Order by:
Sh.Amrinder Singh Sidhu, President.
1. The complainant has filed the instant complaint under section 35 of Consumer Protection Act, 2019 on the allegations that the Complainant firm is doing a business of Rice Sheller and to secure the goods i.e. all kinds of paddy, rice, rice bran and other products lying in the godown purchased policy bearing No.3611034618010000012 valid for the period w.e.f. 13.09.2018 to 12.09.2019. Further alleges that unfortunately, theft has been occurred in the mill premises of the Complainant firm in the intervening night of 27-28.12.2018 and 165 paddy bags worth Rs.1,17,000/- approximately were stolen from the premises of the complainant. In this regard, FIR No. 0229 dated 31.12.2018 under section 457/380 IPC were lodged with P.S.Bagha Purana. Thereafter, the Complainant immediately informed the Opposite Party and lodged the claim. On intimation, the Opposite Party appointed spot surveyor who visited the spot and thereafter also raised some documents which were immediately provided alongwith copy of FIR and completed all the formalities. Thereafter, the Complainant visited the office of the Opposite Party and made requests to settle the claim. Initially, the Opposite Party lingered on the matter, but at last, the Opposite Party refused to admit the rightful claim of the Complainant and finally repudiated the rightful claim of the Complainant on the false and frivolous grounds on 01.10.2019. Hence, the repudiation of the claim of the complainant has been made by the Opposite Party on the false and frivolous grounds. In view of this, there is deficiency in service on the part of the Opposite Party and they have illegally repudiated the genuine and legal claim of the complainant taking the false and frivolous ground, as such, there is deficiency in service on the part of the Opposite Party. Vide instant complaint, the complainant has sought the following reliefs.
a) The Opposite Party may be directed to make the claim amount amounting to Rs.1,17,000/- in regard to theft occurred in the premises of the complainant.
b) The amount of Rs.30,000/- be allowed to be paid by the opposite party on account of compensation due to mental tension and harassment caused to the complainant.
c) And any other relief to which this Hon’ble Consumer Commission, Moga may deem fit be granted in the interest of justice and equity.
Hence, the present complaint is filed.
2. On notice, Opposite Party appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the present complaint is not maintainable; that there is no deficiency in service on the part of the Opposite Party. It is submitted that the complainant lodged the claim regarding theft of paddy in their sheller and on receipt of the claim, it was duly registered, entertained and processed and Mr.Baldev Kumar, Surveyor and Loss Assessor was deputed for survey and assessment of the loss who submitted the report dated 10.09.2019 and observed that the height of rear boundary wall of open godown is even less than the stacks of paddy bags. Moreover, the bags were kept adjoining the boundary wall without gap. Such a situation allures for easy theft not burglary, so the theft loss not covered under the scope of burglary policy and the theft loss not cover under the scope of burglary policy. As such, the claim of the complainant is not payable as per the terms and conditions of the policy. On merits, Opposite Party took up the same and similar pleas as taken up by them on the preliminary objections. All other allegations made by the complainant are totally wrong and specifically denied and it is, therefore, prayed that the present complaint is not maintainable and the same deserves dismissal.
3. In order to prove his case, the complainant has tendered into evidence his affidavit Ex.C1 alongwith copies of documents Ex.C2 to Ex.C7 and closed his evidence.
4. On the other hand, to rebut the evidence of the complainant, Opposite Party tendered into evidence affidavit of Ms.Sunita Mahajan, Sr.Divisional Manager Ex.OPs1 alongwith copy of document Ex.R1 to Ex.R24 and closed the evidence.
5. We have heard the ld.counsel for the parties, perused the written arguments filed by the Opposite Party and also gone through the documents placed on record.
6. During the course of arguments, ld.counsel for the complainant as well as ld.counsel for Opposite Party have mainly reiterated the facts as narrated in the complaint as well as written reply respectively. We have perused the rival contentions of the parties and also gone through the record on file. The main contention of the complainant is that to secure the goods i.e. all kinds of paddy, rice, rice bran and other products lying in the godown purchased policy bearing No.3611034618010000012 valid for the period w.e.f. 13.09.2018 to 12.09.2019. Further alleges that unfortunately, theft has been occurred in the mill premises of the Complainant firm in the intervening night of 27-28.12.2018 and 165 paddy bags worth Rs.1,17,000/- approximately were stolen from the premises of the complainant. In this regard, FIR No. 0229 dated 31.12.2018 under section 457/380 IPC were lodged with P.S.Bagha Purana. Thereafter, the Complainant immediately informed the Opposite Party and lodged the claim. On intimation, the Opposite Party appointed spot surveyor who visited the spot and thereafter also raised some documents which were immediately provided alongwith copy of FIR and completed all the formalities. Thereafter, the Complainant visited the office of the Opposite Party and made requests to settle the claim. Initially, the Opposite Party lingered on the matter, but at last, the Opposite Party refused to admit the rightful claim of the Complainant and finally repudiated the rightful claim of the Complainant on the false and frivolous grounds on 01.10.2019. On the other hand, ld.counsel for the Opposite Party has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that the complainant lodged the claim regarding theft of paddy in their sheller and on receipt of the claim, it was duly registered, entertained and processed and Mr.Baldev Kumar, Surveyor and Loss Assessor was deputed for survey and assessment of the loss who submitted the report dated 10.09.2019 and observed that the height of rear boundary wall of open godown is even less than the stacks of paddy bags. Moreover, the bags were kept adjoining the boundary wall without gap. Such a situation allures for easy theft not burglary, so the theft loss not covered under the scope of burglary policy and the theft loss not cover under the scope of burglary policy. As such, the claim of the complainant is not payable as per the terms and conditions of the policy.
