Per Shri S.R. Khanzode, Hon’ble Presiding Judicial Member
This consumer complaint pertains to alleged deficiency in service on the part of the New India Assurance Company Ltd. (hereinafter referred to as ‘Insurance Company’) for arbitrarily repudiating the insurance claim which arose on account of policy taken by the complainant-Mr.Roshanlal B. Verma to carry his business in the name of “Kanchanmala Jewellers” for his jeweller’s shop namely “Jeweller’s Block Insurance Policy” and when after breaking open his shop, gold ornaments stored therein were stolen.
2. It is the case of complainant that the flood water inundated in his shop in the famous flood of Mumbai 26th July 2005. The complainant’s family was required to evacuate their residential premises also which are situated above the shop. Family thereafter engaged in cleaning the mud and other debris due to flood. On the night of 01/08/2005 the complainant kept all the gold ornaments in a safe and thereafter retired to his house. On mezzanine floor (of the shop), few workers were working while his relative slept in the front side of the shop. On the next day morning the workers working and staying at the mezzanine floor reported breaking open of the safe. Complainant rushed to the spot, examined the opened safe and seeing that the gold ornaments kept therein were stolen reported the matter to the Police. Simultaneously, the Insurance Company was informed, who appointed Surveyor-Sunil J. Vora & Associates. He assessed the loss at `27,43,485/-. However, the Insurance Company came to the conclusion that the safe was opened with duplicate keys and as such, the insurance claim is not entertainable and accordingly, repudiated the insurance claim by its letter dated 09/05/2007. Feeling aggrieved thereby, this consumer complaint is filed on 14/03/2008.
3. Both parties relied upon the documents placed on record inter alia including copies of insurance policy, proposal form, F.I.R. dated 02/08/2005, ‘A’ Summary granted after closure of the investigation by the Police on 16/01/2006, copy of Spot Panchanama dated 02/08/2005, Survey Report dated 24/01/2007, repudiation letter dated 09/05/2007 and the claim made by the complainant for loss of `32,93,485/-. Since documents are referred by both the parties, they are taken into consideration. Besides that in evidence, complainant-Mr.R.B. Verma has filed his affidavit and additional affidavit dated 27/08/2012 and also affidavit of his relative Mr.Mukesh Sen dated 27/08/2012 who was sleeping at the time of event inside the shop. No evidence is adduced on behalf of the Insurance Company.
4. Referring to the First Information Report (F.I.R.) and final report for ‘A’ summary submitted by the Police which was eventually granted by the Magistrate specifically indicates that principal lock of the safe was found broken (this perhaps includes to the fact of covers over the key which was unscrewed and found lying on the floor and seized by the Police) and other four locks were found opened. The Police were of the opinion that duplicate keys might have been used to open those four locks. Except this statement, there is no evidence to indicate that safe was opened by using duplicate keys.
5. On the basis of this circumstance and recording that there was no visible violence marked on the same, the Surveyor also opined that duplicate keys might have been used. However, these circumstances alone taking into consideration the totality of the circumstances, do not conclusively indicate that the safe was opened only with the duplicate keys. The Police already ruled out possibility of involvement of any family members of the complainant or workers working and slept on the mezzanine floor and that of Mr.Mukesh Sen. The workers at the diamond factory or ornaments making factory on the mezzanine floor slept after working upto 2.00 a.m. It is revealed from the evidence of Mr.Mukesh Sen that being terribly tired and exhausted since they had worked extensively for 3-4 days prior to the event and since he was not feeling well on that night, had taken medicine and thus, he was in deep sleep when the incident occurred. The culprits after breaking open the shop entered into the safe room also used the violence in breaking open the first lock and thereafter, using their skills to open other locks, opened the safe. Therefore, incident of housebreaking and theft is well established. There is no reason to draw an inference other than what has been drawn by the Police in this case. Therefore, in absence of a complete chain of circumstantial evidence to indicate only possibility that the safe was opened using duplicate keys, and particularly, considering the fact that a rear door to make the entry to the room where the safe was found broken, there is an evidence of breaking open the first lock as mentioned in the ‘A’ summary report; we find that it cannot be conclusively held that safe was opened using duplicate keys. Under the circumstances, the exemption clause on the basis of which the Insurance Company based its repudiation, since not available to it, the repudiation is to be termed as ‘arbitrary’ and improper. Thus, deficiency in service on the part of the Insurance Company is well established on this count.
6. Coming to the quantum of redemption of the loss vis-à-vis quantum of compensation to be awarded to the complainant, the Surveyor assessed the loss at `27,47,485/- in its final report dated 24/01/2007. Said assessment is made considering all the relevant record which is exhaustively mentioned in the said final report. Therefore, it would be safe to accept this assessment as the amount of compensation to be granted in the instant case. We hold accordingly and pass the following order :-
-: ORDER :-
1. Complaint is partly allowed.
2. Opponent/New India Assurance Company Ltd. do pay `27,43,485/- (Rupees Twenty-seven Lakhs Forty-three Thousand Four Hundred Eighty-five only) to the complainant along with interest @ 9% p.a. with effect from 01/04/2007 till its realization.
3. Opponent/New India Assurance Company Ltd. to bear its own costs and pay `25,000/- as costs to the complainant.
4. Copies of the order be furnished to the parties.
Pronounced
Dated 11th July 2013.
