IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA. Dated this the 17th day of February, 2010. Present:- Sri. Jacob Stephen (President) Smt. C. Lathika Bhai (Member) Sri. N. Premkumar (Member) C.C.No.43/07 Between: Joy Thomas @ Joy, aged 46 years, S/o. T. V. Thomas, Therattu Rubbers, Kunnamthanam, Mallappally Taluk, Pathanamthitta Dist. (Residing at: Therattu House, Mundiyappally Muri, Kaviyoor Village, Thiruvalla Taluk). (By Adv. Peelipose Thomas & T.M. Venugopal) ..... Complainant And: - Regional Manager,
New India Assurance Co. Ltd., Ernakulam Regional Office, Kadamkulathu Towers, M.G. Road, Cochin – 682 011. - Branch Manager,
New India Assurance Co. Ltd., Salim Building, Near Head Post Office, Changanassery. (By Adv. P.D. Varghese) ..... Opposite parties. O R D E R Smt. C. Lathika Bhai (Member): The complainant has filed this complaint against the opposite parties for getting a relief from this Forum. 2. The fact of the complaint is as follows:- The complainant is a rubber dealer since 1992 at Kunnamkulam Junction of Mallappally Taluk in the name and style of Therattu Rubbers. The complainant was running the business in a rented room in building No.X/588 (Old No.IX/15) of Kunnamkulam Panchayat. The above said rubber shop and stock was insured with the opposite parties vide policy No.760102/48/05/00463 for an amount of Rs.3,00,000/-. The complainant used to open his shop every day at 7.30 a.m and closed at 6.30 p.m except Sundays. On 1.12.2005 during the night between 6 p.m and 6 a.m the complainant’s rubber shop’s shutter was broken by some miscreants and stolen 1477 kgs. of rubber sheets valued at Rs.97,000/-. On 2.12.2005 immediately after knowing the theft the complainant has informed Keezhvaipoor police and Keezhvaipoor police registered a crime as Crime No.260/05 u/s. 457, 461 and 380 of IPC. After registering the crime they prepared a scene mahazar and after investigation they have filed final report before the Chief Judicial Magistrate Court, Thiruvalla. 3. The complainant had availed an over draft credit facility of Rs.2.5 lakhs from Pathanamthitta District Co-operative Bank for conducting his business. After the incident the complainant informed the matter to the opposite parties. The complainant had filed a claim form before 2nd opposite party with all relevant documents. The opposite parties have deputed a surveyor for assessing the loss and some officials of opposite parties also visited the spot and convinced the facts. After 8 months from filing the claim on 31.7.06 the opposite parties have repudiated the claim stating unreasonable grounds. Thereafter on 17.8.2006 the complainant had sent a detailed reply to the above said letter to the opposite parties. On 9.1.2007 the complainant had got another letter from 1st opposite party stating that the complainant’s claim could not considered as the surveyor observed that there is no signs of any forcible entry in to the premises. The opposite parties deliberately avoided compensating their liability of the loss sustained to the complainant. The complainant is maintaining daily purchase and selling Register and he is paying sales tax under the provision of VAT. He has got KGST Number Vide No.14172161 DL 1409324. The repudiation of the complainant’s claim is not justifiable and without any valid reason. The act of the opposite party is a deficiency in service which caused mental agony, financial loss etc. to the complainant hence he filed this complaint for getting an order for directing the opposite party to pay the insurance claim amount with interest along with a compensation and cost to the complainant. The complainant prays for granting the reliefs. 4. The 2nd opposite party has filed a common version on behalf of the 1st opposite party also stating the following contentions: The complaint is not maintainable either in law or on facts. The opposite parties have admitted the issuance of shopkeepers’ insurance policy in the name of the complainant for a period from 2.11.2005 to 1.11.2006 insuring the stock kept in the shop bearing No.X/588 of Kunnamthanam Panchayat. For the alleged incident, that the rubber shop owned by the complainant was broken in the night of 1.12.2005 by miscreants trespassing into the shop and committed theft of 1497 kgms. of rubber sheets kept in the shop, the complainant lodged a claim before the 2nd opposite party. The 2nd opposite party had deputed a surveyor to report the factual position of the case and the surveyor had submitted two reports dated 28.1.2006. 5. The Keezhvaipoor police had registered a crime as Crime No.260/05 regarding the above said incident. On a perusal of police records and survey report there was no sign of any forcible entry in the said shop room where rubber sheets were kept. After investigation police had filed a U.N. Report. The finger print expert from DCRB, Pathanamthitta visited the insured premises on 2.12.2005 itself and conducted investigations. But there was no evidence of any finger prints or sign of forcible entry. 