KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD THIRUVANANTHAPURAM APPEAL No. 642/2005 JUDGMENT DATE: 17-08-2010 PRESENT SRI.M.V.VISWANATHAN -- JUDICIAL MEMBER SRI.M.K.ABDULLA SONA -- MEMBER Divisional Manager National Insurance Co.Ltd. D.O XVII, 12, ommunity Centre, East of Kailash, New Delhi – 65. -- APPELLANT (By Adv.Saji Isaac.K.J) Vs. 1. Vikas.S. S/o Sivadasan Nair, Anaswara, Kuruvattoor Post, Kozhikode. 2. The Proprietor, -- RESPONDENTS Mobile City, Shop No.126, Gulf Bazar, Bank Road, Calicut. JUDGMENT SRI.M.V.VISWANATHAN,JUDICIAL MEMBER Appellant was the second opposite party and respondents 1 and 2 were the complainant and first opposite party respectively in OP No. 396/2004 on the file of CDRF, Kozhikode. The complaint therein was filed alleging deficiency in service on the part of the opposite parties in repudiating the insurance claim made by the complainant on the strength of the insurance coverage given for his Mobile Nokia handset which was purchased by the complainant on 13-07-2004 from the first opposite party. The complainant alleged that his Nokia mobile handset was having the insurance coverage issued by the second opposite party and that his mobile handset was stolen on 14-10-2004 from the shop by name Kavitha Drug Lines. So, he claimed Rs. 3,250/- being the value of the insured mobile handset. First opposite party filed written version denying the alleged deficiency in service on his part. It was contended that the complainant has to establish the fact that he purchased the Nokia Mobile handset from the first opposite party. It is further contended that the second opposite party/Insurance Company is only liable to indemnify the loss suffered by the complainant. Thus, the first opposite party prayed for dismissal of the complaint filed against him. The second opposite party entered appearance and denied the alleged deficiency in service. The second opposite party/Insurance Company contended that the complainant failed to produce copy of the FIR and that there is no evidence available on record that the insured Mobile phone was subjected to theft by actual or threatened force. Thus, the second opposite party prayed for dismissal of the complaint. They justified their action in repudiating the insurance claim preferred by the complainant. Before the Forum below Exts A1 to A7 documents were produced and marked on the side of the complainant. No documentary evidence was adduced from the side of the opposite parties. No oral evidence was adduced from either side. On an appreciation of the evidence on record, the Forum below passed the impugned order dated 3rd June 2005 directing the second opposite party/National Insurance Company Limited to pay Rs.3250/- to the complainant being the value of the handset with a further direction to pay compensation of Rs.1000/- to the complainant. Hence, the present appeal by the second opposite party/National Insurance Company Ltd. When this appeal was taken up for final hearing, there was no representation for the respondents 1 and 2 (complainant and first opposite party). We heard the learned counsel for the appellant/second opposite party. He submitted his arguments based on the grounds urged in the memorandum of the present appeal. He vehemently argued for the position that the first respondent/complainant failed to produce the FIR to substantiate his case of theft of the insured Mobile handset. It is further submitted that there is no evidence to show that the theft was committed by the force or by violent entry. It is further submitted that A4 certificate issued by the Sub Inspector of Police, Kasaba Police Station would only show that the insured Mobile handset was lost. Thus, the appellant argued for the position that there occurred failure on the part of the complainant/insured to follow the terms and conditions of the policy of insurance. The appellant prayed for setting aside the impugned order passed by the Forum below. Ext.A1 bill dated 13.7.04 would make it clear that the complainant purchased Nokia Mobile handset from the first opposite party on a sale consideration of Rs.3250/-. Ext.A2 certificate of Insurance issued by the appellant/opposite party National Insurance Company Ltd. would make it clear that the Mobile handset covered by A1 bill was insured by the opposite party/National Insurance Company Ltd. Ext.A3 is the complaint dated 10.1.05 issued by the first respondent/complainant to the Sub Inspector of Kasaba Police Station, Kozhikode requesting the Police to register FIR, on the basis of the complaint preferred by the complainant on 14.10.04. A3 complaint would also make it clear that the complainant had preferred a complaint on 14.10.04 stating the theft of his mobile handset. It would also make it clear that the police was not prepared to lodge F.I.R, but the police issued a certificate stating the fact that the Mobile handset was lost. In Ext.A3 complaint, it is also specified that for claiming the Insurance benefit, copy of the FIR is