Delhi

East Delhi

CC/467/2016

MULTIVAC INDIA - Complainant(s)

Versus

NEW INDIA ASS. - Opp.Party(s)

16 Apr 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. NO. 467/16

 

Multivac India Pvt. Ltd.

(Through its Director Mr. Pratap Dube)

Regd. Off.:

1^st Floor, The Great Easten Center

70, Nehru Place, Beind IFCI Tower

New Delhi – 110 019                                                    ….Complainant

 

Vs.    

 

The New India Assurance Company Limited

Delhi Regional Office-II

10^th Floor, Core-1, Scope Minar

Laxmi Nagar District Centre

Delhi – 110 092

Also at:

87, Mahatma Gandhi Road

Mumbai – 400 001                                                          …Opponent

 

Date of Institution: 05.09.2016

Judgement Reserved on: 16.04.2019

Judgement Passed on: 24.04.2019

CORUM:

Sh. Sukhdev Singh (President)

Dr. P.N. Tiwari (Member)

Ms. Harpreet Kaur Charya (Member)

 

Order By: Sh. Sukhdev Singh (President)

 

JUDGEMENT

            This complaint has been filed by Multivac India Private Limited through its Director Shri Pratap Dube against the New India Assurance Company Limited (OP) under Section 12 of the Consumer Protection Act, 1986 with allegations of unfair trade practice and deficiency in service. 

2.         The facts in brief are that the complainant Multivac India Private Limited, a private limited company under the Companies Act 1956 doing the business of operation and management of a boutique under the name and style of “Miraya” at Shop no. 4, Ground Floor, Jor Bagh, Delhi, used to sell and stock of designer clothes.  Complainant company through its Director Shri Pradeep Dube obtained a housekeepers insurance policy for the said boutique from OP vide policy no. 320103/48/12/06/00000084 for an amount of Rs. 40,00,000/-, for one year commencing from 18.02.2013 to 17.02.2014 for coverage from theft besides other coverage. 

It has also been stated that the complainant had in its insurance policy also took insurance from “Burglary and House Breaking” for which premium was paid as provided under Section 2 of the heading “Section wise Premium Details” of the policy schedule. 

            On 11.01.2014, a burglary/theft took place in the boutique of the complainant wherein the following four designer saris were stolen from the boutique shop of the complainant:

1. AW 13/02/SRB-06 (Red and Green) worth Rs. 45,500/-.
2. AW 13/02/SRB-01 (Baby pink and orange chiffon) worth           Rs. 25,500/-
3. NIK/JU/SRB-15 (Bridge and pink chiffon) worth Rs. 22,500/- and
4. FC13/2SRBV-11 (Pink and green chiffon) worth Rs. 49,500/-

            Total cost of the saris was Rs. 1,43,000/-.  The complainant on the very day, when the theft took place i.e. 11.01.2014, intimated the police via telephone on 100 no. and also informed the Lodi Road Police Station under whose jurisdiction the boutique was situated.  They also provided CCTV footage of the theft to the police.  They also visited police station Lodi Colony and got FIR no. 30/2014 registered on 27.01.2014 under Section 380 of IPC. 

            On completion of the investigation, Investigation Officer filed an untraced report on 28.04.2014.  The complainant on coming to know about the untraced report filed by the Investigation Officer, immediately approached the OP by filing a claim of loss of saris on 27.05.2014 for reimbursement.  They appointed a surveyor to whom the required documents were handed over to process the claim.  However, New India Assurance Company Limited (OP) repudiated the claim through its letter of dated 04.09.2014 which was received by the complainant on 08.09.2014. 

            It has been stated that the insurance company have given arbitrary reasons stating that the loss has occurred due to shop lifting and not burglary and the same was not covered under the policy.  They also stated that the theft took place on 11.01.2014, whereas intimation was given on 27.05.2014. 

It was stated that insurance company have failed to appreciate that the complainant was under the impression that the police will recover the saris and the complainant will take back the same.  However, the police filed untraced report on 28.04.2014 and the complainant lodged the claim within the prescribed period of 30 days.  They have failed to appreciate that the FIR could be registered on 27.01.2014 only on account of delay and lapses on the part of the police. 

The grounds provided by the OP for repudiation were completely unjustified and malafide.  Thus, the complainant have stated that by repudiating the claim unethically and unlawfully makes a case of deficiency in service on the part of OP.  Hence, the complainant have prayed for directions to OP to set aside the repudiation letter dated 04.09.2014 and pay Rs. 1,43,000/- alongwith interest @ 24% p.a. from the date of filing the claim i.e. 27.05.2014; compensation of Rs. 55,000/- on account of mental agony, suffering, loss of reputation and harassment and Rs. 55,000/- towards litigation charges.

