District Consumer Dispute Redressal Forum,
SAS Nagar, mohali
Complaint No. 675 of 2016
Dated of institute 07.10.2016
Decided On 28.12.2017
M/s Max-X, SCO No.8, Sector 71, SAS Nagar (Mohali) through its Proprietor Ranpreet Singh S/o Mohinder Singh
Complainant………
Vs
- The Oriental Insurance Company Limited, Divisional Office, SCO No. 20, Phase-1, Mohali through its Manager.
- The Oriental Insurance Company Limited, Regional Office, Surendra Building, SCO 109-110-111, Sector 17-D, Chandigarh through its Branch/Regional Manager.
- J.S. Jaswal, Authorized Signatory/Agent of issuing office, Divisional Officer, SCO No. 20, Phgase-1, Mohali and Resident of Kothi No. 478, Phase-1, SAS Nagar (Mohali).
- Ramesh Kumar, Surveyor, The Oriental Insurance Company Limited, Surendra Building, SCO No. 109,110,111, Sector 17-D, Chandigarh.
- Jagdish Singh, Investigator, The Oriental Insurance Company Limited, Surendra Building, SCO No. 109,110,111, Sector 17-D, Chandigarh.
Opposite Parties…..
Quorum: Sh. G.K. Dhir, President,
Ms. Natasha Chopra, Member
Present:- Sh.Damanjit Singh Dhaliwal, cl for the complainant
Sh. Vinod Chaudhri, cl for the OPs.
Order by :- Sh. G.K. Dhir, President.
Order
Complainant, sole proprietorship concern, running the business of readymade garments, got its premises insured for coverage of readymade garments kept in the showroom vide insurance policy cover note no. 956186 with validity period from 26.08.2014 to 25.08.2015. During this policy, burglary was committed in the said premises during the night intervening between 29.04.2015 and 30.04.2015 regarding which FIR No. 73 dated 30.04.2015 under section 457/380 IPC was got registered with Police Station Mataur, SAS Nagar ( Mohali). Thereafter on 01.05.2015 at about 10.41 A.M, information to OPs regarding this burglary was submitted through email. Besides numerous visits by complainant to OPs, no response was received and as such reminder email dated 18.09.2015 was sent. Detail of stolen/missing readymade and other articles was supplied to police through application dated 02.05.2015. OP Nos. 4 and 5 were appointed Surveyor and Investigator by OP Nos.1 to 3, both of whom visited the premises. Complainant provided record and assisted OP Nos. 4 and 5 in their job for ascertaining the loss. However, OP Nos. 4 and 5 were expecting bribe money from complainant because they during their second visit demanded Rs. 25,000/- for clearing the case of complainant. On refusal to pay the bribe money, claim has been repudiated. Act of repudiation of claim alleged to be amounting to deficiency in service and adoption of unfair trade practice. As such the complaint filed for directing the OPs to reimburse the suffered loss amount of Rs.3,90,214/- including interest @ 12% P.A. from the date of the claim namely 29.04.2015 to the filing of the complaint namely 25.09.2016; compensation for mental harassment and agony of Rs. 50,000/-, but litigation expenses of Rs. 30,000/- more claimed. Loss suffered on account of the burglary alleged to be of amount of Rs. 3,08,715/-, on which interest of amount of Rs. 81,499/- is also claimed.
2. In joint reply filed by OP Nos. 1 to 5 it is pleaded inter-alia as if the alleged loss does not fall in the ambit of insurance cover; the complaint has been filed for abusing process of law because the insurance company after taking prompt action for getting the loss assessed, rejected the claim after finding the claim as not tenable. This claim was repudiated after appreciation of legal and factual position gathered through authorized surveyor and investigator. The site of the occurrence was disturbed and the alleged loss was depicted in a manner, which proves as if some sort of dressing was done to get the bogus claim passed. As per FIR, loss due to theft took place through closed ventilator existing on first floor, but as per intimation given to the OPs, it is mentioned as if some unknown person entered in the showroom through air conditioner window. Moreover, the surveyor mentioned as if the AC window had already been fitted by the time he reached the show room due to which he could not see any sign of forcible entry. Moreover, as per report, the ventilator is fitted with grill and there was semblance of forcible entry. Entry through air conditioner window after removing the same from the back side is not possible. The complainant was kept informed regarding the progress of the case and even regarding final rejection of the insurance claim. Description of the loss is not backed by the purchase vouchers. Wild and irresponsible allegations alleged to be leveled against the surveyor and investigator.
