DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANSA. Complaint No.203/31.12.2007 Decided on : 04.09.2008 Rajesh Kumar S/o Sh.Sarup Chand, Proprietor M/s Channi Rice Mill, Budhlada road, Bhikhi, resident of Ward No.1, Bhikhi, Mansa. ..... Complainant. VERSUS Branch Manager, United India Insurance Company, Gaushala Road, Mansa ..... Opposite Party. Complaint under Section 12 of the Consumer Protection Act, 1986. ..... Present: Sh.S.K.Singla, counsel for the complainant. Sh.S.P.Gupta, counsel for the opposite party. Before: Sh.Lakhbir Singh, President. Sh.Sarat Chander, Member. Smt.Neena Rani Gupta, Member. ORDER: Complainant is running a Rice Sheller for shelling paddy under the name and style of Channi Rice Mills Bareta Road, Budhlada of which he is the sole proprietor. An insurance was purchased by him from the opposite party for covering the risk to the stocks in trade, goods held in trust/commission, furniture, fixture, fittings, coins/currency notes etc. for the period from 7.2.2006 to 6.2.2007. Cover note No.316095 was issued. Sum insured was Rs.10,00,000/-. It is averred by him that insurance was purchased by him regarding theft and variation in the stock. Paddy was stocked in the sheller. Theft of paddy had taken place after October, 2005. Matter was reported to the police on 27.2.2006 and criminal case with FIR No.36 Dated 27.2.2006 under Section 381 of the Indian Penal Code was registered in Police Station, Bhikhi. Theft was reported to the opposite Contd........2 : 2 : Insurance Company. Sh.Lalit Kumar Loomba was appointed as Surveyor. Survey was conducted by him. Report dated 9.9.2006 was submitted by him to the opposite party regarding the theft of the stock. Letter No.1886 dated 15.11.2006 was received by the complainant from the opposite party according to which his claim has been repudiated. He assails the repudiation of the claim as 'No Claim' on the ground that it is illegal and he is not bound by it. According to him act and conduct of the opposite party has caused him mental and physical harassment. In these circumstances, this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred as the 'Act') has been preferred by the complainant seeking direction from this Forum to the opposite party to pay him the price of Rs.1,22,062/- for 522 bags of paddy each weighing 35 kilograms, along with interest @ 18% per annum from 27.2.2006 till its decision; Rs.5,000/- as compensation and Rs.1,000/- as costs of the complaint. 2) Opposite party filed its version taking the legal objections that complainant has no cause of action and this Forum has got no jurisdiction to hear and try this complaint. On merits, it admits that complainant is owner of Sheller at Bhikhi. Policy alleged in the complaint relates only to fire. Another policy was purchased by him for burglary. Criminal case was got registered by him regarding theft of paddy bags. It was admitted by him in the FIR that theft was committed by his own employees. Such type of theft of paddy bags is not covered under the policy. He was informed that it cannot pay any amount regarding the theft of paddy bags. Inter-alia its plea is that Sh.Jiwan Kumar Garg was appointed as Investigator whereas Sh.Lalit Kumar Loomba as Surveyor. They submitted their reports regarding the theft of paddy bags. No violent and forcible entry in the godown was observed. Policy for burglary risks does not cover such types of loss. 3) In support of his allegations and averments in the complaint, Rajesh Kumar, complainant has tendered in evidence copy of FIR Contd........3 : 3 : No.36 (Ex.C-1), Report of Sh.Lalit Kumar Loomba Surveyor (Ex.C-2), Cover Note (Ex.C-3), his own affidavit (Ex.C-4) and repudiation letter dated 15.11.2007 (Ex.C-5). 4) In rebuttal, on behalf of the opposite party cover note (Ex.OP-1), Copy of Policy (Ex.OP-2) and copy of Operative clause regarding burglary (Ex.OP-3) have been tendered in evidence. 5) We have heard the learned counsel for the parties and gone through the record. 6) Some facts do not remain in dispute in this case. They are that complainant had purchased insurance and copy of the insurance cover note is Ex.C-3 for covering risk of Rs.10,00,000/-. Theft of paddy lying stacked had taken place. Criminal case was got registered by the complainant at Police Station, Bhikhi and copy of the FIR is Ex.C-1. Sh.Lalit Kumar Loomba was appointed as Surveyor by the opposite party. He submitted his report dated 9.9.2006, copy of which is Ex.C-2. He assessed the payable loss to the tune of Rs.78,101/- subject to the terms and conditions applicable, if any, as per policy and the conditions mentioned under the head Loss Payable. Theft of 522 bags of paddy was reported to the opposite party. Claim has been repudiated by it vide letter No.1886 dated 15.11.2007, copy of which is Ex.C-5. 