State Consumer Disputes Redressal Commission
Ms Shri Rajendra Mobile Point vs The New India Assurance Co Ltd on 11 May, 2023
Details DD MM YY
Date of Judgment 11 05 2023
Date of filing 03 04 2010
Duration 08 01 13
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE, AHMEDABAD.
Court No. 1
Complaint No. 2010/16
M/S Shri Rajendra Mobile Point
Having Office Address at
1 & 2 Oxford Tower,
Nr. Janta Ice Cream,
Gurukul Road, Memnagar,
Ahmedabad-52. ...Complainant
Vs
(1) The New India Assurance Co. Ltd.
Claim Hub
Ahmedabad Regional Office,
401, 4th Floor, Popular House,
Ashram Road,
Ahmedabad- 380009.
(2) The New India Assurance Co. Ltd.
DO code 212300,
2nd Floor, Neptune House,
Mithakhali Six Road,
Ahmedabad. ...Opponents
CORAM : Hon'ble Mr. Justice V. P. Patel, President
Hon'ble Ms. A. C. Raval, Member
APPEARANCE : M. V. Patel, Ld. Advocate for the complainant Darshil Parikh for V. P. Nanavaty, Ld. Advocate for the opponent Order by Mr. Justice V. P. Patel, President.
1. Complainant has filed this complaint under Section 17(1) of the Consumer Protection Act, 1986 against the opponent for the deficiency in service and non-payment of damages under the shopkeeper's policy.
Akshay CC/2010/16 Page 1 of 182. Heard Ld. Adv. Mr. M. V. Patel for the complainant and Ld. Adv.
Mr. Darshil Parikh for the Ld. Adv. V. P. Nanavaty for the opponent. Perused the record of the case.
Facts of the case
3. Complainant is a proprietary firm and has purchased shopkeeper's insurance policy from the opponent. The policy was renewed from time to time, lastly it was renewed under policy no. 212300/48/07/34/00001587 for the period 6/8/2008 to 5/8/2009. During the validity of the period of policy, the theft with burglary of various companies mobile have been taken place on 31/01/2009 at about 10 a.m. they have informed the police authority and registered the FIR at Vastrapur Police Station. The police has prepared panchnama. During the investigation, it was found that in the theft, various companies mobile of worth Rs.33,88,453/- have been stolen. They have informed the opponent insurance company. Insurance company has appointed surveyor Mr. Bharat Soni who has given preliminary report. After 20 days another surveyor Mr. Kairav Shah was appointed then Mr. Upendra shah was appointed as surveyor after 1 year of incident. He has submitted the report. The opponent requested to settle the claim. There have awaited over 13 months. The complainant has inquire about his claim, but surprisingly received the repudiation letter dated 12/03/2010 through courier. It is stated in the repudiation letter that their claim is rejected as said incident occurred does not fall in the terms of burglary and/ or house breaking shall mean theft involving entry into or exit from the insured premises by forcible and violent means. That the opponent have not provided survey report and document therefore they have served legal notice dated 15/03/2010 through email to the opponent insurance company. The said notice was not responded.
3.1 It is further said that due to non-settlement of claim, the complainant had to suffer economically. That the cheque were Akshay CC/2010/16 Page 2 of 18 return back and the complaint under Section 138 of the Negotiable Instrument Act have been launched against the complainant. That on another side the police authority have issued final investigation report under Section 173 of the Criminal Procedure Code that no accused were arrested. It is further stated insurance company has wrongly repudiated the claim therefore cause of action has been arisen against the insurance company. Therefore they have filed the complaint before this Commission.
3.2 The complainant has prayed amount of Rs.30,00,000/- being maximum sum insured covered under the loss with 18% interest from the date of incident. The complainant has also prayed for Rs.1,00,000/- a special compensation for humiliation mental agony, hardship, harassment and Rs.50,000/- for litigation cost.
