Chandigarh

DF-II

CC/252/2013

Haryana Warehousing Corporation - Complainant(s)

Versus

Oriental Insurance Company Limited - Opp.Party(s)

Mrigank Sharma, Adv,

29 May 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

======

Consumer Complaint  No	:	252 of 2013
Date  of  Institution	:	07.06.2013
Date   of   Decision	:	29.05.2015

 

 

 

 

 

 

Haryana Warehousing Corporation, through its Legal Adviser, Head Office, Bay No.15-18,   Sector 2, Panchkula 134112

 

             …..Complainant

 

Versus

 

Oriental Insurance Company Limited, SCO No.109-110, Surendra Building, Sector 17-D, Chandigarh.

 

….. Opposite Party

 

 

BEFORE:  SH.RAJAN DEWAN                 PRESIDENT

         MRS.PRITI MALHOTRA             MEMBER

 

 

 

For complainant(s)      :     Sh.Mrigank Sharma, Counsel for the                    complainant.

For Opposite Party(s)   :     Sh.Sukaam Gupta, Counsel for OP

 

 

 

PER PRITI MALHOTRA, MEMBER

 

 

          As per the case, the complainant corporation entered into a contract for insuring the stocks of the complainant stored in the Warehousing Godown at Jakholi, District Kaithal vide policy No.231202/48/2010/923.  Unfortunately, an incident of theft took place at SWH, Jakholi (Kaithal) i.e. the premises of the complainant, which was found out on physical verification dated 30.5.2009.  In the said incident of theft, 300 bags of HWC wheat were stolen.  Immediately thereafter, the Opposite Party was duly informed on 31.5.2009.  The police was also informed and an FIR No.119, dated 11.6.2009 under Section 380 IPC at P.S.Kaithal Sadar was lodged, copy of which was sent to the OPs (Ann.C-3 & C-2 respectively). Thereafter, a claim of Rs.1,95,000/- was lodged by the complainant corporation with the Opposite Party (Ann.C-4 & C-5) and all necessary documents were also supplied.  However, the Opposite Party Company repudiated the claim vide letter dated 21.12.2010 (Ann.C-7) on the ground that since there is no evidence of any tempering of boundary wall or fencing, therefore, there is no forcible entry and no case of burglary has been established, whereas the thieves were able to steal the bags from the open plinth area and therefore, there is no question of any forcible entry by breaking the wall or fence, as the plinths in the open area during that time were not fenced.  It is averred that the Opposite Party Company was requested vide letter dated 22.1.2013 (Ann.C-10) that even as per the Final Investigation Report (Ann.C-11) dated 12.5.2010, the action of theft has been found as the police authorities gave finding that inspite of investigation, they have not been able to trace out the accused and there is absolutely no involvement of any employees of the complainant corporation in the active incident of theft. The Opposite Party was requested to re-examine the case, but to no avail.  Hence, this complaint has been filed.

 

2]       The Opposite Party has filed reply stating therein that a policy under Burglary Standard Policy Schedule was issued to the complainant and the same was issued along with its terms & conditions (Ann.R-1).  It is also stated that there is no documentary evidence on record which proves that there was a loss of Rs.1,95,000/-.  It is further averred that after receiving the survey report, answering Opposite Party came to know that the loss as claimed by the complainant could not be indemnified as it did not fall within the purview of the operative clause of insurance policy because as per the relevant policy conditions, the claim could only be indemnified against loss by theft where there was entry or exit by forcible and violent means; whereas in the present case, there was no forcible or violent entry or exit, which fact is also admitted by the complainant in the complaint. Thus, the claim was repudiated. It is also submitted that as per the definition of Section 380 of IPC, the same is imposed on attempt of theft and not for Burglary whereas the complainant has taken coverage under Burglary Standard Policy Schedule and the element of force or violence is a condition precedent for burglary and housebreaking. Rest of the allegations have been denied with a prayer to dismiss the complaint.

 

3]       Parties led evidence in support of their contentions.

 

4]       We have heard the ld.Counsel for the parties and have also perused the record.

 

5]       Originally the complaint was filed along with an application for condonation of delay, which was allowed vide order dated 03.07.2013.

 

6]       It is submitted by the Counsel for the complainant that Haryana Warehousing Corporation, an autonomous body i.e. complainant in the present case, availed an insurance Policy from the Opposite Party for the stocks stored in the Warehousing godown at Jakholi, District Kaithal vide Policy No.231202/48/2010/ 923. An incident of theft took place at the insured premises, which got noticed on the physical verification conducted on 30.5.2009 noting that 300 bags of HWC Wheat were stolen.  In this regard, the Opposite Party was intimated on 31.5.2009 and simultaneously, the matter was informed to the police authorities and FIR No.119, dated 11.6.2009 was lodged, the copy of which was also forwarded to the insurance company vide letter dated 01.10.2009.  The complainant submitted that even as per the Final Investigation Report of the Police, dated 12.5.2010, the action of theft has been found and the police authorities have recorded the findings that inspite of investigation, they have not been able to trace out the accused and there is absolutely no involvement of any of the employees of the complainant corporation in the active incident of theft. Submitted further that the claim of Rs.1,95,000/- lodged with the Opposite Party vide letter dated 24.9.2009 till date had yet not been indemnified by the Opposite Party as they had wrongly repudiated the claim. Assailing the repudiation letter dated 21.12.2010 issued by the Opposite Party, the complainant prayed for the relief claimed in the present complaint.