4. To provide his case, counsel for the complainant tendered in evidence affidavit of the complainant Ex CW1/1 along with documents Ex C-1 to Ex C-7 and thereafter closed the evidence.
5. On the other hand, counsel for the OPs has tendered in evidence affidavit of Ms. Neeru Sood, Manger of the OPs Ex OP1/1; affidavit of Sh. Jagjit Singh Sethi, Investigator Ex OP1/2; affidavit of Shri Rajesh Kumar, Surveyor cum Loss Assessor Ex OP1/3 along with documents Ex OP/1 to Ex OP/7 and thereafter closed the evidence.
6. Written arguments submitted by the parties. Oral arguments of counsel for the parties heard and records gone through.
7. OP Nos. 4 and 5 are impleaded in this case because of assessment done by them as Surveyor and Investigator only. Allegations of demand of bribe money of Rs. 25,000/- have been leveled against them by the complainant. Whether or not these allegations are true and correct, for determination of the same elaborate evidence is required calling for examination, cross examination of the witnesses and that cannot be conducted in these summary proceedings. Moreover it is not in the purview of the District Forum to direct registration of FIR against the erring employees. As per the law laid down in case of Inder Singh Sachdeva versus Amritbir Singh and others 2015(4) CLT 162 (Hon’ble Punjab State Consumer Redressal Commission), certainly direction to OP Nos. 1 to 3 cannot be issued for registration of FIR against OP Nos.4 and 5 or for taking departmental action against them.
8. OP Nos.4 and 5 as well OP No.3 just acted as agents of OP Nos.1 and 2 in the matter of processing the insurance claim or collecting the premium of insurance and forwarding the submitted claim form by the complainant. Liability for insurance claim remains of the insurer and not of its agents. As such complaint against OP Nos. 3 to 5, being agents of OP Nos.1 and 2, is not maintainable and the same merits dismissal.
9. Undisputedly, the insurance policy in question was purchased by complainant in respect of which insurance cover note Ex C-1 was issued and on account of theft of garments having taken place in the insured premises on the night intervening between 29.04.2015 and 30.04.2015, FIR No. 73 dated 30.04.2015 (copy of which produced on record Ex C-2) was lodged by the complainant with police. Undisputedly, the insurance claim regarding this theft/burglary was lodged by the complainant on which Sh. Jagjit Singh Sethi, Investigator was appointed, who submitted his report Ex OP/6 and even Sh. Rajesh Kumar, Surveyor cum Loss Assessor, submitted his report as Ex OP/2 having pages Ex.OP-3 to OP-5 also. Bone of contention remains as to whether repudiation of claim through letter Ex C-6 is appropriate or not or the same is in accordance with the terms and conditions of the policy or not.
10. After going through Section 2 of policy schedule Ex C-1, it is made out that stock of all types of readymade garments, lying in the premises has insurance coverage of Rs 35,00,000/- in respect of the incident of burglary and house breaking. Repudiation of claim through Ex C-6 by OP No.1 and 2 on 29.10.2015 done after finding that alleged loss does not fall in the preview of the burglary, as observed by the surveyor/investigator by keeping in view terms of the insurance cover policy.
11. Repudiation of the claim through letter Ex C-6 mainly done because there was no forcible entry or forcible exit. Incident took place during the night 29/30.04.2015 and that contradictory version suffered by the complainant when lodging the FIR and when giving intimation through email Ex C-3 to the OPs. Besides, repudiation ordered on the ground that dressing was done on the spot of circumstances prior to reaching of the surveyor/investigator on the spot, rendering it impossible for them to assess the circumstances in which theft took place. In view of this, it is vehemently contended by counsel for the OPs that incident in question does not fall within the definition of burglary and as such insurance claim is not at all payable. All these submissions advanced by counsel for the OPs has no force because as already pointed out above, while referring to Section No. 2 of insurance policy schedule Ex C-1, that risk coverage is not regarding the burglary alone, but the same is also regarding the incident of house breaking. Ingredients of house breaking mentioned in Section 445 of IPC are reproduced at page no.2 of repudiation letter Ex C-6 itself. After going through these ingredients especially mentioned in 2nd and 6th clauses, it is made out that entry or quitting through any passage not intended by any person or through any passage to which access obtained by scaling or climbing over the wall of the building, brings the said act of entry or quitting under the definition of house breaking. Move over as per Section 445 IPC, if entry or quitting is through any passage, which the offender knows to have been fastened against such entry or departure, then the act of entry or quitting after unfastening will also fall in the domain of house breaking. In this case, entry in the insured premises took place through a ventilator in which air conditioner was installed and as such it is obvious that the said entry for commission of offence of theft was after unfastening of Air Conditioner. Every one installs an Air Conditioner now-a-days in a window or in the ventilator. Whenever the window Air Conditioner is put up in a building then window Air Conditioner is always put up in such a manner that egress and ingress through that window does not take place. For achieving that object, fastening of window/ventilator, in which the Air conditioner is installed, is done in such a way so as to preclude the entry of anyone through it. If anybody has to enter through this window/ventilator, then he has to remove the installed Air Conditioner first. So in view of this, certainly the entry of offenders for committing theft in the premises in question by burglars/ thieves took place after unfastening the Air Conditioner, so as to pave way for entry and quitting through this otherwise fastened passage. Being so, certainly the offence of committed theft of the insured garments took place in this case in such a manner and circumstances, as if the entry by burglars for committing burglary was under circumstances rendering it fully believable that they committed theft of the insured articles by committing offence of house breaking. For such an entry through unfastened passage, force bound to be applied for removal of the Air Conditioner or grill fastening the ventilator and as such certainly it is a case in which burglary /theft committed after commission of offence of house breaking. Being so, case of complainant certainly covered by 2nd section of insurance policy schedule Ex C-1.
