PER SHRI. S.M. RATNAKAR – HON’BLE  PRESIDENT

 1)        The Complainant has prayed for the direction against the Opposite Party to pay a amount of Rs.3 Lacs alongwith interest @ 18% p.a. from the date of repudiation of claim till the realization of the amount.  The Complainant has also prayed Rs.10,000/- towards mental torture and harassment and Rs.20,000/- towards Advocate fees and cost of this proceedings.  

 2)        The Complainant has obtained the policy of Rs.23 Lacs from the Opposite Party known as Jeweler Block Policy for the period 28/04/05 to 27/04/06. The said policy document is placed on record as per Exh.‘A’.  According to the Complainant, on 22/09/05 theft had occurred at the Insured’s shop located at 95 A/3, Pandurang Bhavan, Station Road Chembur, Mumbai – 71, where the Insured have been carrying out their business of sale of Gold/Silver Ornaments for last 15 years.  It is alleged that on the aforesaid date there was robbery in the shop of the Complainant and 24 nos. of Bengals of Gold having weight of such Bengals 469.50 gms. worth of Rs.2,94,847/- were looted. The Complainant lodged the police complaint and also lodged the claim to the Opposite Party.  The Opposite Party as per the Insurance Act, appointed S. Sunder Raman and Associates Pvt. Ltd. as Surveyor to assess the loss. The said Surveyor submitted the report to the Opposite Party on 23/01/06. The copy of the said survey report is at Exh.‘B’. The said Surveyor assessed the loss of Rs.2,71,033/- against actual loss caused to the Complainant at Rs.2,94,847/-.  It is alleged that however, after assessment of the Surveyor regarding actual loss of Rs.2,71,033/-, the Opposite Party repudiated the claim vide letter dtd.29/08/07 which is marked at Exh.‘C’.  In view of the condition No.8 of policy, which is as under –

            “Loss or damage occasioned by theft or dishonestly or any attempt there at committed by or where such loss or damage has been expedited or in any way sustained or brought about by” (C) “Any Customer or broker or broker’s customer or angadias, cutter or goldsmith in respect of the property hereby insured entrusted to them by the Insured, his or their servant or agents” is excluded from the scope of the policy. 

It is alleged that the Opposite Party ought to have considered the factual aspect that whether the alleged breach is the direct result on the cause of loss and if not then for that breach the claim cannot be denied. It is submitted that in the case of the Complainant the cause of loss was robbery and therefore, alleged breach has not direct impact on the cause of the loss.  The Opposite Party ought to have applied their judicial mind in the case of the Complainant since the breach alleged has not caused in this case or play any important role in causing the loss. It is submitted that therefore, the claim ought not to have been denied by the Opposite Party.  It is submitted that the Complainant lodged the complaint in the police station and the copy of the said F.I.R., Panchanama and rough sketch of robber were verified by the Surveyor and the same are filed at Exh.‘D’. 

 3)        In the present case the ladies came in the shop as a customers but they committed theft of the gold Bengal tray from the shop of the Complainant.  It is contended that the Opposite Party or his Agent and Manager has not explained policy terms and condition and requirements as per I.R.D.A.’s rules and regulations.  The Complainant is therefore, compelled to file the present complaint under Sec.12 r/w Sec.14 of Consumer Protection Act, to grant relief of compensation and to get reinstate the loss of gold robbed as policy also provide reinstatement of loss. It is alleged that there is deficiency in service on the part of the Opposite Party in repudiating the claim lodged by the Complainant.  It is submitted that the lawful claim lodged by the Complainant to the Opposite Party has been wrongly rejected and thereby the Opposite Party is guilty of unfair trade practice.  The Complainant therefore, prayed that the claim made in the complaint as referred in para 1 of this order may be granted.

 4)        The Opposite Party contested the claim by its written statement contending that in view of the own averments of the Complainant some of the customers who visited the shop of the complainant committed theft therefore, by virtue of exclusion clause No.8(c) of Jewelers Block Policy, the Opposite Party is not liable to indemnify such type of cases.  It is contended that the Complainant being shop keeper and salesmen ought to have taken atmost precaution while displaying, showing the articles to the customers.  It is contended that it seems that the Complainant has not taken any sort of precaution and it can be ascertained that the Complainant himself must have abated the offence for the reasons that the Complainant could not identify the accused after showing some persons by the Investigating Authority and on that count it is contended that the Complainant ought to have filed the Civil Suit for the claim regarding the loss sustained by him.  The Opposite Party has thus, contended that the Complainant is not entitled for the claim made in this complaint in view of the policy Clause No.8(c).  It is therefore, submitted that the complaint may be dismissed.   

 5)        The Complainant has filed rejoinder and affidavit in support of the claim.  The Opposite Party has not filed affidavit in support of its contention.  Both the parties have filed written arguments.  We heard Shri. S.N. Chataule, Ld.Advocate on behalf of the Advocate Shri. Harshad Trivedi, for the Complainant and Shri. Maduskar, Ld.Advocate  on behalf of Adv. Shri. Indrajeet Kulkarni, for the Opposite Party. 

