FA. No.. 973 of 2006

F.A. No. 988 of 2006

Heard learned counsel for the appellant in F.A.No. 988 of 2006. Respondent is absent. However, appellant in F.A. No. 973 of 2006 is absent but counsel for the Respondent is present. Both Appeal arise out of single order passed in C.D No. 153 of 200. So both the appeals are disposed of by this common order.

2.      Captioned appeal are filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to this appeals shall be referred to with reference to their respective status before the District Forum.

3.      The case of the complainant in nutshell is that he is the proprietor of M/s. Sri Jagannath Industries at Sisua. It is alleged inter alia that the complainant had purchased a valid Insurance Policy known as Burglary and House Breaking Policy covering the period of Insurance from 11.00 A.M. of 23.8.1999 to midnight of 22.8.2000 for a sum assured at Rs. 2,50,000/-. It is further alleged that due to super cyclone on 30.10.1999 a mob of about 500 people forcibly entered inside the store and looted away storage material consisting of paddy and flattened rice worth Rs. 2,50,000/-. The complainant informed the police on 4.11.1999 but  F.I.R. was registered on 10.11.1999 at Govindpur Police Station.   It is alleged that the claim was also lodged before the insurer. But on 21.6.2000 the opposite party-insurer repudiated the claim on the ground that super cyclone is excluded under the policy and moreover, the complainant did not produce the documents. Challenging the repudiation, the complaint case was filed.

4.      The opposite party filed   written version stating that since the documents were not arranged, the Surveyor could not complete the assessment. Therefore, they have repudiated the claim of the complainant.

5.      After hearing both the parties, learned District Forum passed the following order:-

  “ Taking a complete and whole assessment of the case, its facts and circumstances, we come to a definite conclusion that the complaint is not fit for being allowed as a  whole. Since the 12 months rule was almost observed by the complainant to loge the complaint though making a delay of 2 days, it is not to be given full weight. We, therefore, allow the complaint in part and settle the claim at Rs.30000/- as no loss and damage report is furnished to support the claim and police found the case true. The O.P. is directed to pay the claim as assessed above within one month after receipt of a  copy of this order.”

6.      Learned counsel for the appellant in F.A. No. 988 of 2006 submitted that learned District Forum committed error in law by not constituting the exclusion clause in the order correctly. As per the policy condition, documents should be  produced before the insurer to complete the survey. But the complainant did not produce the documents for which they have  repudiated the claim. They have deputed the surveyor to compute the loss but due to violation of the policy condition they have repudiated  the claim.

7.      Learned counsel for the appellant submitted that learned District Forum without following the materials on record has passed the impugned  order which is not sustainable in law. So learned counsel for the appellant-insurer submitted that the impugned order should be set aside by allowing the appeal.

8.      Learned  counsel for the appellant in F.A.973 of 2006 submitted that he is the respondent in other appeal, but the appellant in this appeal challenging the amount of compensation awarded by the learned District Forum. According to him,  the loss has been computed at Rs. 2,48,950/- but the learned District Forum  allowed only Rs. 30,000/- as compensation. So he has filed this appeal for enhancement of the amount of compensation.  However, he submitted that there is no violation of any of the conditions in the policy as he has submitted all the documents. Therefore, he submitted to  allow the appeal by enhancing the compensation amount.          

9.      Considered the submission of both the parties. It is a  fact that paddy and flattened rice were insured with the opposite party-insurer for the period from 23.8.1999 to 22.8.2000. It is admitted fact that there was super cyclone on 29.10.1999. It is also  not in dispute that some residents removed the paddy and flattened rice from the store of the complainant.

10.    It is also revealed from complainant that police was informed on 4.11.1999 because super cyclone was not allowing to come out to lodge the F.I.R. immediately. The opposite party took the plea that the Surveyor only sent a letter to the complainant to produce the documents for inspection, but the documents were not filed. Further, the opposite party took the plea that the policy does not cover the risk as claimed in this case.