12. Mere variations in version of one regarding incident of theft bound to occur, when such version given at two different intervals after gap of one or two days. Certainly in FIR Ex C-2 it is mentioned as if entry by thieves in the showroom done through back side of the ventilator existing on the first floor but reference of Air conditioner affixation on this ventilator is not made in Ex C-2. However, in the email intimation sent by the complainant to the OPs on 01.05.2015 (Ex C-3) it is mentioned as if some unknown person entered into the showroom through air conditioner window for committing theft of approximately worth of Rs.2.5-3 lakhs of garments. In the first instance, the complainant may not have mentioned about fixation of Air Conditioner in the ventilator and that is why reference of the same may not have been made in FIR Ex C-2. Police investigation in this case was conducted and later on recovery of certain items was affected from the arrested accused is a fact borrowed from the copy of the recovery memo dated 18.07.2015 prepared by ASI Lakhwinder Singh, P.S. Mataur. Copies of those recovery memos are placed on the record during course of arguments by counsel for complainant. In view of this, police also would have ascertained the circumstances in which incident of theft/burglary took place and mention of the same definitely would have been made in report under Section 173 of Code of Criminal Procedure submitted before the Illaqa Magistrate/Trial Court. Two accused namely Harbans Singh and Sandeep Singh have been arrested in FIR No. 73 as per the news items published and reference of the same made in the opinion of Sh. Jagjit Singh Sethi recorded in his report Ex OP/6. Even in the opinion contained in Ex OP/6, it is mentioned that challan of this theft case had been submitted in the Court and if that be the position, then in view of the minor contradiction in the version pointed out above, it cannot be held that theft has not taken place. In the observations and findings recorded at serial no. 4 in report Ex OP/6, it is specifically mentioned by Sh. Jagjit Singh Sethi that as per the police report the accused entered in the show room from the air conditioner window. Reference of non confirmation regarding use of force for entering in the shop premises made at serial No. 5 of the observations and findings contained in Ex OP/6, as such, is improper because if the police has found entry in showroom from air conditioner window, then certainly the entry was through an unfastened passage by applying so much of the force for entry and exit purposes, as was required for removal of the air conditioner. Even in the report Ex OP/6, it is specifically mentioned that the author of this report on contacting the police, got confirmation from the police as if two accused persons namely Harbans Singh and Sandeep Singh had been arrested regarding this incident of theft. When such confirmation was obtained by author of Ex. OP -6 from police, then certainly the report of the police regarding entry in the showroom from air conditioner window could not have been ignored by OP Nos.1 and 2. That has been ignored for ensuring that claim is not passed, but on flimsy grounds. That act of OP Nos.1 and 2 amounts to act of unfair trade practice.
13. If the complainant has done dressing of circumstances on the spot by way of fixation of the grill of the air conditioner on the spot before arrival of Sh. Jagjit Singh Sethi or Sh. Rajesh Kumar, then fault for that act of the complainant cannot be found because the investigator and surveyor could have assessed the circumstances properly after contacting the neighbourers and the police persons, who inspected the spot after registration of FIR. It was after contacting the police persons and neighbourers that report Ex OP-6 was submitted by Sh. Jagjit Singh Sethi for recording findings that as per the police report, accused entered in the show room from air conditioner window and as such the insurer may deal with the claim as per terms and conditions of the policy after keeping in view the findings recorded by him in Ex OP/6. In the opinion note recorded in Ex OP/6, it is specifically mentioned that date, time and place of missing of the stolen articles seems to be genuine and that recovery of the some garments got effected from Harbans Singh and Sandeep Singh, the accused arrested by the police. When genuineness of the incident of theft found through this report Ex OP/6, then certainly repudiation of the claim is unjustified, more so when the above pointed circumstances leans in favour of finding that for committing burglary, the offence of house breaking was committed by the offenders for entering in the insured premises by use of so much force as was required for such entry after removal of the air conditioner.
