DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH Complaint Case No.: 512 OF 2009 Date of Institution : 15.04.2009 Date of Decision : 07.07.2011 Tehal Singh son of Late Sh.Kishan Lal, aged about 57years, Prop. Tehal Singh’s Chicken & Dhaba, Booth No.1121, Sector 22-B, Chandigarh. ---Complainant. V E R S U S The New India Assurance Company Limited, Branch Office : 350306, Jeevan Parkash Building, near U.T.I., Sector 17-B, Chandigarh, through its Zonal Manager/Branch head. ---Opposite Party BEFORE: SHRI LAKSHMAN SHARMA PRESIDENT SMT. MADHU MUTNEJA MEMBER Argued By: Sh. Deepak Aggarwal, Advocate for the complainant. Sh.Rajneesh Malhotra, Advocate for the OP. PER MADHU MUTNEJA, MEMBER 1] The instant complaint has been filed by Tehal Singh alleging the repudiation of his claim as deficiency in service and unfair trade practice by the OP. Briefly stated, the complainant had taken an insurance policy from the OP effective from 23.3.2007 till 22.3.2008 thereby insuring air-conditioners, fridge and other kitchen equipments installed at his Booth/Dhaba. On the intervening night of 29/30-4-2007, three A.C. Units, installed on the roof of the booth at the rear, were stolen. The complainant immediately lodged an F.I.R. No.183, dated 30.4.2007 at Police Station Sector 17, Chandigarh. Thereafter a claim was lodged with the OP for claiming the insured amount. All documents required by the OP were provided by the complainant. Unfortunately, the OP vide letter dated 07.01.2008 rejected the claim of the complainant on the ground that the theft was not covered under the terms &conditions of the policy as it was a case of theft and not burglary. The complainant has alleged that this ground of the OP is entirely arbitrary and prejudicial to the operative clause of the policy, which has been placed at Ann.C-5. The complainant visited the OP a number of times to convince them about his claim, but the OP refused to reconsider his case. The complainant has submitted that the A.C. units were installed at the cost of Rs.31,500/- each. The complainant has thus filed this complaint with the following prayer:- “a. Reimburse Rs.94,500/- i.e. Rs.31,500/- each of the cost of AC units. b. Pay Rs.10,000/- as cost of litigation. c. Pay Rs.50,000/- as compensation for mental & physical harassment and embarrassment caused to the complainant in the hands of OP. And/Or d. Any other consequential relief which the Hon’ble Forum may deem fit.” The complainant has however submitted purchase bills of Two A.Cs. only. 2] After admission of the complaint, notice was sent to the OP. The OP in its reply has taken the preliminary objection that the complainant is not a consumer as per Section 2(1)(d) of the Consumer Protection Act, 1986. Further, the OP has submitted that as opined by the Surveyor, the claim was not admissible as it did not fall under the terms & conditions of the burglary policy. As per burglary and house breaking policy, the company is liable to pay the claim for any loss and damage due to burglary or house breaking only, if there is actual forcible and violent entry of and/or exit from the premises or hold up. As there was no forcible entry or exit in the premises, the claim was not maintainable, hence repudiation. On merits, the OP has admitted the issuance of the policy for the equipment at the booth of the complainant. When the intimation was received from the complainant about the theft of the AC units, it was found that there was a cutting in the claim form. Also the information of the alleged theft was given after 5 days of the incident. The OP has denied that the complainant had filed complete papers. However, they have submitted that Sh.Sudesh Kumar, Investigator was appointed to investigate the claim, who gave his detailed report dated 20.6.2007, which is placed at Ann.R-4. The Surveyor had found that out of the three split AC units claim, the outer unit of only 2 split AC’s were installed and the outer unit of 3rd split AC was missing, hence as per the Surveyor only 2 outer units were stolen. The complainant had failed to provide the original bills of the ACs. As the complainant failed to supply the required documents despite repeated reminders, the Surveyor gave his report dated 5.1.2008 and said that the claim of the complainant was not admissible as it does not fall under the terms & conditions of the burglary policy. Hence, OP was not liable to pay the claim. The relevant terms & conditions of the insurance policy is reproduced as under:- “Operative Clause:- The company hereby agrees subject to terms, conditions and exclusions herein contained or endorsed or otherwise expressed hereon to indemnify the insured to the extent of intrinsic value of:- a) Any loss of or drainage to property or any part thereof whilst contained in the premises described in the schedule hereto due to burglary or house breaking (theft following upon an actual forcible and violent entry of and/or from the premises) and holdup.” Further, the OP has submitted that the AC units in question were installed outside the main building and hence were not covered under the terms & conditions of the policy. Relying on the above submission, the OP has submitted that the claim was rightly repudiated and have thus prayed for dismissal of the complaint. 3] Parties led evidence in support of their contentions. 4] We have heard the ld.Counsel for the parties and have perused the record. 