This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite parties to pay `60,600  as insurance claim with 18% interest from 6.6.2011 and to give an amount of compensation `25,000.

          The case f the complainant in brief is as follows: Complainant is a trader in gold and silver ornaments conducting business in a rented building of Kannapuram Grama Panchayath having building No.KPXI.769 under the name and style of ‘Mavoor Jewelry’. He had taken a loan of `1,00,000 from state Bank of Tranvancore, Kannpuram branch for purchasing silver ornaments for display and sale. The bank also arranged warranty and insurance coverage for the silver ornaments by insuring through the 1<sup>st</sup> opposite party. First opposite party verified the premises and the show case and insured the materials after getting fully convinced about the safety of the show room. They were also convinced about the fact that there is no burglary proof safe in the jewellery for keeping the silver ornaments. First opposite party was aware of this fact even before issuing the insurance. 1<sup>st</sup> opposite party has agreed to insure the materials waiving the condition that ornaments should be locked in burglar proof safe at all time other than the business hours. It is with full consent opposite party insured the silver ornaments and other items of the complainant for a total amount of `2,78,800. The insurance was covered under the sponsorship of SBT Kannapuram Branch/2^nd opposite party. 1^st opposite party has recorded in the policy that a sum insured for silver stock remains out side safe `60,600.From this recording it is evident that  1<sup>st</sup> opposite party has agreed to insure the ornaments waiving the conditions which is usually mandated for gold ornaments of higher value. Otherwise the 1<sup>st</sup> opposite party would have declined to insure the silver stock which remains outside. Opposite party has not given any instruction to the complainant about the conditions that these ornaments should be kept in the burglary proof safe during the non business hours. The theft occurred in his said premises between 8 pm. On 9.3.2010 and 730 AM on 10.3.2010 and all the insured silver ornaments were lost in the burglary. The mater was reported to Kannapuram police on 10.03.2010 and the police registered crime as 98/10 U/s, 451, 380, 461 of IPC. The total estimated value, for 2.5 kg., silver ornaments subjected to theft is around `75,000. These facts were duly reported to opposite parties and 1^st opposite party conducted their mandatory investigation through their official surveyor Mr.M.V.Ramakrishnan. He was convinced the theft and loss of silver ornaments. The surveyor of the 1^st opposite party assessed total value, silver ornaments subjected to theft as `60,000.Complainant submitted claim before 1^st opposite party and the claim was registered on the same day. Complainant submitted all the relevant documents. But opposite party did not take any action to settle the claim. Complainant made several enquiries and requested to settle the claim. But at last opposite party repudiated the claim as per their letter dated  06.06.2011 stating that 1^st opposite party has no liability under the policy since the silver stock  were kept outside the safe for which there is no warranty coverage. The reason stated is against terms and conditions of policy warranty opposite party repudiated the claim as part of their unfair trade practice. Hence this complaint.

Pursuant to the notice opposite parties appeared and filed version separately. 1^st opposite party filed version denying the allegations of complainant the brief of which is given as follows: This opposite party has not issued any jewelers Block Insurance Policy covering the building in Kannapuram Grama panchayath bearing NO.KP/XI/769 where the alleged burglary is said to have taken place. So this opposite party is an unnecessary party. This opposite party had issued a jewelers Block policy for the period from 00.00hrs. of 15.12.2009 to midnight 14/12/2010 infavour of State Bank of Tranvancore, Kannpauram A/C. M.Sajith Kumar covering the building in Kannapuram Grama Panchayth bearing Number KP/681. As per this policy it is warranted that “all stocks whilst at the premises specified in the schedule shall be secured in locked burglar proof safe at night and at all times out of their business hours’. The complainant misinterpreted the correct meaning of the condition ‘sum insured for silver stocks remains, outside safe 60,600 in section 1 of  schedule’. This condition pertains to the silver stock kept on display during business hours. Since the complainant had violated the terms and conditions of the policy this opposite party is no way liable for any relief sought in the complaint. Hence to dismiss the complaint.

