PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT:
1) In brief consumer dispute is as under –
That the Complainant is dealing in sales and purchase of Laptop, laptop accessories and industrial I.C. and electronic component from his shop styled as M/s. Satellite technologies, having its office at No.6, Ramkrishna Building, Chunam Lane, Lamington Road, Mumbai 70. The Complainant used to store all his goods in his godown situated at A-3, Utkarsh Co-operative Society, Sector-9, Vashi, Navi Mumbai.The Complainant had taken Shopkeeper’s Insurance Policy mentioned in the complaint from the Opposite Party under which sum assured was Rs.10,00,000/-. The aforesaid policy was valid from the period from 26/05/2006 to 25/05/2007.
2) It is the case of the Complainant that he had locked his godown on 05/06/06 at around 9.00 p.m. and went to his home. On 08/06/06 when Complainant returned to the godown at around 7.00 p.m. he noticed that 12 pieces of brand new laptops worth Rs.5,99,493/- were stolen from the godown. Then he immediately went to the Vashi Police Station and lodged FIR. Vashi Police visited the site on the same day and after inspection Spot Panchnama was prepared. The Complainant has produced copy of FIR and Spot Panchnama alongwith complaint which is marked at Annexure C-3 colly.
3) On 09/06/06 the Complainant submitted his claim form to the Opposite Party. Thereafter Opposite Party appointed the Surveyor Mr.H.L. Sah who visited the place of theft on 16/06/06. The Complainant submitted all the necessary information and documents to the surveyor. Surveyor also made enquiries with the neighbours residing in the building. The surveyor then submitted his report to the Opposite Party. Alongwith complaint, the Complainant produced surveyor report which is marked at Annexure C-5 collys.
4) Then the Complainant wrote a letter to the Opposite Party and requested to consider his claim at the earliest. Opposite Party vide their letter dtd.22/02/07 repudiated the claim of the Complainant without giving any specific reason for the same. The Surveyor Mr.H.L. Sah, at the request of the Complainant gave addendum report dtd.20/04/07 to the Opposite Party submitting that when he made enquiries, claim is admissible under the policy.
5) Thereafter the Complainant again wrote a letter to the Opposite Party to settle its claim. But the Opposite Party neither settled the claim nor sent reply to the Complainant, therefore, the Complainant has filed this complaint and he has requested to this Forum to direct the Opposite Partyto pay to the Complainant an amount of Rs.5,99,493/- alongwith interest @ 18% p.a. The Complainant has also claimed Rs.2,00,000/- as compensation for mental agony and harassment and Rs.25,000/- towards the legal expenses from the Opposite Party.
6) In support of the complaint, the Complainant has filed his affidavit & produced documents at Annexure C-1 to C-9 as per the list of document.
7) Opposite Party has filed written statement and thereby resisted claim of the Complainant contending that complaint is false, frivolous and deserves to be dismissed with cost. According to the Opposite Party, admittedly lock of the godown was opened by using duplicate key. The loss falls under Exclusion Clause No.(ii) of the Burglary Policy. Therefore, Opposite Party is not liable to compensate the loss.
8) The Opposite Parties have denied allegations made in the complaint. However, they have admitted that Shopkeeper Insurance Policy mentioned in the complaint was given to the Complainant.
9) It is submitted by the Opposite Party that the theft had taken place on 05/06/06. However, the Complainant came to know about the same on 08/06/06. The Complainant has breached the policy as he has failed to provide any security for the godown. As per the Opposite Party, the facts indicate that some known person had committed theft with the key in his possession, hence, even neighbour were not aware of the theft. The Complainant came to know about the theft on 08/06/06 but he lodged FIR to the Police Station on 09/06/06 which indicates that it was after thought. It is contended that theft was insider’s job which means that same is committed by members of Complainant’s family or his business staff or any other person lawfully in the premises. Therefore, the claim was repudiated under Exclusion Clause No.(ii) of the Policy. It is alleged that claim in question was pre planned and well thought to defraud the Opposite Party.
10) It is admitted by the Opposite Party that surveyor was appointed by them on 16/06/06 and the surveyor submitted the report to the Opposite Party. It is submitted that the surveyor in his report has mentioned that after review of policy papers he noticed that opening of the lock was by duplicate key. On the basis of surveyor report, the Opposite Party has rightly repudiated the claim of the Complainant on 22/02/07. It is alleged that on the basis of representation made by the Complainant, surveyor submitted addendum report which is contradictory to his earlier report. Therefore, the addendum report cannot be considered. The Complainant has not explained how he had access to the surveyor report and addendum report dtd.20/04/06. The Opposite Party has denied the allegations that there was delay on their part in taking decision in respect of the claim submitted by the Complainant. The Opposite Parties have denied all the allegations made in the complaint and submitted that there is no deficiency in service on their part and therefore, complaint deserves to be dismissed with cost.
11) Alongwith written statement, Opposite Party has produced photo copy of terms and conditions of Burglary Policy & Household Policy and copy of the surveyor’s report. The Complainant had filed affidavit in reply and thereby denied allegations made in the written statement.
