Heard learned counsel for both the sides.

2.              This appeal is  filed  U/S-15 of erstwhile  Consumer Protection Act,1986(herein-after called the Act). Hereinafter, the parties to this appeal shall be referred to  with reference to their respective status before the learned District Forum.

3.           The case of the complainant, in nutshell is that the complainant  had purchased  the policy  for the period from 20.10.2018  to19.10.2019.It is alleged inter-alia that  the policy is being continuing since long and as such renewed  from time to time. It is alleged that during currency of the policy, on 8/9 night of May,2019 there was burglary   in the shop of the complainant   by breaking  open  shutter of the shop room and removed cash from the locker of iron almirah kept inside the shop. On the next day the complainant came to shop and knew that the almirah was broken. Immediately  the policy and insurer were  informed. It is alleged that the insurer did not depute the surveyor but observed that  since the money was  not in safe, they can not accept of such insurance claim   and as such it was repudiated. Challenging such repudiation on the part of the Op, the complaint was filed.

4.            Per contra, the  OP    filed written version stating that  they have  issued the insurance policy to the complainant covering the period  which  is renewed  from time to time. Insurance policy covers the occurrence of burglary. They also admitted that the policy has been continuing  long  since and it was renewed  for the period from 20.10.2018 to 19.10.2019. They also admitted that  the surveyor surveyed the shop room and found that  money  was removed from the  locker of the almirah. Since the policy condition covers the burglary in ‘safe’ or in  strong room, the benefit of such policy can not be accrued to the complainant. Therefore, they have repudiated the claim but  computed the loss. Therefore, they have no deficiency in service on the part of the OP.

5.                       After hearing both the parties, learned District Commission rejected the complaint case by observing  that the complaint is  not sustainable in  the eye of law.                       

6.            Learned counsel for the appellant submitted that learned District Forum has committed error in law by not following the material on record properly. According to him during filling of the proposal form in 1995 when for the first time the policy was purchased   for the stock of the shop,  same policy is being continuing since long including  the period as described above. He also submitted that learned District Commission ought to have considered   the facts and law  by assessing  the cogent evidence. He has filed the copy of the FIR  and surveyor  has also assessed the loss  so far the documents are concerned. So, the observation of the learned District Commission is not proper and justified. He cited the decision  of Hon’ble Supreme Court in Civil Appeal No.15426/2016 disposed of on 13.09.2019 Combitic Global Caplet Pvt.Ltd.-Vrs- New India Assurance Co.Ltd Where  It is observed that the steel almirah in question  having double locking system and inbuilt cash locker comes within the definitation of ‘Eoesafe’. The steel almirah was having all safety measures. In view of the decision, the repudiation is illegal and as such filed the appeal to  set-aside the impugned order by allowing  the appeal.

7.               Learned counsel for the respondent vehemently  opposed the submission and he drew our attention  to the exclusion clause of the policy   that the insurer is not  liable to pay  the loss as alleged. However, he submitted the complainant has not acted as per the policy condition and the onus lies on the complainant  to prove the case  to  avail  compensation.   So, he supports the impugned order.

8.                      Considered the submission  of learned counsel for respective counsels, perused the DFR and impugned order.       

9.                   It is settled in law that the complainant has to prove his case and the deficiency in service on the part of the OP. In the instant case it is admitted fact that during currency of the policy, there was burglary   to the shop of the complainant in the  night of 8/9.05.2019 and the cash has been removed from the locker  of its steel almirah. It is also not in dispute that the complainant has lodged FIR and informed  insurer  who depute  the surveyor. It is not in dispute that the surveyor has reported that the terms and conditions of the policy has been violated because  the properties stolen were not in safe. The only question   is to be decided  whether locker   in the steel almirah  can be considered  as safe so as not exclude same   from the terms and conditions  of the policy in question. The complainant has clearly filed complaint supported with the evidence affidavit that in the proposal form he has already mentioned  locker of the almirah was to be treated as safe and  used to  keep cash there and after verification  OP accepted same and issued the policy. Same policy was renewed from time to time and virtually at the time of incident  that policy was valid. Learned District Forum ought to have considered the other documents  when   there is prima facie case made U/S-457/380  of IPC made out and accordingly chart sheet was filed. Not only this but also other documents, policy conditions have been filed. The exclusion clause   for the policy should have been  analyzed  by the learned District Commission.

10.       The exclusion clause is as follows:-

                  “Loss  of money  from safe or strongroom following use of the key to the safe or strongroom or any duplicate thereof belonging to the insured, unless  this has been obtained by threat or by violence.”

 11.                       In view of the arguments made by both the parties, we have to decide whether   the locker  of the almirah can be taken as safe to cover the risk as alleged. The decision of the Hon’ble Supreme Court  in  Combitic Global Caplet Pvt. Ltd.(Supra) it has been clearly held  by Hon’ble Supreme Court  in the following manner:-

           The impugned order concludes that a steel almirah in question was not a ‘safe’. Having regard to the material on record, we are of the opinion that the almirah in question which is having double locking  system  and inbuilt cash locker comes within the definitation of Eoesafe.  The steel almirah was having all safety measures. Hence, the order of the National Commission can not be sustained and the same is set-aside. The order of the State Commission stands revived. The Special Leave petition stands disposed of.

12.              With due regard to the aforesaid decision, we are of the view that the present  locker system in the almirah   can be considered as safe for the money stolen. It also appears that the complainant has asked OP to produce the proposal form to prove his case but the OP has failed to produce the  proposal form  so as to defeat the claim of the complainant. On the otherhand, the OP has not proved  any material to prove   that the locker in question is not  safe.

                                                 Amount in Rs. Reference

          Gross  Assessed  Loss            9,32,391.00  As per Table-1

 Less: Application of Average Clause   6,32,347.58

                                                                3,00,043.42

              Applying average clause @ 67.82 %      

  Less :  25% Deduction for  Cash held by  75,010.86

                                                              2,25,032.57

                 Insured in Iron plate Almirah

                 Instead of safe not fully secured 

Less :    Recovery of Reportedly stolen cash            NA

          Final report yet to be submitted )

Less L Policy Excess                                                NA

                  Net Assessed Loss     2,25,032.57

                            R/O                2,25.033.00

  15.             We appreciate that he has computed loss at Rs.3,00,000/- but deducted 25 % for keeping the money in the iron plate almirah but not in safe.  When we have held that the money has been kept in safe, the question of deduction for keeping money unsafe does not arise.  So, we  do not agree for deduction of   25 % from  the loss  computed for  Rs.3,00,000/-. So, complainant is entitled  to net loss of Rs.3,00,000/-. 

16.        Therefore,  the impugned order  is set-aside and consequently the appeal is allowed. The OP is to compute the loss  as per the loss computed by the surveyor  Rs.3,00,000/- which  would be payable by the  OP  to the complainant within a period of 60 days from today, failing which it will carry interest @ 9 % per annum from the  date of occurrence till date of payment.

                The appeal is disposed of accordingly.       

    Free copy of the order be supplied to the respective parties or they may download same from the confonet  or webtsite of this  Commission to treat same as copy of order received from this Commission. 

   DFR be sent back forthwith.