7) Arguments pressed into service by the learned counsel for the complainant are that claim has been illegally repudiated by the opposite party although its Surveyor namely Sh.Lalit Kumar Loomba has assessed the payable loss to the extent of Rs.78,101/- and as such there is deficiency in service on its part. 8) Mr.Gupta, learned counsel for the opposite party countered this argument by submitting that claim has been rightly denied as complainant had purchased policy alleged in the complaint which was relating to fire and another policy was purchased by him for covering risk from burglary. Type of theft of paddy bags reported in the FIR is not Contd........4 : 4 : covered under the policy. No violent or forcible entry in the godown was observed. 9) We have given our thoughtful consideration to the rival contentions. Claim has been repudiated by the opposite party by observing that theft has occurred in the mill/sheller whereas it has accepted the risk against burglary in respect of paddy stock lying in the mill and as such in this incident the insured peril did not operate. Opposite party has proved copy of insurance cover note bearing No.316095 issued in favour of M/s Channi Rice Mills for the period from 7.2.2006 to 6.2.2007. Perils covered under it are fire and burglary. Copy of the insurance policy is Ex.OP-2. Its Operative Clause reads as under: 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 damage to property or any 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 exit from the premises) and Hold-up. b) Damage caused to the premises to be made good by the insured resulting from burglary and/or house-breaking or any attempt threat any time during the period of insurance. Provided always that the liability of the Company shall in no case exceed the sum insured stated against each item or Total Sum Insured stated in the Schedule. There are Exclusions as well under the policy. One of them reads as under: Loss or damage where any inmate or member of the Insured's household or of his business staff or amny other person lawfully in the premises in the business is concerned in the actual theft or damage to any of the articles or premises or where such loss or damage have been expedited or any way assisted or brought about by any such person or Contd........5 : 5 : persons. 10) Complainant got it recorded in the FIR that suspicion had aroused about the embezzlement of the stock of the paddy and on checking stock was found less. He further stated that theft was committed by some of his employees. Opposite party is liable to indemnify the insured as per the Operative Clause, as has been reproduced above. In this case no violent or forcible entry in the godown was observed nor has been alleged by the complainant. Moreover he asserts that theft was committed by some of his employees. Hence his version attracts Exclusion Clause reproduced above. Element of force and violence is condition precedent for burglary and house-breaking . To substantiate claim it has to be established that theft or burglary has taken place preceding with force or violence and if it is not, Insurance Company is well within its right to repudiate the claim of the insured. For this we get support from the observations of their Lordships of the Hon'ble Apex Court in the case of United India Insurance Co.Ltd., versus Harchand Rai Chandan Lal, IV(2004)CPJ 15 (SC). Similar view has been held in the authorities Mono Industries versus New India Assurance Co. Ltd., II (2008) CPJ 125 (NC) and National Insurance Co. Ltd. & another versus Anil Girulkar II (2008) CPJ 19. Since the complainant alleges that theft was committed by some employee, Exclusion Clause is applicable. Moreover, complainant has not established burglary. Accordingly, repudiation of the claim by the opposite party is justified. No deficiency or unfair trade practice on the part of the opposite party is proved. 11) In the premises written above, complaint being devoid of merits is dismissed. Parties are left to bear their own costs. Copy of this order be supplied to the parties free of charges and file be consigned to record. Pronounced: 04.09.2008 Neena Rani Gupta, Sarat Chander, Lakhbir Singh, Member. Member. President.