12) The Complainant has filed written argument as well as Opposite Party has filed written argument. Heard Ld.Advocate- Ms.Rashmi Manne for the Complainant on 26/11/2010. On that day Opposite Party was absent. However, Opposite Party has filed written argument so complaint was closed for order.
13) Following points arises for our consideration and our findings thereon are as under -
Point No.1 : Whether the Complainant has proved deficiency in service on the part of Opposite Party ?
Findings : Yes.
Point No.2 : Whether the Complainant is entitled to recover Rs.5,99,493/-being the loss of goods on account of theft, interest,
compensation and cost of this proceeding as prayed ?
Findings : As per final order.
Reasons :-
Point No.1 :- The Complainant Mr. Dinesh Vardhan, is doing business of sales and purchase of Laptop, laptop accessories under the name of Satellite Technologies and having office premises at No.6, Ramkrishna Building, Chunam Lane, Lamington Road, Mumbai – 70 and his godown situated at A-3, Utkarsh Co-operative Society, Sector-9, Vashi, Navi Mumbai. It is admitted fact that the Complainant had taken Shopkeeper’s Insurance Policy mentioned in the complaint from the Opposite Party under which sum assured was Rs.10,00,000/-. The policy was valid for the period from 26/05/2006 to 25/05/2007.
It is case of the Complainant that on 05/06/06 at about 9.00 p.m. he had locked his godown situated at A-3, Utkarsh Co-operative Society, Sector-9, Vashi, Navi Mumbai and went to his home. On 08/06/06 at about 7.00 p.m. he returned to the godown and that time he noticed that 12 pieces of brand new laptops worth Rs.5,99,493/- were stolen through the godown. Thereafter the Complainant immediately lodged his FIR to the Vashi Police Station. The Complainant has produced copy of the FIR dtd.09/06/06 lodged to the Vashi Police Station. In the FIR the Complainant has stated that on 08/06/06 at about 7.00 p.m. when he went to the godown that time he saw that lock of the godown was open and when he entered into the godown he noticed that 12 pieces of new branded laptop were stolen. The Complainant has produced panchnama and the spot panchnama prepared by the Vashi Police Station on 09/06/06. In the panchnama it is mentioned that lock of the latch of main door was opened by unknown person by using duplicate key. After entering into the godown he noticed empty boxes of laptops and that time Complainant told them 12 laptops were stolen. It appears from the xerox copies of FIR and Panchnama produced by the Complainant that Complainant lodged the FIR to Vashi Police Station on 09/06/06 and on the same day Spot Panchnama prepared by the Police. The Complainant has produced xerox copy of the letter dtd.09/06/06 addressed to Manager of the Opposite Party. In the said letter the Complainant has preferred claim of Rs.5,99,493/- for theft of 12 laptops under Shopkeeper’s Insurance Policy to the Opposite Party. It is admitted fact that on the basis of information given by the Complainant to the Opposite Party about the theft of laptops, the Opposite Party had appointed Mr.H.L. Sah as a Surveyor who visited the godown of the Complainant on 16/06/2006. On 16/06/2006 the Complainant furnished necessary information and submitted documents as required by the surveyor and thereafter surveyor submitted report to the Opposite Party. Copy of surveyor report is produced by the Complainant as well as by the Opposite Party. It is say of the Opposite Party on the basis of surveyor report they have repudiated claim of the Complainant said repudiation letter dtd.22/02/2007 is produced by the Complainant alongwith complaint at annexure C-7. In the repudiation letter Opposite Parties have repudiated the claim on the following reason that “Claim do not fall within the scope of the policy.”
It appears from the evidence on record that after repudiation of the claim, Complainant wrote letters to the Opposite Party to reconsider their claim. According to the Complainant, the Surveyor H.L. Sah, appointed by Opposite Party submitted his addendum report to the Opposite Party. Copy of the said report is produced by the Complainant at Annexure C-8. The Opposite Party also admitted the fact that surveyor appointed by them had submitted addendum report. However, it is alleged by the Opposite Party that at the request of the Complainant, surveyor had submitted addendum report which is partial and contradictory to its earlier report. Surveyor H.L. Sah has submitted addendum report to the Sr. Manager, of the Opposite Party. In the addendum report the surveyor has stated that “as per our discussion held with your official on 20/04/07 we are now submitting our addendum report.” So from the contents of addendum report it appears that as the discussion with the officials of the Opposite Party surveyors had admitted addendum report to the Opposite Party. Therefore, there is no substance in the allegations made by the Opposite Party that addendum report was submitted by their surveyor at the request of the Complainant. In the earlier report surveyor has not disputed fact of theft of 12 laptops from the godown of the Complainant was committed. However, he had mentioned that “as per the panchnama the use of duplicate key hence loss will not be come under the ambit of Burglary Policy.” Same surveyor in the addendum report has stated that “as per our local enquiry the entry was by breaking lock assuming even the use of duplicate key the present case will not come under the Exclusion Clause No.(vii) of the Burglary and House Holding Policy since the exclusion for loss of money and/or other property abstracted from the safe following the use of the key to the said safe or any duplicate thereof belonging to the insured needless such plan obtained by assault or by threat. In view of the above fact the claim is admissible.”