Defence of the opponent
4. The notice was served to the opponent insurance company. They have appeared through the Ld. Adv. and filed written statement at page no.77 to 88. It is stated in the written statement that the claim is not admissible. Every averments, assertions, submission and allegation of the claim set out in the complaint is denied. That the complaint is not supported by the affidavit. Therefore it is not maintainable that the complainant has to add, produced an elaborate evidence. Therefore under summary jurisdiction of Consumer Protection Act, the complaint is not maintainable. There is no deficiency in service on part of the opponent. That the opponent has failed to establish the alleged theft involving entry into or exit from the insure premises by forcible and violent means or theft following assault or violence or threat thereof to the insured or any employee of the insured or members of the insured's family. That the claim is not payable under the terms and condition of the shopkeeper's insurance policy. That the complainant is put to strict proof thereof.
Akshay CC/2010/16 Page 3 of 184.1 In the written statement the opponent insurance company has denied para wise contention. They have produced documentary evidence in support of their contention. They have also produced survey report, photographs, police papers, etc., which will be narrated hereinafter. They have requested to dismiss the complaint.
Arguments of the complainant
5. Ld. Adv. for the complainant has filed written argument at page no.301-304. He has also orally argued and draw attention of this Commission towards the documentary evidence produced on record by the complainant and opponent insurance company. It is further submitted that the under the policy, burglary and house breaking is covered, sum insured is Rs.30,00,000/-, copy of policy is produced on record. That the unknown persons have bend the shutter of the shop by instrument and thereafter they have entered into the premises and they have taken away the mobiles of different companies. The police was informed immediately. The police have prepared the panchnama which is produced on record. Therefore the police was informed about exact how many mobiles and what is the price of the theft is committed. The said statement is also produced on record. The police has filed final report which is produced on page no.37-38. The final report is filed by the police for the offence under Section 454, 457 and 380 of the IPC. The complainant has claimed for the amount of Rs.30,88,453/-. That the insurance company has denied or repudiated the claim without mentioning specific conditions. That the complainant has issued notice to the insurance company. But insurance company has not paid any amount. That the complainant has produced the insurance from the opponent, therefore they are liable to pay the compensation for the theft. It is further argued that no document is produced on record by the insurance company to substantiate the contents of the repudiation. The opponent has produced report Akshay CC/2010/16 Page 4 of 18 of preliminary investigation made by Bharat Soni. But no affidavit is filed by the surveyor Bharat Soni. That the second surveyor Upendra Shah has submitted report but no appointment letter is produced for appointing him as surveyor. He has filed an affidavit, but he has narrated the facts which is not stated in the survey report. The complainant has produced invoice for the purchase of material. Another surveyor M/s C. P. Mehta and Kairav Shah were also appointed. They have harassed the complainant. Kairav Shah has taken statement of complainant which is also produced on record. Complaint was filed with affidavit and rejoinder of complaint is also filed by them. Complainant has appointed Sandeep Shukla as investigator. The complainant has produced affidavit and report of the Sandeep Shukla. The report of FSL is also place on record which shows the forcible entry in the shop. Therefore the reasons for rejection are not tenable. He has requested to award the compensation as prayed for. Ld. Adv. for the complainant has relied on one judgment which will be discussed hereinafter.
Arguments of the opponent insurance company
6. Ld. Adv. for the insurance company has also filed submission at page no.305 to 309. In this written arguments, the opponent insurance company has included the contention of their written statement. There is no dispute about the shopkeeper's policy terms and conditions, period of policy, sum insured, etc. They have tried to explain the change of the surveyor. That initially the surveyor was appointed, considering approximate loss of Rs.7,00,000/-. Thereafter as per the IRDAI guidelines the surveyor was changed. Mr. Bharat Soni had submitted interim report which is produced on record. Considering quantum of loss which is more than Rs.7,50,000/-, the surveyor Mr. Kairav Shah of the M/s C. P. Mehta and Company has appointed as he is in a category A surveyor. Mr. Kairav Shah informed the opponent company that he Akshay CC/2010/16 Page 5 of 18 has decided to work as independent and not as part of M/s C. P. Mehta and Company. And as Mr. Kairav Shah was in category B surveyor. Therefore the third person Mr. Upendra Shah was appointed who is in the category A surveyor.
