DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FATEHGARH SAHIB.
C.C. No. 88 of 12.6.2014
Decided on: 27.02.2015
M/s Radhey Shyam Enterprise through its Prop. Sanjeev Kumar son of Sh.Krishan Chand, near Dadheri Railway Crossing, Guru Ki Nagri, Mandi Gobindgarh.
……..Complainant
Versus
Oriental Insurance Co.Ltd. through its Branch Manager, Loha Bazar,Mandi Gobindgarh.
…..Opposite Party
COMPLAINT UNDER SECTION 12 TO 14
OF THE CONSUMER PROTECTION ACT
Quorum
Sh. Ajit Pal Singh Rajput, President.
Smt. Veena Chahal, Member.
Present : Sh.S.K.Verma,Advocate for the complainant.
Sh.Anil Gupta, Advocate for the OP.
ORDER
By Sh. Ajit Pal Singh Rajput, President.
Sh.Sanjeev Kumar being the Prop. Of M/s Radhey Shyam Enterprise, Mandi Gobindgarh has filed this complaint against the opposite party (hereinafter referred to as the OP) under Section 12 to 14 of the Consumer Protection Act. The brief facts of the complaint are as under:
The complainant had obtained an insurance policy bearing No.233603/48/2013/192 for the period 1.8.2012 to 31.7.2013 covering the risk of all kind of stock of factory, from the OP. It is stated that on 23.2.2013 a burglary had taken place in the premises of the factory and the scrap of copper to the tune of 24 to 25 bags had been taken away by the thieves/un- identified persons.FIR No.58 dated 26.2.2013 was lodged by the complainant with the police. An intimation to this effect was also given to the OP. Surveyor was appointed by the OP. The complainant had also completed all the formalities as desired by the OP as well as the surveyor appointed by the OP. The OP repudiated the claim of the complainant on the ground that there was no forcible entry in the premises .Thus there is deficiency of service on the part of the OP. Hence this complaint for a direction to the OP to pay a sum of Rs.4,50,000/-alongwith interest @18% per annum, Rs.2,50,000/- as compensation for the harassment and mental agony suffered by the complainant and Rs.25000/- as litigation expenses.
Notice of the complaint was given to the OP who appeared and filed the written version. It is admitted that the complainant had obtained a policy for the sum assured of Rs.20,00,000/-. It is submitted that on receipt of the intimation , Sh.Deepak Malhotra, surveyor and loss assessor alongwith Sh.Ajmer Lal Punder were deputed for investigating the matter. It was found by the surveyor and loss assessor that the lock was opened without applying any force and as such no burglary had taken place in the premises. It is admitted that FIR No.58 dated 26.2.2013 under Section 380/457 IPC was lodged with Police Station, Mandi Gobindgarh. It is submitted that the claim was rightly repudiated by the OP under the rules and there is no deficiency of service on the part of the OP.All other averments made in the complaint have also been denied and it is prayed to dismiss the claim.
In order to prove the case, the learned counsel for the complainant has tendered in evidence Ex.C1 affidavit of Sh.Sanjeev Kumar, Ex.C2 copy of cover note, Ex.C3 copy of repudiation letter, Ex.C4 copy of challan form and closed the evidence.
On the other hand, the learned counsel for the OP has tendered in evidence Ex.OP1 affidavit of Sh.A.K.Sehgal,Sr.Divisional Manager of the OP, Ex.OP2 affidavit of Ajmer Lal Pundeer,Investigator,Ex.OP3 copy of investigation report,Ex.OP4, copy of surveyor’s report,Ex.OP5 copy of policy and closed the evidence.
The ld. counsel for the complainant has submitted that the main controversy in the present complaint is that the OP had repudiated the claim vide repudiation letter dated 2.05.2013 i.e Ex-C2 by stating that Lock was opened without applying any force and such theft is excluded from the preview of the policy. The ld.counsel pleaded that in Ex-OP4 i.e surveyor report it has, been also stated that no forced entry was found. The ld. counsel argued that from the investigator’s report and surveyor report, it becomes ample clear that theft was committed but the OP rejected the claim in an arbitrary manner. He stated that during investigation the complainant has stated before the investigator that the thieves used GHORI(Bamboo steps) over the wall to take out 35 kg bags of scrap and also broke the glass of his office and an FIR was also got registered. The ld. counsel has submitted that the law in the similar facts it has, been well settled by the Hon’ble State Commission,Punjab in the case M/s Star Studio’s and Digital Gallery Store Vs The New India Assurance Company Ltd,First Appeal No.1033 of 2010,decided on 16.09.2013 and The Hon’ble National Commission upheld the said order in the case The New India Assurance Company Ltd Versus M/s Star Studio’s and Digital Gallery Store, Revision Petition No.4780 of 2013. The ld. counsel made a submission that in view of the aforesaid case law the present complaint deserves to be accepted with costs.
