This is a complaint filed for realization of Rs.12,19,389/- being the Insurance claim.

          The averments in the complaint can be briefly summarized as follows:  The complainant is running a jewellery under the name and style of “Vinayaka Fashion Jewellery” at Ayoor Junction in Edamulackal village.  Other  than his own investments the complainant has availed credit facilities from the 3^rd opp.party and was maintaining good business relationship with the said Bank for the last 6-7 years.   The 3^rd opp.party had taken a policy of insurance viz. Traditional Business Miscellaneous [jewelers Block] for and on behalf of the complainant from the 2^nd opp.party having policy No. date

 Policy No.100781/46/05/00013 Policy  period  10..6..2005 to 9..6..2006  Total sum insured Rs. 18 lakhs.  The complainant had closed  and left the shop room on 9..7..2005 [which was a Saturday] at about 9.45 PM.  On Monday morning   ie. 11.7.2005, when the complainant went to open the shop room, he found that the locker inside  the locker room was lying open and gold jewellery had been stolen.  He also found that one of the walls was dug and lock of the shutter behind the shop room was cut and removed.  Obviously, a theft of  jewelry had taken place.   The complainant thereupon promptly made a complaint before the S.I of Police Chadayamangalam who has registered a crime under Sections 457, 461, 380 of IPC under crime NO.247/05.    On 26..9..2005, the complainant submitted claim form to the 2^nd opp.party The total loss suffered by the complainant on account of the theft of jewelry alone is Rs.12,19,389/-  The complainant had sent requests on 1.12.2005, 24..6..2006 and 22..8..2006 to the 3^rd opp.party through registered post requesting the 3^rd opp.party to arrange for a settlement of the claim by 1^st  and 2^nd opp.parties.  Quite surprisingly, the 2^nd opp.party did not respond till date. The complainant has suffered loss of business, profit etc. besides severe hardship on account of non-settlement of the claim by 3^rd opp.party.   There has been deficiency of service on the part of the opp.parties in not settling the claim.  The complainant is entitled for settlement  of the claim besides compensation for the losses consequent on non-settlement as above.  Hence this complaint.

          The opp.party filed version contenting  that  the complaint is not maintainable either in law or on facts   On receipts of information about the alleged theft, the insurance company has deputed authorized surveyor to assess the loss and also to report upon the genuineness of the claim.   The surveyor inspected the premises on 17..8.2005 and verified the records and documents made available him.  He also submitted a preliminary survey report in which he has apprehended the genuineness of the burglary claim and requested the insurer to conducted a detailed investigation  including participation of the insured in the report of burglary.   As per the surveyor’s report the door to the locker room was in opened condition and the display board kept in the locker were disturbed from their position. ;  The iron safe kept inside the locker room was kept intact.   The side wall of the shop was found broken and holed and the surveyor inspected the rear side shutter, is locking hook was found cut   along the lock and the shutter was in a partially raised manner.   At the time of survey, it was found that the damage tampered shutter, wall and door of the lock room were repaired to its pre-occurrence condition.   The complainant who is a proprietor of the concern was not cared to describe  the incident and interacted the surveyor.  It was reported by the surveyor that the complainant’s lost 969 grams of gold ornaments and Rs.45,000/- was not bur glared which was kept in the iron side.   As per the Police records only 511.300 grams gold ornaments were kept in the iron side.   457.720 grams of gold ornaments were placed on the display board and kept on the top of the safe.   The possibility of leave such quantity of gold ornaments by the thieves after breaking all the entrances is suspicious.  At the time of visit of the surveyor on 17..8..2005 there was a stock of 1119 grams Surveyor again visited the shop on 19.10.2005 and found that the stock of gold ornaments was 1857 gms..  Without asking anything about the source of purchasing that much gold, the insured had informed the surveyor that he has borrowed a sum of Rs.5,00,000/-  from  outside.  It is also not probable to raise such funds and invest again in the same shop, where theft was taken place recently,  Further no security staff was appointed for the insured shop.  It is the duty of the insured to take reasonable care and caution to protect the subject  matter of insurance and any careless lapses and negligence in protecting the subject matter of insurance would tell upon the genuineness of the claim.  It is also learnt that a similar type of burglary was occurred in the insured’s shop on 9.11.2002.   At that time, the shop was insured with M/s. New India Assurance Co. Ltd. Kottarakkara Branch.   That claim was  repudiated on the ground that “the claim was not genuine”  as it is reliably learnt.  Because of the above facts and circumstances the surveyor has raised apprehension about the genuineness of the burglary claim and requested to collect and verify the Forensic Reports for proper conclusion and arriving at a decision.   Since the matter is now pending for investigation by the circle inspector of Police, this opp.party is yet to receive the Forensic Reports and other materials for arriving at the conclusion .   These facts are made known to the complainant also.  In spite of that the insured has not carted to produce the required documents and Books of Accounts to prove the stock prevailing at the time of alleged theft.   The complainant is not entitled to get any relief and he has filed this complaint on experimental  basis without any bonafides.

