ADDITIONAL PUNE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT PUNE
(BEFORE :- PRESIDENT :- Smt. Pranali Sawant )
MEMBER :- Smt. Sujata Patankar )
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Complaint No. : APDF/106/2010
Date of filing :- 22/08/2010
Date of decision :- 17/10/ 2011
Mr. Anil Shamandas Aswani, .. )
Partner : M/s. Shree Ganesh Shopee, .. )
& Home Appliances, .. )
S.P. Heights, 2nd Floor, .. )
Mumbai Pune Road, .. )
Kasarwadi, Pune. .. )… COMPLAINANT
: versus:
1. Oriental Insurance Company Limited, .. )
Through its Senior Divisional Manager, … )
Mr. Bhagwat Mahadeo Daulat, … )
2. Mr. Bhagwat Mahadeo Daulat, … )
Senior Divisional Manager, … )
3. Mr. Prashant Thorat, … )
Divisional Manager, … )
Add 1 to 3 : Chinchwad D.O., Highway, … )
Towers, 3rd Floor, Mumbai Pune Road, … )
Chinchwad, Pune – 411 019. .. )… OPPONENTS
For Complainant : Advocate Shri. Kadam
For Opponents : Advocate Shri. Maheshwari
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Per : MEMBER, Smt. Sujata Patankar
//JUDGMENT//
(1) The facts giving rise to the complaint briefly stated are as follows.
The Complainant is a businessman dealing in the business of Electronics goods. The Opponent No.1 is Insurance Company and the Opponent Nos. 2 and 3 are the Officers. The Complainant took the policy to the tune of Rs.50,00,000/- for his business place. The Complainant has paid two premiums of Rs.12,500/- per year and the said policy is bearing No. 161800/48/2007/1494. On 9/2/2007 the theft occurred in the shop of the Complainant for which the Complainant also lodged the complaint with Bhosari Police Station. This fact was brought to the notice of the Opponent No.1 vide letter dated 12/11/2007 alongwith all the request papers demanded by the Opponents Nos. 2 and 3 from time to time. Initially the Opponent gave assurances but thereafter the officers of the Opponent started avoiding to pay the legal dues of the Complainant. On 21/4/2009, the Complainant received the letter of the Opponent No.2 on behalf of Opponent No.1 stating that according to terms and conditions of their policy the definition of theft is other than the one that has occurred with the Complainant. It is the contention of the Complainant that when the policy has been taken, the Complainant was induced by false assurances and misrepresentations that any loss by theft will definitely be covered for the loss occurred and now when the theft has occurred, all the Opponents are playing the mischief of legal terms to cause wrongful loss to the Complainant for their wrongful gains. The Complainant thereafter again sent notice dtd. 28/7/2009 to the Opponent No.1 through Opponent No. 2. However a false reply was given whereby the Opponent intentionally denied the liability to defraud the Complainant and failed to comply with the terms of the notice. Thus the cause of action arose on 21/04/2009 when the Opponents bluntly refused to reimburse the claim and when reply notice dtd.16/10/2009 was given and the Opponent refused. This act of the Opponent caused mental agony and torture to the Complainant and as such the Opponents are liable to pay Rs.3,00,000/- as compensation and the Complainant having suffered mental agony and torture is entitled to the compensation of Rs.3,00,000/- for immense mental trauma and stress, mental agony and torture faced by him. Therefore the Complainant has been constrained to file the present complaint. On all these grounds and as stated in the complaint application, the Complainant has prayed to direct the Opponent to pay Rs.16,54,453/- i.e. the principal of theft occurred with interest @18% per annum from the date of making the payment to the Complainant till the date of receiving the amount from all the Opponents jointly. As also has prayed to direct the Opponents to pay Rs.3,00,000/- as compensation towards mental agony and torture. The complaint is supported with the affidavit of the Complainant Alongwith the complaint application, the Complainant has also filed list of documents, comprising (6) documents, such as Insurance Policy & Receipt, F.I.R., letter dtd.12/11/2008, reply dtd.21/4/2009, notice dtd.28/7/2009, notice reply dtd.16/10/2009 etc..