14. The complainant could not have kept on waiting for the visits of Sh. Jagjit Singh Sethi and Sh. Rajesh Kumar before installing the AC because if he would not have done so, then he would have left the insured premises/articles to further risk of their being stolen in large number. So if the complainant got installed the air conditioner and the grill before visit by the investigator/survey appointed by the OPs, then certainly the complainant acted in a fair manner for preventing further loss, as a man of ordinary prudence. So the act of reinstalling the air conditioner and grill cannot be termed as an act of dressing up. The submission of counsel for the OPs to the contrary in view of the above facts and circumstances, as such has no force at all.
15. The terms and conditions of the insurance policy certainly are binding on the parties and nothing can be added or subtracted thereto. In contracts of insurance, rights and obligations are strictly governed by the terms of policy and no exception or relaxation can be given on the ground of equity is the preposition of law laid down in case M/s Suraj Mal Ram Niwas Oil Mills (P) LTD versus United India Insurance Co. Ltd and another, 2010(4)CPJ 38(SC). There is no dispute regarding this preposition of law. Certainly the OPs are bound to honour the claim of the complainant regarding insurable interest as per terms and conditions of the policy. In this reported case, violation of the terms and conditions of the policy was committed by the insured by not submitting the declaration of each and every consignment before dispatch of goods. However, that is not the position in the case before us.
16. After going through Para no.3 of the case titled as United India Insurance Co. Ltd versus M/s Harchand Rai Chandan Lal, 2005(1) RCR (Civil)217 (SC), it is made out that term Burglary and/or House Breaking has been defined in terms of policy. In this reported case it is provided specifically that Burglary and/ or House Breaking shall mean theft involving entry to or exit from the premises stated therein by forcible and violent means or following assault or violence or threat thereof to the insured or to his employee or to the members of his family. In Para No.16 of this cited case, it was found that the above definition given in the terms and conditions of the policy was so stringent as to render the every insurance claim as not viable and as such this definition should be amended. However, definition of burglary and house breaking given in the terms and conditions of the policy in respect of which policy cover note Ex C-1 is produced in this case, has not been brought on record by any of the parties, and as such the general connotation of words burglary/house breaking has to be taken into consideration in the light of the definition of house breaking given in Section 445 of IPC. Being so, benefit of the ratio of above cited case cannot be availed by counsel for the OPs.
17. It is contended by counsel for the complainant that the complainant had been purchasing the policies like one in question for the last nine years and as such the complainant was bound to have bonafide belief that every year policy has been renewed while giving him security of theft committed in respect to the insured articles. So benefit of ratio of case titled as National Insurance Co Ltd versus Kashmir Handicrafts Emporium, 2005 (2) CPJ 103 (NC) is fully available to the complainant, even if he is unable to prove the use of force for entry in the insured premises.