7. That the complainant failed to comply with the requirement of surveyor and failed to justify loss as well as quantum of loss with cogent and reliable documentary evidence. That the opponent insurance company has after taking into consideration the observation made by the surveyor, definition of burglary, surveyor's report and the claim documents, it was found that the said incident did not disclose entry into or exit from insured premises by forcible and violent means. Therefore the claim was repudiated on the same ground. The complainant has not established the entry into or exit from by forcible and violent means and therefore the terms and condition are not satisfied. It is further argued that the report of the police investigation does not reveal the fact as to forcible entry in to shop. This documents does not support case of the complainant. The complainant has produced report of the Rajdeep Consultation dated 20/09/2012. It has no statutory support. The report of the surveyor appointed by the insurance company under Section 64 UM of the Insurance Act, 1938. It has significant evidentiary value. It is further argued that the complainant has not established the quantum of damage, therefore the complaint is required to be dismissed. He has requested to dismiss the complaint. Ld. Adv. for the insurance company has relied upon 2 judgment which will be discussed hereinafter.
Merits of the case
8. The complainant has produced repudiation letter issued by the opponent insurance company at page no.43 wherein it is stated as under:
Akshay CC/2010/16 Page 6 of 18We note from you policy no.212300/48/07/34/00001587 that the property for which the claim has been made was covered under Section 2 of the said Shop Keepers' Insurance Policy against Burglary and Housebreaking. As stated in the policy, the term Burglary and/or Housebreaking shall mean theft involving entry into or exit from the insured premises by forcible and violent means or theft following assault or violence or threat thereof to the insured or any employee of the insured or member of the Insured's family.
Based on the Preliminary Survey Report, Final Survey Report, police papers, documents submitted by you and your statement given to the Surveyor, we have concluded that in the claim reported by you there was no Burglary and/or Housebreaking as defined in the policy."
9. The complainant has produced the following evidence:
Sr. Particulars Page
No.
Oral Evidence
The complainant has produced the rejoinder affidavit of 243-249
1. Mr. Shri Shrenik Shah proprietor of M/s Shri Rejendra Mobile Point
2. affidavit of Mr. Alpesh B. Shah accountant of the 292-293 complainant
3. affidavit of Mr. Sandeep Shukla (investigator) 297-298 Documentary evidence 1 Copy of policy Ins. Policy issued by opponent No. 2 in 9-10 favor of complainant for the period 6/8/2008 to 5/8/2009.
2 Copy of claim form and police documents collectively with 11-35 newspaper cutting produced collectively herewith. 3 Copy of complainant further submitted final A Summary 36-42 report, report under Sec. 173 Criminal procedure code, copy of complainant letter lastly submitted on 22/7/2009, copy of commercial commissioner Dt. 10/11/2009 to attending surveyor towards their clarification sought from said authority and last letter of complainant 19/1/2010 submitting various documents to the opponent Ins. Co. duly acknowledge and received of 19/1/2010 are collectively annexed.
4 Copy of repudiation made by opponent on Dt. 12/3/2010 43 received through courier on Dt. 14/3/2010.
5 Copy of legal notice Dt. 15/3/2010 served opponent on E- 44-48 mail not disputed and not complied to the said notice. 6 Copy of criminal proceeding order and judgement were 49-72 Complainant was sentence to Jail said order annexed collectively.