 

7]       The Opposite Party claimed no defect, delay, negligence or deficiency on its part in rendering service to the complainant.  It is admitted that the complainant has taken a Burglary Insurance Policy, which was issued to the complainant along with certain terms & conditions (Ann.R-1).  Submitted further that after receiving the intimation regarding the theft in question, a Surveyor was deputed to assess the loss and the outcome of the Surveyor Report shows that the complainant could not be indemnified as the claim lodged did not fall within the purview of the operative clause of the insurance policy.  Further added that as per the relevant policy conditions, the claim can only be indemnified against the loss of theft where there was entry or exit by forcible and violent means, whereas in the present case, there was no forcible or violent entry or exist and further relied upon the admission of the complainant that the theft has taken place from the open plinth area at the Warehouse wherein the wheat bags were stored in the open and for their protection, chowkidar was kept round the clock, as such, no question of any forcible entry by breaking the wall or fence is possible as the plinths in the open area during that time were not fenced.  Claiming no deficiency in service, the Opposite Party tried to justify its repudiation of the claim lodged by the complainant corporation. 

 

8]       The issuance of the insurance policy No.231202/48/2010/923 insuring the stocks of the complainant by the Opposite Party, is proved and a matter of record.  The copy of the FIR   (Ann.C-3) is evident of the fact that the theft  of insured 300 grain bags was occurred during the currency of the said policy.  Accordingly, after timely intimation, a claim amounting to Rs.1,95,000/- for the loss occurred was lodged with the Opposite Party on 24.09.2009, which evidently was repudiated by the Opposite Party vide letter dated 21.12.2010 (Ann.C-7), stating as under:-

    “This has reference to your intimation letter dated 21/12/2009 regarding the loss of 300 grain Bags.  ON going through the claim papers it is observed that the loss has come to light during the stock taking technical inspection.  There is no evidence of any tempering of boundary wall or fencing therefore burglary has not been established.”

 

9]       In the light of the above facts, it is to be seen that whether the repudiation of claim is justified.  We are of the considered opinion that the Opposite Party is not justified in repudiating the claim of the complainant as nowhere in the record they have proved that at the time of issuance of the policy in question, the stock to be insured was lying in the closed premises or was fenced which needs forcible entry in order to commit any theft or burglary.  The OP has not specified that under what conditions the stock in question was insured and what changes were made after the issuance of the policy in question which contributed towards the commission of theft of the same. So, the Opposite Party cannot rely upon the ground referred to in their repudiation letter qua tampering of boundary wall of fencing as pre-requisite in case of theft/burglary.   Moreover, it is not clear that the copy of the terms and conditions, Annexure R-1 placed on record by the OP are part and parcel of the policy issued to the complainant. Thus, reliance placed on these terms and conditions by the OP to justify the repudiation is not tenable.

 

10]      The Opposite Party in its written statement averred that on receiving the theft intimation, they deputed the Surveyor to assess the loss and issued repudiation letter dated 21.12.2010 on the basis of Survey conducted by the Surveyor appointed.  To our surprise, the Opposite Party has not placed on record the said Surveyor’s Report and withheld the same for the reasons best known to it.  The record before us is silent qua the fact that when the surveyor was appointed and when the surveyor report was submitted with the OP. No investigation/inquiry record is available to show the efforts made by the OP to settle the claim in dispute. The evidence before us pertains to one sided communication and that too pursued by the complainant in order to get its claim settled.  The OP is proved to have violated the procedure prescribed under Regulation 9 of the Insurance Regulatory and Development Authority (Protection of Policyholders’ Interests) Regulations, 2002 issued by the IRDA, which mandates the settlement of the claim within the prescribed period by adopting given procedure whereas the OP took more than a year to communicate its decision. 

 

11]      It is proved out of the record available that the theft of the insured stock is nowhere disputed.  Even the final investigation report, Annexure C-11 submitted by the police authorities establish the factum of theft completely ruling out the involvement of any employee of the complainant.

 

12]      In view of the above discussion & findings, the repudiation of the claim by the OP stands unjustified and the OP is found deficient in providing services and is held liable to pay the claim. The complaint is allowed against the Opposite Party. The Opposite Party is directed as under:-

1. To pay the claim amount of Rs.1,95,000/-, to the complainant corporation, along with interest @9% p.a. since the date of repudiation i.e. 21.12.2010 till it is paid. 

 

 

2. To pay Rs.20,000/- as compensation for the deficiency in service on the part of the OP.

 

 

3. To pay Rs.7,000/- towards litigation expenses.

 

 

         The above said order shall be complied with by the Opposite Party within 45 days of its receipt, failing which it shall be liable for an interest @18% per annum on the awarded claim amount Rs.1,95,000/- from the date of repudiation i.e. 21.12.2010 till it is paid and also on the compensation amount of Rs.20,000/- from the date of filing of this complaint till it is paid, besides paying litigation expenses of Rs.7,000/-. 

 

13]      The certified copy of this order be sent to the parties free of charge, after which the file be consigned.

Announced

29^th May, 2015              

                                                                                       Sd/-

 (RAJAN DEWAN)

PRESIDENT

 

 

Sd/-

 (JASWINDER SINGH SIDHU)

MEMBER

 

 

Sd/-

(PRITI MALHOTRA)

MEMBER