Haryana

Ambala

CC/208/2022

Gurjinder Singh - Complainant(s)

Versus

The New India Assurance Co Ltd - Opp.Party(s)

16 May 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	208 of 2022
Date of Institution	:	13.06.2022
Date of decision	:	16.05.2024.

Gurjinder Singh aged about 38 years s/o Shri Malkit Singh, R/o Village and Post Office-Mohra, Tehsil Ambala Cantt, District Ambala.

          ……. Complainant

                                                Versus

The New India Assurance Company Limited, Branch Office-#5406, Shree Complex IInd Floor Cross Road No.03, Punjab Mohalla, Ambala Cantt-133 001, through its' Branch Manager.

                                                                                               ….….  Opposite party

Before:        Smt. Neena Sandhu, President.

                              Smt. Ruby Sharma, Member,

           Shri Vinod Kumar Sharma, Member.           

 

Present:       Shri Kiran Pal Chauhan, Advocate, counsel for the complainant.

                    Shri Mohinder Bindal, Advocate, counsel for the OP.

Order:        Smt. Neena Sandhu, President.

                   Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to it:-

1. To pay insured claim amount of Rs.9 lacs alongwith interest @18% p.a. from the date of knowledge of theft i.e. 12.08.2021, till realization.
2. To pay compensation to the tune of Rs.75,000/- for mental agony and harassment.
3. To pay cost of litigation.
4. Grant any other relief which this Hon’ble Commission may deems fit.

 