7 colour photographs of the incident 73-75 Akshay CC/2010/16 Page 7 of 18 8 copy of investigation report of Rajdeep Consultants of 251-289 dated 20.9.2012 produce here with collectively
10. The opponent has produced the following evidence Sr. Particulars Page No. Oral Evidence
1. affidavit of surveyor Mr. Upendra R Shah 290-291
2. affidavit of Shailesh Kantilal Desai administrative officer 299-300 of the insurance company Documentary Evidence
1. Incident/damage intimation letter dt.2.2.2009 89
2. Policy of Insurance No21230048063400006011 with its 90-100 terms and conditions
3. Preliminary survey report of Shri Bharat J. Soni 101-121 dt.3.2.2009
4. Final survey report of Shri Upendra R. Shah dt.11.2.2010 122-180
5. Letter of C.P. Mehta & Co. to opponent dt.5.2.2009 181-183
6. Letter of opponent to complainant dt.6.2.2009 184
7. Letter of C.P. Mehta & Co. to complainant dt.14.2.2009 185
8. Letter of C.P. Mehta & Co. to complainant dt.1.3.2009 186
9. Letter of opponent to complainant dt.14.3.2009 187
10. Letter of C.P. Mehta & Co. to complainant dt.4.4.2009 188
11. Letter of C.P. Mehta & Co. to complainant dt.2.6.2009 189
12. Letter of C.P. Mehta & Co. to complainant dt.6.7.2009 190
13. Letter of C.P. Mehta & Co. to Shree Ganesh Mobile World 191-192 dt.20.82009
14. Letter of surveyor to complainant dt.22.8.2009 193-194
15. Letter of surveyor to complainant dt.26.8.2009 195-196
16. Letter of C.P. Mehta & Co. to Sales Tax Authority 197-198 dt.8.9.2009
17. Letter of surveyor to complainant dt.9.9.2009 199-200
18. Letter of Shri Kairav U. Shah to insurance company with 201-211 order of IRDA dated 15.9.2009
19. Letter of opponent appointing Mr. U.R. Shah as surveyor 212 and loss assessor dt.18.11.2009
20. Letter of surveyor Shri U.R. Shah to complainant 213-215 dt.23.11.2009
21. Letter of surveyor Shri K.U. Shah to opponent 216-218 dt.4.12.2009
22. Letter of complainant to M/s. C.P. Mehta & Co. 219 dt.22.7.2009
23. Letter of complainant dt.27.5.2009 220-222
24. Letter of surveyor Shri U.R. Shah to complainant 223-225 dt.17.12.2009
25. Letter of surveyor Shri U.R. Shah to IRDA dt.23.12.2009 226-228 Akshay CC/2010/16 Page 8 of 18
26. Letter of surveyor Shri Kairav G. Shah to IRDA 229-232 dt.25.12.2009
27. Letter of Surveyor Shri Kairav G. Shah to opponent 233 dt.17.11.2009
28. Letter of Social Worker Shri Darshan S. Parikh with 234-241 annexures dt.26.12.2007 29. Letter of repudiation dt.12.3.2010 242 Preliminary Survey Report
11. Opponent insurance company has produced preliminary survey report with documentary evidence from page no.101 to 121. On perusing the same following facts emerged.
(A) At page 102, the details of empty mobile boxes are given which is stated as under:
"On verification we found empty/torn/damaged boxes of the mobile lying at the front portion & backside of the shop. We have taken details of these boxes which are mentioned below. We have also taken stock of available brand new mobile in the shop which is also enclosed herewith."
(B) Page no.107, it is stated that, "insured verbally informed me that some of the mobile phones are sold without packing boxes and its empty boxes lying in the shop. Detail of this sale may be collected by final surveyor. Insured informed me that some misc. items, accessories is missing from the shop. But detail of the same was not given to us."
(C) At page no.108-109, Ledger Account of complainant purchased from Shree Rajendra Mobile Shop of amount of Rs.5,22,300/- for the period of 1/4/2008 to 31/3/2009 is produced.
(D) At page no.110, Ledger Account of complainant purchased from Shree Ganesh Mobile World of amount of Rs.5,82,553/- is produced.
Final survey report
12. The final survey report is prepared by the Upendra R. Shah which is produced on record from page no.122 to 180. On perusing the same following facts are emerged.
Akshay CC/2010/16 Page 9 of 18(A) It is mentioned at page no.128 in 8.2.3 that:
8.2.3. He further said that the dummy and old phones kept in show-
cases were still there in the same position. The phones kept in bins of glass show case in wall were missing. Some empty cartons were lying on the floor of the shop. He could not immediately say the number of phones which were stolen but after checking his purchases and sales, he reported that he could work out such number and value of the stolen stock and inform the Police thereafter. He, however, did not suspect anyone regarding the theft.
(B) It is mentioned at page no.129 in 8.4 that:
8.4 Vide a statement dated 14-02-2009, the Insured informed the Police that as his father was hospitalised, he took time to check his records to arrive at a loss figure. The loss as per this letter was of Rs.30,88,453.00. The Insured has submitted a detailed modelwise statement with IMEI nos. which is enclosed (Enclosure - G).