6. It is to be noted that the allegation of the complainant and the findings of the police is that the thieves have used some tools to break open the locks. If that be so, definitely there would have been some marks or damage to the shutter or on the latches. The shutter has hooks and brackets at both ends, which can be locked by pad locks, and there is another extra lock at the centre of the shutter. This centre lock, locks the shutter to the floor with the key, which can be inserted from outside the shutter. There are altogether three locks for the shutter at three different positions. In order to open the shutter, one has to open these three locks and if sharp tools, hacksaw or metal cutter was used to break these locks, some damages to the shutter or brackets will occur. Since no such sign are noted on the shutter or on the floor, the story of forcible entry by thieves put forward by the complainant will not hold ground. The policy issued to the complainant reads as “The term of burglary and/house breaking means theft involving entry into or exit from the insured premises by forcible and violent means”. In this case there is no forcible entry into the shop was noted. Considering all these circumstances, the opposite parties have rightly repudiated the claim. The premises number mentioned in the policy is Door No.X/588, Kunnamthanam Panchayat whereas the alleged theft occurred in the shop room No.IX/15 of Kunnamthanam Panchayat. It is clear that the theft occurred in another premises and hence opposite parties are not liable. The genuineness of the stock register and other account books are highly doubtful as the particulars of the persons from whom the rubber sheets have purchased is not properly mentioned. It can be seen that the records were fabricated for the claim. In the circumstances, the opposite parties prayed for the dismissal of the complaint with the cost of opposite parties. 7. The points for consideration in this complaint are: (1) Whether the complaint is maintainable before the Forum? (2) Whether the complainant is entitled to get a relief as prayed for in the complaint? (3) Relief and Costs? 8. The evidence in this case consists of the proof affidavit filed by the complainant along with 15 documents and the lock produced from the side of the complainant. On the basis of the proof affidavit filed by the complainant, the complainant is examined as PW1 and the documents produced by the complainant were marked as Ext.A1 to A15 and the lock produced is marked as M.O.1. From the side of the opposite parties, 2nd opposite party, the Branch Manager has filed a proof affidavit and 4 documents. On the basis of the proof affidavit the Branch Manager was examined as DW1 and the 2 document produced is marked as Ext.B1 and B1(a). The surveyor who conducted the survey and prepared report of the alleged incident in this complaint was examined as DW2 and the survey report and photographs produced by the opposite party were marked as Ext.B2. and B3. After closure of the evidence, both sides heard. 9. Point Nos. 1 to 3:- The complainant’s case is that he is a rubber dealer since 1992 at Kunnamthanam Junction in the name and style of Therattu Rubbers in Building No.X/588 (Old No.IX/15) of Kunnamthanam Panchayat. The rubber shop owned by him was broken by miscreants by trespassing into the shop and committed theft of 1497 kilograms of rubber sheets kept in the shop valued at Rs. 97,000/-. The opposite parties have issued a shopkeepers insurance policy in the name of the complainant for a period from 2.11.2005 to 1.11.2006 insuring stocks kept in his shop. A claim regarding the alleged incident was lodged before the 2nd opposite party. But the claim was repudiated by the opposite parties stating the main ground that there was no signs of theft involving entry into the premises by forcible and violent means. According to the complainant, Keezhvaipoor police registered case as Crime No.260/05 u/s.457, 461 and 380 IPC and conducted an investigation and found the incident as a theft. Hence he is entitled to get the claim amount from the opposite parties. Therefore he filed this complaint for getting the reliefs as sought for in the complaint. 