Based on the contentions the following points arise for consideration are:

1.     Whether there is deficiency in service on the part of the opp.parties?

2.     Reliefs and costs.?

For the complainant PW.1 was examined and Exts P1 to P11 were marked.

For the opp.parties DWs 1 to 3 were examined and Exts. D1 to D6 and X1 and X1a marked.

POINT 1 AND 2

It is not disputed that the complainant bas taken Ext. D1 policy and that the policy was subsisting between 9.7.2005 to 11.7.2005 when the alleged theft occurred.   Complaint submitted Ext.P5 claim form which was repudiated by the opp.party as per Ext. D5  repudiation letter on the ground that the final investigation report from the police reveals that the Forensic report and  other detailed reports are not supporting the claim preferred by the insured.

          For deciding the deficiency in service on the part of opp.party, the first question to be decided is whether a theft has been taken place in the shop of complainant on the alleged date.   Complainant’s allegation is that a theft was taken place in his shop in between 9.7.2005 after 8.45 PM and 11..7..2005 morning.   According to the complainant one of the walls was dug and lock of the shutter behind the shop  room was cut and removed Chadayamangalam Police has registered a crime having NO.247/05.  Here the police after conducting prolonged investigation filed a final report which was produced and marked  as Ext. D4.  On perusal of Ext. D4 it is revealed that the jewelry weighing about ½ Kg. kept inside  the glass board and also kept on the top of the safe which were though opened to vision was not burglared.   Further there was no hole seen in the wall of the locker room.   These factors are suspicious.  On perusal of FSL  report, it is reported that on examination, any indication of entering the middle room, by a person  through the man-hole  was not detected and also the edges of the door with the corresponding part on the wall does not bear any plying marks or attempt mark for force opening the door frame.  Also the entire locking system was found infact.  No tampering were detected on the lock.  More over the shutter at the back side of the shop was half opened with one  Nautal Godrej lock  in the locked position while the other Godrej Nautal lock  removed by cutting its shackle and kept on the floor.  On examination, the cut ends of the shackle  was found  rusted The result  of FSL examination is  that “evidence for force opening the door of the strong room could not be detected .”   The UN report also show that no evidence or clue has been received as to who has  committed theft and there was no recovery of any ornaments and no one  has been arrested.   Ext. D4 UN report givers clouds on the genuineness of the theft as alleged by the complainant.  It is noted that the complainant has not so far taken any legal steps against Ext. D4 final report.   The burden of proof is on the complainant to prove the alleged theft.   As per Sec.4 of the evidence Act the final report prepared by the police is a presumptive proof of evidence, unless and until it is disproved.  In Ext. D2 survey  report the surveyor {DW.2] reported that at the  time of  survey on 17..8..2005, no record such as stock register sales bill, purchase bill or any other relevant records  were available with the insured.  The complaint shows that the complainant did not produce those records  to the Insurance company also.   DW.2 further reported that on 17..8..2005, the damaged shutter, wall and door of the lock room were repaired to its pre-occurrence condition and the insured the owner of the shop did not take initiative to explain to the surveyor.   After the repairs works the shop was re opened on 31..7..2005.  These actions of the complainant also arises some suspicious.  Opp.parties counsel produced a decision of National Commission as reported in 2012 [1] CPR 124 [NC} .  In which it was held that “report of the surveyor  is a creditable piece of evidence unless proved other wise” and also “Surveyor report has significant evidentiary value unless it is proved otherwise”.   Here DW.2 was  cross examined by the complainant’s counsel.    But nothing was  brought to discredit  his testimony.   There is no material evidence produced by the complainant to disprove surveyor’s report.  Hence the report of the surveyor [Ext. D2] is a credible piece of evidence.   The decisions produced by the complainant’s counsel are not  supporting to this case.