(C) It is mentioned at page no.129 in 9.5 that:
9.5 The Break-up of the claim is as under:
Item Amt (Rs.)
Hand sets (498 pcs) 23,20,637
Accessories 7,67,816
Total 30,88,453
(D) It is mentioned at page no.130 in 10.3 that:
10.3 The miscreants were reported to have stole all the above-
stated stock and filed in the dark before any one could notice them.
(E) It is mentioned at page no.130 in 11.1.2 that:
11.1.2 Shri Soni visited the site and after the survey, counted the empty mobile boxes which were lying on the floor of the shop in broken/torn and scattered condition. He also noted the details mentioned on such boxes such as Brand and model No. of the mobile hand-set, MRP mentioned on each of the boxes and quantity of each such models. He also took photographs of the scene.
(F) It is mentioned at page no. 130 in 11.2.1 that:
11.2.1 The Insurers, thereafter and 02-02-2009, appointed M/S. C.P.Mehta & Co, to survey and assess the loss. Shri Kairav U.Shah, on behalf of the above C.P. Menta & Co. attended the site on the same date and carried out physical checking to the extent possible.
Once again he visited the shop on 04-02-2009 and had a close physical checking of the shop at such time:
(G) It is mentioned at page no. 131 in 11.3.2 (A) that:Akshay CC/2010/16 Page 10 of 18
11.3.2 (A) The stock as on the end of the above two years is shown as follows-
As on 31-03-2007 Rs. 23,87,190/-
As on 31-03-2008 Rs. 27,69,225/-
In the Column for particulars against the above items, it mentioned "Taken valued and certified by Proprietor."
(H) It is mentioned at page no. 131 in 11.3.2 (B) that:
11.3.2 (E) The insured had stated that after 31-03-2008, the accounts were computerized and with the help of Bar Code available, details of the stock at that time were worked out.
(I) It is mentioned at page no. 132 in 11.3.4 that:
11.3.4 For may assessment of loss, I have considered the details of the cartoons as found torn off by the thieves and lying in the shop as per the details given in the Preliminary Survey Report of Shri Bharat J. Soni.
(J) It is mentioned at page no. 132 in 11.37 that:
11.3.7 From the facts available of the above theft and with the common knowledge that in one bag (or any other facility with the thieves), one could carry more hand sets without cartoons than hand sets with cartoon. The thieves, therefore, thought to discard the cartoons to steal the maximum number of hand sets.
13. Complainant has filed police complaint for the theft incident occurred in his shop at Vastrapur Police Station. The said complaint was registered as criminal register no.73/2009 for the offence under Section 454, 457, 308 of the IPC. The police has submitted final report under Section 173 (1) (B) of the Criminal Procedure Code wherein it is stated as under:
આ ોરીસ સ્ટેળને આેર ભાહિતી મોગ્મ યીતે નોંધલા ભાાં આલી િતી િલે તાસ પુયીથઈ િોલાથી.
(૧) ઉક્ત મુદ્દો શ્રો ચોપજ્યુડીશ્મર ભેજીસ્રેટને ભોકરો આપ્મો છે . (૨) નીચે મુજ્ફ ઉકત મુકદ્દભાનુાં લગીકયણ કયલાનો બરાભા કયીને આખયી અિેલાર ચોપ કોટે ના ચોપજ્યુડીશ્મર ભેજીસ્રેટને ભોકરી આપ્મો છે, (ક) મુદ્દો ખયો િતો ણ સાબફત કયી ળકામો નિી.
(ધ) તે ોરીસ અધધકાયનો િતો.
Akshay CC/2010/16 Page 11 of 1814. It is stated by the police that the complaint is right, but it is not proved the offence is cognizable. This documents supports the case of discussion that complainant has not made a false complaint.
