ORDER

29.07.2024

MS. NIPUR CHANDNA, MEMBER

1. The complainant filed present complaint under section 12 of Consumer Protection Act, 1986. In brief the facts of the complaint are that the complainant  is a small manufacturing unit of Brass and Copper welding holders comprising of four workers and the proprietor Sh. Sanjay Kumar Sharma. The complainant company was duly insured with OP Ins. Co. vide policy bearing no. 360702/46/14/7500000085 w.e.f. 20.06.2014 to 19.06.2015.
2. It is alleged in the complaint that after whole day work the proprietor of the complainant company locked the unit on 21.10.2014 in the evening and when on 22.10.2014 at 09:00 am the unit was opened, it was found that in the intervening night of 21/22.10.2014 the burglary/theft has been taken place and the raw material and other articles were found missing. An FIR bearing no. 1212/2014 in respect to the incident was lodged with P.S Samaypur Badli u/s 457/380 IPC.  The complainant company lodged the claim with OP to the tune of Rs. 17,19,455/-.
3. On receipt of the intimation OP Ins. Co. appointed the surveyor namely M/s Sanjay Dwivedi and associate to assess the loss and authenticity of the claim in question. Complainant Company submits all the requisite documents to the surveyor as and when demanded. After verifying the claim in question surveyor assess the loss to the tune of Rs. 9,37,020/-. However, the surveyor further recommended that the claim in question is not payable as there was no forceable entry in the premises.
4. Vide letter dated 10.04.2015 , the OP Ins. Co. repudiated the claim of the complainant.  Vide letter dated 23.04.2015 complainant again requested the OP Ins. Co. to reconsider the claim in question as the decision of repudiation of claim is arbitrary one. Despite request the OP Ins. Co. stuck up on the grounds of repudiation and does not consider the request of the complainant for reconsideration of his claim. Being aggrieved by the conduct and repudiation of the claim by OP, complainant approached this Commission for redressal of its grievance.
5. Notice of the complaint was sent to the OP. OP filed its written statement denying any deficiency in service on its part. It is stated that the policy in question covers the burglary and not the theft and the present complaint is in respect of the theft took place in the premises of complainant’s company as admitted vide intimation letter dated 22.10.2014 and in the FIR, therefore, the present complaint is not maintainable and is liable to be dismissed with cost. As per the surveyor report the loss was assessed to the tune of Rs. 9,37,020/- as there was no forcibly entry in the premises of the complainant company as such the claim is not payable as per the policy terms and conditions by the insurer and was rightly repudiated vide letter dated 07.08.2015. It is further stated that the present complaint be dismissed with cost having no merits.
6. No Rejoinder to the WS of OP filed. Sh. Sanjay Kumar Sharma proprietor of Complainant company filed his evidence by way of affidavit wherein he has corroborated the contents of the complaint.
7. Complainant has placed on record the copy of policy documents, copy of claim intimation dated 22.10.2014, copy of FIR dated 22.10.2014, copy of surveyor report dated 25.03.2015, copy of repudiation letter dated07.08.2015 in support of its contention. Ms. Manju  Rani Admin Officer of OP Ins. Co. filed evidence by way of affidavit on behalf of oP Ins. Co.  Counsel for OP has placed on roecrd the copy of policy as well as its terms and conditions in support of its contention.
8.  Written arguments filed by complainant and OP Ins. Co.
9. We have heard the arguments advance at the bar by counsel for complainant sh. Lokesh Kumar Rai. No one came forward to address the arguments on behalf of OP Ins. Co.
10. It is argued on behalf of complainant that the complainant’s company suffered a loss to the tune of Rs. 17,19,455/- and the surveyor of the OP Ins. Co. arbitrarily asses the loss to the tune of Rs. 9,37,020/-. It is further argued that the OP without any rhymes and reason rejected the claim in question by citing the reason that the entry in the premises is not forcible one, hence, the loss is not covered under the policy, whereas the culprit entered into the insured premises from the first floor resulting in the loss in question.  It is further stated that the claim is genuine one, hence, the relief claim be granted.
11. We have carefully gone through the repudiation letter dated 07.08.2015 vide which the claim of the complainant was rejected. The relevant contents of the letters are reproduced as under

“As per the surveyor report the entry to the premises was made from the first floor. The door of the first floor was not locked. To gain entry to the unlock first floor area the burglar park a truck by the gate of the first floor and directly climb into the first floor using the height of the truck. From here the stock was stolen and loaded on the truck directly from the first floor, thus, the entry to the premises was not forcible entry, hence, loss is not covered under the policy.

