Delhi

North East

CC/487/2012

Nisar Ahmad - Complainant(s)

Versus

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

23 Jan 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, NAND NAGRI, DELHI-93

 

Complaint Case No.487/12

 

CORAM:         Hon’ble President Sh. N.K. Goel

                        Hon’ble Member Sh. Nishat Ahmad Alvi

 

In the matter of:

Nisar Ahmad S/o Late Mohd. Ishaq

R/o V-359, Gali No. 24-A, Vijay Park,

Delhi-110053.                                                                          

   Complainant 

 

Versus

 

1. The New India Assurance Co. Ltd.

Regional Office at 85-88, 2^nd Floor,

Janpath, New Delhi-110001.

 

2. The New India Assurance Co. Ltd.

Branch Office, Delhi Garh Road,

Hapur, Timbar Nagar, Distt. Panchsheel Nagar (UP).                                                                                                                                                                                                                                                                 Opposite Parties

 

                                                                                  DATE OF INSTITUTION: 24-12-2012

                                                                      DATE OF DECISION      : 17-02-2015

Order

 

N.K. Goel, President :-

Case of the complainant is that the complainant who at the relevant time was running a factory of manufacturing of jeans etc. at G-81-82, Mussorie Gulaothi Industrial Area, Distt. Ghaziabad (UP) under the name and style of M/s Libas Enterprises as a proprietorship and doing job work got this stock of the goods insured to the tune of Rs. 25,00,000/- from OP2 having its regional office at 85-88, 2^nd Floor, Janpath, New Delhi; that on the night of 16-5-2012 a theft took place in the factory of the complainant in respect of which FIR No. 240/2012 U/s 379-IPC regarding theft of jeans and two cylinders total amounting to Rs. 4,19,325/- was got registered at PS Mussorie, Distt Ghaziabad (UP). Matter was reported to the OPs. The police filed a closure report. However, the OPs did not become ready to pay the claim amount despite repeated written as well as oral request which amounts to deficient service. Hence, it is prayed that OPs be directed to pay Rs. 4,19,325/- towards loss sustained, Rs. 10,00,000/- towards compensation for suffering lot of mental pain, agony, business as well as financial loss and Rs. 25,000/- towards cost of litigation to the complainant.  

In the reply the OP has pleaded that the insurance policy in question had been issued by their Hapur (UP) Branch and the complaint relates to indemnification of loss which took place at the factory of the complainant situated in Ghaziabad, UP and, hence, this forum has no territorial jurisdiction to entertain the complaint. It is denied that the OP has a regional office at      85-88, 2^nd Floor, Janpath, New Delhi. It is stated that the OP appointed Sh. R.K. Sharma as investigator who submitted his report dated 30-10-2012 to the OP where in the last Para it is submitted as under:-

“Theft was not taken place following upon the felonious entry into the insured premises by violent and forcible means.

All the goods kept in the insured factory were held in good faith and trust for which Insurance was not taken by the insured.”

 

It is further stated that as per the provision contained in section 64UM of the Insurance Act, 1938 the OP appointed M/s S.K. Aggarwal & Company duly Licensed Surveyors and loss assessor to assess the loss and the said surveyor submitted the report dated 19-10-2012 to the OP and in Para 9 of the report it was informed that as against the loss of Rs. 4,15,325/- as put forward in the claim form the complainant has not (sic) suffered loss of Rs. 2,25,900/- and even this loss is not payable because there was no evidence of use of any force or forcible entry/ exit for the following reasons:-

1. There was no evidence of any use of force of forcible entry/exit from the premises. Miscreants entered the premises without overcoming any hindrance, allegedly lifted the material which was kept at the site without any protection and took the material away. At any of the stage, the miscreants used force to overcome the protection as no such protection was provided.
2. The police registered the case u/s 379 which does not indicate house breaking. The insured in his intimation to the police did not report about any House Breaking or forcible / felonious entry into the premises during commission of alleged loss.
3. The allegedly stolen stock did not belong to the insured, but was held in trust. As the policy did not cover the stock held in trust, the alleged loss in such stocks would not be covered.

 

It is stated that the police case was registered under 379 IPC which relates to ordinary theft and did not relate to house breaking or burglary; that as per policy conditions the loss is payable if theft has taken place due to violent and forcible entry; that, moreover, the insurance cover granted to the complainant was in respect of the goods owned by him and the goods which were kept by him in trust were not covered under the insurance policy; that the theft of only those goods took place which were held by him in trust for processing and hence the claim lodged by the complainant was repudiated vide letter dated 21-12-12. It is pleaded that there is no deficiency in service on the part of the OP. Reliance has been placed on certain decisions copies of which have not been supplied or filed. Hence, it is prayed that the complaint be dismissed.