          The brief of the version filed by 2^nd opposite party are as follow: Complainant had availed a loan of `1, 00,000 from this opposite party. This opposite party used to arrange facilities to insure the hypothecated article through Insurance companies in order to safeguard in the event of any loss. The averment that this opposite party had arranged warranty for the ornaments purchased by complainant is false. The repudiation is done by the insurance company wherein this opposite party has no role.  No claim is maintainable against this opposite party. There is no deficiency in service on the part of this opposite arty. Hence to dismiss the claim against this opposite party.

On the above pleadings the following issues have been taken for consideration.

1. Whether there is any deficiency on the part of opposite

     Parties?

2. Whether the complainant is entitled for the remedy as

    prayed in the complaint?

3. Relief and cost.

The evidence consists of the oral evidence of PW1, DW1 and Exts.A1 to A7, Ext.B1to B3.

Issue Nos.1 to 3

          Admittedly opposite party had issued jewelers Block policy for the period from 15.12.2009 to 14.12.2010 infavour of State Bank of Tranvancore, Kannpuram A/c.M.Sajith Kumar covering the building in Kannapuram Grama Panchayath bearing number KP/681. The case of the complainant is that 1^st opposite party verified the premises and the show case and  insured the materials after getting fully convinced about the safety of the showroom. Complainant also  alleged that 1^st opposite party was convinced of the fact that there was no burglary proof safe in the jewelry for keeping  silver ornaments even before  issuing the insurance. Afterwards these occurred incident of theft in the said premises. Case was registered and the matter also reported to insurance company 1^st opposite party. Investigation was conducted by Insurance surveyor and complainant submitted claim producing all the relevant documents. The claim was later repudiated by 1^st opposite party. Opposite party contended that since the complainant violated the conditions of policy. Complainant is not entitled for any relief. 2^nd opposite party contended that they were arranged facility to insure the hypothecated article through Insurance company in order to safeguard in the event of any loss. Repudiation is done by 1^st opposite party and they have no role in it. They were also contended that no claim is maintainable against them.

          Complainant alleges that it is with full consent opposite party inured the silver ornaments and other items of complainant for a total amount of `2,78,800. Complainant pleaded that 1<sup>st</sup> opposite party has recorded in the policy that ‘sum insured for silver stock remains outside safe `60,600 and from this recording it is evident that 1^st opposite party has agreed to inure the ornaments waiving the conditions which is usually mandated for gold ornaments of higher value, which otherwise 1^st opposite party would have declined to insure the silver stock which remains outside.

          Ext.A1 is the policy. Section 1 of Ext.A1 policy reveals that `2,58,800 is the total sum insured. Section 1 also reveals that the total property insured on the premises is `1,98,200.

Property insured is shown item wise in section 1 as follows:

a)     Property insured on he premises(total}      ` 1,98,200

i)                   In display windows (included in the

          total sec.1 sum insured                                     Rs.0

ii)                 In Locked Safe (included in the

         total sect.I sum insured)                         Rs.1,98,200

iii)              Elsewhere                                      Rs.0

                                                 Sum insured for silver stock

                                                 remains outside safe

                                                 Rs.60,600

b)           Cash and currency Notes  Rs.0

c)      Property insured in Bank lockers  Rs.0

d)     Private Lockers(subject to insured

   maintaining separate register to  record

   all deposits, withdrawal in such lockers).

Address of the Branch of the Bank

TOTAL SUM INSURED (Sctin1) `2,58,300 Premium:Rs.991

Section 1 specifically written in separate space the sum insured for silver stock remains out side safe `60,600. The total sum insured is `2,58,800 which is derived as follows:

1.     Property insured on the premises                   `1,98,200 +

2.     Sum insured for silver stock remains

     outside safe                                                       ` 60,600

Total sum insured                                            `2,58,800

Policy schedule detailed under the property inured as follows:

The property insured excl. cash

 and currency  notes whilst in transit

within India by                                              Limit for any one loss

a) Registered insured Post parcel                 Rs.0

b) Air Freight(Minimum 20% value declared to

    the airlines)                                                 Rs.0

c)  Agandia

TOTALSUM INSURED(Section III) Rs.0 Premium Rs.0.00

          It is undoubtedly clear from section 1 itself that the sum insured for silver stock remains outside safe is `60,600. If a stock out side safe is insured the insurer is liable for the value of that stock insured. Herein the value is determined at the time of insuring he same itself. Section 1 is the essence of contract of Insurance. If anything contrary to that added in the terms and condition that should be convinced the insured specifically to ensure consensus ad idem. It is a common practice that in the usual course of canvassing to explain favourable conditions and to keep other terms unexplained without bringing those conditions to the notice of insured. In the matter in hand it is separately noted the sum insured for silver stock remains outside the safe is `60,600. What does it really mean. It does mean only that the silver stock remains out side he safe worth of `60,600 is insured. This silver stock has been insured knowing well that the same remains outside the safe. The consensus ad idem, the essential element of a valid contract is fully present on the point that the silver stock worth of `60,600 that remains outside safe has been affected insurance.

          Complainant adduced evidence by way affidavit evidence in tune with his pleadings He has also filed Ext.A1 to A7 to prove his case. The jewelers block policy for the relevant period has not been disputed. 2^nd opposite party also admitted the insurance coverage of `1,00,000 to secure the hypothecated articles in the event of any loss. Opposite party has raised dispute with respect to the building number. In the cross examination PW1 made it clear the number was changed due to change of ward in the panchayath. That is not all important since it is merely a technical aspect, without which it is possible to identify the building with other available details. If opposite party is very particular about the identity of building he could have examined the concerned panchayath Secretary in order to prove his contention without any difficulty.

          Anyhow DW1 admitted that complainant produced the entire relevant document with the policy. Ext.A2 copy of the FIR shows that complaint was lodged at Kannpauram police station on the same day 10.3.2010. It is evident that case was registered under section 457, 380, 467 IPC Description of the property stolen seen recorded silver anklets worth of about `75000. According to the pleading of the complainant also the total estimated value for the 2.5 kg silver ornaments subjected to theft are around `75,000.Ext.A6 is the repudiation letter. Claim was repudiated on the reason that the silver stock worth `75,000 kept in the display show case has been stolen. Opposite party insured silver stock worth of `60,600 which was kept outside the safe. The silver kept outside if insured opposite party is liable under the policy and repudiation of the claim is unjustified.

          However, the complainant has not correctly proved how much quantity of silver actually lost by the theft. Ext.A7 the stock register note book produced by the complainant cannot be considered as an authentic record since it is not seen verified at any stage by any responsible authority. Hence it is difficult to assess the quantity of article lost by theft. It is therefore, we are under the impression that an amount of `25,000 will meet the end of justice. Thus issues 1 to 3 are answered partly in favour of complainant ordering 1<sup>st</sup> opposite party to pay an amount of `25,000 as insurance claim to complainant.

          In the result, the complaint is allowed directing the 1^st opposite party to pay an amount of `25,000 (Rupees Twenty five thousand only) as insurance amount together with `1000 (Rupees One thousand only) as cost of this litigation to the complainant within one month from the date of receipt of this order failing which complainant is entitled to execute the order after the expiry of 30 days as per the provisions of consumer protection Act.

    Sd/-                      Sd/-                    Sd/-   

        President               Member                Member

APPENDIX

Exhibits for the Complainant

A1.copy of the insurance policy issued by OP-

A2.Copy of the FIR in Cr.98/10 of Kannapuram Police

A3.Copy of the Refer report in Cr.98/10

A4. Copy of the letter dt.15.7.10 sent by 1^st OP

A5. Copy of letter of subrogation

A6. Repudiation sent by OP dt.6.6.11

A7. Stock registers (2) maintained by OP 2009 to 2011

Exhibits for the opposite party:

B1.  Burglary claim form submitted by complainant

B2.  Survey report submitted by surveyor K.P.Rghavan

       with photographs

B3. Copy of the policy

Witness examined for the complainant

PW1. Complainant

 Witness examined for the opposite parties:

DW1. K.Nagesh

        / forwarded by order/

                                                                                      Senior Superintendent