Karnataka

Bangalore 4th Additional

CC/15/1569

Dr. Vipool Malkan - Complainant(s)

Versus

The Manager, Tata AIG General Insurance Company Ltd., - Opp.Party(s)

25 Aug 2018

ORDER

Complaint filed on: 31.08.2015

                                                      Disposed on: 25.08.2018

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027        

 

CC.No.1569/2015

DATED THIS THE 25^th AUGUST OF 2018

 

PRESENT

SRI.S.L.PATIL, PRESIDENT

SMT.N.R.ROOPA, MEMBER

	Complainant/s	V/s	Opposite party/s
	Dr.Vipool Malkan, S/o H.P.Malkan, Aged about 57 years, R/at Room No.21, 1st Floor, Kumara Park East, Bangalore-560 001.   By.Adv.Shetkar Associates		The Manager, Tata AIG General Insurance Company Ltd., 2nd Floor, JP & Devi Jambukeswar Arcade, No.69, Millers Road, Bangalore-560 052.   By.Adv.Prashant.T.Pandit

 

PRESIDENT: SRI.S.L.PATIL

 

1.       The Complainant has filed this complaint as against the Opposite Party directing to pay compensation of Rs.1,05,000/- being the total damage caused to the insured items and loss caused to the Complainant with interest at 10%, to pass such other reliefs including the costs.

 

2.       The brief facts of the case of the complainant are that the Complainant is a dentist by profession and has his clinic at No.21, SNS Plaza, 1^st Floor, Kumara Park East, Bangalore. The Complainant had got a “My Business My Choice” product policy done from the Opposite Party Insurance Company, which covers fire building and contents and burglary. The said policy was issued from 5.6.2013 to having policy No.2200061250. The said policy was renewed from time to time and was valid till 4.6.2015. On 28.1.2015 and 9.2.2015, a laptop and LED TV were stolen from the Complainant clinic. The Complainant lodged complaint before the High Ground Police Station about the said theft and the police have registered the complaint as Crime No.38/2015 and 58/2015 for the offences punishable u/s 380 and 457 of Indian Penal Code. Since the items in question were duly insured with Opposite Party, the Complainant immediately informed the theft of the insured items to the Opposite Party. On the basis of the information of theft, the Opposite Party appointed one surveyor by name P.Upendra, who inspected the theft spot and assessed the extent of theft caused and submitted a report to Opposite Party. As per the IRDA Licensed Surveyor Report, one laptop and one LED TV were stolen from the Complainant clinic on 28.1.2015 and 9.2.2015 and the said items were stolen through sliding window, there was no physical forcible or violent entry into or exit from the premises, no damages to the premises were observed. After submitting the claim form and other relevant documents to the Opposite Party, the Opposite Party had kept the matter pending for long period without any reasons and finally the Opposite Party has repudiated the legal claim on 2.4.2015 on the ground that the policy specifically excludes theft under the burglary section hence the subject claim falls outside the scope of the policy, hence the claim is not admissible under subject policy. Thereafter being aggrieved by this illegal repudiation of the legal claim of the Complainant, the Complainant is filing the complaint. The Opposite Party has not disputed the ownership of the items of the Complainant, nor denied the policy and its liability as covered under it and also not dispute the occurrence of theft. The only ground for repudiation that the policy specifically excludes theft under the burglary section, hence the subject claim falls outside the scope of the policy which is an afterthought and unfair trade practice, since the policy is not clear about difference between theft and burglary. The ground urged by the Opposite Party Company in repudiating the legal claim is legally not maintainable and it shows that the Opposite Party only to avoid the liability under the policy have taken such contention which is devoid of any merit. The fact clearly shows that there is deficiency of service on the part of the Opposite Party which has given rise to the present cause of action to file this complaint and the Complainant is a consumer as defined under the Act. Hence, the Complainant submits to allow the complaint.

