Pardeep Pathania complainant has filed this complaint U/s 12 of the Consumer Protection Act of 1986 against the opposite party praying that award amounting to Rs.5,04,722/- as insurance claim for loss suffered by the complainant besides Rs.50,000/- for as compensation for undue harassment and mental agony may be passed in favour of complainant and against the opposite party in the interest of justice.

2.       The case of the complainant in brief is that he is the prop. of M/s. Pathania Enterprises near A.B.College Pathankot and is engaged in the work of repair and sale of Air Conditioner (AC) for earning livelihood and to maintain his family. It was pleaded that the display shop of complainant is located towards the road head and on the back side of shop there is a store/stockyard for stocking the fresh packed AC’s spare parts, repair tools and other allied materials. It was further pleaded that on 18.03.2016  at about 4 P.M. complainant entered his store/stockyard for taking some material and remained stunned to see that the steel grill of his store/stockyard was broken by some unknown person and spare part and allied material of air conditioner were found missing and during the thorough inspection complainant found that the roof grill of the stockyard broken by some thief who stole the costly material used for the maintenance and repair of air conditioner such as electric wire, copper pipe etc. valuing rupees 5,04,722/-. It was also pleaded that complainant immediately came into action and reported the matter to the local police as well as opposite party as he had purchased shop keeper insurance policy bearing No.233800/48/2016/463 from the opposite party and practice of the said policy continuous for the last 4 years and surveyor was immediately appointed by the opposite party for enquiry and assessment of loss suffered by the complainant and a formal FIR No.30 dated 19.03.2016 U/s 457, 380 IPC  was registered by the police station Division No.2 Pathankot and surveyor of the opposite party found the occurrence of loss to be genuine and reported accordingly. Complainant also submitted the necessary documents such as letter of subrogation, letter of undertaking, letter of indemnity etc. and he was informed that his claim amount shall be transmitted shortly. It was next pleaded that complainant was surprised when his claim was repudiated by the opposite party vide letter dated 14.07.2017 with the observation that “insured property/premises was not properly protected and secured” and the said contention of the opposite party was completely ruthless, absurd and vague. It was pleaded that entire matter was thoroughly investigated by the local police who found that it is a case of theft and complainant has taken all protection security measures for protecting his stock and material as he had installed the iron grill over the roof which was properly fixed with concrete into the walls and further covered with additional brick wall which was dismantled by the burglar/thief  and concrete at the marginal points of the iron grill  and thereafter entered the store/stockyard. It was further pleaded that burglar only managed to cut/dismantle a portion of grill and stole only light weight and compact material which could pass through that narrow space and the untenable contention of insurance company that the property was not properly secured does not find force. It was also pleaded that complainant got the policy renewed for the last about 4 years and the surveyor of the Company visited and inspected the whole property and found the same insured and fully protected and now when opposite party had to pay the genuine claim of complainant he started beating the bush with false and frivolous grounds with an illegal motive to avoid the payment of genuine and fair claim of the complainant and as such this practice of the opposite amounts to unfair trade practice and deficiency in service, hence this complaint. 

3.       Notice of the complaint was issued to opposite party who appeared through their counsel and filed the written reply by taking preliminary objection that present complaint of the complainant is not maintainable and as soon as when opposite party received the information regarding loss of stocks due to burglary/theft on the intervening night of 17/18.03.2016, Sh.Manoj Kumar Surveyor and Loss Assessor was appointed for spot inspection and assessment of loss and M/s Bawa Investigation Agency was also appointed for investigation of the factum of theft. It was stated that the above said Surveyor namely Sh.Manoj Kumar given his report alongwith photographs after inspecting the premises of the complainant and similarly investigator M/s Bwaa Investigation Agency was also given his report after threadbare investigation of the factum of theft. It was further stated that on going through both the reports, photographs and other claim documents opposite party observed that the insured  property/premises was not properly protected and secured and as per FIR No.30 dated 19.03.2016 and their report it shows that the grill of the rear side of the store was broken whereas as per the survey report and investigation report of the opposite party as well as photographs which were taken by the Surveyor at the time of inspection it was crystal clear that there was no grill installed/fixed at godown window open at cutout and there was lapse of security of stock which indicates that no force was required to enter into the store for the purpose of theft. It was also stated that as per terms and conditions of the policy in question the insured shall take reasonable steps to safeguard the insured property against any accident, loss or damage and to secure all doors, windows and other openings but in this case no force was required to be used for entering into the insured premises for committing theft. It was next stated that Sh.Manoj Kumar Surveyor made the net assessment of loss to the tune of Rs.4,97,769/- and submitted his assessment report to the opposite party but the complainant was not entitled for the same as he committed the violation of the terms and conditions of the policy and as such opposite party rightly repudiated the claim of the complainant and informed regarding this to the complainant vide repudiation letter dated 14.07.2017. It was admitted that complainant had purchased shop keeper insurance policy from the opposite party and opposite party repudiated the claim of the complainant. All other averments made in the complaint have denied and prayed for dismissal of the complaint with exemplary costs along with any other relief to which the opposite party is found entitled under the law.  