(2) In pursuance of the notice of appearance issued by this Forum, the Opponent appeared and filed its written statement and denied that the policy covered the loss by theft. However, it has admitted that the Complainant suffered a loss on 9/2/2007 by theft. As also admitted that the notice dtd.28/7/2009 has been elaborately and totally replied by the Opponent. It is the specific contention of the Opponent that in the repudiation letter it is clearly and elaborately indicated in letter dtd.21/4/2009 that as per terms and conditions of the Shopkeeper’s Policy Sec.II, Burglary, House Breaking is covered under the Policy i.e. “loss or damage to property by theft” involving entry into a exit from the insured premises by forcible and violent means or following assault or violence or threat thereof to the insured or any employee of the insured or member of the insured’s family. It is also further submitted by the Opponent that in the present case, it is noted that the watchman had informed the police that he had slept through the night and was not aware about the incident and did not know anything with respect to the theft. In view of the terms and conditions of the policy, the claim is not admissible and hence was rightly rejected. On all these grounds and as stated in the written statement the Opponent has prayed that the claim of the Complainant be rejected with costs. The Opponent has also filed separate affidavit in support of the written statement. Alongwith the written statement, the Opponent has also filed list of document, comprising certified copy of the insurance policy alongwith the terms and conditions.
(3) After filing of the written statement, the Complainant has filed rejoinder alongwith affidavit, in which it is stated that the Opponent is illegally giving the meaning to the policy as it suit them in as much as no where it is mentioned in the policy that ‘loss or damage to property by theft involving entry or exit on the insured premises by forcibly or violent means or threat thereof to the insured or any employee of the insured or member of the insured’s family’ all these contentions are no where specifically mentioned in the policy. It is also the contention of the Complainant that from the say of the Opponent it is definitely obvious that the Opponent has though admitted that theft has taken place but however by giving illogical interpretation the Opponent is attempting to frustrate the claim of the Complainant and cause them wrongful loss for their wrongful gains.
(4) Both the parties have also filed their respective written notes of arguments alongwith the authorities. On 3/10/2011, Advocate for the Complainant filed purshis to the effect that this Complainant has filed his written Argument on record and does not desire to do oral argument. Hence the matter may be kept for judgment.
(5) Taking into consideration, the complaint, affidavit, documents and written statement, affidavit and documents on the record and the written notes of arguments filed by both the parties, the following points arouse for our consideration?
Points Answers
1) Whether the Opponent has rendered deficiency
in service to the Complainant ? … No.
2) What order? … As per final order.
Point No.1 (i):- On perusal of the complaint supported with affidavit and the policy filed by the Opponent itself on the record and the contention of the Complainant about issuing policy is not denied by the Opponent in its written statement and affidavit. Therefore, it is undisputed fact that the Complainant is a “consumer” of the Opponent.
(ii) As stated above, the Opponent has filed policy bearing No. 161800/48/2007/1494, for the period 6/7/2006 to 5/7/2007. The Opponent has also admitted this fact in its written statement. There is no dispute regarding the policy period. As stated by the Complainant in the present complaint, on 9/2/2007 the theft was occurred in the shop of Complainant i.e. “M/s. Shree Ganesh Shopee & Home Appliances”. The Complainant lodged the complaint with Bhosari Police Station U/Sec. 380 of I.P.C. registered as Cr.No. 44/07 this fact brought to the notice of the Opponent No.1 sending letter dtd. 12/11/2007 alongwith all the request papers demanded by the Opponents No. 2 and 3 from time to time. But on 21/4/2009, the Opponent repudiated the claim of the Complainant and informed as follows :-
“ As per terms and conditions of the Shopkeepers Ins. Policy Section II “Burglary, Housebreaking” is read as under :
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“Loss or damage to property by theft involving entry into or exit from the insured premises by forcible and violent means or following assault; or violence or threat thereof to the insured or any employee of the insured or member of the insured’s family”.
It means that the Opponent repudiated the claim of the Complainant as per Section II – BURGLARY AND HOUSEBREAKING – CONTENTS (Excluding money and valuables) of the terms and conditions of the insurance policy. In this regard after perusal of the policy terms and conditions it appears that
Section II – BURGLARY AND HOUSEBREAKING – CONTENTS (Excluding money and valuables)
“The Company will indemnify the insured in respect of loss or damage to the contents whilst contained in the insured premises by Burglary and/or Housebreaking”.
