State Consumer Disputes Redressal Commission
K.Baburaj, vs United India Insurance Co.Ltd, on 31 October, 2013
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/12/836 (Arisen out of Order Dated 21/06/2012 in Case No. CC/03/667 of District Trissur) 1. K.BABURAJ VINAYAKA FASHION JWELLERY,CUTCHERRY JUNCTION,KOTTARAKKARA KOLLAM KERALA ...........Appellant(s) Versus 1. UNITED INDIA ASSURANCE CO LTD TEMPLE ROAD,CUTCHERRY JUNCTION,KOTTARAKKARA KOLLAM KERALA ...........Respondent(s) BEFORE: HON'ABLE MR. SRI.K.CHANDRADAS NADAR PRESIDING MEMBER PRESENT: ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACADU THIRUVANANTHAPURAM
APPEAL NO.836/2012
JUDGMENT DTD :31.10.2013
(Appeal filed against the order in CC.No.361/2007 on the file of CDRF, Kollam dated: 17.09.2012)
PRESENT
SRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER
SRI.V.V.JOSE : MEMBER
K.Baburaj,
Proprietor, APPELLANT
Vinayaka Fashion Jewellery,
Ayoor
(By Adv.N.Sarat Chandra Menon)
Vs.
1. United India Insurance Co.Ltd,
Temple Road, Cutchery Junction,
Kottarakkara 691 506
2. The Divisional Manager,
United India Insurance Co.Ltd, RESPONDENTS
2nd Floor, SKP Building,
Beach Road, Kollam
3. Dhanalekshmi Bank Ltd,
M.C.Road,
Chadayamangalam 691 534
(By Adv.R.Jagadishkumar for R1 & R2)
JUDGMENT
SRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER The appellant was the complainant in CC.No.361/2007 in the CDRF, Kollam. The complainant was running jewellery under the name and style 'Vinayaka Fashion Jewellery at Ayoor Junction in Edamulackal village, Kottarakkara. For the purpose of running the jewellery he had availed credit facility from the 3rd opposite party Dhanalekshmi Bank, Chadayamangalam. The 3rd opposite party had taken a policy of insurance for and on behalf of the complainant for the period from 10.06.2005 to 09.06.2006. The total sum insured was Rs.18 lakhs. At about 9.45 PM on 09.07.2005 (Saturday) the complainant closed his shop as usual and left. On Monday morning (11.07.2005) when he returned to open the shop room he found that the locker inside the locker room was lying open and gold jewellery were stolen. It was also found that hole was created in one of the walls and the lock of the shutter behind the shop room was cut and removed. The complainant promptly made complaint before the Sub Inspector of Police, Chadayamangalam. He registered Crime No.247/2005 under sections 457, 461 & 380 IPC. The complainant also submitted claim to the opposite parties. It is alleged that the loss suffered by the complainant on account of the theft of jewellery alone was to a tune of Rs.12,19,389/-. The complainant sent several requests through the 3rd opposite party demanding settlement of the claim by opposite parties 1 & 2. There is no response till the date of complaint. The complainant suffered severe hardship as a result of the failure to settle the claim. The action of opposite parties 1 & 2 amounts to deficiency in service. Hence he approached the District Forum.
2. Opposite parties 1 & 2 contended before the Forum that on receipt of information about the alleged theft the insurance company deputed authorized surveyor to assess the loss and also to report upon the genuiness of the claim. He submitted a preliminary survey report apprehending the genuiness of the burglary claim. As per his report the door to the locker room was in opened condition. The iron safe kept inside the locker room was intact. Hole was seen created on the side wall of the shop. Locking hook was found cut along the lock and the shutter was in a partially raised condition. At the time of survey the damage were seen repaired. From the police records it is evident that a quantity of gold ornaments were left behind by the alleged thieves. This was suspicious. Further no security staff was appointed for the insured shop. It was the duty of the insured to take reasonable care and caution to protect the subject matter of insurance. It is also understood that a similar type of burglary occurred in the shop of the insured on 09.11.2002. 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. This matter is now pending investigation with the Circle Inspector of Police. The insured has not cared to produce documents and books of account to prove the stock available at the time of the alleged theft. The complaint is filed without any bonafides.
3. Before the Forum the complainant gave evidence as PW1. Exts.P1 to P11 were marked on his side. Three witnesses were examined on the side of the opposite parties. ExtsD1 to D6 and X1 and X1(a) were marked on their side. The Forum on appreciating the circumstances in evidence held that the repudiation of the claim by the Insurance Company was proper and as such there was no deficiency in service on their part. Accordingly, the District Forum dismissed the complaint. Hence this appeal. The questions that arise for consideration are : whether deficiency in service on the part of the respondents / opposite parties 1 & 2 is established and if so whether the complainant is entitled to any relief.
