Sri. N. Premkumar (Member):<br /> <br /> The complainant has filed this complaint against the opposite party for getting a relief from the Forum.<br /> <br /> The facts of the complaint is as follows: The complainant is the Managing Partner of Krishnan Nair Swarnakada, M.C. Road, Thiruvalla. He entered into an agreement with the opposite party for insuring his jewellery shop. The type of policy was “jewellery block”policy No.168/2003. He paid Rs.16,695/- as the total premium of the policy, thereby a valid policy certificate was issued to him. The policy was issued for the period from 29.07.2002 to 28.07.2003.<br /> <br /> As per the policy, the opposite party insured the stock and stock in trade consisting of jewellery, gold or silver ornaments, articles, perls and precious stones of any sort or kind whatsoever, cash and currency notes and other merchandise and materials usual for conducting the complainant’s business. <br /> <br /> On 18.09.2002, three persons committed theft and stolen 4 gold chains, total weighing 74 grams from the complainant’s jewellery shop. The matter was informed to Thiruvalla Police Station and Crime No.646/02 was registered and investigation going on. The complainant informed the matter to the opposite party on the same day and claim form also produced. All the relevant records were also submitted along with claim form. Thereafter, a letter received from the opposite party’s surveyor dated 30.11.2002 directing the complainant to produce all relevant records required for settling the claim. The complainant produced all the documents as per the letter. After receiving the claim form and other records, on 15.3.2004 the opposite party sent a registered notice stating that the complainant’s claim is not admissible.<br /> <br /> The opposite party is trying to evade the policy benefit to the complainant. Thereby, the complainant had lost 74 grams of gold worth Rs.40,000/-. The opposite party’s denial to give policy benefit is a deficiency of service on their part. They committed breach of service after accepting the premium amount from the complainant. He is entitled to get Rs.40,000/-, the value of the gold lost in the theft and compensation of Rs.5,000/- and a cost of Rs.3,000/- with interest from the opposite party. Hence this complaint.<br /> <br /> The opposite party entered appearance and filed version stating that the complaint is not maintainable either in law or on facts. They admit that they have issued jewellers block insurance policy bearing No.168/03 to the complainant covering his jewellery shop from 29.07.2002 to 28.07.2003 subject to the terms attached to the policy. They further admitted that the complainant had placed a claim that three unidentified customers entered into the shop and taken away certain jewellery items on 18.09.2002 worth Rs.40,000/-.<br /> <br /> The opposite party admitted that the incident took place on 18.09.2002. But this complaint is filed only on 19.07.2005 i.e. after the prescribed statutory period of 2 years. Hence the complaint is barred by limitation and prayed to be dismissed in limine. They also hold that as per exclusion clause 8 and 8(c) – theft committed by a customer or broker without the use of any force is excluded from the purview of the coverage under the policy. They cited clause 8 and 8(c) which is as follows:<br /> <br /> <br /> <br /> “8. loss or damage occasioned by theft or dishonestly or any attempt there at committed by or where such loss or damage has been expedited or in any way sustained or brought about by” <br /> “8(c) -Any customer or broker or brokers customer angadias or cutters or gold smith in respect of the property hereby insured entrusted to them by the insured, his or their servants or agents.<br /> <br /> The claim put forward by the complainant squarely falls within the aforesaid exclusion clause and as such the claim was duly repudiated and the same cannot be depicted as an incident of deficiency in service. The opposite parties had acted only within the precincts of the terms attached to the policy. The complainant is not entitled for any amount as per the terms of the policy. Therefore, they canvassed for the dismissal of the complaint with the cost of opposite parties.<br /> <br /> On the above pleadings, the following points raised for consideration:<br /> <br /> (1) Whether the O.P is maintainable?<br /> (2) Whether the O.P is barred by limitation?<br /> (3) Whether the reliefs sought for in the complaint are allowable?<br /> (4) Compensation and Cost? <br /> <br /> The evidence in this case consists of the oral evidence of the complainant who has been examined as PW1 and the documents produced by him which are marked Exts.A1 to A6(a). Ext.A1 is the premium receipt of Rs.16,695/- in policy No.168/03 issued by the opposite party. Ext.A2 is the ‘jewellery block’ policy certificate No.168/03 issued by the opposite party. Ext.A3 is the copy of FIR in crime No.646/02 of Thiruvalla Police Station. Ext.A4 is the letter dated 30.11.02 issued by the opposite parties surveyor for producing certain records. Ext.A5 is the registered letter dated 15.3.04 by the opposite party stating that claim is not admissible. Ext.A6 is the copy of Malayala Manorama daily dated 19.9.2002. Ext.A6(a) is the relevant news in Page No.2 of Ext.A6. On the basis of the evidence, the complainant canvassed for allowing the complaint.