3. In the reply filed on behalf of New India Assurance Company Limited (OP), they have stated that complaint was not maintainable as the loss occurred due to shop lifting, not burglary.  Shop lifting was not covered under the policy.  The term Burglary and House Breaking was defined in the policy.  As per the definition, the term Burglary and House Breaking means theft involving entry into or exit from the insured premises by forcible and violent means or theft following assault or violence or threat thereof to the insured or any employee of the insured or member of the insured’s family.  Hence, the claim was liable to be dismissed.

It has been stated that there was no forcible and violent means or theft following assault or violence or threat thereof to the insured or any employee of the insured or member of the insured’s family.The FIR and the Untraced Report show that the incident was theft and not burglary.

They have further stated that complainant had given intimation to the insurance company after a delay of 4 and half months.The loss took place on 11.01.2014 and intimation to the insurance company was given on 27.05.2014.The FIR was lodged on 27.01.2014 which was after 16 days.They have denied other facts also.

4.  

 5.      In support of its case, the complainant have examined          Shri Pratap Dube, Director of complainant company.  He has deposed on affidavit.  He has narrated the facts which have been stated in the complaint.  He has got exhibited documents such as true copy of insurance policy (Ex.CW-1/1), true copy of FIR no. 30 dated 27.01.2014 (Ex.CW-1/2), true copy of repudiation letter dated 04.09.2014 (Ex.CW-1/3) and copy of legal notice (Ex.CW-1/4).

          In defence, OP have examined Ms. Kavita Jain, Administrative Officer of OP, who have also deposed on oath.  She has also narrated the facts which have been stated in the written statement.  She has got exhibited documents such as terms and conditions of the policy (Ex.RW-1/1), copy of surveyor report (Ex.RW-1/2) and repudiation letter (Ex.RW-1/3).

6.       We have heard Ld. Counsel for the parties and have perused the material placed on record.  Two fold arguments have been advanced on behalf of New India Assurance Company Limited (OP).  Firstly, there was a delay of 4 and half months and secondly, the theft for which FIR was registered was not covered as the theft took place due to shop lifting and was not burglary.  Shop lifting was not covered under the policy.

            He has placed reliance on a judgement of Hon’ble Supreme Court in United India Insurance Co. Ltd. vs. Harchand Rai Chandan Lal; Civil Appeal no. 6277 of 2004, where it has been laid down that the terms of the contract has to be strictly read and natural meaning be given to it.  No outside aid should be sought unless the meaning is ambiguous. 

            It further held that theft should have preceded with force or violence as per the terms of insurance policy in order to substantiate a claim and insurer (insured) has to establish that theft or burglary took place preceding with force or violence and if it is not, then the insurance company will be well within their right to repudiate the claim of the insurer. 

            On the other hand, Ld., Counsel for the complainant have argued that there was no delay as the delay in informing to the insurance company occurred due to delay in getting the FIR registered which was on the part of police authorities. 

               He has further argued that burglary has not been defined under the Indian Penal Code and the ordinary meaning given to the term Burglary has to be taken and that being so, the case of the complaint was covered under the policy as the theft which took place comes under the term Burglary. 

          He has placed reliance on a judgement of National Consumer Disputes Redressal Commission in National Insurance Company Limited vs. Public Type College; Rev. Petition no. 869 of 2001, where it was observed that in common parlance, burglary will certainly mean theft.  

          To appreciate the arguments of Ld. Counsel for the parties, a look has to be made to the testimony of Shri Pratap Dubey, Director of complainant company (CW-1) and Ms. Kavita Jain, Administrative Officer of OP.  In the testimony of complainant Pratap Dubey, he has stated that the burglary/theft took place on 11.01.2014 where             4 designer saris worth Rs. 1,43,000/- were stolen.  He has further stated that intimation to the police was given on the very day i.e. 11.01.2014 and FIR was registered under Section 380 on 27.01.2014.  Untraced report was filed by the police authorities on 28.04.2014 and insurance company was approached on 27.05.2014 by filing a claim of loss. 

          Insurance company repudiated his claim through its letter of dated 04.09.2014 which was received by him on 08.09.2014.  He has stated that complainant was under the impression that the police will recover the saris and the complainant will take back the same.  When the police filed untraced report on 28.04.2014, he lodged the claim with insurance company within the stipulated period of 30 days.

          Ms. Kavita Jain, Admn. Officer of OP have stated in her testimony that there was no forcible and violent means or theft following assault or violence or threat thereof to the insured or any employee of the insured or member of the insured’s family.  This was clear from FIR and untraced report that the incident was theft and not burglary.  Policy covered burglary and house breaking, the claim was not maintainable.  Her testimony also is to the effect that theft took place on 11.01.2014 and intimation to the company was given on 27.05.2014.  Further, FIR was lodged on 27.01.2014 which was after 16 days.