Forcible and violent entry
15. As per repudiation letter, it is stated that the term burglary and or/house breaking shall mean theft involving entry into or exit from the insured premises by forcible and violent means or theft involving assault or violence or threat thereof to the insured or any employees or member of the insured's family. The insurance company has produced copy of the insurance policy and terms and conditions from page no. 90-100. The policy documents at page no. 90-93 shows that the certificate in respect of compliance of Section 64 VB of the Insurance Act, 1938. Corresponding documents with policy has produced by the complainant at page no. 9-10. In both of these documents the no.21230010000038 is mentioned. At page no.93 of the terms and conditions, no any number is mentioned. Further it is written "attached to and forming operative policy..." this documents is stated to be shopkeeper's insurance policy clause SKI 2. So these terms and conditions at page no.93 to 100 does not match with the policy. Therefore it is doubtful as to whether this terms and conditions is pertaining to policy in question or not. In spite of this we may refer to clause 11 to the terms and condition at page no.94 which reads as under
11. Observation of Terms and Conditions: The due observance and fulfilment of the terms and conditions endorsements of the Policy in so far as they relate to anything to be done or complied with by the insured shall be a condition precedent to any liability of the Company to make any payment under this Policy.
Definition: The Term of Burglary and/or Housebreaking shall mean theft involving entry into or exit from the insured premises by forcible and violent means of following assault or violence or threat thereof to the insured or any employee of the insured or member of the Insured's family.
Section II- Burglary and Housebreaking contents (Excluding money and Valuables) Akshay CC/2010/16 Page 12 of 18 The Company will indemnify the insured in respect of loss or damage to the contents whilst contained in the insured premises by Burglary and/or Housebreaking.
16. Ld. Adv. for the complainant has relied upon the judgment delivered by the Hon'ble National Commission in case Surjit J Jain Vs. New India Assurance Co. Ltd. In Revision Petition no. 2190/2007, wherein is held as under:
So far as the second issue pertaining to the absence of force, threat or violence while committing the act of burglary through lock picking is concerned, we agree with the Counsel of Petitioner that this issue is squarely settled by the judgment if this Commission in Mono Industries (supra) wherein as quoted earlier, it has been clearly ruled that an entry obtained by picking the lock or forcing back the catch by means of an instrument involves use of violence.
17. Ld. Adv. for the opponent insurance company has relied upon the judgment reported in IV (2004) CPJ 15 (SC) United India Insurance Co. Ltd. Vs. Harchand Rai Chandanlal. It is held the policy is the contract between the parties and both the parties bound by the terms of contract. That the element of force and violence condition precedent for burglary and housebreaking: to substantiate claim it has to be established that the theft or burglary took place preceding with force or violence and if it is not, insurance company well within their right to repudiate the claim. This judgement is not applicable to the present case. Facts stated in the cited judgment and facts stated in the case on hand are different.
18. On perusing the record following facts is the evidence of forcible entry into or exit from the insured premises by forcible and violence means.
(A) It is stated in the preliminary survey report at page no.102 that on verification very impact mark found at the middle portion of the shutter, iron strip at the bottom part of the shutter found slightly bend, but ovality/bending found.
Akshay CC/2010/16 Page 13 of 18(B) It is stated in page 107 that we found forcible wntry to the shop and stated as under:
Insured informed me, unknown person forcibly bend & opened the shutter on 30/01/2009 night. Stolen away the stock. But looking to the condition of shutter, we found forcible entry to the shop is not convincing. News papers cutting is also supporting the same. Photographs of the shutter/shop & copy of news paper cutting is enclosed herewith. However, final surveyor may verify the incidence in detail and conclude about the forcible entry to the insured shop as he deem fit.
(C) Photographs at page no.111 shows something bend in the shutter. Photographs at page no.114-115 also shows forcible marked on the shutter.
