STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH. (Appeal Case No. 272 of 2010) Date of institution: 10.08.2010 Date of decision : 25.02.2011 National Insurance Co. Ltd., Sector-34, Chandigarh through its duly authorized officer. …Appellant Versus M/s Maa Vaishano Cotspin Ltd., Village Bagguwala, Tehsil Kasouli, District Solan (HP), through its authorized signatory Manoj Singla. …Respondent BEFORE: Mrs. Neena Sandhu, Presiding Member Sh. Jagroop Singh Mahal, Member Argued by: Sh.Vinod Gupta,advocate for the appellant. Sh.Parvesh Saini,advocate for respondent. (Appeal case No.406 of 2010) Date of institution: 02.11.2010 Date of decision : 25.02.2011 M/s Maa Vaishno Cotspin Ltd., Village Bagguwala, Tehsil Kasouli, District Solan (HP) through its authorized signatory Manoj Singla ……Appellant Versus 1. National Insurance Co. Ltd., Chandigarh Regional Office-1, SCO 332-334, Sector 34-A, Chandigarh through its Regional Manager. 2. National Insurance Co. Ltd., Branch Office, Ghagga Road, Samana, District Patiala (Punjab) through its Senior Branch Manager. 3. National Insurance Co. Ltd., Divisional Office-1, SCO 133-135, Sector 17, Chandigarh through its Sr. Divisional Manager. ……Respondents. Argued by : Sh.Parvesh Saini,advocate for the appellant Sh.Vinod Gupta,advocate for respondents JUDGMENT Per Jagroop Singh Mahal, Member 1. The aforementioned two appeals are directed against the order dated 9.7.2010 passed by learned District Consumer Forum-II, U.T. Chandigarh whereby complaint bearing No.1361 of 2009 filed by M/s Maa Vaishno Cotspin Ltd. was allowed with costs of Rs.5000/- and OPs were directed to pay to the complainant Rs.3,13,600/- alongwith Rs.one lac as compensation for mental agony and harassment. The order was directed to be complied with by OPs within 45 days from the date of receipt of copy of the order, failing which they were made liable to pay the amount of Rs.4,13,600/- alongwith penal interest @ 18% p.a from the date of filing the complaint i.e. 6.10.2009 till its realization besides costs of litigation. We are deciding both these appeals through this common order. 2. In nutshell, the facts as set out in the complaint are that the complainant who is a limited company obtained an insurance policy from OPs for Rs.1.35 crores under the class of risk ‘ burglary & housebreaking’ for its stocks consisting of raw material for manufacturing of copper rods strips flats, finished goods and allied goods related to the industrial trade, on payment of Rs.15,152/- as premium. The said policy covering the risk of loss and damage to the property due to theft/burglary was valid from 29.12.2006 to 28.12.2007. On the intervening night of 19/20.07.2007, a burglary was committed in the manufacturing unit of complainant company by entering into the premises through opening exhaust fan and stolen the raw material worth Rs.8 lacs. The complainant immediately intimated the OPs as well as the police about the theft and on the basis of suspicion the name of one Mr.Subhil Kumar, who was working as electrician in the company was also mentioned in the report. On the basis of information given by the complainant, F.I.R. No.83 dated 23.07.2007 under sections 457/380 IPC was lodged in Police Station Baroti Wala, District Solan. The police arrested the suspected person on 23.7.2007 but the police failed to trace out the theft and submitted untrace report which was accepted by the Magistrate vide order dated 16.01.2009. OP insurance company appointed M/s Mittal Surveyors Pvt. Ltd. as surveyors to assess the loss. The said surveyor visited the premises on 21.07.2007 and thereafter, he wrote a letter dated 23.07.2007 requiring the complainant to submit some documents. The complainant submitted all the requisite documents as desired by surveyor and also submitted untrace report to OPs. Ultimately OPs repudiated the claim vide letter dated 13.02.2009 on the ground that the “fidelity of an employee is not covered under the policy and loss by an employee is an excluded peril”. It was also averred that the name of one of its employee was given by the complainant on the basis of suspicion only and he was arrested and remained in police remand but nothing was found against him. Thus, the burglary was not committed by any employee of Complainant Company and repudiation of claim after two years of the incident was illegal, baseless and contrary to the terms and conditions of the insurance policy. Hence, alleging deficiency in service on the part of OP company, complainant filed the complaint seeking insurance claim of Rs.8 lacs alongwith interest besides compensation of Rs.one lac for harassment and costs of Rs.15,000/-. 3. The OP insurance company contested the complaint and filed reply inter-alia stating therein that the complainant took an insurance policy which was valid from 29.12.2006 to 28.12.2007. It was admitted that during the intervening night of 19/20.07.2007, the theft had taken place in the godown of the complainant and some raw material was stolen. However, it was pleaded that the burglary was committed by an employee of the complainant namely Sh.Sushil Kumar who was working as an Electrician with the company at the relevant time. . The said fact finds mention in the F.I.R., claim form submitted by the complainant, surveyor report dated 14.03.2008 and in the statements of Sh.Suresh Kumar Singla. Another investigator M/s R.N.Sharma & Associates also confirmed the findings of the earlier surveyor and reported that the burglary was committed by the employee of the complainant-company. According to OPs, the claim had been rightly repudiated in view of clause C under the heading “exceptions” of the insurance policy as the infidelity of an employee is not covered under the policy and loss by an employee is an excluded peril which is a cogent ground for non-payment of the claim amount and the same was decided by the competent authority after applying its mind to all the relevant aspect, as such there was no deficiency in service on the part of OPs. 4. After going through the evidence and hearing the learned counsel for parties, learned District Forum allowed the complaint as indicated above. Aggrieved against the said order, OP insurance company has come up in appeal bearing No.272 of 2010 whereas complainant for enhancement of compensation has come up in appeal bearing No.406 of 2010 . 