<br /> <br /> The opposite party was examined as DW1 and Ext.B1 was marked. Ext.B1 is the policy terms and conditions. After the closure of the evidence, both sides heard.<br /> <br /> Point Nos.1 & 2:- The complainant is the consumer of the opposite party and the dispute herein is a consumer dispute. Therefore the 1st point is answered against the opposite party.<br /> <br /> On a perusal of the evidence, it is seen that as per Ext.A5 registered letter dated 15.3.2004 the opposite party informed the denial of complainant’s claim, and hence the cause of action arised on that date. The complaint was filed on 19.7.05. Therefore, this complaint is filed within the prescribed statutory period. Hence the 2nd point is also answered against the opposite party.<br /> <br /> Point Nos. 3 & 4:- The complainant’s case is that he insured his jewellery shop vide policy No.168/03 by paying Rs.16,695/- as premium to opposite party. While the policy was in force 3 persons committed theft of 4 gold chains having a total weight of 74 gms. worth Rs.40,000/- from the complainant’s shop. Opposite parties denied the claim. Therefore the complainant filed this complaint for getting an order for the realizations of the loss etc. from the opposite parties. In order to to prove the complainant’s case, complainant produced Ext.A1 to A6(a) documents. The opposite parties denied the claim stating that the said incident is not covered as per terms and conditions of the policy. As per the said clause theft committed by a customer or broker without the use of any force is excluded from the purview of coverage under the policy.<br /> <br /> It is pertinent to note that as per Ext.A2 policy, coverage is from fire, explosion, lightning, riot and strike, malicious damage, burglary, house breaking, theft and robbery etc. The opposite party admitted the theft incident, but the only dispute is with regard to the persons who committed the theft. Their allegation is that the miscreants were complainant’s customers. But they had not produced any evidence and also they failed to connect the exclusion clauses of 8 and 8(c) with the incident herein. It is clear from DW1’s statement in the cross examination as given below:-<br /> <br /> “Ext.B1-  customer F hm¡n\v definition sImSp¯n«nà Customer F t]cn pretend sNbvXphcp BfpIÄ \S¯p theft-\v insurance coverage CsÃv Ext.B1-  ]dbpnÓ<br /> <br /> In the instant case, we cannot find any usual or generally accepted conduct of a customer from the three persons. It is seen that the three miscreants has not purchased any ornaments. On a perusal of Ext.A3 FIR and Ext.A6(a) Newspaper report reveals that they were Hindi speaking persons and their motive is only to steel ornaments. From this, it can find that they are not customers.<br /> <br /> On going through the evidence it is seen that the opposite party has misinterpreted the word ‘customer’ to deny the claim. Now a days, the modus of theft related crime committed by miscreants in various ways, even beyond imagination of a prudent man. That modus would not be made as yardstick for defence, to deny a valid claim. In this context, we are of the view that the concerned officials of the opposite party fail to apply their mind in considering<br /> the claim. Therefore, we find clear deficiency on their part in discharging their contractual obligations. Hence this complaint is allowable with interest, compensation and cost.<br /> <br /> In the result, this O.P is allowed, thereby the complainant is allowed to realise Rs.40,000/- (Rupees Forty thousand only) with interest at the rate of 9% per annum from the date of this O.P till this date and thereafter at 6% interest per annum till realisation of the whole amount from the opposite party, with compensation of Rs.2,000/- (Rupees Two thousand only) and cost of Rs.1,000/- (Rupees One thousand only). The opposite party is directed to pay the amount so awarded in favour of the complainant within two months from the date of receipt of this order, failing which interest for the whole amount will follow at 9% per annum till the whole payment.<br /> <br /> Declared in the Open Forum on this the 10th day of November, 2008.<br /> <br /> (Sd/-)<br /> N. Premkumar,<br /> (Member)<br /> Sri. Jacob Stephen (Member) : (Sd/-)<br /> <br /> Smt. C. Lathika Bhai (Member) : (Sd/-)<br /> Appendix:<br /> Witness examined on the side of the complainant:<br /> PW1 : Gopalakrishnan Nair<br /> Exhibits marked on the side of the complainant:<br /> A1 : premium receipt of Rs.16,695/- in policy No.168/03 issued by the <br /> opposite party to the complainant. <br /> A2 : Jewellery block’ policy certificate No.168/03 issued by the opposite <br /> party to the complainant. <br /> <br /> <br /> A3 : Photocopy of the copy of FIR in crime No.646/02 of Thiruvalla <br /> Police Station. <br /> A4 : Letter dated 30.11.02 issued by the opposite party surveyor to the <br /> complainant for producing certain records. <br /> A5 : Registered letter dated 15.3.04 sent by the opposite party to the <br /> complainant.<br /> A6 : Malayala Manorama daily dated 19.9.2002. <br /> A6(a) : The relevant portion in Page No.2 of Ext.A6. <br /> Witness examined on the side of the opposite party:<br /> DW1 : K. Sunilkumar.<br /> Exhibits marked on the side of the opposite party:<br /> B1 : Policy for Jeweller’s Block Insurance.<br /> <br /> (By Order)<br /> <br /> Senior Superintendent<br />