Per Shri Narendra Kawde, Hon’ble Member
This consumer complaint is filed alleging deficiency of service against the New India Assurance Company Ltd. (hereinafter referred to as ‘Insurance Company’) as the insurance claim payable under the insurance policy has been repudiated. The complainant prayed for settlement of claim of `50,67,182/- together with interest @ 18% p.a. and additional compensation of `5 Lakhs and cost of `25,000/-.
2. The case in brief is summarised as below :-
The complainant is a sole proprietor of Shree Vardhman Jewellers running business of jewellery and ornaments. The complainant subscribed to Jewellers Block Policy No.110902/46/08/45/00000080 for a period 03/07/2008 to 02/07/2009 to provide insurance cover of `50 Lakhs to the ornaments at the business place notified in the policy. The proposal for subscription of policy was submitted stating that local made standard safe purchased second hand will be installed for securing jewellery and ornaments together with cash in the notified business premises (i.e. shop premises).
3. On 25/05/2009 at about 9.15 a.m. the complainant noticed that entire shop of the complainant was ransacked and safe was opened and valuable stocks of gold and silver ornaments were missing. F.I.R. was lodged with the concerned Police Station. Incidence was reported to the opponent/Insurance Company very promptly on 26/05/2009. Opponent/Insurance Company appointed authorized Surveyor for the purpose of carrying out survey. Authorised Surveyor visited the shop premises and assessed the loss. Detailed report was submitted by said Surveyor to the opponent/Insurance Company. Though repeated efforts and bulky correspondence was exchanged between the parties, claim payable under the policy was not honoured and ultimately, opponent/Insurance Company repudiated the claim stating that the alleged storage of the insured goods were in a portable cupboard at night which was contrary to the provisions of the policy reproduced herein under, “instead of second hand “standard” safe installed in the complainant’s premises, which at the time of alleged burglary, allegedly using to store the currency for the sister concern of the complainant, namely, Parivar Forex.” Second ground taken up by the Insurance Company for repudiation was that there were no signs of forcible breakage of cupboard in which the goods were allegedly stored and also taken recourse to policy condition No.12 which states that - “Loss or damage to property insured whilst in window display at night or whilst kept out of safe after business hours” and Insurance Company further added the ground of repudiation stating that - “in the event of any claim arising, hereunder for loss or damage to the property covered by this policy the insured shall, if so required and as a condition precedent to any liability of the company prove that the loss or damage was not directly or indirectly occasioned by happening through or in consequence of the above excepted circumstances or causes”. Repudiation stating those reasons came to be finally issued on 18/05/2010. Aggrieved with the repudiation of the claim, this consumer complaint has been filed.
4. Opponent/Insurance Company vehemently contested the claim of the complainant by filing written version. First and foremost important ground made out by the Insurance Company is that the insured goods i.e. gold and jewellary were not stored in the second hand “standard” safe which was contrary to the proposal submitted by the complainant prior to issuance of the policy. The insurance is a contract as averred by the opponent/Insurance Company and further it is on the basis of “Consensus ad idem” i.e. understanding the same thing in the same sense. There is clear breach of this principle as second hand safe of standard make as undertaken in the Proposal Form by the complainant was not used for storage of insured valuable goods. Moreover, the complainant has been carrying out similar business of the sister concern, namely, M/s.Parivar Forex Pvt. Ltd. in the same premises wherein the insured shop is situated. Though there were two cupboards separately maintained for the purpose of storage of valuables, the Authorized Surveyor carried out detail survey and came to the conclusion that safes/cupboards from which the reported burglary took place do not conform to the parameters of the standard safe as contemplated and undertaken by the complainant in the Proposal Form. Further, it was also observed by the Surveyor that both safes (belonging to two different companies) under the same roof were neither tampered nor opened forcefully though loss assessed is estimated to `37,17,190/-, but the Surveyor did not recommend to settle the claim as it was outside the policy terms and conditions.
5. We heard Mr.Mohit Bhansali, Advocate for the complainant and Ms.Kalpana Trivedi, Advocate for the opponent.
6. Learned Advocate for the complainant argued at length stating that there is evidence on record that burglary took place by using force by the burglars. F.I.R. was lodged in the concerned Police Station. Technical expert report is on record to establish that the safe was burgled by use of force. It was further contended that subject insurance policy was issued only after visit by officers of the opponent/Insurance Company after verifying the standard safe used for the purpose of storing insured valuable goods. This contention has been rebutted by the opponent/Insurance Company by filing affidavit evidence. There is no other evidence on record to show that the safe used for the purpose of storing insured valuable goods was inspected prior to issuance of policy. In support of their contention, complainant relied on judgement of the National Commission in Original Petition No.5 of 2003 (Champaklal Hansraj Shah V/s. United India Insurance Co. Ltd.) decided on 03/07/2012. More particularly, Para 4 of the said judgement was relied by the complainant stating that as observed by the Hon’ble National Commission that “….It is difficult to find out any safe which could be said to be burglar proof. Up-till now it is not invented.” [Emphasis added]. We have perused the judgement of the National Commission. The facts and circumstances differed as the case on hand before us is different. In the present case, issue of burglar proof is not in dispute. The important point disputed is that the safe of second hand standard make was not used by the complainant and moreover, it was not installed. As reported, said safe was portable. This is one of the grounds of repudiation of the claim taken by the opponent/Insurance Company. There is no rebuttal evidence whatsoever adduced by the complainant to this ground of repudiation.
7. Submission of Learned Counsel for the opponent/Insurance Company is that there is a clear-cut breach of policy terms and conditions, more particularly, about use of safe of second hand standard make. Policy endorsement in Section (I) provides warranty for insurance cover of the valuable secured in “locked safe of standard make at all time out of business hours”. Though official Surveyor has assessed the loss as burglary in the shop premises is not disputed, but did not recommend for settlement of the claim as the alleged safe was not installed in the shop premises and on the contrary, it was a portable cupboard. Further, it was found that complainant was carrying out similar business in the name of sister concern and having another cupboard for storing valuables under the same roof was created by the complainant and that too without notice to the opponent/Insurance Company.
8. Admittedly, burglary took place in the shop premises. F.I.R. was lodged. However, whether accused were traced or not is not on record. If the accused were not traced whether investigation was on and/or F.I.R. was closed as ‘A’ summary and submitted to the concerned Court is not available on record. Expert report in respect of use of force has not been produced on record as documentary evidence as required under Section 13(4) of Consumer Protection Act, 1986 by the complainant. Copy of Proposal Form is on record. Complainant declared to use local made standard safe purchased second hand against the relevant query in the proposal form. However, considering the totality of the facts and circumstances of the case, there is no conclusive proof about use of such safe as declared in the proposal form. On perusal of the record placed before us and the documentary evidence of the parties available on record and pleadings of the Learned Advocates of the parties, we came to the conclusion that the complainant has failed to make out a case of establishing deficiency of service as there is no conclusive proof on record that burgled insured valuable stocks was indeed stored in the second hand standard safe as per policy proposal. We hold accordingly and pass the following order :-
-: ORDER :-
1. Complaint stands dismissed.
2. In the given circumstances, parties to bear their own costs.
3. Copies of the order be furnished to the parties.
Pronounced
Dated 6th May 2013.