Ld.Advocate for the Complainant has referred contents of the Spot Panchnama prepared by the Police and pointed that in the Spot Panchnama it is mentioned that some unknown person opened the lock by using duplicate key. It is submitted that in the police investigation, nowhere it was found that the person who used duplicate key was Complainant’s family member or business assistance or person authorized by the Complainant. There is nothing on the record to show that the duplicate key used was belonging to the Complainant.
In the repudiation letter dtd.22/02/07 the Opposite Party has not assigned any specific reason for repudiation of claim but the claim was repudiated on the ground that “claim does not fall within the scope of the policy.” In the written statement, Opposite Party has raised contention that the report of the surveyor disclosed that the claim do not fall within scope of the policy. It is contended that the claim falls under the Exclusion Clause No.(ii) & (vii) of the policy therefore, claim of was repudiated. As per Exclusion Clause No.(ii) of the policy, any loss or damage where any inmate or members of the insured’s household or of his business staff or any other person lawfully in the premises in the business is concerned in the actual theft or damage to any of the articles or premises or where such loss or damage have been expedited or any way assisted or brought about by any such person or person.
As discussed above, absolutely there is no evidence that any inmate or member of the Insured’s household or his business staff or any other person lawfully in the premises in the business concern committed to theft. Therefore, Exclusion Clause No.(ii) is not applicable to the present case. Exclusion Clause No.(vii) of the policy is as under –
“Loss of money and/or other property abstracted from safe following the use of the key to the said safe or any duplicate thereof belonging to the insured, unless such key has been obtained by assault or violence or any threat thereof.” Exclusion Clause No.(vii) is not applicable to the present case as there is no theft of money or other property kept in the safe. Further there is no evidence to support the allegation that the duplicate key used for opening the lock of the main door was belonging to the Insured. Therefore, it appears that Opposite Party by wrongly interpreting on aforesaid exclusion clause have illegally repudiated claim of the Complainant. Surveyor appointed by the Opposite Party after discussion with the officers of the Opposite Party submitted addendum report in which surveyor has clearly stated that the claim is admissible. Even then the Opposite Party has not considered claim of the Complainant.
Considering the facts & circumstances of the case, it appears that Opposite Party have wrongly rejected claim of the Complainant by misinterpreting terms and conditions of the policy and it amounts to deficiency in service on the part of Opposite Party. Therefore, we answer point no.1 in the affirmative.
Point No.2 :- The Complainants had obtained Shop Keeper Policy from the Opposite Party and it was valid for the period from 26/05/06 to 25/05/07. During the period of aforesaid policy, in the month of June, 2006 theft of 12 laptops worth Rs.5,99,493/- was committed from the godown of the Complainant. Surveyor appointed by the Complainant in his report stated that the Complainant has suffered loss of Rs.5,99,493/-. Complainant had preferred claim for the said amount under the policy to the Opposite Party but Opposite Party has wrongly rejected the claim therefore, we think it just to direct Opposite Party to pay to the Complainant an amount of Rs.5,99,493/- to the Complainant. The Complainant has claimed interest @ 18% p.a. on the aforesaid amount from the date of theft till realization of entire amount. The Opposite Party has repudiated claim of the Complainant by letter dtd.22/02/07. Therefore, we think it just to direct Opposite Party to pay interest to the Complainant @ 9% p.a. on Rs.5,99,493/- from 22/02/07 till realization of entire amount.
The Complainant has prayed for compensation of Rs.2,00,000/- for mental agony and harassment. The Complainant claimed exorbitant amount as compensation for mental agony and harassment. He has also claimed for Rs.25,000/- towards legal expenses. Considering facts and circumstances of the case we think it just to direct Opposite Party to pay to the Complainant an amount of Rs.10,000/- as compensation for mental agony and harassment and Rs.5,000/- towards cost of this proceeding. Hence, we answer point no.2 accordingly.
For the reasons discussed above, we pass following order –
O R D E R
i. Complaint No.255/2007 is partly allowed.
ii. Opposite Party is directed to pay an amount of Rs.5,99,493/- (Rs. Five Lacs Ninety Nine Thousand Four
Hundred Ninety Three Only) to the Complainant with interest @ 9% p.a. on aforesaid amount from
22/02/2007 till realization of entire amount to the Complainant.
iii.Opposite Party is directed to pay an amount of Rs.10,000/-(Rs. Ten Thousand Only) as compensation for
mental agony and harassment and Rs.5,000/- (Rs.Five Thousand Only) as cost of this proceeding to the
Complainant.
iv.Opposite Party shall comply with the aforesaid order within period of 30 days from the date of receipt of
this order.
v.Certified copies of this order be furnished to the parties.