(D) It is stated in the final survey at page no.128 in point no.8.3 that:
8.3 on 31-01-2009, the Police prepared a Panchnama at the site (Enclosure-E). Following points are mentioned the Panchnama:
8.3.2 That force was applied on centre portion of the shutter. A Patti of shutter was bent.
8.3.3 The colour of shutter was found separated from the shutter and such colour was lying on the floor.
8.3.4 The locks were found in the same condition and no force was found applied on the locks.
(E) It is stated in the panchnama in the scene of offence which is produced at page no.16 which reads as under:
સદય ળટય જોતા 9 હપટ િોાનુાં છે . જે ળટર જોતા ભધ્મભ બાગે ફિાયથી ફ લયામેરાનુાં ધનળાન જોલા ભે છે . ળટરની આગની ટ્ટી ફિાયના બાગેથી ફેન્ડ છે અને ફેન્ડ થમેર નીચેના બાગે ળટયનો સપેદ કરય ઉખાડેરો જોલા ભે છે . ળટયના ફાંને તયપના રોકના નીચેના બાગે કાા કરયના કાટના કચયો ડેર જણામ છે.
(F) The Complainant has stated in the FIR at page no.14 as under:
ળટયના ફાંને રોક ફયાફય લાઘેરા આ યાં ત ુ યાતના સભમે કોઈ ચોય ભાયા લાખેરા દુકાનના ળટય ને કોઈ સાધન લડે ળટય લચ્ચેથી ઊંચુાં કયી દુકાનભાાં પ્રલેળી ભોફાઈર પોનની ચોયી કયે રા નુાં જણામેર.Akshay CC/2010/16 Page 14 of 18
(G) The complainant has produced evidence of report of Rajdeep Consultation from 251-288 which contain report of Rajdeep Consultation, documentary evidence in support of his report. At page no.253, the copy of forensic science laboratory investigation report is produced wherein it is stated as under:
ઉયોક્ત ગુનાભાાં જોલા ભે ર ળટયનો કોઈ સાધન લડે લચ્ચેના બાગેથી ઊંચુાં કયે ર િોલાથી ળટય ફિાયની સાઈડ ફેન્ડ થમેલ ુાં િોલાની ળક્યતા જણામ છે તેભજ ળટય ઊંચુાં થલાથી નીચે થમેર જગ્મા ના કાયણે અંદય પ્રલેળલાની ળક્યતા જણામ છે સદય ફનાલ અંગે ત. અ. શ્રી ને જરૂયી ભાગગદળગન કયે ર છે .
(H) The report contains special report submitted by the police inspector in the first Gunah register no.73/2008 wherein it is stated as under:
અભે િકીકત એલી છે કે ઉય ફતાલેર તા. ટી. અને જગ્માએથી નમ ૂદ નથી તે આયોીએ પયીની દુકાનનુાં ળટર કોઈ સાધન લડે લચ્ચેથી ઊંચુાં કયી અંદય પ્રલેળ કયી દુકાનભાાં જુદી જુદી જગ્માએ ખાનાભાાં મુકેર જુદી જુદી કાંનીના ભોફાઈર પોનની ઉયોક્ત કોરભ નાંફય નલભાાં જણાલેર કુલ્રે હકિંભત રૂધમા જે િાર પ ૂયતી જાણી ળકામેર નથી તે ભતાની ચોયી કયી રઈ જઈ ગુનો કમાગ ધલ. ફાફત.
(I) The Raj Consultants opined finally at page no.266-267 which reads as under:
Opinion-Reconstruction Of Crime Scene Based upon available evidences offence probably got committed by involving following modus operandi.
1. During night unknown thieves - with help of tool uplifted locked shutter - from middle portion.
2. Uplifting of middle position of shutter-left tool marks on shutter.
3. By uplifting middle portion of shutter, space sufficient for entry & exit for a person of slim/small physique was created.
4. By entering into shop through this forceful uplifting of shutter and created space, person of slim/sleek / small physique conducted theft with help of others standing and assisting accomplice within shop, passing on articles/mobile phone boxes outside.
Final Remark Offence at shop of m/s Shri Rajender Mobile point-located at 1&2 Oxford Tower, Near Janta Ice Cream, Gurukul Road, Memnagar, Ahmedabad. During night hours of dates-30/01/2009 & 31/01/2009 was by an offence of theft + housebreaking + tresspassing entry & exit from shop by forcible entry & exit - thus Akshay CC/2010/16 Page 15 of 18 causing physical loss to shop owner -i.e. by Burglary & Housebreaking.