On the other hand the ld. counsel for the OP has stated that the claim has been rightly repudiated keeping in view the terms and conditions of the policy. The ld. counsel has submitted that the claim has been repudiated on the basis of the Ex-OP/3 i.e investigation report and Ex-OP/4 i.e survey report.He stated that the shutter lock was found intact as if it was opened with a proper key. The ld. counsel pleaded that keeping in view the evidence placed on record by the OP the present complaint deserves to be dismissed as OP has not committed any kind of deficiency of service.
After hearing the Ld. Counsel for the parties and going through the pleadings, evidence produced by the parties and the oral arguments and written submissions, we find that the claim was repudiated vide repudiation letter i.e Ex-C3. The relevant part of the same is reproduced as under:-
“The investigation report as well as preliminary survey report indicate that no forcible entry was made while making theft in above building. Moreover FIR was not written U/s 379 of IPC and no circumstances evidence was available at site for forcible entry. In burglary policy of business premises covers entry by violent and forcible means.Hence competent authority has repudiated your claim on above grounds.”
The relevant portion of the survey report i.e Ex-OP4 is reproduced as under:
“It is categorically mentioned that no shutter gate lock was found forced opened out, as both side shutter hok lock reported not fitted central gate shutter lock was found intact as if opened out a proper key phy.verified at site, no forced entry to godown main gate or shutter locks found”
It is very well evident from Ex-OP3 i.e investigation report and the material available on record that some persons entered the premises of the complainant by climbing over the wall by using GHORI(Bamboo steps) over the wall and took, out 35 kg bags of copper wire scrap and also broke the glass of his office. The locks were found opened and the shutter was also found half open. There is no evidence on record that a duplicate key was used to open the said locks.The Hon’ble State Commission,Punjab on the same and similar facts and question, in the case M/s Star Studio’s and Digital Gallery Store Vs The New India Assurance Company Ltd,(Supra) has held in para no.12 as under:-
“There is no evidence on record that some duplicate key was used and in the absence of that it is clear that the lock has been broken open with the use of force and the said force was used for breaking the lock only and there cannot be any evidence on use of force of the shutter or any other part and unauthorized entry was made for committing the burglary”
Similarly the Hon’ble National Commission in the case The New India Assurance Company Ltd Versus M/s Star Studio’s and Digital Gallery Store,(Supra) has held in para no.8 & 9 as under:-
“8. There is no evidence on record to prove that some duplicate key was used in the absence of that,it is clear that the lock had been broken open with the use of force and the said force was used for breaking open the lock only and there is not evidence showing use of force on the shutter or any other part, but unauthorized entry was made for committing the burglary. Hence both the reports clearly show that one lock was missing and the other lock was opened.
9. Perusal of the terms and conditions of policy clearly indicate that the said policy was issued to indemnify the insured to the extent of intrinsic value of any loss due to burglary or house breaking. We rely upon the decision of this Commission in case “Mono Industries Vs. New India Assurance Cop.Ltd. II(2008)CPJ 125 (NC), wherein , it has been held that entry in the premises, if it is found to have been effected by exercise of force, however, slight, it would be sufficient to constitute forcible entry within the meaning of burglary policy”.
11. Accordingly in view of the aforesaid discussion and the case law relied upon by the ld. counsel for complainant, we are of the view that the OP has committed deficiency of service by repudiating the claim of the complainant. It has come to our notice that the surveyor in his survey report i.e Ex-OP4 has not assessed the amount of loss,therefore we accept the plea and evidence of the complainant that he suffered loss to the extent of Rs.4,50,000/-.
12. Hence the present complaint is accepted.The OP is accordingly held liable to pay the amount of Rs.4,50,000/- towards loss.The complainant is held entitled to compensation alongwith litigation cost of Rs.10,000/-.The OP is also directed to comply with this order within 45 days from the date of receipt of this order, failing which the OP would be liable to pay interest @9% per annum from the date of filing of the complaint till the date of payment.
13. The arguments on the complaint were heard on 26.02.2015 and the order was reserved. Now the order be communicated to the parties. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.
Pronounced
Dated:27.02.2015
(A.P.S.Rajput)
President
(Veena Chahal)
Member