 

          3.       The notice was ordered to the Opposite Party. The Opposite Party did appear and filed their version and denying the contents of the complaint filed by the Complainant.  The Opposite Party submits that the complaint is not maintainable either in law or on the facts of the case and deserves to be dismissed. The Opposite Party has admitted the issuance of the My Business My Choice- Package Policy bearing No.2200061250 valid from 00.00 Hrs on 5.6.2014 to Midnight of 4.6.2015 in favour of the Complainant covering the risks of fire against the building and contents and also extended to cover the risks of burglary for the said contents for the sum insured of Rs.5,00,000/- each i.e. against coverage. A fire and coverage B burglary and received a premium of Rs.3,676.25 + service tax at Rs.454.38 in all a sum of Rs.4131/- from the insured/Complainant. The liability of the Opposite Party is subjected to terms and conditions of the policy attached thereto in 9 pages which includes excess, cancellation clause, sanction limitation and exclusion clause, limit of indemnity, insuring clause, losses excluded, exclusions, coverage section B (burglary), conditions, coverage section A Fire & Special perils reinstatement value memorandum, special provisions, local authorities clause, definition of property clause. The insured is a dentist by profession and has clinic at No.21, SNS Plaza, 1^st Floor, Kumara Park East, Bangalore are not within the knowledge of the Opposite Party but as far as the policy is concerned which was issued by the Opposite Party. It is denied that on 28.1.2015 and 9.2.2015 a laptop and LED TV were stolen from the Complainant’s clinic and he has lodged complaint before the High Grounds Police Station about the said theft and the police has registered the complaint in Crime No.38/2015 and 58/2015 respectively for the offences punishable under section 380 & 457 of IPC. It is further denied that the items in question were duly insured with Opposite Party Insurance Company, the Complainant immediately intimated the theft of the insured items to the Opposite Party.  It is true that the Opposite Party has deputed surveyor by name P.Upendra duly licensed under IRDA who has inspected the spot of the alleged theft and assessed the extent of theft caused and submitted his report to the Opposite Party. It may be true that according to the Complainant that the one laptop and one LED TV were stolen from the Complainant clinic on 28.1.2015 and 9.2.2015 respectively and the said items were stolen through the sliding window, however no physical forcible violent entry into or exit from the premises was noted and there were no damages to the premises observed. Without prejudice to the above and without admitting any liability under the policy, it is submitted that the surveyor has assessed the net loss at Rs.23,165/- and Rs.15,000/- (against Rs.40,000/- & Rs.25,000/- respectively) subject to further excess of 2% with a minimum of Rs.5,000/- which is further subject to the terms and conditions of the policy. The surveyor has clearly mentioned in his survey report (refer page 4) That “As per the coverage of the policy under section B (Burglary) that Burglary or housebreaking (theft following upon an actual forcible and violent entry of or exit from the premises by the person or persons committing such theft). No damages are noted for actual forcible and violent entry of or exit from the premises by the person or persons. It is submitted that after receipt of the required claim papers from the Complainant, the Opposite Party has processed the claim by virtue of the terms and conditions of the policy and finally repudiated the claim vide their letter dt.2.4.2015 on the ground that the policy specifically excludes theft under the burglary sections, hence subject claims falls outside the purview and scope of the policy to the Complainant despite given the clear cut reasons for the repudiation, the Complainant has chosen to file this complaint as such he himself is responsible/liable for subsequent cause, consequences and costs etc. The Opposite Party has clarified their position very clear in their mails dt.3.7.2015 and 17.8.2015 to the Complainant despite he has filed this complaint. Hence, the same is not maintainable. It is true that the Opposite Party has no dispute with respect to the ownership of the items of the Complainant and validity of the policy however vehemently denies the false allegation made by Complainant against the Opposite Party that the ground for repudiation is an afterthought and unfair trade practice and also that the difference between burglary and theft has not been clarified. This is further corroborated by the fact that the Complainant has himself opted for the benefit of extension of “Theft” peril at the time of renewal of the previous claim made policy (period 5.6.2014 to 4.6.2015) for the thefts occurred on 28.1.2015 and 9.2.2015, which is a standing proof of available coverage under the previous claim policy, wherein the theft was not covered when said incidents of theft have occurred. It is submitted that the allegation regarding no clarity between burglary and theft is nothing but an afterthought since the Complainant never approached the Opposite Party for clarity/explanation regarding the terms and conditions of the policy. The claim has been processed as per the terms and conditions of the policy and there is no deficiency of service as alleged. The complaint lodged by the Complainant to the police authorities dt.30.1.2015 & 11.2.2015 in which it is an admitted fact that there was no violent and forcible entry into the insured premises which leads to stolen/theft of the above said items by just shifting the sliding glass doors which falls under the clear cut exclusions of the policy as such repudiation of the claim is well within the terms and conditions of the policy i.e., “Burglary rider coverage Section B (burglary)-Conditions No.1. It is warranted that their shall be actual visible damage caused to the premises or the part their off and connected with violent and force entry in the premises-   It is warranted that adequate protection to the doors, windows and all other search opening in the premises are properly maintained during the currency of the policy” . It is submitted that after these two theft incidents leading to claims made under the said policy (period 5.6.2014 to 4.6.2015), the Complainant has chosen to opt for the benefit of “Theft” peril extension at the time of renewal of the previous claim made policy, for the coming next year 11.6.2015 to 10.6.2016, which is an undisputable proof of available coverage under the previous claim policy, wherein the theft was not covered under the previous policy during which said incidents have occurred. It is submitted that there is no deficiency of service whatsoever on the part of the Opposite Party as alleged by the Complainant. The Opposite Party reserves its right to file additional version, if necessary, due to changed circumstances of the fact of the case and law. On these grounds and other grounds prays for dismissal of the complaint.