10. In order to prove the complainant’s case the complainant adduced oral evidence as PW1 and Ext.A1 toA15 and M.O.1 were marked on the basis of the proof affidavit filed by him. Ext.A1 is the copy of FIR and FIS in Crime No.260/05 prepared by the Keezhvaipoor police for the theft conducted in the complainant’s rubber shop. Ext.A2 is the scene mahazar prepared by the Keezhvaipoor police in Crime No.260/05. Ext.A3 is the final report in Crime No.260/05 prepared by Keezhvaipoor police. Ext.A4 is the passbook issued by the Pathanamthitta, DCB in the name of the complainant. Ext.A5 is the Insurance Policy Certificate issued by the opposite parties for insuring the stocks in the complainant’s shop. Ext.A6 is the licence issued by the panchayat for conducting the rubber shop in the building No.X/588 from 1.4.2004 to 31.3.2005. Ext.A7 is the purchase register kept by the complainant. Ext.A8 is the purchase bill book and Ext.A9 and A9(a) are the sale bill books (2 number) kept in the complainant’s rubber shop. Ext.A10 is the statement of sales tax return in the year 2005-2006 issued by the Sales Tax Department. Ext.A11 is the repudiation letter dated 31.7.2006 sent by the opposite parties to the complainant. Ext.A12 is the copy of the letter-dated 25.9.06 sent by the complainant to the opposite party. Ext.A13 is the letter-dated 4.10.2006 sent by the opposite party to the complainant. Ext.A14 is the copy of letter sent by the complainant to the opposite party. Ext.A15 is the letter-dated 9.1.2007 sent by the opposite party to the complainant. M.O.1 is the lock of the complainant’s rubber shop. PW1 was cross-examined by opposite party’s counsel. 11. According to the opposite parties their main contention is that there was no signs of theft involving entry into the complainant’s shop by forcible and violent means. As per Sec.2 of the policy the term of burglary and/or house breaking means 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. The police records in Crime No.260/05 of Keezhvaipoor police station and the surveyor’s report would reveal that there was no forcible entry in the shop room where rubber sheet kept. The Finger Print Experts were also conducted an investigation for detecting evidence of any finger print but there is no evidence of any finger prints or sign of forcible entry. Further the insurance policy was issued to cover stocks kept in door No.X/588, Kunnamthanam Panchayat whereas the alleged theft occurred in shop No.IX/15. The stock register and the receipt produced are not genuine. 12. In order to prove the opposite party’s contentions Branch Manager of the opposite party was examined as DW1 and Ext.B1 and B1(a) were marked through him on the basis of the proof affidavit filed by him. One witness for the opposite parties, the insurance surveyor who conducted survey in complainant’s rubber shop after the incident of the theft is examined as DW2 and Ext.B2 and B3 were marked through him. Ext.B1 is the Insurance Policy Certificate and Ext.B1(a) is the terms and conditions of the policy. Ext.B2 is the Survey Report filed by the insurance surveyor. Ext.B3 is the photographs of the rubber shops and its surroundings taken by the insurance surveyor after the theft. 13. The main contention of the opposite parties is that they have repudiated the complainant’s claim on the ground that there was no sign of theft involving entry into the complainant’s premises by forcible and violent means as per Sec.2 of the policy conditions. On a perusal of Ext.A1 it is seen that the Keezhvaipoor police had registered a crime on 2.12.2005 as Crime No.260/05 under Sec.457, 461 and 380 IPC, relating to the theft occurred in the complainant’s rubber shop. In Ext.A1 it is also stated that there is 1497 Kgms. of rubber sheets amounting to Rs.97,000/- were stolen from the complainant’s shop. Moreover in Ext.A2 scene mahazar it is reported that “Sn ISbpsS hS¡phiw j«kao]kabw ]q«v Ft´m _eapÅ Bbp[w sImv \o¡n Cf¡n Sn j«dnsâ a²y`mK¯pmbncp¶ ]q«v s]mfn¨v j«Xpd¶ \nebn InS¡p¶Xmbn ImWp¶p“. The materials on Ext.A1 to A3 clearly proves that the theft involving entry into the insured premises by forcible and violent means. The theft was confirmed by the Keezhvaipoor police after investigation. Hence the main contention of the opposite parties that there is no forcible or violent entry in the premises is not sustainable. 14. Further contention of the opposite parties is that the policy was issued to cover of stocks kept in door No.X/588, Kunnamthanam Panchayat whereas the alleged theft occurred in shop No.IX/15 of Kunnamthanam Panchayat. At the time of cross-examination PW1/complainant stated that “vt\cs¯ CXv 9w hmn 15w \¼apdn Bbncp¶p. ]n¶oSXv 10w hmn 588 w \¼apdnbmbn. hmv ]p\\n#174;b¯n am Dmbn«pÅXp sImmWv Cu hyXymkw h¶ncn¡p¶Xv“. At the time of re-examination, PW1 further stated that “1992- BWv dºIS XpS§nbXv tamjW kabw hsc ]gb \¼cmb IX/15 w \¼F¶v Number Board Dmbncp¶p. 2004v apt¼ \¼amdnbncp¶p. Number Board ]pXnbXv h¨ncp¶nÃ. On the basis of these deposition, it is clear that the room No.IX/15 and X/588 noted are in respect of one and same from and the theft was occurred in the complainant’s insured rented room. Therefore the contention of the opposite party that the theft was not occurred in the insured premises is also not sustainable. 