O R D E R
PER SHRI. G.H. RATHOD – HON’BLE MEMBER
1) By this complaint the Complainant has prayed that it be declared that the Opposite Party is guilty in deficiency in service in not passing the claim. It is also prayed that the Opposite Party be directed to pay Rs.1,78,400/- alongwith interest @ 18% p.a. from the date of repudiation of claim i.e. 08/07/08 till realization of the said amount. It is also prayed that the Opposite Party be directed to pay compensation to the tune of Rs.20,000/- for mental agony and harassment and Rs.25,000/- towards the cost of litigation.
2) According to the Complainant, he is having jewellery shop since last many years. It is alleged that the Complainant was having Jewellers Block Insurance Policy No.112800/46/08/45/0000029 of the Opposite Party for the period 26/04/2008 to 25/04/2009. The copy of which is filed at Exh.‘C’. The said policy was issued after complying the required formalities by the Opposite Party. It is alleged that on 26/10/2008 there was heavy rush at the shop of the Complainant due to Diwali festival. On the same date the theft took place in the shop of the Complainant, however, the Complainant due to heavy rush in the shop because of further days of Diwali festival could not call the police and lodge the complaint with the said authority. It is submitted that on 01/11/2008 i.e. after Diwali festival was over the Complainant immediately lodged complaint at Kasturba Marg Police Station which was registered by the concerned police station vide FIR No.204/08. The case was then filed at 26th Metropolitan Court, Borivali, Mumbai. According to the Complainant, he had submitted the proof of purchase vide Tax Invoice No.AIDL/SI/042, dtd.20/01/2008. It is submitted that as the Complainant used to purchase materials in bulk, he was not getting single piece bill. The Opposite Party appointed surveyor Mr. N.J. Vakharia of Cunningham Lindsey International Pvt. Ltd., who had verified the claim and other required aspects regarding the claim made by the Complainant and he was satisfied about the same. The xerox copy of FIR and Surveyor’s letter is marked at Exh.‘E’ & ‘F’. It is alleged that there was delay in lodging the FIR to the concerned police station as on the day when theft took place security vigilance system was not working due to some technical reason although there were two watchmen on duty for day and night. According to the Complainant, the theft was discovered by the Salesman of the Complainant after 10 minutes of the theft incident. It is submitted that the Opposite Party through its Surveyor even on accessing the loss hurriedly closed the claim file of the Complainant on the grounds stated in the letter of Opposite Party dtd.08/07/2009. The copy of the said letter is marked as Exh.‘B’ to the complaint. It is submitted that upon receipt of the repudiation letter at Exh.‘B’ the Complainant again issued letter dtd.12/08/2009 to reconsider the claim. The Complainant lodged complaint before Insurance Ombudsman who vide letter dtd.17/11/2009 repudiated the claim of the Complainant. The xerox copy of the letter addressed by the Complainant to Insurance Ombudsman is marked as Exh.‘G’ and the letter of Insurance Ombudsman dtd.17/11/2009 is marked at Exh.‘H’.
3) It is submitted that the Opposite Party repudiated the claim and closed the file by letter dtd.08/06/09 & 17/11/09. According to the Complainant the Complainant sustained heavy loss due to arbitrary and illegal refusal by the Opposite Party. The Complainant sustained loss to the tune of Rs.1,78,400/-. It is submitted that the Opposite Party is liable to pay the said amount + Rs.20,000/- as damages and other reliefs claimed in para 1 of this order.
4) The Opposite Party contested the claim by filing written statement. It is admitted that the Complainant had taken Jewellers Block Policy for the period 26/04/08 to 25/04/09 as mentioned in the complaint subject to terms and conditions, exclusions and exceptions. It is contended that the complainant has though alleged that on 26/10/08 at about 6.00 p.m. one Gold Big Bangle (Ballia) having weight 137.230 gms. was stolen from the shop of the Complainant by un-known person. However, the Complainant lodged the complaint on 01/11/08 to the police and intimated about it to the Opposite Party on 04/11/08. It is submitted that after scrutiny and in view of the survey report it was disclosed that there was violation/breach of policy condition No.2 on the part of the Complainant. It was also found that the alleged theft was occurred on 26/10/08 and it was reported to the police on 01/11/08. There was delay of lodging FIR to the police and giving intimation of it to the Opposite Party. The Complainant had also not submitted the proof of purchase of the said stolen gold big bangle and certified copy of statement of stock to the surveyor as demanded by him. The Complainant had committed breach of condition No.3 of the policy. The Opposite Party also found that at the material time of the theft the security vigilance system i.e. CCTV was not operational since 4 months prior to the loss. Even the Burgluer Alarm System was not allowable which shows utter negligence and recklessness on the part of Complainant. According to the Opposite Party, thus, there is violence of Policy condition No.2. It is contended that besides this there is also violation of policy condition No.13 on the part of the Complainant. It is contended that the Opposite Party has rightly rejected the claim submitted by the Complainant. The Opposite Party has thus, submitted there is no deficiency of service and unfair trade practice on the part of the Opposite Party. The Opposite Party has thus, prayed that the complaint be dismissed with cost.
5) The Complainant and the Divisional Manager – Deepak Bhatt filed their affidavit in support of their contentions. Both the parties filed their written arguments. The Advocate for the Complainant in spite of notice to remain present for oral argument did not remain present on 12/08/2013 & 07/10/2013. We heard the Adv. for the Opposite Party Smt. Kalpana Trivedi.
6) While considering the case made out by the Complainant against the Opposite Party it is necessary to be seen that the Opposite Party vide letter dtd.08/07/09 which is at Exh.‘B’ had informed to the Complainant that the Opposite Party has considered the claim of the Complainant as “No Claim” for the following reasons –
1) Unreasonable delay in intimating the claim.
2) Proof of material purchased could not be provided and the complainant was unable to establish the loss and their purchase to the surveyor.
3) The security vigilance system was not operational at the time of loss.
4) FIR was lodged on 01/11/2008 whereas the loss took placed on 26/10/08. Unreasonable delay in intimating the loss to the policy and to the Opposite Party, which violates condition No.13 of Policy.
5) The loss was discovered while taking inventory – violating policy condition, which excludes from the purview of the policy under exclusion No.2.
6) The Complainant has not submitted the final report.
The aforesaid reasons mentioned in the letter at Exh.‘B’ & considering the policy conditions which were placed on record on 22/09/2011 by the Opposite Party, we are satisfied that the Complainant has violated the terms and conditions of the policy and thereby the Opposite Party has rightly repudiated the claim or intimated the Complainant that his claim is not within the scope and purview of the policy. The Complainant himself in the complaint has admitted that he had lodged the complaint to the police on 01/11/2008. The Complainant has also admitted in the complaint that as on the date when theft took place the security system was not working. In our view considering these facts and as the Complainant did not submit the required record called by the Surveyor as per letter at Exh.‘F’ dtd.08/11/2008 and as such, the vi the Opposite Party has rightly repudiated the claim which was lodged by the Complainant for the incident of the alleged theft dtd.26/10/08. We hold that the Opposite Party therefore, cannot be held guilty for unfair trade practice within the meaning of the Consumer Protection Act, 1986. The Opposite Party is therefore, not liable to pay any claim made by the Complainant in this complaint. In the result the following order is passed –
O R D E R
i. Complaint No.215/2010 is dismissed with no order as to cost.
ii. Certified copies of this order be furnished to the parties.
