2011.

sj