Order-20.

Date-14/07/2016.

This case emanates from repudiation of insurance policy.

          The case of the complainant, in short, is that he carried a mobile distributorship business under the name and style M/s. J.K. Sons & Co. by availing financial assistance from Allahabad Bank, Asansol.  A burglary was committed in his said hypothecated shop in between 14-01-2012 at 7.30 p.m. till opening of shop on 16-01-2012 at 10 a.m.  The complainant lodged a claim for compensation amounting to Rs.10,44,794/- dated 23-04-2012.  The complainant also submitted all the related papers, documents, final police report but the claim has not been disposed of from the end of the OPs.  Hence, this case.

          OP has contested the case in filing written version contending inter alia, that the instant complaint is not maintainable and the alleged loss is not covered under the terms and conditions of the shopkeeper’s package policy being no.2939/50655905/01/B00 valid from 13-05-2011 to 12-05-2012 issued by the answering OP.  It is stated that as per terms and conditions of the policy any loss due to burglary and robbery was covered but the present claim of the complainant was relating to the theft only.  It is also stated that OP was informed about the incident on 23-04-2012 and, as such, did not get the opportunity to verify the aspects of forcible entry quantum of loss and related matters.  It is stated by the OP that the OP appointed one surveyor cum loss assessor according to the guideline of Insurance Act and IRDA.  The surveyor also opined that the subject clause was not covered under the policy as there was no forcible entry to the insured premises.  The OP has prayed for dismissal of the case.

Point for Decision

Whether the complainant is entitled to get the claim as prayed for?

Decision with Reasons

We have perused the Shopkeeper’s Package Policy, burglary claim form, surveyor’s report, legal notice, copy of FIR and copy of final report and other materials on record.  In the policy we find that burglary and robbery is covered under the policy.

          The caustic controversy arising between the complainant and the insurance company is with regard to the nature of the incident.  It is stated by the OPs that the incident cannot be stated as burglary or robbery and there was no forcible entry into the shop on the fateful night of the incident and it was just an occurrence of theft and accordingly the claim of the complainant is negated.   The complainant, on the other hand, comes up with the argument that robbery or burglary includes theft and insurance company cannot repudiate the claim on such ground. 

          It appears that the incident took place between 14-01-2012 7.30 p.m. till opening of office at 10 a.m. on 16-01-2012.  From the copy of FIR it appears that the incident was reported to the P.S. on 18-01-2012 and a case was registered being Hirapur P.S. Case No.13 of 2012 dated 18-01-2012 u/s.380 of I.P.C.  Final report was also submitted u/s.380 keeping in view to re-open the case in future.  So, it appears that the incident took place in the night in all probability.  From the surveyor’s report it appears that insured had the place of incident in a premises which was a residential building and proprietor used to run its business from one of the flats in the ground floor of the building and the insured used to keep all stocks (mobiles, papers, vouchers, SIM in the said flat). The bathroom had a ventilator approx side of 1’10” X 1’10” on the east side wall of the bathroom with iron rod barricade.  It is stated in the report that the said ventilator was reportedly broken by the miscreants to enter the storing place.  From the surveyor’s report it further appears the insured reported to the Police Station and submitted a written application on the same day i.e. on 16-01-2012, however, due to some discrepancy in the first application police insisted to submit a fresh application on 18-01-2012 and the insured submitted the second application to the police station on 18-01-2012 as per the instruction of the police.  So, it appears that the complainant reported the incident to the police immediately after the incident.  Surveyor has also mentioned in his report that the ventilator was broken by the miscreants for entering the storing place. 

          In all robbery, as we know, there is either theft or extortion.  Theft is robbery if in order of committing the theft or attempting to carry away property obtained by theft, the offender voluntarily causes or attempts to cause hurt in case of resistance or obstruction.  The incident as we find in all probability took place in the night when there was none in the premises in question.  So, it can be said that it was lurking, trespassing into the godown of the building where the stocks were kept.  It was not a simple incident of stealing or simplicitor theft.  We think that the Section 380 of IPC has been registered by the Duty Officer of the concerned P.S. but the fact remains that the incident occurred in between the period from the time of closing the shop in the night on 14-01-2012 till opening of the shop in the morning of 14-01-2012.  We think that the incident comes within the purview of the Package Policy of Insured. 

Let us come to the quantum of claim.  Complainant has claimed an amount of 10,44,794/-.  It appears that OP after receiving the claim form from the complainant appointed one surveyor cum loss assessor according to the guideline of Insurance Act and IRDA.  Mr. Dilip Kumar Saha, IRDA’s licensed professional survey, visited the premises in question, consulted stock register, stock statement etc. and although he was unable to recommend indemnification of the assessed quantum of loss, it is shown in the report that the liability should be restricted upto Rs.5,34,022/- as per loss assessed by the surveyor.  He has also opined that the policy of insurance is covering the risk of stock for burglary/robbery. 

Having regard to the materials on record and in appreciation of the report of the surveyor we think that the complainant is entitled to get the claim and the OP has repudiated/withheld the claim without proper justification.  We also find that the liability should be restricted up to Rs.5,34,022/- as per the loss assessed by the surveyor and we think we should accept such assessment of loss.

In result, the case succeeds.

Hence,

Ordered

That the instant case be and the same is allowed on contest against the OP with cost of Rs.5,000/-.

          OP is directed to indemnify the loss of the complainant to the tune of Rs.5,34,022/- within one month from the date of this order.

          OP is further directed to pay an amount of Rs.20,000/- as compensation for causing harassment and mental agony to the complainant apart from litigation cost within the said stipulated period. 

          Failure to comply with the order will entitle the complainant to put the order into execution and in that event, OP shall be liable to pay penalty  at the rate ofRs.200/- per day to be paid to this Forum till full and final satisfaction of this order.