needed. But, even after submitting A3 complaint, the concerned Police namely, Sub Inspector of Kasaba Police Station was not prepared to lodged FIR. A3 complaint is accompanied by the earlier written complaint preferred by the complainant on 14.10.04. In the said written complaint dated 14.10.04 addressed to the Sub Inspector of Kasaba Police Station, it was specified the number of the Mobile handset with the BSNL SIM card and loss of the same near Davison Theatre. Thus, A3 written complaint dated 10.1.05 along with the written complaint dated 14.10.2004 would make it clear that there occurred theft of the insured Mobile handset which was covered by A1 cash bill and A2 certificate of Insurance. The appellant/second opposite party Insurance Company repudiated the Insurance claim by A7 repudiation letter. The first ground for repudiating the claim was the absence of FIR. The second one is that the certificate issued by the Police would only show that the insured Mobile phone is lost and there is nothing on record to show that there occurred actual or threatened force to attract the conditions specified in Clause 1.B (d) of the certificate of Insurance. It is also to be noted that the complainant could only prefer a written complaint to the Police. It is the discretion of the Police to lodge FIR based on the complaint. But, in the present case on hand, the concerned Police namely, Sub Inspector of Police, Kasaba Police Station was not prepared to register FIR. Instead of that the Police only issued a certificate stating the fact that the Mobile handset owned by the complainant was lost. The mere fact that the Police failed to register or lodge a FIR cannot be taken as a ground to hold that there was failure on the part of the complainant/insured to follow the terms and conditions of the policy. The materials on record would show that the insured Mobile handset was lost by theft. It is further to be noted that the appellant has not disputed the case of the complainant that there occurred theft of the insured Mobile handset. So, the complainant has succeeded in establishing his case that there occurred theft of the insured Mobile handset owned by the complainant. If that be so, the appellant/second opposite party National Insurance Company Ltd. being the insurer is liable to indemnify the insured (complainant). Section 378 of the Indian Penal Code defines theft. 378 theft:- “whoever, intending to take dishonesty any movable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft.” The written complaints preferred by the complainant before the Police would make it clear that there occurred theft of the insured Mobile handset which was in his possession and that the Mobile handset was lost and the said handset was taken from the possession of the complainant without his knowledge or consent. Thus, the ingredients of the offence of theft have been established in this case. In such a situation, it was incumbent upon the appellant/second opposite party Insurance Company being the insurer of the Mobile handset to indemnify the complainant/insured. So, the Forum below is perfectly justified in directing the appellant/second opposite party Insurance Company to pay Rs.3250/- as the value of the lost handset. The Forum below has also awarded compensation of Rs.1000/- to the complainant. Considering the facts and circumstanceS of the case, the order passed by the Forum below directing payment of Rs.1000/’- as compensation can be considered as unwarranted. It is to be noted that the officials of the second opposite party/Insurance Company can be justified to some extent in repudiating the Insurance claim because of the failure on the part of the complainant to produce the FIR with respect to theft of the insured Mobile handset. It is also to be noted that as per the terms and conditions of the Insurance policy, the complainant/insured was bound to produce copy of the FIR registered by the Police. In such a situation, it is not just or fair to order further compensation of Rs.1000/-. The Forum below has already awarded the value of the insured handset. Ext.A1 bill dated 13.7.04 would show that the aforesaid Mobile handset was purchased by the complainant on a consideration of Rs.3250/-. So, the complainant/insured is indemnified by directing payment of the value of the insured handset. So, further direction to pay compensation of Rs.1000/- is un-necessary and un-warranted. Hence, the said order directing payment of compensation of Rs.1000/- is deleted. In the result, the appeal is allowed partly. The impugned order dated 3rd June 2005 passed by CDRF, Kozhikode in OP.396/04 is modified and thereby the order directing payment of Rs.3250/- as the value of the lost handset is confirmed. But, the further direction for payment of compensation of Rs.1000/- to the complainant is deleted. As far as the present appeal is concerned, the parties are directed to suffer their respective costs. M.V.VISWANATHAN -- JUDICIAL MEMBER M.K.ABDULLA SONA -- MEMBER s/L | 