11.    We have gone through the policy. The Policy shows that it was purchased for covering the risk of house and the go-down, particular description of property shows that stock of paddy and flattened rice was insured. However, the policy covers the house also. The opposite party took the plea by showing the clause 4(a) of the Exclusion clause of policy which is as follows:-

          “4(a). Loss or damage directly or indirectly, proximately or remotely occasioned by or which arises out of or in connection with Riot and Strike, Civil Commotion, Terrorist activities, Earthquake, Flood, Storm, Volcanic Eruption, Typhoon, Hurricane, Tornado, Cyclone or other convulsions of nature or atmospheric disturbances”

12.    The aforesaid clause shows that any damage or loss occasioned or arises out of or in connection with flood or storm is not covered. Since it is a Burglary and House Breaking Policy, the exclusion clause 4(a) will not apply as it is alleged by the complainant that after cyclone , some miscreants took away the properties from the go-down of the complainant. It is not a case that damage is  caused due to cyclone. Therefore, we are of the view that policy covers the risk which is alleged in this case.

13.    We have gone through the surveyor’s report. The surveyor’s report shows that the complainant could not  prove the burglary or removal of paddy and flattened rice from his go-down. On the other hand, the Surveyor’s report shows that due to super-cyclone, roof of the complainant was blown off for which the burglary took place causing damage to the complainant. They have verified  the damaged  crops. They have also information at the spot that go-downs were looted by the miscreants  on 30.10.1999. On these materials, it was the duty of the Surveyor to make the assessment of the loss, but he has not performed the same.

14.    So far the letter of repudiation, it is found that the opposite party closed the file as ‘no claim’. By citing the fact, the complainant stated that exclusion   clause of the policy cannot come into play in this case. We have held that the risk is covered under the policy. Therefore, repudiation of the claim by the opposite party is the deficiency in service on the part of the opposite party.

15.    Learned District Forum  has observed in their order that the occurrence took place on 30.10.1999, but it was reported to the police on 10.11.1999 and the complaint was filed on 20.6.2001. At the same time, they observed in paragraph-6 of the impugned order that 12 months rule was almost observed by the complainant to lodge the complaint after two days. But after going through the same, we are of the view that two years has to be computed from the date of repudiation. Since the complaint was filed on 20.6.2001 and repudiation was made on 19.6.2000, it is within the time limit as prescribed under Section 24-A of the Consumer Protection Act, 1986. 12 months rule is not applicable so far filing of case before the Consumer Forum. 12 months rule from date of occurrence is applicable so far claim is to be  filed before insurer. Since the claim  has  already been filed within 12 months, the observation of 12 months rule does not appear to be relevant  for  direction by the learned District Forum.         Be that as it may, the complaint is not barred by limitation.

16.    Now the question arises as to whether in case of burglary the delay has been explained so as to make continuance of the  terms and conditions of the policy in view of the decision of the Supreme Court of India in Om Prakash vs. Reliance General Insurance & Anr. reported in (2017) 9 SCC 74.

17.    We have gone through the records. It appears that occurrence took place on 30.10.1999 and the F.I.R. was filed on 10.11.1999. It has taken the plea that due to super cyclone, devastation could be measured by the complainant  later on and then informed the police.

18.    Considering the delay under the appropriate circumstance, we are of the view that delay has been properly explained in lodging F.I.R.

19.    In view  of the decision of the Hon’ble Supreme Court of India passed in Om Prakash (supra), where their Lordships observed that in case of delay properly explained, the claim can be acceptable, we have discussed fact that  the delay has been explained as per the facts and circumstances, we find no error in granting relief to the complainant.

20.    So far the question of compensation for loss is concerned, it is always settled in law that the report of the Surveyor to show the loss if it is not biased.

21.    In the instant case, the Surveyor has not computed the loss. On the other hand, the complainant has proved and filed the report of the Chartered Accountant who has assessed the loss at Rs. 2,50,040/-. He has also submitted the  Borrower’s statement. From the police report, it appears that about 300 bags of stock have been removed.

22.    Considering all these facts, we are of the view that there is a loss occurred to the complainant but the policy shows that the sum assured is Rs.2,00,000/-. Therefore, the loss is to be settled at Rs.2,00,000/- payable to the complainant.

23.    It appears that learned District Forum has assessed the loss at Rs.30,000/- by allowing the complaint. The complainant  has computed loss as stated but same has no legal reasons.

24.    In view of the aforesaid discussion, while confirming the order of the learned District Forum, we modify the operative portion of the order by directing the opposite party to pay Rs. 2,00,000/- to the complainant within a period of 45 days failing which 9% interest per annum will be charged from the date of impugned order till the date of payment.

25.    The appeals are disposed of accordingly. No cost.

DFR be sent back forthwith.

Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.