IN THE KODAGU DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, MADIKERI

ORDER DELIVERED BY HON’BLE MEMBER

SMT. GOWRAMMANNI

1. This complaint prays following relief against the Ops to direct the opposite parties to pay the claimed amount of Rs.31,098.50 which is detailed in the claim form.  To direct the insurance company to pay the damages for the mental agony and for having made the complainant run pillar to post and the damages were estimated as Rs.30,000/-.  Further the complainant also seeks damages of Rs.10,000/- for OP gross negligence in dealing with the case of complainant.  The complainant under this complaint claiming a total amount of damages of Rs.71,098.50 as narrated above in the case  interest of justice and equity.

2. The brief facts of the case are as under;

The complainant having the burglary policy of the OP insurance company to the complainant’s black pepper stored at Coorg Coffee Estate bearing policy No.67101346220100000001 valid from 17-5-2022 to 16-10-2022 for a insured value of Rs.31,50,000/- for the total quantity of 120 bags X 50 kgs each.There was a set of 16 bags X 50 Kg black pepper weighing 800 kgs was notified to OP insurance company branch at Madikeri on 21.10.2022.regarding this the Police complaint had been filed earlier who had began investigation of the above said date immediately.Further investigation by the police was intimated to the office of the OP on 27/10/2022along with the FIR copy and further intimation to the OP office was on 9.11.2022.After that OP company sent their surveyor attached to the OP by name Mr. Manjunath to assess the value of the damaged by adultrisation Pepper and to inspect the godown where it was stored and then detailed claim was filed on the claim form of the OP and which was filed on 29.11.2022 for sum of Rs.31,098.50.This fact have been informed to the Office of the OP on 20.3.2023.Inspite of the complainant followed all the procedures of the opposite parties insurance company and in turn the OP wrote to the complainant on 18.5.2023 trying to evade liability and to make wrongful gains out of it on own pretext or another.The said letter of the OP dated 18.5.2023 was replied by the complainant on 22.7.2023 along with the entire set of charge sheet.The opposite parties trying wriggle out of the contract and which facts mentioned in the said reply notice was not mentioned in the insurance policy condition which reply sent by the Ops is quite contrary to the insurance policy conditions and when the policy was issued to the complainant such conditions were not there in the policy.Opposite party with a manifest, malafide intention in order to wriggle out of the contract trying to evade the liability.In view of the above facts the OP who is responsible insurance company trying to evade the liability.Inspite of the complainant followed all the legal procedures as required under law.Hence this complaint.

3. After registration of the complaint, notice was issued to opposite parties.  Inspite of service of notice opposite parties appeared through their counsel and filed their version. 

4. The brief facts of the Version is as follows;

It is true that the complainant obtained burglary and house breaking policy from the opposite party the New India Assurance Company limited for the period 17.5.2022 to 16.10.2022 covering the stock of pepper.The complainant intimated on 21.10.2022 about the theft of 16 bags of 50Kgs each of black pepper and submitted the claim form it was brought to the notice of the OP that the complainant lodged a police complaint with the Suntikoppa Police.The Police after investigation arrested the accused person who committed the theft and seized the stolen pepper.The Opposite party deputed a competent surveyor for survey and to assess the loss.The Surveyor assessed the net loss at Rs.26,098/-.The opposite party further took a contention that upon perusing the criminal case records it was observed that the burglary and theft was committed by the employee of the insured with the help of other four accused persons.Accused No.5 Kalappa M.C who is an employee of the complainant has been charge sheeted for the alleged offence under section 457 and 381 IPC.That is lurking house trespass or house breaking by night in order to commit offence punishable with imprisonment and theft by clerk or servant of property in possession of master.As per exclusion clause (1) of burglary and house breaking insurance policy the company shall not be liable inrespect of loss or damage where by inmate or member of the insured house hold or office business staff or any other person lawfully in the premises in the business concerned in the actual theft or damage to any of the articles or possess or where such loss or damage have been expedited or any way assisted or brought about by any such person or persons. Wherefore, the opposite party is not liable to pay the loss as such the complaint is not entitled for any of the reliefs claimed in the complaint.Therefore, the opposite party prays that the Hon’ble Commission be pleased to dismiss the complaint.

5. In this case complainant filed his examination-in-chief by way of affidavit evidence as CW-1 with documents marked as exhibits C-1 to C-14 and opposite parties filed their examination-in-chief by way of affidavit evidence as RW-1 with documents marked as exhibits R-1 and R-2.  In this case both parties were filed their written arguments and heard the oral arguments of both sides and posted for orders.

6. The points that would arise for our consideration are as under;

1. Whether the complainant proves the deficiency in service by the opposite parties and thereby they are entitled for the reliefs sought ?
2. What order ?

7. Our findings on the above points are as under;

1. Point No.1 :- Negative
2. Point No.2:- As per the final order for the  following ;

R E A S O N S

8. Point No.1:- In this case complainant alleged in their complaint that there was a theft of 16 bags X 50 Kg black pepper weighing 800 Kgs was notified to OP insurance company branch at Madikeri on 20/10/2022.  Regarding that the Police complaint has been filed earlier who had begin investigation of the above said theft.  Immediately further investigation by the Police was intimated to the office of the OP on 27/10/2022 along with the FIR copy and further intimation to the OP office was on 9/11/2022.  OP sent the Surveyor assessed to the loss.  The Surveyor assess the value of the damaged by the adultrisation pepper and to inspect the godown where it was stored and immediately claim was filed in the claim form of the OP and which was filed on 29/11/2022 for a sum of Rs. 31,098.50 which was reported by the Surveyor to the OP on 20/3/2023.  But OP insurance company were not sufficient cause and grounds reject the claim of the complainant.