          The complainant has filed his affidavit in evidence. On the other hand, affidavit of Sh. Deepak Buddhiraja, manager of the OP having its office at Jeevan Raksha Building, near Ajmeri Gate, Asaf Ali Road, New Delhi has been filed in evidence on behalf of OP. Documents have been filed and exhibited on behalf of the complainant. OP has put reliance on documents in the reply as well as in the affidavit of its witness. However, OP has not filed the documents despite opportunities given in this regard.

 

          Written arguments have been filed on behalf of OP. We have heard the complainant in person and have also carefully gone through the record.

          The first question to be decided by this forum is, whether this forum has the territorial jurisdiction to entertain the complaint and, if not, to what effect ? The copy of the burglary and house breaking insurance policy (business premises) has been filed on behalf of the OP. It does not contain any jurisdiction clause of the court or the consumer forum in case dispute arises between the parties i.e. the insurer and the insured. In the present case, admittedly the factory premises where the incident had taken place was situated in District Ghaziabad, UP. The policy in question had been issued by the Hapur branch of the OP Company. The case of the OP is that it does not have any regional office at 85-88, 2^nd Floor, Janpath, New Delhi but, however, at the same time the OP has not filed any document to this effect. As stated hereinabove, the affidavit of the manager of OP having its office at Jeevan Raksha Building, near Ajmeri Gate, Asaf Ali Road, New Delhi has been filed in evidence on behalf of OP. The OP has not filed any document to show whether this is a regional office of the OP or is simply a branch office.

          Copy of the power of attorney dated 15-02-13 executed by Sh. Narendar Kumar, Deputy General Manager of OP in favour of Sh. Deepak Buddhiraja at the Delhi regional office II of the OP has been filed whereby he has substituted and appointed Sh. Deepak Buddhiraja, manager (Legal Cell) Delhi RO2 as his substituted attorney to interalia appear before the courts at any place within the Delhi regional office II on behalf of the Company. Sh. Narendra Kumar signed the said attorney in the presence of the regional manager Delhi office II. The OP has its Delhi regional office II at 10^th floor, Core 1, Scope Minar, Laxmi Nagar, District Centre Delhi-110092. Therefore, it stands proved that the OP has two regional offices in Delhi. We mark the copy of power of attorney as mark A for the purposes of identification. Documents issued by the OP (copy exhibit C1 which is the copy of standard fire and special perils policy and exhibit C2 which is the copy of the policy schedule for burglary single location insurance)  interalia provide that for redressal of grievance, if any,  the insured may approach the regional office. Thus, these documents of the OP themselves confer territorial jurisdiction on the regional office of the OP to redress the grievance, if any, of the insured touching the insurance policy issued from any of the branches situated in India. If the regional office of the OP can entertain the grievance of the insured and redress it but the insured is not satisfied with its decision, it is highly improbable and very impracticable that thereafter the insured should approach the consumer forum within whose local jurisdiction the branch office of the OP who issued the policy is situated. If the OP has its regional office in Delhi, the consumer forum situated in Delhi has certainly got the territorial jurisdiction to entertain and decide the complaint. Therefore, in our considered opinion, this forum has the territorial jurisdiction to entertain the complaint.

          The next question to be decided is, whether the OP was justified in repudiating the claim of the complainant on the grounds enumerated in its reply and repudiation letter. Exhibit C7 is the copy of the repudiation letter dated 2-11-2012. Its relevant portion reads as under:-

          “Re:- Claim for theft of stock of M/s Libas Enterprises

With reference to above we want to inform you that the subject loss of above insured does not fall under the scope of our policy due to following reasons:-

1. There was no evidence of forcible entry/exit from the premises.
2. The case was registered by police under section 379 which does not indicate house breaking.

As per our policy terms & conditions the loss of theft only covered if the theft is by forcible entry/exit. Therefore, we are sorry to inform you that we are unable to entertain the subject claim.”

 

Thus, the claim in question of the complainant had been repudiated solely on ground that there was no evidence of forcible entry/exit from the premises and it was a simple case of theft.

            The insurance policy interalia provides that any loss of or damage to property or any part thereof contained in the premises described in the schedule hereto due to burglary or house breaking (theft following upon actual forcible and violent entry of and/or exit from the premises) and hold up are to be indemnified to the extent of intrinsic value of the loss or damage. The copy of the schedule to the policy has not been filed by the OP. Therefore, we have to see whether it was a simple case of theft or a theft following upon an actual and forcible and violent entry of and/or exit from the factory premises of the complainant.

