State Consumer Disputes Redressal Commission
Devender Singh vs New India Assurance Company Limited on 13 October, 2008
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRA DUN
FIRST APPEAL NO. 382 / 2007
Sh. Devender Singh S/o Sh. Mohan Singh
R/o Village Bist Gaon, Devi Photo Studio
Ghat Bazar, District Chamoli
......Appellant / Complainant
Versus
1. The New India Assurance Company Limited
through its Divisional Manager
Ranipur Mor, Haridwar
2. State Bank of India
through its Branch Manager
Branch Ghat, Tehsil and District Chamoli
3. The Oriental Insurance Company Limited
through its Branch Manager
Near University Gate, Sri Nagar, Garhwal
District Pauri
.....Respondents / Opposite Parties
Sh. Vivek Painuli, Learned Counsel for the Appellant
Sh. M.K. Kohli, Learned Counsel for Respondent No. 1
None for Respondent No. 2
Sh. Suresh Gautam, Learned Counsel for Respondent No. 3
Coram: Hon'ble Justice Irshad Hussain, President
C.C. Pant, Member
Dated: 13/10/2008
ORDER
(Per: C.C. Pant, Member):
This appeal has been filed by Sh. Devender Singh - complainant against the order dated 05.10.2007 passed by the District Forum, Chamoli in consumer complaint No. 73 / 2005. Vide the impugned order, the complainant's consumer complaint was dismissed.2
2. The facts of the case in brief, which led the complainant to file the complaint, are that the complainant is the owner of a photo studio and earns his livelihood through it. On 24.12.2003, he purchased a Kodak Digital Camera for a sum of Rs. 22,700/- along with other photography equipments for sum of Rs. 42,530/-. Again on 12.04.2004, he purchased a Sony Handicam for Rs. 24,990/-. He got his shop and the goods kept in it insured with the opposite party No. 1
- The New India Assurance Company Limited for a risk of Rs. 52,500/- against fire and allied perils and for Rs. 52,500/- against burglary / house-breaking for the period from 12.12.2003 to 11.12.2004. The stock in trade was also insured with the opposite party No. 3 - The Oriental Insurance Company Limited for a risk of Rs. 50,000/- against "burglary" for the period from 12.02.2004 to 11.02.2005. On 31.07.2004, during the currency of both these policies, some one had stolen the aforesaid digital camera and handicam from the shop of the complainant. An FIR was lodged with the Patwari of the area and a claim for indemnification of the loss was also submitted. When the opposite parties did not settle the claim, the complainant filed a consumer complaint before the District Forum, Chamoli. The District Forum, Chamoli, vide the impugned order dated 05.10.2007, dismissed the complaint. Aggrieved by the said order, the complainant has preferred this appeal.
3. None appeared on behalf of respondent No. 2. We have heard the learned counsel for the appellant and respondent Nos. 1 and 3 and perused the material placed on record.
4. The following facts of the case are not in dispute:
(i) Purchase of the digital camera for Rs. 22,700/- and Sony handicam for Rs. 24,990/-.3
(ii) Insurance of the shop and stock in trade against burglary and house-breaking with respondent Nos. 1 and 3 for the period as stated above.
(iii) Claim for indemnification of loss was lodged with the respondent No. 3.
5. But the following facts are in dispute:
(i) Whether a claim to indemnify the loss due to the alleged theft, was lodged with the respondent No. 1?
(ii) Whether the theft of the said goods had taken place?
6. If the answer to question No. (ii) is yes, then the following legal question is to be answered by us to decide the appeal: "Whether theft is covered under "burglary" or "house-breaking" and whether the insurance company is liable to indemnify the loss due to theft of the insured goods, if the theft has taken place during the currency of the policy".
7. It is our considered view that the answer to question No. (i) on facts is "NO" because the State Bank of India in its additional written statement dated 28.09.2006 (Paper Nos. 24 to 25) has specifically alleged that it had received a letter on 02.08.2004 from the complainant in respect of the alleged theft. The letter was addressed to The Oriental Insurance Company Limited - respondent No. 3 and its copy was endorsed to respondent No. 2. However, respondent No. 1 - The New India Assurance Company Limited informed the respondent No. 2 that the complainant had not lodged any claim with them, the bank sent a copy of the aforesaid letter of the complainant along with a copy of the FIR. The appellant has failed to prove that a claim was lodged with the respondent No. 1. Thus, the dispute is 4 mainly between the appellant and respondent No. 3. The respondent No. 3 has admitted that a claim was lodged with them by the appellant.