4. It is not disputed that the complainant, who is running Vinayaka Fashion Jewellery at Ayoor Junction had insured his business premises through the 3rd opposite party bank from whom credit facilities were availed, for the period from 10.06.2005 to 09.06.2006. Ext. P1 (same as Ext.D1) is the Traditional Business Miscellaneous Insurance Policy issued by opposite parties 1 & 2. The total sum insured was Rs.17,00,000/-. According to the complainant theft of jewellery happened from his shop room some time between 9.45 P.M on 09.07.2005 and the morning on 11.07.2005. Burglary was done after creating a hole in one of the walls of the locker room and also after cutting open the shutter. Opposite parties 1 & 2 have disputed the genuiness of the claim of the complainant and accordingly have repudiated his claim. The repudiation was based on the following suspicious circumstances. Firstly, after the alleged burglary, it was found that a good portion of the jewellery were not stolen from the shop. Secondly, contrary to the policy condition that sufficient security should be provided in the shop room no such security was provided. Thirdly, the previous claim of the complainant with New India Assurance Company Limited based on a similar theft on 09.11.2002 was repudiated by that Company finding the claim as not genuine. So the antecedent conduct of the complainant fortified the suspicion. And lastly the complainant failed to produce documents and books of account to prove the stock of jewellery at the time of alleged theft.
5. Coming to the evidence in support of these grounds, it may be mentioned that as PW1, the complainant admitted that as per policy conditions he was bound to provide sufficient security for the jewellery shop. But no security staff was appointed in his shop. It is seen from Ext.P2 (Same as Ext.D3) that the complainant informed the Chadayamangalam Police on 11.07.2005 at 11 hrs that theft of jewellery worth about 15 lakhs had happened in his shop some time between 20.45 hrs on 09.07.2005 and 10.15 hrs on 11.07.2005 by burrowing hole in the wall and cutting open the shutter. Based on the first information Chadayamangalam police registered Crime No.247/2005 under sections 457,461 & 380 IPC. The first information statement was furnished by the complainant. Among other things the complainant stated that he had a debt of Rs.5,00,000/-.He also stated that the small locker inside the big locker kept in the shop room was not seen broken.
6. Ext.P3 is the scene mahazar prepared by the Circle Inspector of Police, Kadakkal on 11.07.2005 in connection with the crime registered by the Chadayamangalam police. It is seen that the Circle Inspector availed the assistance of finger print expert, experts from FSL and dog squad. The Circle Inspector found that a hole was created recently on the southern wall at a dimension of 41x46 cms, 21 cms above the floor. While creating the hole using chisel marks were left on the cemented portion. It was seen that hole was created from inside the room towards outside. This is a circumstance creating serious doubt about the genuiness of the claim of the complainant. If as a matter of fact the thief entered the shop room after breaking open the shutter, no thief of ordinary prudence would create hole in the wall to escape and vice versa. So in all probability the complainant himself did the mischief to create the impression that theft occured in his premises.
7. The Circle Inspector of Police, Kadakkal has further reported in Ext.P3 that gold ornaments were seen inside the display board glasses of which were seen broken. There were display boards with gold ornaments and without gold ornaments above the safe inside the shop. The Circle Inspector weighed the gold ornaments left in the shop and found the same to be 457.720 gms. It is obvious that this much of gold ornaments were readily available for the alleged thief to take away. This is another circumstance which causes suspicion on the claim of the complainant. When the safe was opened by the complainant Rs.45,000/- in cash and gold ornaments weighing 511.3 gms were inside the safe. Ext.D2 is the preliminary survey report submitted to respondents 1 & 2 by their surveyor loss assessor cum valuer. He has mainly relied on the circumstances highlighted by Circle Inspector of Police, Kadakkal.
8. Ext.D4 is the final report submitted by the Deputy Superintendent of Police, Kollam before the Judicial First Class Magistrate Court II, Kottarakkara in Crime No.247/2005 of Chadayamangalam Police Station. During investigation the real culprit was not identified by the police but it is stated that certain circumstances were suspicious. The circumstances highlighted are firstly after taking gold ornaments, gold ornaments were left in the display board kept above the safe weighing about 500 kgms, secondly no attempt was made to open the safe and lastly no attempt was made to create hole in the concrete wall of the locker room. Further in the final report the result of examination by the Director of Forensic Science Laboratory is made mention of. His examination revealed that really the lock in the shutter that was allegedly cut opened was broken using chisel and that was done not recently. His report further was that the hole seen in the wall was created using some sharp weapon both from inside and from outside. There was no indication that some one had entered into the shop using that hole. Further the cut mark seen on the bolt of the door of the locker room was not also created recently. His inference was that drilling was made after opening the locker room but ultimately UN Report was filed by the Investigating Officer because there was no clear evidence as to who committed the theft. The report specifically mentioned that there was no clear indication that the door to the locker room was opened using force. The strange aspect of the final report is that the Investigating Officer tried to explain the finding of the FSL expert that there was no mark of anyone having entered the room through the hole by saying that after having entered the room the thief might have enlarged the hole to conveniently escape with the stolen items. The absurd aspect of the explanation is that having regard to the quantity of the gold stolen it is not difficult to carry the gold through the hole through which a human being can pass. Further even while escaping marks of a human being having entered the room would have been left. Obviously the Investigating Officer wanted to help the jewellery shop owner. Repudiation of the claim was also made on the ground that there was no evidence regarding the actual stock in the jewellery shop at the time of the alleged theft. The circumstances already referred to overwhelmingly show that everything is suspicious regarding the alleged incident. In all probability everything was stage managed by the complainant to stake the claim. It follows that the claim was rightly repudiated by respondents 1 & 2. Hence there is no merit in the appeal.
In the result, the appeal is dismissed, but without costs.
K.CHANDRADAS NADAR: JUDICIAL MEMBER
V.V.JOSE : MEMBER
be
[HON'ABLE MR. SRI.K.CHANDRADAS NADAR] PRESIDING MEMBER