Haryana

Ambala

CC/56/2019

M/s B.K.C Agencies - Complainant(s)

Versus

OIC Ltd - Opp.Party(s)

B.S. Garg

22 Jan 2020

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

                                                                       Complaint case no.         :  56 of 2019

                                                                       Date of Institution           :  25.02.2019

                                                                       Date of decision     :  22.01.2020.

 

M/s B.K.C. Agencies through its proprietor Shiva Maharishi S/o Late Shri Rajnikant Maharishi, Address:-Plot No.42-A, Ground Floor, Sector-2, Parwanoo (HP) At present:- 2/10, K.P.A.K School Street, DSC Road Ambala City

……. Complainant.

 

The Oriental Insurance Company Limited, Through its Branch Manager, Ground Floor, L.I.C Building, Near Vijay Cinema, Ambala City.

                                                               ….…. Opposite Party.

 

Before:        Ms. Neena Sandhu,  President.

                   Ms. Ruby Sharma, Member,

Sh. Vinod Kumar Sharma, Member.          

                            

Present:       Sh. B.S.Garg, Advocate, counsel for complainant.

Sh. R.K. Jindal, Advocate, counsel for OP.

 

Order:        Smt. Neena Sandhu, President

Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Party (hereinafter referred to as ‘OP’) praying for issuance of following directions to it:-

1. To pay Rs.4,19,687/- for the loss suffered by the complainant due to theft/burglary in his godown alongwith interest @ 18% per annum  from the date of theft i.e 04.10.2016 till its realisation.
2. To pay Rs. 1,00,000/- as compensation for the mental agony and physical harassment suffered by him.
3. To pay Rs. 21,000/- as litigation charges. 

 

 

 

 

Brief facts of the case are that the complainant, for the purpose of earning his livelihood is dealing in fast moving consumable Goods (EMCG) under the name and style of M/S B.K.C Agencies. The said agency is CSA (Consignee Sales Agent) of M/s Dharampal Satyapal Limited and Dharampal Premchand Limited. He is having a rented godown at Sector-2, Parwanoo, Tehsil Kasoli, District Solan HP to store the goods and to dispatch the said goods to different places from time to time. The complainant had fiduciary relations with the OP as insurer & insured, for the last many years. For the purpose of trading the stock of chewing Tobacco products/Pan masala/ Zarda/ Mouth Freshner/ Elaichi/Supari/Sweet Chatni/ Allied Products/advertisement materials held on trust/Commission under CSA agreement with above mentioned two companies in godowns, he got his stock insured with the OP under “Burglary-Standard Policy” vide policy No.261101/48/2017/740 for sum insured of Rs.30,00,000/- for the period from 05.07.2016 to 04.07.2017. On 01.10.2016, the godown in-charge closed the godown and locked it properly. The landlord of the godown on 04.10.2016 informed the complainant telephonically that the shutter of the godown was lying open and large amount of material was lying outsides the premises. Complainant informed the godown in-charge and also reached at the spot and noticed that the locks had been broken open by some miscreants and the godown was intruded into and the goods had been stolen. The police was immediately informed but FIR was registered after persuation on 06.10.2016. He also informed the OP about the theft/burglary. Complainant got the stock taking done through his staff and it was noticed that the loss on account of theft/burglary was to the tune of Rs.4,19,687/-. The complainant thereafter lodged the claim with the OP. It started the process of assessment and appointed surveyor/investigator to assess the loss. The inventory of stock, the stock register and other relevant documents, as demanded by the surveyor were duly supplied. The police officials inspected the site and carried out the investigation as per their own set of procedure. The police submitted its untrace report to the Illaqa Magistrate, who finally accepted the untrace report on 11.09.2017, after a lapse of more than one and a half year i.e on 26.06.2018 the complainant received a letter vide which the Op repudiated the claim on the ground that there was no forcible entry into the godown. By repudiating the genuine claim the OP has committed deficiency in service. Hence, the present complaint.

2.                 Upon notice, OP appeared through counsel and filed written version, raising preliminary objections maintainability, not coming before this Forum with clean hands, jurisdiction, time barred and bad for non-joinder of necessary parties. On merits, it is stated that the complainant had obtained Burglary Standard Policy Schedule vide Policy No. 261101/48/2017/740 for the period from 05.07.2016 to 04.07.2017 from Branch Office Ambala City covering the stock in godown plot No.42/A, Ground Floor Sector 2 Parwanoo H.P. subject to the terms and conditions of the policy which is as under:-

“Burglary and/or House breaking shall means theft involving entering to or exist from the premises stated therein by forcible and violent mean or following assault or violence and violence of threat thereof to the insured or to his employee or to the members of his family. As per investigation report conducted by the OP and as per FIR no forcible entry found in the Godown and the alleged loss does not cover under the policy in question as per its terms and conditions. After receiving the intimation of the alleged theft the matter was got investigated by the OP by deputing the Surveyor. As per Surveyor Report, investigation report and FIR and final report of the police, no sign of forcible entry found in the Godown as such the alleged loss  does not cover under the terms and conditions of the policy in question as such no amount is payable to the complainant.  The OP after due application of mind has rightly repudiated the claim of the complainant vide its letter dated 26.06.2018 as per the terms and conditions of the policy. From the surveyor report it is clear that the surveyor had assessed the loss of Rs.2,23,805/- but the said amount is not payable to the complainant as per the terms and conditions of the policy. There is no deficiency in service on its part and the present complaint deserves dismissal being devoid of merits. 

3.                 The Ld. Counsel for the complainant tendered affidavit of the Complainant as Annexure C/A along with documents as Annexure C-1 to C-13 and closed the evidence on behalf of the complainant. On the other hand, learned counsel for OP tendered affidavit of Shri Ashish Bhatnagar, Manager, The Oriental Insurance Co. Ltd., Ambala City Branch as Annexure OP-A alongwith documents Annexure OP-1 to OP-4 and closed the evidence on behalf of the OP.