7. First of all, it is not disputed that to secure the goods lying in the godown of the Complainant firm, the Complainant purchased policy bearing No.3611034618010000012 valid for the period w.e.f. 13.09.2018 to 12.09.2019. Copy of the policy is Ex.C2. But the policy purchased by the complainant is for burglary (single location) insurance. But as per the own version of the complainant, a theft has been occurred in the premises of the complainant. There is lot of difference between the theft and burglary. Hon’ble Hon’ble Supreme Court of India in case United India Insurance Company Limited Vs. M/s.Harchand Rai Chandan lal, reported, as IV (2004) CPJ 15 (SC)=V (2004) SLT 876=2004 CTJ 1018 (SC) (CP) construing the terms of the exclusion in a policy of insurance against burglary and/or house breaking, held that where the loss or damage was caused without forcible and violent entry to and/or exit from the premises, the claim could not be maintained. The terms of the policy in the above decision of this Court read as follows:
“’Burglary and/or housebreaking’ shall mean theft involving entry to or exit from the premises stated therein by forcible and violent means or following assault or violence or threat thereof to the insured or to his employees or to the members of his family.”
Construing the above condition, Hon’ble Supreme Court of India further held that:-
“15….we are of the opinion that theft should have been preceded with force or violence as per the terms of insurance policy. In order to substantiate a claim an insurer 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.”
Moreover, perusal of the record and report of the surveyor shows that a theft has been occurred in the premises of the complainant and he confirmed that there was no forcible entry in the godown and observed that the height of rear boundary wall of open godown is even less than the stacks of paddy bags. Moreover, the bags were kept adjoining the boundary wall without gap. Such a situation allures for easy theft not burglary, so the theft loss not covered under the scope of burglary policy and the theft loss not cover under the scope of burglary policy. Whereas the term burglary or housebreaking have been explained as ‘theft following upon an actual forcible and violent entry of and/ or exit from the premises and hold up.” In this regard, Hon’ble National Consumer Disputes Redressal Commission, New Delhi in First Appeal No. 88 of 2011 decided on 28.03.2017 in case M/s.Cross Trade Links Vs. Oriental Insurance Company, has held to the following effect:-
“The surveyor did not find any sign of forcible entry in the factory premises. FIR has also been lodged u/s 380 IPC. Honble National Commission in Revision Petition no. 4555 of 2009 has held that words used in contract of insurance are to be assigned the meaning which parties intended to mean without making any addition or subtraction therein. The policy issued by the OP in favour of the complainant specifies that OP company has agreed to indemnify the insured for any loss due to burglary or house-breaking, specifically mentioning (theft following upon and actual forcible and violent entry of and/or exit from the premises) and Hold up. Honble Supreme Court of India in case reported as V(2004) SLT 876 has ruled that element of force and violence condition is precedent for burglary and house-breaking, to substantiate claim it has to be established that theft or burglary took place preceding with force or violence and if it is not, Insurance Company is well within their right to repudiate claim of insured.”
Hon’ble National Consumer Disputes Redressal Commission, New Delhi in First Appeal No. 206 of 2007 decided on 04.03.2013 in New India Assurance Company Limited Vs. Pankaj Kapoor & Ors. Has held that the complainant had taken burglary insurance (Business Premises) policy from Appellant- Thus, the Appellant came to know about theft only on filing of complaint- Alleged theft not preceded with force or violence as per terms of insurance policy- Appellant can not be fastened wit h any liability to indemnify complainant. Hon’ble National Consumer Disputes Redressal Commission, New Delhi in matter Mastana Jogi International Private Limited Vs. New India Assurance Company Limited in Revision Petition No. 2124 of 2005, decided on 18.08.2009 has held that the insurance policy for burglary- whether it was case of burglary or theft- For claim theft must be accompanied by violence or force- The element of force and violence is not present, then the insured cannot claim compensation against the theft from the insurer. The relevant para No.8 of the judgement is reproduced as under:-
“8. On being informed by the respondent about the theft, petitioner appointed a Surveyor who in his report dated 30.03.1995 observed that there was no forcible and violent entry into the premises and, therefore, the loss is not covered under the policy. Petitioner, after examining the report and the policy, repudiated the claim. Against the repudiation, the respondent filed a complaint before the District Forum which was contested by the petitioner, interalia, on the ground that the claim is barred by limitation and beyond the scope of policy as there was no forcible or violent entry into the premises.”
8. Moreover, as discussed above, the Complainant purchased policy bearing No.3611034618010000012 valid for the period w.e.f. 13.09.2018 to 12.09.2019. Copy of the policy is Ex.C2 and said policy purchased by the complainant is for burglary (single location) insurance. Hence, this District Consumer Commission has no jurisdiction to go beyond the terms of the contract between the parties and can not hold the contract abinitio void, being unconscionable as held by Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case: Nugas Technologies India Private Limited Vs. Geeta Bal Bharti Varisht Madhyamic Vidyalaya in Revision Petition No. 3099 and 3100 of 2008, decided on 17.04.2014.
9. Keeping in view the aforesaid facts and circumstances and replying upon the judgements of Hon’ble Supreme Court of India as well as Hon’ble National Commission, New Delhi (supra), we are of the view that the complainant has failed to prove any deficiency in service on the part of the Opposite Party.
10. In view of the above discussions, there is no merit in the complaint and the same stands dismissed. Keeping in view the aforesaid facts and circumstances, the parties are left to bear their own costs. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.
Announced in Open Commission.
Dated: 21.07.2022.