 

4. The Complainant to substantiate his case, filed his affidavit evidence and got marked as Ex-A1 to A5. The Opposite Party has filed affidavit evidence and got marked as Ex-B1 and B2. The Complainant as well as the Opposite Party has filed their written arguments. Heard both sides.                                                                                                                                                                                                                                                                                                                                                                                             

 

5. The points that arise for our consideration are:

1) Whether the Complainant proves the deficiency in service on

              the part of the OP, if so, whether he is entitled for the relief

              sought for?

          2) What Order?

                  

 

6.  Our answers to the above points are as under:

 

Point No.1: Negative

Point No.2: As per the final order for the following

REASONS

 

7. POINT NO.1 :   We have briefly stated the contents of the complaint as well as the version of the Opposite Party. It is not in dispute that the Complainant has availed the policy from the Opposite Party (My Business MY Choice) product policy which covers file, building and contents and burglary. The said policy was issued from 5.6.2013 having policy No.2200061250 which was renewed from time to time and was valid till 4.6.2015. It is also not in dispute that on 28.1.2015 and 9.2.2015, a laptop and LED TV were stolen from the Complainant’s clinic. In this context, he lodged a complaint before the jurisdictional police for the offences punishable under section 380 and 457 of Indian Penal Code.

 

8.       In respect of the theft of the said laptop and LED TV, the Complainant informed to the Opposite Party who appointed one surveyor by name Mr.Upendra who inspected the theft spot and assessed the extent of theft caused and submitted his report as per Ex-B2.

 

9.       We have gone through the contents of the complaint wherein the Complainant in Para-5 has specifically stated that “As per the IRDA Licensed Surveyor Report, one laptop and one LED TV were stolen from the Complainant clinic on 28.1.2015 and 9.2.2015 and the said items were stolen through sliding window, 2) there was no physical forcible or violent entry into or exit from the premises, 3) no damages to the premises were observed.” This contention has been specifically interpreted by the Opposite Party invoking the terms and conditions of the policy i.e. “Burglary rider coverage Section B (burglary)-Conditions No.1. It is warranted that there shall be actual visible damage caused to the premises or the part their off and connected with violent and force entry in the premises-. Referring the above conditions submits that since there was no physical forcible or violent entry into or exit from the premises and no damages to the premises were observed by the Complainant as per the contents of the complaint found at Page-5 of the complaint. With regard to modus-aperandi to commit the theft is concerned, the Opposite Party submits that the alleged theft was not committed as stated by the Complainant in the said clinic in the light of the observations made by the surveyor in his report marked as Ex-B2 wherein at Page-4 he has specifically stated as hereunder:

Findings-Cause of loss
01	First incidence: The insured thought that the theft has been committed by using the duplicate key of the location entrance door. Accordingly, they have given the complaint to the Police. Only the laptop has been stolen from its place.	To enter through passage he must enter through stair case from top or from the space of the passage. But everywhere there is grill fitted, person cannot creep through that space. Besides it there is no damages found on the door. No damages have been noted when they entered into the premises. Only the laptop has been stolen from its place.
02	Second Incidence: When they opened the door they found that the LG LED TV fitted on the wall of the Entrance above the door. They have given the complaint that the theft has been committed by opening the sliding window and the TV has been taken along with its remote.	To enter into the premises building and into the room, some where there should be space to creep in. Since all the sides the grills are fitted. Even if he makes entry through stair case the building is under CCTV surveillance at each floor staircase passage. No breakage or damages to the iron grills and any damages noticed/found.
As per the narration given by the insured   During our visit, that in both the cases the theft has been committed, by making entry into the room through sliding windows which are fitted on the opposite side of the main door. To reach the room he has used the pipe fitted outside the grill of the passage, (marked in the photo) got the grill support which is fitted from the outside. Reaching there he has opened the sliding window by applying force where the clips of the window got opened. He took away the laptop and TV
Findings: The unknown person has used the pipe to climb or down from above reached the passage grill fitted area, with the support of the grills fitted outside he has moved up to the insured area from outside area. With the support of the grill of neighbor room he managed to open the sliding windows, entered into the premises and stolen the laptop in first instance and TV in second instance. We have noticed no damages have been found to any part of the property of the insured premises. We also find that there are no supportive structures to stand below the insured room to make entry or exit. Even no damages to the clips of the sliding windows.
As per the coverage of the policy under Section B (Burglary) That Burglary or Housebreaking (theft following upon on actual forcible and violent entry of or exit from the premises by the person or persons committing such theft). No damages are noted for actual forcible and violent entry of or exit from the premises by the person or persons.

 

If the above findings of the surveyor are strictly construed, there is a doubt in respect of committing the theft of the said laptop and LED TV on the given date, time and place. When there was no physical force or violent entry into or exit from the premises, no damages to the premises were observed,  under such circumstances, the claim repudiated by the Opposite Party is just and proper by invoking the terms and conditions of the policy i.e.”Burglary rider coverage Section B (burglary)-conditions No.1. Accordingly, this point is answered in the negative.

 

10.     POINT NO.2: In the result, we pass the following:

 

ORDER

 

The Complaint filed by the Complainant is dismissed.

Looking to the circumstances of the case, we direct both the parties to bear their own cost.

Supply free copy of this order to both the parties.

 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the open Forum on 25^th August 2018).

(ROOPA.N.R)     MEMBER

(S.L.PATIL)     PRESIDENT

 

 

1. Witness examined on behalf of the complainant/s by way of affidavit:

 

Dr.Vipool Malkan., who being the complainant was examined. 

 

Copies of Documents produced on behalf of Complainant/s:

 

 

Ex-A1	FIR along with complaint
Ex-A2	FIR along with complaint
Ex-A3	Insurance policy
Ex-A4	E-mail dt.25.6.2015
Ex-A5	Copy of the intimation to the Complainant for repudiating the claim

 

 

 

2. Witness examined on behalf of the Opposite party/s Respondent/s by way of affidavit:

 

Alok Kumar Gupta, Zonal Claims Manager who being OP was examined.

Copies of Documents produced on behalf of OP 1 

 

Ex-B1	Policy
Ex-B2	Survey Report

 

 

 

 

(ROOPA.N.R)       MEMBER

(S.L.PATIL)    PRESIDENT