Whereas , the copy of FIR placed on record stated that “Raat ke samay koi naamalum vyakti meri pehli manzil ke chhaje par chadkar meri factory me ghuskar chori karke le gaya”. The contents of the FIR never suggested that some unknown person with the help of truck entered in the first floor of the insured premises whose door was unlocked and as such succeeded in stealing the entire stock.

12. We have also gone through the copy of the surveyor report dated 25.03.2015 placed on record by the parties. As per the surveyor report the P.S Samaypur Badli has lodged the FIR u/s 457 IPC which states that whoever commits lurking house tress pass or house breaking by night which clearly shows that there was the house breaking in the insured premises due to which the insured suffered loss. Moreover, the surveyor in its  report at Point 14.0 itself admitted that at time of burglary burglars damaged all the cameras and also took away with them DVR of the cameras.

At point 12.0 Cause of Loss,  the surveyor has mentioned that the door of the first floor was not locked. To gain entry to the unlock first floor area the burglar park a truck by the gate of the first floor and directly climb into the first floor using the height of the truck. From here the stock was stolen and loaded on the truck directly from the first floor, the surveyor has failed to mention as from what source he got the aforesaid information whereas the copy of the FIR placed on record simply says that “Raat ke samay koi naamalum vyakti meri pehli manzil ke chhaje par chadkar meri factory me ghuskar chori karke le gaya”, hence, the cause of loss mentioned by the surveyor is not at all reliable as not supported with any documentary evidence.

At point 21.8 of its report the surveyor itself admitted that as this is a case of burglary and the burglars have taken away complete item, there is no salvage and no deduction has been made in respect to the same.

13. The aforesaid contention of the surveyor itself proved that the loss in question is due to burglary and the complainant is entitled for the reimbursement of the same.
14. Admittedly, the complainant has claimed a sum of Rs. 17,19,455/- against the loss in question, however, failed to establish any documentary evidence in respect to the quantum of loss whereas the OP Ins. Co. has placed on record the surveyor report as per which the surveyor has assessed the loss to the tune of Rs. 9,37,020/-, hence, surveyor being the independent IRDA appointed,  his report cannot be brushed away and as such we consider that the complainant suffered the loss to the tune of Rs. 9,37,020/-. (Reliance has been placed upon the judgment of Hon’ble National Commission titled as PAALM EATABLE LTD. VS. UNITED INDIA INSURANCE CO. LTD. IV(2004) CPJ 22)
15. In view of the above discussion we are of the considered opinion that the rejection of the claim by OP Ins. Co. is illegal and unjustified resulting in the deficiency of service on the part of OP. Holding OP guilty of deficiency of service we direct it as under:

1. Pay to the complainant a sum of Rs. 9,37,020/- along with interest @ 6% p.a. from the date  of filing of complaint i.e. 21.10.2015 till its realization.
2. Pay to the complainant sum of Rs. 25,000/- on account of litigation cost.
3. Since the complainant is a company hence, it is not entitled for the compensation. (Reliance has been placed upon the judgment of Hon’ble Supreme Court titled as Sikka Paper Ltd. Vs.  National Ins. Co. decided on 29.05.2009).

16. OP is directed to comply the order within 30 days from the date of receipt of this order failing which OP is liable to pay to the complainant interest @9% per annum from the date of non-compliance till realization.

File be consigned to record room.

17. Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving an application from the parties in the registry. The orders be uploaded on www.confonet.nic.in.

Announced in open Commission on  29.07.2024.

(SANJAY KUMAR)              (NIPUR CHANDNA)                      (RAJESH)

PRESIDENT                                    MEMBER                              MEMBER