          In D4 UN report, The Inbvestigating Officer has reported that “t^md³kn¡v hnZKv[-cpsS  ]cn-ti-m[\ dnt¸mÀ«n IrXyw \S¶ Pvyph-e-dn-bpsS `n¯n-bnÂIm-W-s¸« Zzmcw ]cn-tim-[n-¨-Xn AI-h-i-¯p-\n¶pw aqÀ¨-bp-ffBbp[w sIm­pv `n¯n-bn Zzmcw D­m-¡m³ {ian¨Xnsâ e£W-§Ä Df-f-Xmbn ]d-bpXXpv, tamjvSmhv ]pd-¯p-¶n¶p ap­m-¡nb Zzm-c-¯n IqSn {]th-in¨v ]pd-t¯¡v tamjW apX-ep-ambn kuI-c-y-ambn Cd-§p¶Xn\pv Zzm-cw-h-ep-Xm-¡n-b-t¸mÄ D­m-bn-«p-f-f-Xm-sW¶pw Bb-Xn-\m-em-bn-cn¡mw a\p-j-y³ B Zzm-c-¯nÂIqSn {]th-in-¨-Xnsâ e£-W-§Ä ImW-s¸m-Sm-¯Xpw F¶p-Im-Wp-¶p.”

This is an assumption of the investigating officer.The other circumstantial; evidences and survey report shows that there was not occurred such an alleged theft.  The FSL report has to give due importance.  In FSL report it is clearly mentioned that “on examination any indication of entering the middle room, by a person through the man-hole was not detected”.  That shows that any person was not entered  inside the shop room through the man-hole.  Without entering into  room through the hole  how theft has been occurred.   DW.2 Surveyor in his  report Ext. D2 stated that on 17.8.2005 when he visited the showroom there was 1119 gms. of gold ornaments.  On his second visit  ie. On 19.10.2005 the stock of gold ornaments was increased from 1119 gms to 1857 gms .   Complainant in his FIS stated that he had liability of Rs.5,00,000/- to Dhanalekshmi Bank, Chadayamangalam branch.   The complainant has stated to the Surveyor about the increase in stock of gold ornaments that by borrowing Rs. 5, lakhs from the outsider.  It is highly improbable that such a person to again make  huge investment by borrowing money before getting the insurance claim.   Since there is no evidence produced by the complainant to disprove Ext. D2.  D4 FSL report, we are of the opinion that Ext. D2, D4 and FSL report are acceptable evidence .  By considering  the above  said documents, no theft has been taken place in the complainant’s Jewellery shop as alleged by the complainant in this case.

Opposite party’s counsel also argued that the complainant has not taken reasonable care and caution in protecting and guarding the subject matter of  insurance.  In Ext. D1 class 11 states that  all  the premises specified in schedule of the policy  are fully protected by employment of a common  watchmen for the whole building or a night watch man as  the case may be PW.1 in his cross examination admits that there was no security to guard his premises.   As per the  policy condition, it is the duty on the part of the complainant to protect his premises by appointing a security.  Here the absence of the employment of the security staff for the insured premises is a clear violation of policy condition.   Without  complying  the policy condition and without taking reasonable care and caution in protecting the  insured  items , the insured cannot claim the benefits of the policy.   So far this reason also the complainant is not entitled to get the benefits of policy  According to opp.party since the final investigation report, of the police ,  the Forensic report and other related reports are ot supporting the claim preferred by the insured, the claim was repudiated

Without proving the theft in the insured premises, the complainant is not entitled to get the claim amount.  Opp.party’s counsel produced three decision.  In 2012 [1] CPR 292  it was held by State Commission that the complaint of theft must be  proved with cogent evidence.  In 2008 [1] CPJ III {NC ] it was held that in the absence of any evidence to prove the nature of theft and retrieval of stolen goods  repudiation is justified.  In 2011 [4] CPR 455 it was hold that story of theft has to be proved by cogent evidence.  Here there is no cogent evidence as regards to the alleged theft.

In these circumstances we are of  the view that the repudiation of the claim by the insurance company is proper.   There is no deficiency in service on the part of the opp.party.  Point found accordingly.  Since this point is found against the complainant the quantum of claim need  not be answered.

In the result, the complaint fails and the same is hereby dismissed.

            Dated this the 17^th day of September, 2012.

I n d e x

List of witnesses for the complainant

PW.1. Baburaj

List of documents for the complainant

P1. – Copy of Policy

P2. – Copy of FIR

P3. – Mahazar

P4. – Copy of Letter dt. 26..9..2005

P5. – Copy of claim form

P6. – Statement

P7. – Letter dated 10.10..2005

P8. – Copy of leeter to the 3^rd opp.party

P9. – Copy of letter dated 25..3..2008

P10. – Advocate notice, Postal receipt and Acknowledgement card

P11. – Advocate notice dt. 25.10.06, Postal receipt and Acknowledgement card

List of witlessness for the opp.parties

DW.1. – G. Leela

DW.2. – Baiju

DW.3. – Reghunathan Nair

List of documents for the opp.parties

D1. –Policy

D2. – Preliminary Survey report

D3. – Copy of FIR

D4. – Final report

D5. – Policy condition