2.             Brief facts of the case are that the complainant has been doing his business in his village by keeping shuttering materials including Iron Plates of Lintels, etc. He has kept his all the shuttering materials by covering Bara by raising boundary Walls adjoining to the Gali and he has been giving the shuttering material on rent for laying lintels etc. through the Contractors or Masons etc.. He got his shuttering materials i.e. Iron Plates of Lintel, etc. insured with the  OP  comprehensively for the sum assured Rs.9,00,000/- after paying premium vide Insurance Policy No.35350146210100000076 valid for the period from 17.06.2021 to 15.06.2022. On 07.08.2021, the complainant went to Yamuna Nagar for his work due to emergency and he returned to his home in the evening of 12.08.2021 and he immediately went to his business premises during evening hours and found the shuttering materials kept in queue disturbed and moreover some of the shuttering materials were found missing. After counting the goods lying there, the complainant came to know that 120 Iron Plates, which were being used for placing the lintels of the house, were found missing and he did all the possible attempts to search his missing iron plates here and there and he even inquired from the neighbourhood but the said 120 iron plates, which were pointed out were found missing. The complainant observed that some unknown persons by taking undue advantage of the absence of the complainant during night hours committed theft of 120 Iron Plates. Accordingly the complainant reported the matter to the Police of Police Station-Parao on 12.08.2021 by explaining the facts; upon which a case bearing FIR No.0214 dated 12.08.2021, was lodged Under Section-380 of IPC against unknown person. In order to avoid any controversy in the matter, the complainant at once informed to the OP, upon which the OP deputed Mr. Vishal K.Aggarwal-the Authorized Investigator and Surveyor, who after verifying the facts promised the complainant that his case is genuine and the complainant will be given compensation of the sum assured against the aforesaid Policy and accordingly Claim No. 35350146210190000003 was lodged with the OP through the said Authorized Investigator. Thereafter the complainant repeatedly visited the OP to know about the stage of his claim; but the OP always postponed the complainant by making excuses on one pretext or the other, however, the OP also disclosed to the complainant that his case is genuine and some unknown persons have committed theft of 120 iron plates and the complainant will be given the sum assured being the Insurance is having validity. The complainant was highly surprised when he received the letter dated 16.12.2021 from the  OP vide which the aforesaid legal claim of the complainant for stealing 120 Iron Plates by unknown persons have been ignored wrongly and illegally rejected by excusing that the claim of the complainant being not proved, is not maintainable. However, the OP had given 07 days time for making representation, if any, otherwise, the claim of the complainant will be finally treated as repudiated. Accordingly the complainant contacted the  OP  from time to time after visiting their Branch and he was kept waiting for hours together many days; however, the  OP  disclosed to the complainant that his case will be considered and the letter of repudiation was wrongly issued. But now the OP is ignoring the complainant reason best known to the OP. In order to avoid to indulge himself in any uncalled for litigation, the complainant got the OP served with a legal notice dated 02.02.2022 for giving them a chance to do the needful in the matter but to no avail.    However, the OP in its reply dated 18.02.2022 took altogether false pleas. Under the constrained circumstances, the complainant  had filed the abovesaid complaint earlier on the same cause of action against the  OP  before this Hon'ble Commission, which was registered as Complaint No.126 dated 20.05.2022 and was fixed for 17.05.2022 for hearing; but due to inadvertence, the counsel for the complainant remained busy in conducting his other cases in the Learned Civil Courts at Ambala and the complainant was out of station in emergency and due to this reason, the counsel for the complainant became much late to reach to this Hon'ble Commission. When after lunch, the counsel for the complainant reached to this Hon'ble Commission to put appearance in his aforesaid complaint; it had been dismissed-in-default for want of prosecution vide Order dated 17.05.2022. When the complainant came to know about deciding his complaint as dismissed-in-default for want of prosecution, he through his counsel applied for the supply of Certified Copy of the Order dated 17.05.2022, on 19.05.2022, which was delivered on 20.05.2022. Hence, the present complaint.
3.           Upon notice, the OP appeared and filed written version raising preliminary objections to the effect that  this complaint is not maintainable either in law or on facts and liable to be dismissed in limine; the complainant has not approached this Commission with clean hands as he has suppressed the material facts; the complaint is liable to be dismissed on this preliminary ground of non- disclosure and concealment of material facts; the present complaint is not maintainable being barred by the principle of res-judicata since the earlier complaint filed by the complainant was dismissed in default by this Commission vide order dated 17.05.2022 and there was only one remedy with the complainant to get this order set-aside from the Hon'ble State Commission;  the present complaint has been filed without any cause of action etc. On merits, it has been stated the reported claim of the complainant was duly entertained immediately on receipt of the intimation of alleged loss and an independent and IRDA approved surveyor Mr. Vishal K. Aggarwal was immediately deputed to assess the loss and to give its fact finding report. The said surveyor visited the premises in question to assess the alleged loss caused in between the alleged dates from 07.08.2021 to 12.08.2021. During inspection of the insured premises and the submission made by the insured himself, it was observed that the alleged loss had occurred from the insured premises when the complainant was out of station for some days and the material there was left unattended during all these period of 6 days from 07.08.2021 to 12.08.2021. It was submitted by the complainant that someone had stolen 120 shuttering plates from his premises during those days of his absence from the premises in question. It was further submitted by the complainant that some persons might had crossed the boundary wall of the side vacant plot and therefrom they stole away the shuttering plates. On thorough inspection of the spot as well as according to the version of the complainant, there was no house breaking or any burglary observed. After thorough investigation and verification of both situation and loss, the said surveyor submitted his detailed report dated 13.09.2021 whereby he evaluated each and every facet of this case and the limitation and scope of the insurance policy with the recommendation that since no insured peril has operated and the alleged loss had not occurred due to any forcible entry or any house breaking thus no burglary was involved in the captioned loss and as such the reported loss found to be not covered under the burglary insurance policy in question. Resultantly, the claim was recommended not payable and liable to be rejected. However, for the sake of assessment only, although the loss found to be not covered under the said insurance policy in question, the said surveyor also submitted their observation with the assessment of actual loss to the tune of Rs,1,24,719/- suffered by the complainant. After scrutinizing and elaborating the whole facts, situation, records and the scope of the said insurance policy, the competent authority repudiated the said reported claim of the complainant as per the terms and conditions of the insurance policy. The complainant had availed Burglary insurance policy with a limited scope of policy whereby the OP  is liable to Indemnify the loss only if the loss occurred due to burglary and not otherwise. Burglary is different from theft. Unless the burglary and/or housebreaking is committed by entering into or exiting from the insured premises by forcible and violent means or following assault violence or threat thereof to the insured or any employee or family members of the insured, the loss by way of a theft is not reimbursable. However, to prove the matter further, one investigator Sh. Shubham Arora was also deputed to give his fact finding report about this alleged occurrence who after thorough investigation of the matter, submitted his detailed report dated 14.12.2021 with observation that no safety measures were taken by the insured to safeguard his alleged stock and moreover gave the same observation about no forcible entry or exit on the part of alleged thieves as observed by the surveyor. The insurance policy availed by the insured is only for burglary wherein as per law, in order to bring the subject theft under the burglary clause of the insurance policy, the insured is required to establish that the thief gained entry into the insured premises by forcible or violent means or exited from the insured premises by violent means or hold up. Although the insured has alleged the theft of his certain shuttering material but there is nothing on record and even nothing has come out in the investigation or during survey about the forcible or violent entry or exit of the thief from the insured premises. Even the police has not found anything about the forcible entry or exit of the thief into or from the Insured premises and remained clueless after detailed investigation about the thief and his entry and exit points. It has also come out that the insured has not taken any safety measures to safeguard the insured articles and even the investigator has doubted that the theft as 120 iron plates cannot be taken away by anyone by hand and a vehicle must be required to take away such a big consignment but there was no place to park a vehicle to lift the stolen articles at that place due to the surroundings of the alleged premises. By applying the requisite ingredients of burglary to the facts of the present case in hand, it was found and proved that this alleged theft does not fall within the definition of burglary and cannot be said burglary since the thief has not gained his entry into the insured premises by forcible or violent means and also exited from the insured premises by any violent means or hold up thus this theft cannot be termed as burglary. Moreover since the insured was negligent for non adhering to any safety measures allowing the thieves a free hand at an unattended and isolated place for continuous full three days as such the said claim was found not maintainable and was repudiated and the complainant was duly informed about the fate of his claim vide letter dated 16.12.2021 and the complainant was given an opportunity to clarify his position on these legal issues involved in this case but instead of replying the same he got served a false and frivolous and unwanted notice without any cause or reason just to put undue pressure which was duly replied vide reply dated 18.02.2022. Rest of the averments of the complainant were denied by the OPs and prayed for dismissal of the present complaint with costs.
4.           Learned counsel for the complainant tendered affidavit of complainant as Annexure CW1/A alongwith documents as Annexure C-1 and C-7 and closed the evidence on behalf of the complainant. On the other hand, learned counsel for the OP tendered affidavit of Manoj Batra, Manager & Authorized Signatory, The New India Assurance Co. Ltd., Suit Hub, Karnal;  Vishal K. Aggarwal, Surveyor and Loss Assessor having its office at #73, Model Town, Ambala City, District Ambala and Shubham Arora, resident of House No.3548, Timber Market, Ambala Cantt. as Annexure OP-X, OP-Y and OP-Z respectively, alongwith documents as Annexure OP-1 to OP-7 and  closed evidence on behalf of the OP.
5.           We have heard the learned counsel for the parties and have also carefully gone through the case file.
6.           Learned counsel for the complainant submitted that by not making payment of the sum assured under the policy in question, despite the fact that the theft of iron shuttering plates took place during subsistence of the policy in question,  the OP is deficient in providing service and adopted unfair trade practice.
7.           On the other hand, learned counsel for the OP while reiterating the averments made in the written version has submitted that the liability of the OP under the policy in question arises, had the theft of iron shuttering plates took place after attempt of forcible and violent means/burglary, whereas, in the present case, theft took place, as some unknown person has crossed boundary wall of the premises of the complainant. In support of his contention, he has placed reliance upon the judgments rendered by Hon’ble National Commission, in the following cases of M/s Cross Trade Links Versus Oriental Insurance Co. Ltd. 2017 (2) C.P.R. 167; United India Insurance Co. Ltd Versus M/s IT Net Infocom Pvt. Ltd. 2016 (4) C.P.R. 110 and New India Assurance Co. Ltd. Versus M/s Sumangal Traders, 2019 (1) C.P.R. 738
8.           Neither the issuance of the policy in question in respect of the shuttering plates nor the fact that its theft took place on 12.08.2021; nor the fact that the claim of the complainant has been repudiated by the OP on the ground that the thieves have not gained forcible and violent entry in the insured premises and that no burglary took place and at the same time theft of iron shuttering plates took place as the complainant failed to take reasonable care of the insured articles is in dispute. However, the moot question which falls for consideration in this present case is, as to whether  the complainant is entitled to any relief or not. The Policy Schedule, Annexure OP-2 clearly shows that it was for Burglary of goods in question kept in the premises of the complainant. Sh.Vishal K.Aggarwal, Surveyor in his report dated 13.09.2021, Annexure OP-3 has stated that as per the version of the insured, some thieves crossed the boundary wall from adjacent plot and taken away 120 plates of MS Shuttering.  The claim of the complainant has been rejected by the OP vide letter dated 16.12.2021, Annexure OP-1 on the ground that the thief has not gained entry into the insured premises by any violent or forcible means. The complainant did not rebut the contentions raised by the OP that there was no forcible entry in the premises of the complainant or that he made statement before the Surveyor that as per the version of the insured, some persons might have crossed the boundary wall of the side vacant plot and stolen away the shuttering plates. It is significant to mention here that a similar question has already been decided by the Hon’ble Supreme Court of India in M/s. I.P.& Investment Corpn.Of Orissa Versus New India Assurance Co. Ltd. and Anr., AIR 2016 SUPREME COURT 3908 in which it was held that that a forcible entry should precede the theft, and unless they are proved, the claim cannot be accepted. Relevant part of this order is copied below:-