8. The second question on facts is rather more difficult to be answered. There is no evidence or eye-witness in respect of the alleged theft. It has only been alleged by the appellant that some one had stolen the digital camera and handicam when he was busy in other jobs related with photo processing. The Oriental Insurance Company Limited has made an averment in its written statement (Paper Nos. 22 to 23) that they had appointed Sh. R.R. Sharma to investigate into the theft in question. The appellant had stated in his statement recorded by Sh. R.R. Sharma that he had opened his shop at 8:00 a.m. as usual and started his business. That day, there was a heavy rush in his shop as the students of Uttaranchal (now Uttarakhand) Board Examination had come for getting their passport size photographs. The appellant did the photography job wit his Kodak Digital Camera and used a computer for processing and other copying job of photographs. When at around 8:00 p.m., the appellant started to close the shop and to adjust the equipments, he found that his Kodak Digital Camera with S.D. card and Sony Handicam, which were placed in the computer room, were missing. At this, the appellant concluded that any customer unknown to him had stolen the said cameras. It has been further submitted by the respondent No. 3 that the claim for the loss being outside the scope of the policy, it was rightly repudiated and the appellant was informed accordingly vide registered letter dated 28.10.2004.
9. Most important point to be considered is that it was the responsibility of the appellant to take care of his goods and to make necessary arrangements for the safeguard of the goods. The fact of 5 the case is rather more surprising because the appellant has admitted in his statement recorded by the investigator that he had been using Kodak Digital Camera for the photography work and same camera was found missing, when he was adjusting his goods before closing the shop and concluded that some unknown customer had stolen the same. How could be that possible? No one would believe that a camera, which was being used by the appellant, was stolen by some unknown customer. Even if we leave this question unanswered whether a theft had taken place or not, it is evident that the appellant had not taken reasonable steps for the safeguard of the goods insured against accident, loss or damage, as is required under general conditions stated in the policy of insurance. For this reason, if a claim is repudiated, it will not be an unjustified repudiation. However, the insurer - respondent No. 3 repudiated the claim on the ground that the claim was beyond the scope of the policy. That is to say, the goods in question were not insured against theft, but these were insured against burglary.
10. The contention of the learned counsel for the appellant on this point was that burglary includes theft and that there is no provision for a separate insurance cover against theft. To prove the theft, it is not necessary that a house-breaking should have taken place and that there was a forcible entry into the house or goods were snatched away forcibly. In support of his contention, learned counsel relied upon the decision of the Hon'ble National Commission in the case of National Insurance Company Limited Vs. Public Type College; II (2001) CPJ 26 (NC). In the reported case, the insurance company had repudiated the claim on the ground that since there was no forcible entry, there was no theft. The District Forum had allowed the complaint, but the State Commission partly allowed the appeal and modified the order of the District Forum by reducing the rate of interest. The Hon'ble 6 National Commission, while upholding the order of the State Commission, observed that, "............... In common parlance burglary will certainly mean theft. We have not been told or shown if there is any separate policy for theft if, according to the Insurance Company, burglary does not include simple theft".
11. In reply to the above contention made by the learned counsel for the appellant, learned counsel for respondent No. 3 submitted that the Hon'ble Supreme Court has already interpreted the law on this point. He referred the judgment of the Hon'ble Supreme Court in the case of United India Insurance Company Limited Vs. Harchand Rai Chandan Lal; IV (2004) CPJ 15 (SC), wherein the Hon'ble Supreme Court has held that the definition of "burglary" and / or "house- breaking", as defined in the policy, is binding on both the parties. The policy is a contract between the parties and both the parties are bound by the terms of the contract.
12. The respondent No. 3 has shown us the terms and conditions of the policy. The policy (or the contract) explicitly states that, "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 part 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) ............................................7
13. Therefore, the theft, as alleged by the appellant, is not covered under "burglary" and in the light of the law laid down by the Hon'ble Supreme Court, the respondent No. 3 was justified in repudiating the appellant's claim.
14. For the reasons aforesaid, we do not find any infirmity in the order passed by the District Forum and the appeal is liable to be dismissed.
15. Appeal is dismissed. No order as to cost.
(C.C. PANT) (JUSTICE IRSHAD HUSSAIN) Kawal