18. As per the law laid down in case of Sunil Sharma versus National Insurance Co Ltd, II(2015) CPJ 46 (Hon’ble State Consumer Disputes Redressal Commission, New Delhi) it has been held that genuine claim should not be rejected on flimsy and technical grounds, otherwise the confidence of the people in Insurance Companies will stand eroded. Further as per this case, the consumer Forums are not expected to go into the technicalities of civil and criminal jurisprudence because they are required to decide the matters on yardsticks of reasonableness and probability by applying the principles of natural justice. When these observations of Hon’ble Delhi Commission are kept in mind, then in view of the above discussion, it is made out that yardstick of reasonability and probability leans in favour of the complainant and as such repudiation of claim is unjustified, particularly when not only through report Ex OP/6, but even through report Ex. OP/2, it is mentioned that as per police investigation, the entry was through air conditioner window outlet. Even in report Ex OP/1 having page Ex.OP-5 it is specifically mentioned that insured may be called upon to submit the final findings of the police as accepted by the Court under Section 173 Cr.P.C, which will be required before settlement of the claim. So, virtually not only through Ex OP/6 but even through report Ex OP/2 containing pages OP/1 to Ex OP/5, recommendation made for settlement of the claim of loss assessed. Through report Ex OP/1 to Ex OP/5 by Sh. Rajesh Kumar, Rs. 2,10,206/- is to be taken as correct loss because the complainant failed to provide the books of accounts maintained by it or the record of the purchase vouchers of the lost insured articles. So 25% of the deductions made from evaluated amount of Rs.2,80,275/- is appropriate. Certainly submission advanced by counsel for the OPs has force that the rates of the items mentioned in Ex C-5 cannot be taken as gospel truth because record of the purchase details/vouchers not produced and no record of income tax returns and of account books produced by the complainant to show genuineness of the rates mentioned in Ex C-5. As per law laid down in case of New India Insurance Co Ltd versus Vinay Kumar Pandey 2015 (3) CPR 423 (N.C.) ordinarily the report submitted by the qualified surveyor appointed by insurer should be accepted by the Consumer Forum unless same is shown to be arbitrary or irrational. It has also been held in this reported case that report of surveyor appointed by the Insurance Company must necessarily be preferred over a report obtained by the insured from a Private Surveyor. Further held that in case the insured claims that the report submitted by the surveyor appointed by the Insurance Company is not correct regarding the quantum of damage assessed, then it is always open for him to approach the Civil Court for proving that the actual cost of repair or resettlement is more than what is assessed by the surveyor because the Forum has to follow summary procedure. As such in view of the fact that complainant is unable to show arbitrariness of report Ex OP/1 to OP/5 of Sh. Rajesh Kumar qua the assessed damaged amount, it has to be held that this report can be made the basis for settlement of the claim by OP Nos.1 and 2, but before that OP Nos.1 and 2 has to take into consideration the finding of the investigation conducted by the police with regard to FIR no. 73 dated 30.04.2015 for finding the correctness of the incident and the circumstances leading to commission of burglary in question. As such fitness of things warrants that the complainant should be called upon to produce copy of the report under section 173 Cr.P.C along with such record of recovery memo prepared by the police, so that due calculation may be made by OP Nos.1 and 2 in settling the due payable amount. Such directions are essential because recovery of some of the stolen articles had already been effected by the police and it is to be determined by OP Nos.1 and 2 as to whether those recovered 21 articles are in the custody and possession of the complainant or he has utilized those articles or not. However, time frame must be formulated within which copy of the report under section 173 Cr.P.C presented in the Court of Illaqa Magistrate, should be submitted by the complainant with OP No.1 or OP No.2 and further with respect to the decision on the claim to be taken by OP Nos.1 and 2 because the matter is lingering on for the last more than two years after the incident of theft. As such ends of justice also require that in case any amount found payable by OP Nos.1 and 2 to the complainant as per terms and conditions of the policy and as per the observations made above, then the payment must be made within specified period to be computed from the date of final decision to be given by OP Nos.1 and 2 in the matter is question, failing which they should pay the adjudged due amount with interest @ 6% per annum from today till payment because the repudiation of claim is on flimsy grounds. As such by keeping in view the sufferings of the complainant in mind somewhat hefty amount of compensation and mental agony along with litigation costs should be allowed in favour of the complainant and against OP Nos.1 and 2 only and their liability for payment will be joint and several. Complaint against OP Nos. 3 to 5 is dismissed.
8. As a sequel of the above discussion, the complainant is disposed of in terms that OP Nos.1 and 2 will reconsider the claim of the complainant on production of copy of report under Section 173 Cr.P.C pertaining to FIR No.73 dated 30.04.2015 by the complainant with them. Copy of this report under Section 173 Cr.P.C presented in the Court of Illaqa Magistrate will be submitted by the complainant to OP Nos.1 or 2 within 30 days from the date of receipt of certified copy of the order. On receipt of this report, OP Nos. 1 and 2 will decide the matter regarding acceptance or non acceptance of the claim of theft within 45 days therefrom and in case they find any amount payable as per the terms and conditions of the policy, then the payment must be made within 30 days of final decision given by OP Nos.1 and 2, failing which they are required to pay adjudged due amount with interest @ 6% per annum from today till payment. Compensation for mental harassment and agony of Rs. 20,000/- and litigation expenses of Rs. 10,000/- more allowed in favour of the complainant and against OP Nos.1 and 2 whose liability will be joint and several. Payment of these amounts of compensation and litigation expenses be made within 30 days from the date of receipt of certified copy of the order. Complaint against OP Nos.3 to 5 is dismissed. File be consigned to the record room.
Announced
December 28, 2017
(G.K. Dhir)
President
(Ms. Natasha Chopra)
Member