            Annexure R1 is stated to be a copy of surveyor’s report dated 19-10-12 (M/s S.K. Aggarwal & Co.). Reliance has also been placed on the report dated 30-10-12 stated to have been submitted to the OP by its investigator Sh. R.K. Sharma. However, as stated hereinabove, the copies of these reports have not been filed on behalf of OP who is presumed to be in sole and exclusive possession thereof. It is highly surprising that this annexure R1 has not been filed inspite of the fact that an application for directing the OP to file the copy of annexure R1 had been filed on behalf of the complainant on 6-9-13. In this regard, vide our order dated 9-12-13 we had observed that “appropriate adverse inference, if any, for not filing the documents mentioned in the application by the OP shall be drawn at the appropriate stage.” Therefore, we are constrained to hold that non filing of the copies of the said reports on behalf of the OP is a fact which goes in favour of the complainant and hence we hold that the OP has withheld these reports from the forum only because they would have gone against the OP and supported the case of the complainant.

            Therefore, we are constrained to hold that the OP has failed to prove that their investigator/ surveyor had come to the conclusion that there was no evidence of forcible entry/exit from the factory premises of the complainant. Moreover, we place reliance on a decision rendered by the Hon’ble National Commission in New Delhi Assurance Co. Ltd vs Star Studio & Digital Gallery II (2014) CPJ 271 (NC). We reproduce the relevant portion as hereunder:-

7. “We have perused the report of Engineer Sh. K.S. Chandiok, Investigator, who was deputed by the Respondent/Complainant on 15.11.2007, for investigation of the case. Relevant portion of the said report is reproduced as under:

"There were two locks on the shutter and there was no central lock. The locks were found in open condition with its one lock missing and there was second lying near the shutter in open condition. The cause of loss is theft with unauthorized entry in the shop after opening locks without damaging the shutter and other structure."

8. There is no evidence on record to prove that some duplicate key was used and in the absence of that, it is clear that the lock, had been broken open with the use of 'force' and the said 'force' was used for breaking open the lock only, and there is no evidence showing use of force on the shutter or any other part, but unauthorized entry was made for committing the burglary. Hence, both the reports clearly show that one lock was missing and the other lock was opened.

9. Perusal of the terms and conditions of policy clearly indicate that the said policy was issued to indemnify the insured to the extent of intrinsic value of any loss due to Burglary or house breaking. We rely upon the decision of this Commission in case Mono Industrial v. New India Assurance Co. Ltd., II (2008). CPJ 125 (NC), wherein, it has been held that entry in the premises, if it is found to have been effected by exercise of force, however, slight, it would be sufficient to constitute 'forcible entry' within the meaning of burglary policy.”

 

Therefore, we hold that though the complainant had lodged an FIR under section 379 IPC it was a case of forcible entry/exit within the meaning of burglary policy.

            The term “trust” has not been defined in the policy. Therefore, we have to understand the meaning of the term “trust” keeping in view the objects of the Consumer Protection Act. If A is going out of his house for a few days and entrusts his gold ornaments to B to keep the same in safe custody, it will certainly come within the definition of “trust”. If A gives his clothes to B,           a drycleaner, for dry-cleaning the same against payment of certain amount of money towards dry-cleaning charges and his clothes are stolen from the drycleaner’s shop, then the drycleaner would be entitled to recover the price of the clothes from the insurer if he has got the goods kept in his dry-cleaning shop insured. Therefore, we hold that the claim of the complainant could not be repudiated on this ground.

            In view of the above discussion, we hold that the OP committed deficiency in service while repudiating the claim in question of the complainant.

            There is uncontroverted evidence on the record to prove that total loss of Rs. 4,19,325/- (including 2 cylinders of Rs. 2000/- each) had been caused to the complainant in the incident. Amount of Rs. 4000/- towards two cylinders for commercial purpose has to be deducted from the total amount. Therefore, the total amount payable to the complainant by the OP comes to                      Rs. 4,19,325 - 4,000 = 4,15,325/-

In view of the above discussion, we allow the complaint and direct the OP to pay Rs. 4,15,325/- towards the claim amount alongwith interest @ of Rs. 6% p.a. from the date of repudiation of claim i.e. 2^nd November 2012 till the date of realization, Rs. 50,000/- towards mental pain and agony and Rs. 10,000/- towards cost of litigation to the complainant within one month from the date of receipt of copy of this order.

Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005. Thereafter file be consigned to record room.

 

(Announced on 17-02-2015)

 

(N.K.Goel)                                                                            (Nishat Ahmad Alvi)

President                                                                                       Member