Haryana

Ambala

CC/320/2014

M/S RAKESH - Complainant(s)

Versus

NATIONAL INSURANCE CO. - Opp.Party(s)

SANDEEP MISHRA

08 Sep 2017

ORDER

BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

                                                        Complaint No. 320 of 2014

                                                        Date of Instt:   19.11.2014.

                                                        Date of decision: 08.09.2017.                                        

M/s Rakesh Poultry village Magarpura District Ambala through its Prop. Sh.Rakesh Aggarwal.

                                                                        ...Complainant.

Versus

National Insurance Company through its Manager, Divisional Office 106, Railway Road, Ambala Cantt.

                                                                            …Opposite party.

Complaint under section 12 of

BEFORE:  SH. DINA NATH ARORA, PRESIDENT.  

                MS. ANAMIKA GUPTA, MEMBER                 

                SH.PUSHPENDER KUMAR, MEMBER

Present: -  Sh. Sandeep Mishra, Adv. for complainant.

                Sh. R.K.Vig, Adv. for OP.

ORDER

                Brief facts of the present complaint are that the complainant firm carrying on business of sale and purchase of eggs. Complainant installed 20 KV generator in a room surrounded by the boundary which was insured with the OP vide policy No.420400/46/11/7500000041 having validity from 27.05.2011 to midnight of 26.05.2012. On night of 02/03.02.2012 some unknown person had stolen some parts of the generator, having value to the tune of Rs.35750/- and the complainant got lodged FIR No.14 dt. 03.02.2012 U/Sections 457/380 IPC in PS Shahzadpur regarding this.The untraced report submitted by the policy was duly accepted by ld. JMIC, Nariangarh vide order dated 26.02.2013.The complainant submitted claim with the Op but the same was refused by it vide letter dated 21.05.2014. The act and conduct of the OP clearly amounts to deficiency in service on its part. In evidence the complainant has tendered affidavit Annexure CX and documents Annexure C1 to Annexure C8.

2.                     Upon notice, OP appeared and filed its reply wherein it has been submitted that there is no deficiency in service and unfair trade practice on its part as the terms and conditions are binding on both the parties. The insurance policy was covering the risk which is as under:            

        “Any loss of or damage to property or any part thereof whilst contained in the premises described in the schedule hereto due to Burglary or House-breaking (theft following upon an actual forcible and violent entry of and/or exit from the premises) and Hold-up”

 

As per report dated 30.08.2012 of mechanical engineer Sh.Sudhir Dhingra, theft was committed from DG set room which was without doors and the version of the FIR was not found correct.  As per policy terms and conditions, only burglary was covered, therefore, the claim was rightly repudiated vide letter dated 21.05.2014 as the theft was excluded from the policy. Other contentions made in the complaint have been controverted and prayer for dismissal of the complaint has been made. In evidence, the OP has tendered affidavits Annexure RX and Annexure RY besides documents Annexure R1 to Annexure R7.

 

3.                     The sole ground of the repudiation of the claim of the complainant is that the policy was issued for burglary and the risk of theft was excluded.   We have gone through the surveyor report wherein he mentioned that The DG Set room was without door but the theft was confirmed in the police report. The insurance policy was covering the risk which is as under:          

        “Any loss of or damage to property or any part thereof whilst contained in the premises described in the schedule hereto due to Burglary or House-breaking (theft following upon an actual forcible and violent entry of and/or exit from the premises) and Hold-up”

We have gone through the definition of burglary which says that illegal entry into building to commit theft or other crime  and law  laid down in case titled as New India Assurance Company Limited Vs. Sakar Iron Industries  996 (2) CPJ 207 (NC)   where in has been held that A theft took place in insured factory- Claim was repudiated on the ground that there was breaking of house, lock or any door-repudiation of claim is not justified- Culprit had entered the factory through open gap above the locked gate with violent means to gain entry to the insured premises.

                        As per the surveyor Annexure R1 and Annexure R1/A dated 30.08.2012 wherein it has been mentioned that after inspection/ query it was found that the DG set was kept in separate room with the insured premises, some parts of which had been stolen in the night of 02/03.2012 by some mischievous person. The DG set room was without door but the theft was confirmed in the police report.  

                        Hon’ble Supreme Court of India in case titled as M/s Industrial Promotion & Investment Corporation of Orissa Ltd Vs. New India Assurance Company Limited & Anr. Decided on  22.08.2016 in CA No.1130 of 2007  has held that Scope of Cover: This insurance policy provides cover against loss or damage by burglary or house breaking i.e. (theft following an actual, forcible and violent entry of and/or exit from the premises) in respect of contents of offices, warehouses, shops, etc. and cash in safe or strong room and  also damage caused to the premises, except as detailed below.  As per the insurance company the risk of theft was not covered under the insurance policy but its version is contradictory because in the operative clause it has been mentioned that the insured would made good the damage caused from burglary and/or housebreaking or any attempt threat any time during the period of insurance, therefore, this plea is not sustainable.  On this point reliance can be taken from case law titled as United India Assurance Co. Vs. Harchand Rai Chandan Lal reported in 2004 8 SCC 644.  Therefore, this Forum has no hesitation to hold that the policy for burglary and house breaking and the policy in this case is identical and if there is any ambiguity or doubt in the policy cause then it should be interpreted in favour of the insured. This view has also been taken by the Hon’ble Supreme Court in case titled as United India Insurance Company Limited Vs. Orient Treasurers (P) Limited reported at 2016 (3) SCC 49.   The present case is squarely covered by the case law titled as Industrial Promotion & Investment Corporation of Orissa Ltd Vs. New India Assurance Company Limited & Anr. (surpa), therefore, present complaint deserves acceptance. Though the surveyor in his report Annexure R1 and Annexure RA has mentioned that the claimed amount by the complainant is 35750+4694 (vat) =40,444 but the surveyor had allowed the claim for Rs.24500-3216 (vat)=21284 and the surveyor had further deduced 50 % as depreciation and finally assessed the net payable amount as Rs.10642/-. It is strange that when the surveyor had allowed the amount to be paid to the complainant as Rs.24500/- instead of claimed amount by the complainant then what formula he had applied for deduction of the 50 % as depreciation and vat deduction. Therefore, we come to this conclusion that the complainant is entitled for Rs.24500/-. Accordingly, we allow the present complaint with cost which is assessed as Rs.3,000/- The OPs are further directed to comply with the  following direction within thirty days of the receipt of copy of the order:-

1. To pay a sum of Rs.24500/- ( as assessed by the surveyor in Annexure R1 and Annexure R/A) to the complainant alongwith with simple interest @ 9% per annum from the date of filing of complaint till actual realization

                   Copies of the order be sent to the parties concerned, free of costs, as per rules. File after due compliance be consigned to record room.

 

Announced on: 08.09.2017                                  (D.N. ARORA)

                                                                                 PRESIDENT

 

                                               

                                                               (PUSHPENDER KUMAR)

                                                                                 MEMBER

                                               

 

                                                                   (ANAMIKA GUPTA)

                                                                             MEMBER