9. In support of their case complainant  produced insurance policy, surveyor letter, letter sent to OP company, claim form, letter correspondence with OP, legal notice, postal receipts and acknowledgements, reply notice and copy of the entire charge sheet. 

10. Complainant counsel argued that from the charge sheet it is crystal clear in para no.19 the theft took place on 8/10/2022 and 11/10/2022.  The said dates are within the cover period of the policy.  It is further argued that inspite of the complaint followed all the procedure of the OP insurance company and in turn OP wrote to the letter to complainant on 18/05/2023 trying to evade liability and to make wrongful gain out of it on one pretext or another.  Further they argued that the claim repudiation made by the OP company is quite contrary to the insurance policy conditions and when the policy was issued to the complainant such conditions were not in the policy. Now the OP with a manifest, malafide intention in order to wriggle out of the contract trying to evade the liability and trying to introduce the new clause. In this case OP insurance company admitted that the complainant obtained burglary and house breaking policy from the OP for the period 17/05/2022 to 16/10/2022 covering the stock pepper.  The complainant intimated on 21/10/2022 about the theft of 16 bags of 50 Kgs and submitted the claim form.  It was brought to the notice of the OP and complainant lodged a police complaint with the concerned police station.  The opposite party took a specific contention in their version upon perusing the criminal case reports it was observed that the burglary and theft was committed by the employee of the insured with help of other accused persons. 

11. OP counsel argued that accused No.5 Kalappa M.C. who is an employee of the complainant and it is further argued that as per exclusion clause (1) of burglary and house breaking insurance policy the company shall not be liable in respect of loss or damages where any inmate or member of the insurers house hold or office business staff or any other person lawfully in the premises in the business is concerned in the actual theft or damage.  If the burglary and theft was committed with the active involvement of the employee of the insured the claim falls under caluse (1) of the exclusion of the Policy.  The OP is not liable to pay the loss. 

12. Perused the contents of the affidavit evidence and material placed before the commission we carefully observed herein the above case the main dispute arose that at the time of issuing the policy the insurance company does not disclose the exclusion class (1) and they manifest and malafiied intention to evade the lawful claim of the complainant.  In this case opposite party insurance company have issued a reply on 21/09/2023 by the reply OP is trying to wriggle out of the contract and which facts mentioned in the reply notice was not mentioned in the insurance policy conditions.  Which reply sent by the opposite party is quite contrary to the insurance policy conditions. 

13. We gone through the materials which were available in the record noticed that exhibit C-15, charge sheet which was filed by the Suntikoppa Police Station against the accused person punishable under section 457 and 381 of IPC.  In the said document one of the accused is Mr. Kalappa M.C who is the employee of the complainant.  The said case was investigated and tried before the concerned jurisdictional Criminal Court.  The opposite party specifically argued that as per the exclusion clause (1) the burglary and theft was committed with the active involvement of the employee of the insured.  The OP is not liable to pay the loss, as such complainant is not entitled for any relief claimed in the complaint.  In support of their defence OP produced exhibit R-2, exclusion condition clause.  In this case complainant never rebut the  defence taken by the opposite party and he was not produce any single document with regard to the theft occurred in some other person.  But they simply argued insurance company manifest the conditions in the said policy.  The contention taken by the complainant does not hold by the Commission because complainant does not disclose any evidence before the commission with respect to accused No.5 is not the employee of the complainant.  It is crystal and clear that complainant servant is also involving the burglary and theft.  As such the burglary and theft insurance policy exclusion clause (1) complainant cannot enable the relief as sought in the complaint.  The rejection ground shown in the reply letter of the insurance company is within the purview of the policy conditions.  As such complainant does not prove any deficiency committed by the opposite parties.  No reasonable grounds shown in their case.  For the aforesaid facts and circumstances we opined that complainant is failed to prove the deficiency of service committed by the opposite parties we answer point no.1 in the Negative.

14.  Point No.2:- From the discussion made above and conclusion arrived at, we pass the following order;

O R D E R

1. The complaint of the complainant is hereby dismissed.  No order has to cost.
2. Copy of this order as per statutory requirements be forwarded to the parties free of cost and file shall be consigned to record room.

(Dictated to the Stenographer, transcribed, corrected and pronounced in the open Commission on this 09^th DAY OF MAY, 2024)

                (GOWRAMMANNI)                      (RENUKAMBA.C)                                                     

                      MEMBER                             PRESIDENT(I/C)                      

Witnesses examined on behalf of the complainant

CW-1-  Sri. K.K. Belliappa (Complainant)

Documents marked on behalf of the complainant

Ex.C-1 : Insurance policy No.67101311226000000001

Ex.C-2:  Insurance policy No.67101346220100000001

Ex.C-3 : Surveyor letter

Ex.C-4:- Letter dated 21/10/2022

 Ex.C-5:- Letter dated 27/10/2022

Ex.C-6:- Letter dated 09/11/2022

Ex.C-7: Claim Form

Ex.C-8: Letter dated 20/03/2023

 Ex.C-9:  Letter dated 18/05/2023

Ex.C-10:  Letter dated 22/07/2023

Ex.C-11:  Legal notice dated 16/09/2023

Ex.C-12:  Postal receipts and acknowledgment card

Ex.C-13: Reply notice dated 21/09/2023

 Ex.C-14: Copy of entire charge sheet

Witnesses examined on behalf of the opposite party

          RW-1-  Smt. Parwathy, Deputy Manager

Documents marked on behalf of the opposite party

Ex.R-1 :  Burglary Insurance policy for the period 17/5/2022 to 16/10/2022 its relevant with exclusion clauses.

Ex.R-2: Burglary Insurance policy New India Assurance Co.Ltd.

Dated:09/05/2024                                 MEMBER