 6)        While considering the entitlement claimed by the Complainant it is necessary to be considered that it is not in dispute that at the relevant time of the robbery or theft incident which took place in Complainant’s shop on 22/09/2005 the Jeweler Block Policy was in force in respect of the said shop.  Under the said policy the sum insured was Rs.23 Lacs.  The Complainant has lodged the complaint regarding the incident of robbery/theft at Chembur Police Station on 23/09/05. The copy of F.I.R., Panchanama, rough sketch of lady are placed on record by the Complainant at Exh.‘D’. It is the fact that after report the incident of theft/robbery by the Complainant the Opposite Party appointed the Surveyor S. Sunder Raman & Ass. Pvt. Ltd. who made survey regarding the theft of gold Bengals from the Complainant’s insured shop at Chembur.  The survey report is placed on record at Exh.‘B’.  In the said survey report, the Surveyor had quoted all the details of occurrence of theft incident in the Complainants shop. The said Surveyor has also collected the copy of said F.I.R. registered with Chembur Police Station.  The Surveyor has assessed the loss in his survey report to the tune of Rs.2,71,033/-.  The Surveyor has positively in his report has opined that the incident of theft of gold ornaments is covered by the Jeweler Block Policy in question.  The Surveyor has also opined that it is seen that the police have not submitted their final report in the case; however, in our opinion it can be taken that Insured’s claim is admissible as per policy terms subject to the findings of the police in their final report.  He has suggested that the Insurer may await the final report from the police station before taking the final decision on admitants/settlements of the Insured’s claim.  It is pertinent to note that the Opposite Party without taking into consideration the Surveyor’s report by their letter dtd.29/08/07 informed the Complainant that the claim for burglary of jewellery at the shop of complainant on 22/09/07 is not payable in view of exclusion clause No.8(c) of Jeweler Block Insurance Policy.  In our view in the present case and as per the catena of decision of the Hon’ble National Commission and Supreme Court, as the report of the Surveyor is an important document which has to be believed in absence of anything to the contrary the inability shown by the Opposite Party to indemnity the claim lodged by the Complainant itself is wrong on the part of Opposite Party.  In the present case in our view the Opposite Party did not apply its judicial mind while repudiating the claim in view of the Surveyor’s report. 

In the similar case reported in 2004 (2) CPR 517 of Jammu and Kashmir State Commission between the parties National Insurance Co. Ld. V/s. Beli Ram Krishan Lal Saraf, where the Complainant carrying on jewellery business had obtained an insurance cover under Jeweler Block Policy and two customers looking like army men came in the shop and demanded newly designed Bali (ear rings). While the Complainant showing Bali, those persons stole a pouch containing zumkas and chains.  A claim was filed which was repudiated on the ground of exclusion clause contained in the policy. The District Forum allowed the claim against which the Insurance Company came in Appeal.  The exclusion clause interalia, provided that Insurance Company would not be liable in respect of any customer, broker or their customers or goldsmith in respect of the property insured entrusted to them by the Insured of his servants.  The arguments from the side of the Insurance Company was that if the ornaments were displayed in the shop and entrusted to the customer who committed theft, the Company would not be liable on the other hand, the contention of the Complainant was that the ornaments stolen were not entrusted to the customer.  The Commission observed that they were convinced by the arguments that if the ornaments displayed and entrusted to the customer of making choice, but he commits theft of some other article, the claim could not be rejected on the basis of aforementioned exclusion clause.  We therefore, of the view that in view of the decision in similar case of Jammu& Kashmir State Commission, the Complainant has proved that as the Surveyor has observed as it is case of theft of ornaments the claim lodged by the Complainant ought to have been approved by the Opposite Party. Furthermore, as per the settled principle of law if there is doubt about the interpretation of contract of insurance it is likely to be sought against the Company and in favour of the Customer.  We therefore, hold that the repudiation of the claim made by the Opposite Party and that too without taking into consideration the report of the Surveyor in proper perspective is totally wrong on its part. In our view as the Surveyor has confirmed the circumstances in which the incident of theft occurred and inspite of that only by taking the help of Exclusion Clause No.8(c) the Opposite Party improperly repudiated the genuine claim of the Complainant.  The Hon’ble Supreme Court and National Commission in many cases condemned such attitude of the Insurance Companies of rejecting the genuine claim on flimsy ground or terms of contract, we therefore, hold that the contention raised by the Opposite Party that the Complainant is not entitled for the claim made in this complaint cannot be accepted.  In our view, as per the Survey report at Exh.‘B’ the Opposite Party is liable to compensate the loss to the tune of Rs.2,71,033/-.  The Opposite Party is also liable to pay interest @ 9% p.a. from the date of repudiation of claim i.e. 29/08/2007 on the aforesaid amount till realization of the said amount.  The Opposite Party is liable to pay Rs.10,000/- towards the mental torture and harassment caused to the Complainant on account of following unfair trade practice against the Complainant. The Opposite Party is directed to pay cost of Rs.7,000/- towards this proceeding including Advocate fees of the Complainant.  In the result the following order is passed -   

O R D E R

i.                    Complaint No.103/2009 is partly allowed.

ii.                 The Opposite Party do pay an amount of Rs.2,71,033/- (Rs. Two Lacs Seventy One Thousand Thirty Three Only) to the Complainant together with interest @ 9% p.a. from 29/08//2007 till its realization.

iii.               The Opposite Party do pay an amount of Rs.10,000/- (Rs. Ten Thousand Only) to the Complainant towards mental torture and harassment caused to the Complainant by following unfair trade practice.

iv.               The Opposite Party do pay an amount of Rs.7,000/- (Rs. Seven Thousand Only) including advocate fees & cost of this proceeding to the Complainant. 

v.                  The Opposite Party shall comply with the aforesaid order within 1 month from the receipt of the copy of this order.

vi.               Certified copies of this order be furnished to the parties.