SPECIAL EXCEPTIONS
The Company shall not be liable in respect of :-
i) Loss or damage by Burglary and/or Housebreaking where any employee of the insured or member of the insured’s family is concerned as principal or accessory”.
In this respect after perusal of the police papers filed by the Complainant it also shows that the Complainant has furnished information in their F.I.R. as follows :-
“ सदरची चोरी केव्हा व कशी झाली ते मला सांगता येणार नाही. सदर चोरीबाबत आमचा वॉचमन नामे यशवंत रमेश रणदिवे यांच्यावर संशय आहे .”
It shows that the Complainant raised the doubt on their own watchman appointed by them only. The repudiation of claim by the Opponent about burglary is as per terms and conditions of insured policy binding on both the parties. Moreover in the present case, the Complainant has not filed any concrete and cogent evidence such as stock register, stock-in-trade, C.A. statement, surveyor report etc.which shows that on the date of incidence whatever specific items stored in the stock of the shop. The Complainant has also failed to show that there is any forceful entry or violence in the shop of the Complainant while the incidence of theft took place. In the absence of any such evidence, the Complainant has failed to prove his complaint about theft. The Opponent stated in their written statement that the watchman had informed the police that he had slept through the night and was not aware about the incident and did not know anything with respect to the theft. As against this the record reveals that the Complainant has not denied this fact in his rejoinder. The Complainant himself has stated in the F.I.R. that the Complainant raised the doubt on their own watchman. It shows that the Complainant has failed to prove his theft case and hence liable to be dismissed..
Moreover, relying on the authority in the matter of United India Insurance Co.Ltd. V/s. M/s. Harchand Rai Chandan Lal SC (date of judgment 24/9/2004) the ratio is as follows :-
“(b) ANY DAMAGE be caused to the premises to be made good by the Insured from BURGLARY and/or HOUSE BREAKING or any attempt threat.”
The term Burglary and/or Housebreaking” has been defined in terms of the policy also which reads as under :-
“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.”
“The question before us is whether in terms of the policy, the repudiation of the claim of the respondent by the appellant company is justified or not. We have already reproduced the terms of the policy as also the definition of burglary and/or housebreaking as defined in the policy. The definition given in the policy is binding on both the parties. The policy is a contract between the parties and both the parties are bound by the terms of contract. As per the definition of the word burglary, followed with violence makes it clear that if any theft is committed it should necessarily precede with violence i.e. entry into the premises for committing theft should involve force or violence or threat to insurer or to h is employees or to the members of his family. Therefore, the element of force and violence is a condition precedent for burglary and housebreaking. The term ’burglary’ as defined in the English Dictionary means an illegal entry into the building with an intent to commit crime such as theft. But in absence of violence or force the insurer cannot claim indemnification against the insurance company. The terms of the policy have to be construe as it is and we cannot add or subtract something. Howsoever liberally we may construe the policy but we cannot take liberalism to the extent of substituting the words which are not intended. It is true that in common parlance the term ‘burglary’ would mean theft but it has to be preceded with force or violence. If the element of force and violence is not present then the insurer cannot claim compensation against theft from the insurance company”.
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“We are of the opinion that theft should have 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 insurance company will be well within their right to repudiate the claim of the insurer”.
As referred above the case ratio is also perfectly applicable to the present case and therefore, with the conclusion of Supreme Court, we opined that there is no any deficiency in service on the part of the Opponent. Hene the repudiation of the claim by the Opponent is justified in the eyes of law.
Under these facts and circumstances of the present case, we proceed to pass the following order :-
// ORDER //
(1) The complaint stands dismissed.
(2) No order as to costs.
(3) Certified copies of this order be furnished to
the Complainant and the Opponents free
of costs.
(Smt. Sujata Patankar) (Smt. Pranali Sawant)
MEMEBR PRESIDE NT
ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PUNE.
Place : Pune
Date : 17/10/2011
| | [ Smt. Sujata Patankar] MEMBER[ Smt. Pranali Sawant] PRESIDENT | | 