5. We have heard learned counsel for the parties and carefully gone through the file. 6. The learned counsel for the complainant has argued that in the F.I.R, he had mentioned the loss to the extent of Rs.8.5 Lacs but it was wrongly read by the surveyor as Rs.3.5 Lacs and on its basis, the compensation assessed was reduced to Rs.3,13,600/-. According to him, he should be paid an amount of Rs.8.5 Lacs along with the compensation and litigation costs as awarded by the learned District Forum. This contention is opposed by the OPs. According to them, Sh. Sushil Kumar was an employee of the complainant who was suspected of committing the theft and therefore, in view of the Exception (c) to Policy (Annexure R-2), the complainant is not entitled to any compensation. 7. We would first deal with the contention of the OPs. Exception (c) reads as under: - (c) to the property insured contained in the Premises by theft or attempt threat in which there is concerned or privy any member of the Insured’s business staff or any person lawfully on the Premises. In order to cover the case under the above said exception, it is necessary to refer to the evidence to prove that Sushil Kumar was concerned or privy to the theft. The complainant has only suspected him to be privy to this theft but there is no direct evidence. It is argued that Sushil Kumar aforesaid was arrested by the police but no recovery has been effected from him. There is no witness in whose presence, the alleged theft may have been committed by Sushil Kumar. We are, therefore, of the opinion that mere suspicion would not bring the case under Exception (c) and the claim cannot be rejected on this ground. 8. As regards the contention of the complainant that he had mentioned the loss of Rs.8.5 Lacs in the F.I.R and therefore, the compensation of Rs.8.5 Lacs should be awarded to him, we do not find any merit in this argument also. The assessment was not based on the loss mentioned in the F.I.R but as is clear from the surveyor’s report (Annexure R-4), it was based on the purchase opening stock, sales and past results of the complainant company. From the stock and other documents submitted by the complainant, the surveyor came to the conclusion (as mentioned at Page 6 of its report) that the total loss was Rs.3,13,600/-. He applied the average clause on the ground that the sum insured was Rs.1,35,00,000/- whereas the value at risk was Rs.1,57,52,192/- and therefore, the loss payable was worked out to be Rs.2,68,762/-. The learned District Forum did not agree with the average clause applied by the OP and ordered the full payment of Rs.3,13,600/- along with compensation. We are, therefore, of the opinion that the mere fact that the complainant mentioned the loss in the F.I.R as Rs.8.5 Lacs would not entitle him to claim the said amount as compensation. 9. In view of the above discussion, we are of the opinion that the learned District Forum has correctly decided the complaint. There is no merit in the appeals filed by the parties. Both the appeals are accordingly dismissed. The parties are left to bear their own costs of litigation. 10. Before parting with the case, it may be made clear that the OPs would be free to recover the amount of compensation and/or litigation costs from the Branch Manager due to whose fault, the payment of compensation was delayed, of course after serving a notice on him and hearing him before passing an order. Certified Copies of this order be sent to the parties, free of charge. The file be consigned to record room. Pronounced. 25th February, 2011. Sd/- [NEENA SANDHU] PRESIDING MEMBER Sd/- [JAGROOP SINGH MAHAL] MEMBER Ad/-
STATE COMMISSION Appeal case NO.272 of 2010 Argued by: Sh.P.K.Kukreja,advocate for the appellant Sh.N.S.Vashisht,advocate for respondent No.1 None for respondent No.2 Dated the 25th day of February,2011 ORDER Vide our detailed order of the even date recorded separately, this appeal along with cross appeal bearing No.406 of 2010 have been dismissed. (Jagroop Singh Mahal) (Neena Sandhu) Member Presiding Member
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH. Appeal case No.406 of 2010 Date of institution: 02.11.2010 Date of decision : 25.02.2011 M/s Maa Vaishno Cotspin Ltd., Village Bagguwala, Tehsil Kasouli, District Solan (HP) through its authorized signatory Manoj Singla ……Appellant Versus 1. National Insurance Co. Ltd., Chandigarh Regional Office-1, SCO 332-334, Sector 34-A, Chandigarh through its Regional Manager. 2. National Insurance Co. Ltd., Branch Office, Ghagga Road, Samana, District Patiala (Punjab) through its Senior Branch Manager. 3. National Insurance Co. Ltd., Divisional Office-1, SCO 133-135, Sector 17, Chandigarh through its Sr. Divisional Manager. ……Respondents. BEFORE: Mrs. Neena Sandhu, Presiding Member Sh. Jagroop Singh Mahal, Member Argued by : Sh.Parvesh Saini,advocate for the appellant. Sh.Vinod Gupta,advocate for respondents. Per Jagroop Singh Mahal, Member For orders, see the orders passed in Appeal No.272 of 2001 titled ‘National Insurance Co. Ltd. Vs. M/s Maa Vaishano Cotspin Ltd.’ vide which this appeal has been dismissed. Certified Copies of this order be sent to the parties, free of charge. The file be consigned to record room. Pronounced. 25th February, 2011. Sd/- [NEENA SANDHU] PRESIDING MEMBER Sd/- [JAGROOP SINGH MAHAL] MEMBER Ad/-
| | HON'BLE MR. JAGROOP SINGH MAHAL, MEMBER | HON'BLE MRS. NEENA SANDHU, PRESIDING MEMBER | , | | 