(J) Sandeep Shukla who is the investigator/witness of the complainant has filed an affidavit at page no.297-298. The opponent insurance company has not chosen to cross-examine this witness. Therefore whatever stated by this witness in the affidavit is required to be accepted. This affidavit is in support of his report. This report and affidavit has supported the case of the complainant.
19. Considering evidence on record we are of the opinion that the complainant has established the forcible entry into the shop and the burglary has been taken place as per the terms and conditions of the policy as defined in the terms and conditions of the policy. Therefore complainant is entitled to get the damage compensation. The grounds of repudiation are not according to terms and conditions of the policy.
Quantum
20. It is mentioned at page no. 132-133 in 12.0 of the final survey reports, that:
Assessment:
After checking and verification as stated above, the amount of loss was worked out as under:
Valuation:
Total value of the mobile hand sets and accessories Worked out at Rs. 14,87,578/-
F.F.F. after providing for depreciation Rs.2,50,000/-
TOTAL VALUE Rs.17,37,578/-
UNDER- INSURANCE NIL
21. In the conclusion at page no. 134, the proof/documents relied upon is written. They are the proof of occupation, photographs given by the insured, news papers-Divya Bhaskar, Gujarat Samachar and Indian Express, FIR dated 31/01/2009, panchnama, statement of insured of 14/02/2009, final statement of police, statement of claim of Rs.30,28,453/-.Akshay CC/2010/16 Page 16 of 18
22. The final surveyor has taken note of statement dated 14/02/2009 of Shrenik Kirtibhai Sheth and produced said statement an annexure-F at page no. 151-162. The FIR was lodged on 31/01/2009 by the complainant. He has not stated about quantum of loss at the time of filing FIR before police. The police has prepared panchnama of scene of offence on 31/01/2009 afternoon from 1.30 to 2.50 p.m. At that time also the complainant has not stated about amount of loss occurred to him. He has given statement of loss to the police on 14/02/2009 i.e. after 15 days from date of occurrence. Therefore it loses significance and evidentiary value.
23. Complainant has stated in the complaint that he suffered the loss of Rs.30,88,453/-. But this amount of loss is not established by the cogent evidence. Against this as per final report, the loss is assessed for Rs.17,37,578/-. Therefore complainant is entitled Rs.17,37,578/- as compensation. As complainant is an artificial person, no amount of harassment has to be given. The surveyor was appointer on the same day 31/01/2009. Preliminary survey report was submitted on 03/02/2009 and final survey report was submitted on 11/02/2010. The claim was repudiated on 12/03/2010. Thus insurance company and the surveyor has taken more time than that of the prescribed time limit under the statute and guidelines of IRDAI. The complainant has produced the copy of judgment of criminal cases in which, he was punished for 1 year imprisonment under Section 138 of the Negotiable Instrument Act.
He was punished because the cheques were returned due to poor and economical condition due to theft and not settled the case in time by the insurance company. Therefore the complainant is entitled for special compensation/cost i.e. Rs. 30,000/-.
24. As discussed hereinabove, we have considered the contentions of the complaint, defence raised by the insurance company, evidence produced on record by both the parties, arguments advanced by Akshay CC/2010/16 Page 17 of 18 the Ld. Adv. for the parties, ratio laid down by the Hon'ble Supreme Court and National Commission in the above referred judgment and facts and circumstances of the case. We are of the opinion that the complainant has established the case of theft and is entitled the amount of Rs.17,37,578/-. The insurance company has wrongly repudiated the claim. Considering facts and circumstances of the case in the interest of justice, following order is passed.
ORDER
1. Consumer Complaint no. 2010/16 is hereby partly allowed.
2. The opponent insurance company is directed and ordered to pay the amount of Rs. 17,37,578/- as compensation to the complainant with 9% interest from the date of complaint i.e. 03/04/2010, within 2 months from date of this order.
3. It is further directed the opponent insurance company to pay Rs.
30,000/- as litigation cost to the complainant.
4. Registry is directed to send certified copy of this judgment to the parties free of cost.
Pronounced in open court today on 11/05/2023.
[Ms. A. C. Raval] [Mr. Justice V.P. Patel]
Member President
Akshay CC/2010/16 Page 18 of 18