4.      Complainant had tendered into evidence his own affidavit Ex.C-1 along with documents Ex.C2 to Ex.C35 and Ex.C40 alongwith photographs Ex.C36 to Ex.C39 and closed his evidence. 

5.      Counsel for the opposite party had tendered into evidence affidavit of Sh.Karam Singh Sr.Divisional Manager Ex.OP-1 along with documents Ex.OP-2 to Ex.OP-10 and closed the evidence on behalf of opposite party.

6.       We have carefully examined all the documents/evidence produced on record and have also judiciously considered and perused the arguments duly put forth by the learned counsels along with the incidental scope of adverse inference for of some of the documents that have been somehow ignored to be produced by the contesting litigants. We observe that the prime dispute prompted at the delay/non-settlement/closure and subsequent repudiation (Ex.C4/Ex.OP2) dated 14.07.2017 at the hands of OP insurers of complainant’s impugned claim for Rs.5,04,722/- pertaining to the theft incurred to the insured stocks-in-trade at the shop stockyard premises alleging ‘lapse’ in security facilitating unauthorized entry. As per the complainant’s version his proprietorship firm’s stocks-in-trade were duly insured with the OP insurers for Rs.20 Lac under the shop-keeper policy that were stolen on the night of 17.03.2017 from the store stockyard where these were securely stocked. As requisite, local police FIR was lodged and the OP insurers were duly intimated whose Surveyor did assess the loss (Ex.C13) at Rs.4,97,769/- but the same was arbitrarily repudiated on the flimsy grounds of ‘lapse’ in security and hence the present complaint.

7.       We observe that the complainant has sufficiently proved the contents of allegation-contented complaint vide his deposition (Affidavit Ex.C1) and other evidentiary documents exhibited here as: Ex.C2 to Ex.C40. On the other hand, the OP insurers have duly admitted the impugned claim-repudiation but have failed to prove on record the determined/pleaded ground i.e., lapse in security as basis of repudiation. Even, its own appointed surveyor has duly assessed the theft loss at Rs.4,97,769/- requisitioning the OP insurers to settle the theft-claim. Even, the OP insurers’ produced affidavit (Ex.OP1) along with the other evidentiary documents (Ex.OP2 to Ex.OP10) does not tangibly support the impugned repudiation.

8.       We are certainly not convinced with the basic logic as put forth by the OP insurers to support its impugned repudiation of the otherwise a valid theft-loss claim simply on the grounds of alleged ‘lapse in storage security’ sans some cogent and/or other reliable evidence. Even, the OP designated Surveyor has verified the ‘theft’ as true and genuine in his investigation report in the wake up of police and untraced report etc thus the impugned delay, non-settlement, closure and subsequent repudiation surely indicates of hue of unfair trade practices as adopted by the insurers. However, we find that the resultant repudiation has neither been necessary nor fair measured against the fact that the insured stocks in trade were indeed stolen as proved per the evidence produced on records and as such the instant repudiation amounts to deficiency in service on the part of the OP insurers and that rakes them up to an adverse statutory award under the applicable Act.

9.       In the light of the all above, we partly allow the present claim and thus ORDER the titled OP insurers to pay the impugned theft claim as per the surveyor’s report i.e. Rs.4,97,769/- mentioned as above to the present complainant besides to pay them a sum of Rs.10,000/- as cost and compensation (for having caused delay and harassment) within a period of 30 days of the receipt of the copy of these orders otherwise the awarded amount shall carry interest @ 9% PA from the date of orders till actually paid.

10.     Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.

                           (Naveen Puri)

                                                                                            President.

ANNOUNCED:                                                          (Jagdeep Kaur)

JULY 13, 2018.                                                                     Member                

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