5] The complainant has made a claim for the cost of the stolen articles i.e. the outer units of the Air Conditioners, which were stolen. The complainant has placed on record only two actual bills of the Air Conditioners. The OP has also admitted that only two units of the Air Conditioners were stolen. The theft is with regard to the outer units of Split Air Conditioners. The word “Split Air Conditioner” as is evident from the name itself splits the Air Conditioner into Two Units each co-dependent and necessary for the performance of the job as Air Conditioner. Neither the outer units nor the inner units of the Air Conditioners can function independently, hence the outer and inner units of the Air Conditioners are part and parcel of the same unit. The loss/theft/burglary of either part would deprive the consumer of the benefits of a Split Air Conditioner. Hence, the claim of the complainant due to theft of the outer part of Split A.Cs., in our opinion, is justified and should not have been repudiated. 6] As per the Surveyor, after deduction of depreciation value and salvage cost, the total loss has been assessed to the tune of Rs.25,750/-. But, the Surveyor has further opined that as there was neither forcible entry nor exit in the premises, hence the claim was not covered under the Burglary/House Breaking Policy. 7] The Hon’ble Supreme Court of India in case United India Insurance Co. Ltd. Vs. Harchand Rai Chandan Lal, (2004) 8 SCC 644, made a suggestion that terms of the policy be suitably amended so that burglary is given a meaning closer to the realities of life and the common man is not tripped up on technical grounds. In this case, the respondent took out a policy by the appellant Company against burglary and/or housebreaking. The term “burglary and/or housebreaking” was defined in terms of the policy. During the currency of the policy, the respondent on a visit to a godown covered by the said policy, found that certain goods had been stolen. Thereafter, the respondent raised a claim against the appellant Company under the aforesaid policy for having incurred the aforesaid loss by theft. The appellant Company repudiated the claim of the respondent on the ground that theft was not covered by the insurance policy as no burglary had taken place in the godown by use of force or violence. However, the District Forum overruled the objection and held that burglary includes theft and directed the appellant Company to release the claim of the respondent. The order of the District Forum was upheld by the State Commission and National Commission. It has been held by the Hon’ble Supreme Court that:- “…It is settled law that terms of the policy shall govern the contract between the parties, they have to abide by the definition given therein and all those expressions appearing in the policy should be interpreted with reference to the terms of policy and not with reference to the definition given in other laws. It is a matter of contract and in terms of the contract the relation of the parties shall abide and it is presumed that when the parties have entered into a contract of insurance with their eyes wide open, they cannot rely on definition given in other enactment. Therefore, when the definition of the word 'burglary' has been defined in the policy then the cause should fall within that definition. Once a party has agreed to a particular definition, he is bound by it and the definition of criminal law will be of no avail….. As per the definition of the word burglary, followed with violence makes it clear that if any theft is committed it should necessarily precede with violence i.e. entry into the premises for committing theft should involve force or violence or threat to insurer or to his employees or to the members of his family. Therefore, the element of force and violence is a condition precedent for burglary and housebreaking. The term 'burglary' as defined in the English Dictionary means an illegal entry into the building with an intent to commit crime such as theft. But in absence of violence or force the insurer cannot claim indemnification against the insurance company….. The terms of the policy as laid down by the Insurance Company should be suitably amended by the Insurance Company so as to make it more viable and facilitate the claimants to make their claim. The definition is so stringent in the present case that it gives rise to difficult situation for the common man to understand that in order to maintain their claim they will have to necessarily show evidence of violence or force. The definition of the word burglary should be given meaning which is closer to the realities of life. The common man understands that he has taken out the Policy against theft. He hardly understands whether it should precede violence or force…” 8] Rely on these observations of the Hon’ble Apex Court, we are of the opinion that the complaint deserves to be allowed in favour of the complainant. However, the amount assessed by the Surveyor after deducting depreciation value and salvage cost to the tune of Rs.25,750/- should be paid to the complainant towards his insurance claim. This amount should be paid with interest @9% p.a. from the date of repudiation of the claim. 9] We accordingly allow this complaint in favour of the complainant. The OP is directed to pay the following amounts to the complainant:- i) Rs.25,750/- as assessed by the Surveyor for the loss suffered by the complainant along with interest at the rate of 9% per annum from the date of repudiation of claim i.e. 07.01.2008 (Ann.C-5) till the date of actual realization. ii) Rs.5,000/- towards cost of litigation. The order be complied with by the OP within a period of 30 days from the date of receipt of copy of this order, failing which OP shall be liable to pay Rs.25,750/- along with interest at the rate of 12% per annum from the date of repudiation of claim i.e. 7.1.2008 till the date of actual payment to the complainant besides paying Rs.5000/- towards cost of litigation. Certified copies of this order be sent to the parties free of cost. After compliance, The file be consigned to the Record Room. Announced 07.07.2011 Sd/- (LAKSHMAN SHARMA) PRESIDENT Sd/- (MADHU MUTNEJA) MEMBER
| | MRS. MADHU MUTNEJA, MEMBER | HONABLE MR. LAKSHMAN SHARMA, PRESIDENT | , | | 