15. The complainant insured his shop and the stocks with the opposite parties for a sum of Rs.3 lakhs valid from 2.11.2005 to 1.11.2006. During the validity of the insurance cover, the theft took place in the complainant’s rubber shop after business hour. The insurance between the insurance company and the insured is a contract and thereby the insurer undertakes to compensate the loss suffered by the insured on account of any risk. The police records clearly shows that there is a forcible entry in the insured premises and 1497 Kgms. of rubber sheets were stolen from the complainant’s shop. As per Ext.B2 survey report, the quantity of stock of rubber sheets on 1.12.2005 assessed is 1498 Kgms. The quantity of rubber sheets lost is assumed as 1477Kgs. (after deducting the rubber sheets left in the shop). It is an undisputed fact that theft occurred during the insurance coverage period. Opposite parties had no case that the alleged incidence is with the knowledge of the complainant to decieve the opposite parties. So the repudiation of the complainant’s insurance claim on the ground that there is no forcible entry or violent means of theft is a clear deficiency in service from the part of the opposite parties. Moreover opposite parties had not challenged the final report of the investigation agency. So the complainant is entitled to get the claim amount to compensate the loss sustained to him due to the theft of rubber sheets as assessed by the surveyor as per Ext.B2 survey report. In the circumstance, we find that there is a clear deficiency in service from the part of the opposite parties and the repudiation of the complainant’s claim by the opposite parties is illegal and unjustifiable. Therefore, the opposite parties are liable to compensate the loss sustained to the complainant due to the theft along with interest and cost. Since interest of the amount is allowed, no need for separate compensation. On the basis of the discussions herein above, the complainant’s prayer can be allowed. 16. In the result, the complaint is allowed, thereby the complainant is allowed to realise an amount of Rs.88,620/- (Rupees Eighty eight thousand six hundred and twenty only) (the loss of stock assessed by the surveyor, i.e. 1477 Kgs. of rubber sheets @ of Rs.60/- per Kilogram) as the insurance claim amount from the opposite parties with an interest @ 6% per annum from the date of filing of this complaint till this date along with a cost of Rs.2,000/- (Rupees Two thousand only). The opposite parties are directed to comply this order within two months from the date of receipt of this order failing which an interest @ 9% per annum will be paid to the complainant till the whole payment from today. M.O.1 and A7 to A9(a) can be returned to the complainant as per rules. Declared in the Open Forum on this the 17th day of February, 2010. (Sd/-) C. Lathika Bhai, (Member) Sri. Jacob Stephen (Member) : (Sd/-) Sri. N. Premkumar (Member) : (Sd/-) Appendix: Witness examined on the side of the complainant: PW1 : Joy Thomas. Exhibits marked on the side of the complainant: A1 : Certified copy of FIR & FI statement in Crime No.260/05 of Keezhvaipur Police Station. A2 : Certified copy of scene mahazar in Crime No.260/05 of Keezhvaipur Police Station. A3 : Certified copy of Final Report in Crime No.260/05 of Keezhvaipur Police Station. A4 : Passbook of the complainant in the Pathanamthitta District Co-operative Bank. A5 : Insurance policy receipt dated 02.11.2005 for Rs.1,463/- issued by the opposite parties to the complainant. A6 : Photocopy of the licence issued by the Secretary, Kunnamthanam Grama Panchayat dated 23.11.2004. A7 : Purchase Ledger. A8 : Purchasing bills. A9 : Credit book. A9(a) : Credit book. A10 : Photocopy of the Vat Tax Return filed by the complainant. A11 : Letter dated 31.07.2005 issued by the third opposite party to the complainant. A12 : Photocopy of the letter dated 25.09.2006 issued by the complainant to the third opposite party. A13 : Letter dated 4.10.2006 issued by the third opposite party to the complainant. A14 : Photocopy of the letter issued by the complainant to the third opposite party. A15 : Letter dated 09.01.2007 issued by the first opposite party to the complainant. Witness examined on the side of the opposite parties: DW1 : Mathew. M. Mathew. DW2 : Abraham Cheriyan. Exhibits marked on the side of the opposite parties: B1 : Shopkeepers’ Insurance Policy with conditions. B1(a) : The relevant portion of Ext.B1 policy conditions. B2 : Survey Report. B3 series : Photographs (10 Nos.) and its negatives (10 Nos.). Material Object: M.O. 1 : Lock. (By Order) Senior Superintendent. Copy to:- (1) Joy Thomas @ Joy, S/o. T. V. Thomas, Therattu Rubbers, Kunnamthanam, Mallappally Taluk, Pathanamthitta Dist. (2) Regional Manager, New India Assurance Co. Ltd., Ernakulam Regional- Office, Kadamkulathu Towers, M.G. Road, Cochin – 682 011. (3) Branch Manager, New India Assurance Co. Ltd., Salim Building, Near Head Post Office, Changanassery. (4) The Stock File.
| | HONORABLE LathikaBhai, Member | HONORABLE Jacob Stephen, PRESIDENT | HONORABLE N.PremKumar, Member | | 