          From the testimony of Shri Pratap Dubey, Director of complainant company and Ms. Kavita Jain, Admn. Officer of OP, two questions arises for consideration.  For these two questions, a look has also to be made to the repudiation letter (Ex.RW-1/3) in which it has been stated that there was a delay of 4 and half months in informing to the insurance company as the theft took place on 11.01.2014 and intimation was given on 27.05.2014.  Not only that, intimation to the police was sent on 27.01.2014 i.e. after 16 days.  Further, the loss occurred due to shop lifting (not burglary) which was not covered under the policy.    

          To the first point with regard to delay in intimation to the insurance company, admittedly there has been delay of four and half months as the theft took place on 11.01.2014 and intimation was given to the insurance company on 27.05.2014.  This is evident from the testimony of Shri Pratap Dubey, Director of complainant company in which he has deposed that they approached OP on 27.05.2014 by filing a claim of loss, when they came to know about the untraced report, filed by the Investigating Officer.  The reason given by these witnesses in his testimony has been that they were under the impression that the police will recover the saris and they will take back the same.  This reason given by the complainant for not intimating to the insurance company is not sufficient to explain the delay in intimating to the insurance company.  The complainant have not intimated to the insurance company immediately when the theft took place.  Thus, there has been delay in intimating to the insurance company which has not been sufficiently explained by the complainant.  

          Coming to the second point with regard to the claim of the complainant not covered under the policy, a look has to be made to the terms and conditions of the policy.  In the terms and conditions of the insurance policy, issued by the New India Assurance Company Limited (OP), it has been noticed that in Section 2 of the policy under the head “Burglary and House Breaking”, it has been stated that “The company will indemnify the insured in respect of loss or damage to the contents whilst contained in the insured premises by Burglary and /or Housebreaking. 

Under this head, special exceptions have been carved out where it has been stated that the company was not be liable in respect of (i) loss or damage by Burglary and/or Housebreaking where any employees of the insured or member in the insured’s family is concerned as principal or accessory. 

The term Burglary and Housebreaking have been defined in the policy as “theft involving entry into or exit from the insured premises by forcible and violent means or theft following assault or violence or threat thereof to the insured or any employee of the insured or member of the insured’s family”. 

Thus, from the terms and conditions of the policy, it comes out that the policy covers loss or damage in case of burglary or housebreaking.  However, where the loss or damage by burglary or housebreaking have been due to any employee or member of the insured family as principal or accessory, such loss will not be covered under the policy.  The term Burglary or Housebreaking means the theft have taken place by force or violent means.  Thus, theft will be converted into Burglary or Housebreaking if there has been use of force or violence or assault to the insured or his family member or his employees.

            To ascertain whether the case of the complainant falls under Burglary or Housebreaking, a look has to be made to the FIR which has been registered at the instance of the complainant.  The said FIR has been registered under Section 380 of IPC which makes provision for theft in dwelling house.  The contents of the FIR says “On the 11^th of January, 2014 four saris were stolen by customers from my shop between 10.45a.m. and 11a.m.  There was a gang of 5 people, two men and three women.  While one man and women distracted my two salesgirls, the other three customers stole the saris from the shop”.  Though, on the face of it, when the FIR has been registered under Section 380 of IIPC and the contents of the FIR , if looked, do not suggest that there was any forcible entry by the persons who stole the saris, it was a simple case of theft in dwelling house under which FIR has been registered.  When the FIR has been registered under Section 380 of IPC, the same does not fall under the definition of Burglary, as defined under the terms and conditions of the policy.  Thus, repudiation of the claim of the complainant by the insurance company was justified. 

            The judgement of National Insurance Co, Ltd. vs. Public Type College (supra) on which Ld. Counsel for the complainant have placed reliance is not attracted to the facts of the case as the Hon’ble Supreme Court in Bharat Watch Company through its partner vs. National Insurance Co. Ltd. in Civil Appeal no. (S) 3912 of 2019 decided on 12.04.2019 have reiterated that where the terms of exclusion apply, the law laid down by this Court in Harchand Rai (supra) on which Ld. Counsel for OP have placed reliance would undoubtedly stand attracted.  Thus, the insurance company was well within their right to repudiate the claim.

            In view of the above, we are of the opinion that the repudiation of claim by the New India Assurance Company Limited (OP) was not contrary to the terms and conditions of the policy.  They were within their right to repudiate the claim as the same was not covered under the term “Burglary” which was payable to the complainant.  Hence, the complaint of the complainant deserves its dismissal and the same is dismissed.  There is no order as to cost.

          Copy of the order be supplied to the parties as per rules.

          File be consigned to Record Room.

 

 

(DR. P.N. TIWARI)                                            (HARPREET KAUR CHARYA)

       Member                                                                  Member 

 

 

      (SUKHDEV SINGH)

                                                  President