Fixed date i.e. 17.02.2021 being declared as holiday, the record is put up today for delivery of judgement as below:

 By  :  SRI ASISH DEB, PRESIDENT.

            The case of the complainant in short is that the  complainant had taken an Insurance from the OP Insurance Co being  Policy No. 0317012617P103004030 for the period from 19.05.2017 to 18.05.2018 against Burglary to safe guard his wooden furniture and other materials of his shop. The sum insured  was Rs. 6,00,000/-. Unfortunately ,an occurrence of theft took place in his shop in the night of 16.06. 2017 by  breaking and cutting open padlocks  of the shop. The miscreants took away two box khats, fixtures  and cash of Rs. 490/- at the time of the incident.  The complainant informed the incident to the Ramnagar PS on 17.06.2017 and lodged FIR on 21.06.2017 vide Ramnagar PS case No. 186 of 2017 dated 21.06.2017.   The complainant also intimated the matter of theft to the Insurance Co. on 17.06.2017 over phone.  The complainant alleged that for such burglary he sustained loss of Rs. 1,18,000/- and he claimed the said money from the OP Insurance Company as the incident happened during the coverage period of the Insurance Policy.  The OP Insurance Co. engaged surveyor and opened Claim Docket No. 0317012618C050001001/1, but the OP repudiated the claim by a letter dated 03.08.2018.

            Hence, this case has been instituted with the prayer as made in the complainant.

         Summons was duly issued and served upon the Opposite party. The OP contested the case by filing written version and   denied all the material allegations made in the complaint save and except which are specifically admitted.

        The specific defense of the OP is that the complainant did not furnish categorically value of the stolen property; claimant did not furnish  the assessment  of the loss of each item. The    insurance policy was issued subject to some terms and conditions . According to OP “ Burglary and/or house breaking” shall mean theft involving entry into or exit  from the insured premises by forcible and violent means theft or following assault or violence or threat thereof to the insured or any employee of the insured or member of the insured family “.  But  the Insurance Co. claims that at the time of the alleged incident nobody was there in the shop or no proper security was engaged and no forcible and violence was done at the time of the incident. Thus,the alleged incident can not be termed as burglary.

Under the above circumstances, the OP prays for dismissal of the complaint case with cost.                   

   Contentions of the Ld Advocates

Ld Advocate for the Complainant has submitted that if any miscreant breaks the padlock of a shop in the night, it is definitely a house breaking. The op should not have repudiated the claim ; repudiation of claim is not backed by any justified or acceptable reason. The act of the op certainly amounts to deficiency in service. The complaint case should be allowed as prayed for.

Per Contra: Ld. Counsel for the op has vehemently contented that alleged theft does not fall under the definition of burglary as there was no incident of forcible entering after house breaking ; incident does not cover the condition of insurance policy. The OP Insurer has not committed any wrong by repudiating the claim of the complainant.. As there was no deficiency in service, the instant case is liable to be dismissed.

         The points that arise for Determination are as follows:

I. Is the Complaint case maintainable in its present form?

II. Is the Complainant get the reliefs as prayed for?

DECISION WITH REASONS

In Re:- Points No. I & II

As both the points are inter related we are inclined to address  the points simultaneously in order to avoid repetition of facts and evidence.

 We have given thoughtful consideration to the rival contentions of the Ld Counsel for both parties.

 Having regards had to the contents of complaint ,written version ,evidence and other materials on record, it appears that complainant is a consumer and the op Insurance Co. acted as service provider,as such the instant case is maintainable in its present form in law.

 It is evident that indisputably complainant had insured the Sum -A.  Burglary & House Breaking of contents_of Rs.6,00,000/-.Money insurance-in Transit of Rs7,500/-  of his shop with a valid Insurance policy with the op Insurance Company. The complainant alleged that for such burglary he sustained loss of Rs. 1,18,000/- and he claimed the said money from the OP Insurance Company as the incident happened during the coverage period of the Insurance Policy.  The OP Insurance Co. engaged surveyor and opened Claim Docket No. 0317012618C050001001/1, but the OP repudiated the claim by a letter dated 03.08.2018.

 Now, in order to establish his case the complainant has filed the policy certificate, letters dated 03.08.2028 , 27.08.2018 and 17.07.2018, a list containing the value of each stolen article in  details , copy of FIR and Report in Final Form as FRT (Final Report True ).On the other hand OP has filed copy of Surveyor's Report.

 “House Breaking” has been defined under section 445, IPC. On reading the said definition it can be well determined If any person breaks the padlock of a shop in the night,it is definitely a house breaking. Coming to the Surveyor's Report, it is evident that  during spot investigation the Surveyor found After thorough investigation, interaction  / inqury with the insured, and a few local people undersigned ( surveyor) has been convinced that the insured has suffered due to incident of Burglary.

Thus, Surveyor's Report itself support the incident of Burglary . On appreciation of the materials on record,  it is clear that the facts as averred by the complainant, have been corroborated by copy of FIR and Report in Final Form as FRT (Final Report True ).The occurrence of theft took place by breaking pad lock of the shop which falls within the definition of burglary ie house breaking  under section 445,IPC. It is not justified and legal not to consider this theft as burglary by OP. Therefore,  the contention of the Ld Advocate or the op on this point has got no leg to stand upon. The Surveyor did not outright reject the claim amount in respect of value of stolen furniture as Rs.97,000/-. According to Surveyor Cash in drawer; fixture are not within the coverage of insurance ; he adopted the pro-rata or average as a basis for  loss of calculation. Adoption of  pro-rata or average as a

basis for  loss of calculation is not justified as a whole in this case as it is not a case of under -insurance .   The new displayed furniture for sale has got no depreciation value. The  Burglary & House Breaking of contents_of Rs.6,00,000/- money insurance-in Transit of Rs. 7,500/-  of his shop squarely covers the fixture and money also; the pro-rata basis theory can only could have been taken for assessment of loss in the case of  fixture which are components of a furniture shop. Fixture value suffers depreciation due to its normal wear and tear due to its constant use and exposure. So value of the fixture is assessed at Rs.12,510/-.Loss of Rs.490/- as cash is accepted.  The complainant suffered the loss due to burglary for which he paid premium to the op Insurance Co. He has not claimed the whole sum assured amount. The op should not have repudiated the claim ;repudiation of claim is not backed by any justified or acceptable reason. Thus, there is element of deficiency of service or negligence on the part of the op. The op should  pay Rs.1,10,000/-(97,000/- + 12,510/- + 490/- ) as towards loss due to burglary, Rs.7000/- as towards  compensation for harassment and Rs.3000/- as litigation costs; in addition to that he will get simple interest @ 7% per annum  from the date of filing this case.

Both the points are answered accordingly. 

In the result, the complaint case succeeds.

           Hence, it is

O R D E R E D

That the Consumer Case No. 394 of 2018 be and the same is allowed  on contest OP.

 The OP is directed to pay Rs.1,10,000/-(97,000/- + 12,510/- + 490/- ) as towards loss due to burglary, Rs.7000/- as towards  compensation for harassment and Rs.3000/- as litigation costs to the Complainant.  In addition to that Complainant will get simple interest @ 7% per annum on said amount from the date of filing of this case till realization from the OP.

The OP is directed to issue a bank draft /bankers’ cheque for the said amount within 45 days from date of this order in default the Complainant would be at liberty put the order into execution.

Let a copy of this judgment be supplied to the parties , each free of cost.