“…….7. Having considered the submissions made on both sides, we are of the opinion that there is no error committed by the MRTP Commission in rejecting the Claim of the Appellant. It is clear from the facts of the present case that the Appellant has made out a case of theft without a forcible entry. The case of the Appellant is that forcible entry is not required for a claim to be made under the policy. Following the well- accepted principle that a contract of insurance which is like any other commercial contract should be interpreted strictly, we are of the opinion that the policy covers loss or damage by burglary or house breaking which have been explained as theft following an actual, forcible and violent entry from the premises. A plain reading of the policy would show that a forcible entry should precede the theft, and unless they are proved, the claim cannot be accepted….”

 

9.           Similar view has been taken by the Hon’ble National Commission in the cases M/s Cross Trade Links Versus Oriental Insurance Co. Ltd. United India Insurance Co. Ltd Versus M/s IT Net Infocom Pvt. Ltd. and New India Assurance Co. Ltd. Versus M/s Sumangal Traders, referred to above.   
10.           Keeping in view the facts and circumstances of the case and the law laid down by the Hon’ble Superior Courts, we do not hesitate to conclude that the present complaint filed by the complainant is devoid of merits, consequently, we dismiss the same. The parties are left to bear their own costs. Certified copies of the order be sent to the parties concerned as per rules.  File be annexed and consigned to the record room.

Announced:- 16.05.2024.

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President