4.                 We have heard the learned counsel for parties and have carefully gone through the case file.

5.                The Ld. counsel for the complainant has argued that Shri Shiva Maharishi, being the proprietor of the complainant firm got his stock insured from the OP under Burglary-Standard Policy for Rs.30,00,000/- for the period from 05.07.2016 to 04.07.2017. On 01.10.2016, the Godown Incharge, went home after locking the godown properly. However, on 04.10.2016, some miscreants forcibly entered into the godown by breaking open the locks and had stolen the goods worth of Rs.4,19,687/-. He informed the police immediately and got registered FIR. He also informed the insurance company and lodged the complaint with it. However, OP instead of indemnifying  him had repudiated his claim vide letter dated 26.06.2018, on the flimsy ground that there was no forcible entry in the godown.      

                   On the contrary, the learned counsel for the OP has vehemently argued that the OP has rightly repudiated the claim because as per the surveyor/investigation report and FIR, there was no sign of forcible entry found in the godown and therefore, as per the terms and conditions of the policy no amount is payable.

                   Admittedly, complainant took an insurance policy from the OP covering the risk of burglary/theft of  his stock kept in the godown for sum insured of Rs.30,00,000/-, vide Burglary-Standard Policy Schedule, Annexure C-2. Theft took place at the premises of the complainant/company, goods were stolen and loss was caused to the complainant. FIR (Annexure C-3) was lodged with the police station and police sent untrace report, which was finally accepted by the Judicial Magistrate (Annexure C-8). The OP repudiated the claim of the complainant, vide letter dated 26.06.2018 (Annexure C-9), on the ground that there was no sign of any forcible entry in the godown. “Burglary and/ or House braking shall mean theft involving entry to or exit from the premises stated there in by forcible and violent mean and violent mean or following assault or violence of threat thereof to the insure or to his employees or to the members of his family. The complainant has pleaded that on 01.10.2016, the godown incharge closed the godown and locked it properly and on 04.10.2016, some miscreants entered into the godown by breaking open the locks and stolen the goods worth Rs.4,19,687/-. The OP by repudiating his genuine claim vide letter dated 26.06.2018, Annexure C-9, has committed deficiency in service.  It is not the case of the OP that the godown was not locked. There is no denying fact    that on 04.10.2016, the shutter of the godown was found open and some articles were lying outside the godown and some of the articles were stolen/missing.     It may be stated here that this could not have happened without breaking the locks. Meaning thereby, the thieves/burglars after breaking the locks of the shutter had made unauthorized and restrained entry into the godown just to steal the goods lying therein. In the case of New India Insurance Co. Ltd. Versus Murti Enterprises, III (2006) CPJ 112 (NC),  the Hon’ble National Commission has held that act of burglary or theft having done without permission of the complainant, that too in locked premises, deemed to be forcible entry. Further in the case of Bhupinder Chaudhary Versus United India Insurance Co. Ltd. reported in IV (2007) CPJ 487-in para 10, the Hon’ble State Commission Delhi has held that ‘forced entry’ means unauthorized and restrained entry. It is not necessary that in the process, injury should be inflicted. Thus, loss suffered was held as compensatable. From the facts of the case and law referred to above it is quite clear that OPs have wrongly repudiated the claim of the complainant and are thus, liable to indemnify the complainant for the loss suffered by him due to theft/ burglary in his godown.

6.                Now, coming to the quantum of indemnification? From the perusal of surveyor report Annexure OP-4, it is evident that the surveyor has assessed the value of the stolen stock as on the date of loss on the basis of books and records provided by the complainant, to the tune of Rs.3,50,881/- and after deducting 5% for the dead stock has calculated the net value of the stolen stock as Rs.3,33,337/-. However, he opined that the complainant is not entitled to the net value of the stolen stock, because the stock lying in the godown was more than the sum insured value and average clause would operate, the complainant is thus entitled to get 67.17% of the total net value of stolen stock i.e. Rs.2,23,902/- and recommended the insurance company to settle the claim for Rs.2,23,902/-. It is pertinent to mention here that the surveyor has not disclosed under which term/condition of the policy he had deducted 32.83%.from the net value of the stolen goods. As such, it can easily be said that surveyor was not justified in deducting the amount of Rs.1,09,435/- from the net value of the stolen stock i.e. Rs.3,33,337/-. The OP is thus liable to pay the net value of the stolen goods i.e. Rs.3,33,337/-, as assessed by the surveyor on the basis of the books and records provided by the complainant. The OP is also liable to compensate the complainant for the mental agony and physical harassment suffered by the complainant alongwith litigation expenses.    

7.                In view of the aforesaid discussion, we hereby allow the present complaint against the OP and direct it in the following manner:-

                   i)       To pay Rs.3,33,337/- for the loss suffered by the complainant                     due to theft/burglary in his godown alongwith interest @ 7%                             per annum  from the date of repudiation of the claim                                       26.06.2018, till its realisation.

ii)      To pay Rs.5,000/- as compensation to complainant for   mental agony and physical harassment suffered by him.

iii)     To pay Rs.3,000/- as litigation expenses to the complainant.

 

8.                The OP is further directed to comply with the aforesaid direction, within the period of 45 days from the date of receipt of the certified copy of this order, failing which the amount mentioned at serial No.(i) shall carry penal interest @ 9% per annum instead of @ 7% per annum and the amount mentioned at serial no.(ii) shall carry interest @ 9%  till its realization. Certified copies of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on: 22.01.2020.

 

          (Vinod Kumar Sharma)            (Ruby Sharma)     (Neena Sandhu)

              Member                                  Member             President