State Consumer Disputes Redressal Commission
Cross Trade Links vs The Oriental Insurance Co. Ltd. on 24 December, 2010
Cross Trade Links IN THE STATE COMMISSION : DELHI Date of Decision : 24.12.2010 Complaint No. C-152/2008 Cross Trade Links Through its Proprietor Mr. Ashok Kumar sharma C-3/1, Vasant Vihar, New Delhi 110 057 .. Complainant. VS The Oriental Insurance Co. Ltd. A-25/27, Asaf Ali Road, New Delhi 110 002 And its Branch Office at C.B.O.-9, (Code: 272601) A-1/3, Anupam Bhawan, Naniwala Bagh, Azad Pur Delhi 110 033 ...Opposite Parties CORAM Justice Barkat Ali Zaidi, President. Kanwal Inder, Member.
1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?
KANWAL INDER, MEMBER
1. This complaint u/s 12 of the Consumer Protection Act has been filed seeking compensation of Rs.32,56,331/- from the OP alleging loss/damage caused by virtue of unfair/restrictive trade practices and deficient services.
2. The same is being contested by the OP who has filed reply to which complainant filed replication. The parties have led evidence by way of affidavits. The respondent has filed written arguments.
3. We have heard Ld. Counsel for the parties and have gone through the record.
4. It is admitted case of the parties that the complainant had obtained from the respondent a Burglary and House Breaking Policy no. 271401/48/2005/390 whereby stock in trade the property of the complainant at H-897, Phase-III, RICO Industrial Area, Bhiwadi, Alwar was insured for Rs.
50 lacs for the period 27.10.2005 to 26.10.2006.
5. Terms and Conditions of the policy made available on record show that the OP company had agreed to indemnify the insured to the extent of intrinsic value of any loss of or damage to property or any part thereof whilst contained in the premises due to Burglary or House Breaking (theft following upon and actual forcible and violent entry of and/or exit from the premises) and Hold up. These interalia provided that insured shall take reasonable care and all reasonable steps to safe guard the property insured against accident, loss or damage, and that company shall not be liable if the premises shall have been left uninhabited by day and night for seven or more consecutive days and nights while the premises are left uninhabited. The claim procedure provided is that upon the happening of any event giving rise or likely to give rise to a claim under this policy, the insured shall give immediate notice thereof in writing to the nearest office with a copy to the Policy issuing office of the company as well as lodge forthwith a complaint with the police and that the insured shall tender to the company all reasonable information, assistance and proofs in connection with any claim here under. Due observance of terms and conditions by the insured shall be a condition precedent to any liability of the company to make any payment under the policy.
6. There is no dispute regarding aforesaid terms and conditions of the policy.
7. According to the complainant, it used to keep raw materials, goods in process and finished goods in the insured premises which is factory premises of its sister concern M/s Amity Engineers. On 04.09.2006 he came to know that his stock lying in the said premises had been burgled by some miscreants including the material and machineries of Amity Engineers by breaking four locks of the factory premises, thereby the complainant suffered huge loss of Rs.26,31,331/- in shape of raw material and finished goods. On complaint of M/s Amity Engineers, FIR no. 365/06 dated 15.09.2006 was registered with PS Bhiwadi u/s 380 IPC. The complainant intimated the said burglary to OP and thereafter filed insurance claim with regard to loss suffered by it. After investigation the police submitted its Final Report True no. 115/06 dated 27.10.2006 which was accepted by the concerned court on 24.02.2007. The OP conducted a survey at the site of occurrence but without considering the true facts refused to entertain and pay insurance claim and has closed the case as No Claim vide its letter dated 11.11.2007. The complainant sent reply dated 20.11.2007 justifying its claim and requesting OP to process and expedite payment of claim but the OP in arbitrary and whimsical manner discarded the claim vide letter dated 26.03.2008 which is highly shameful, painful and condemnable which caused the complainant firm to have suffered mental agony depression and huge financial loss in its business. The complainant is claiming Rs.26,31,331/- for loss on account of burglary, Rs. 5 lacs as compensation for harassment, mental agony and Rs.1,25,000/- as legal and miscellaneous expenses, in all Rs.32,56,331/-.
8. The OP has placed on record the surveyors report dated 24.02.2007 to the effect that despite requests, the complainant has not submitted necessary information called for. Thereafter the surveyor submitted final report dated 30.08.2007 mentioning that they attended to survey of loss on 16.09.2006, 18.09.2006, 26.09.2006 and in subsequent visits made inquiries from supervisor and proprietor of M/s Amity Engineers and some person of neighboring unit. During their survey they did not find any sign of forcible entry in the premises, some areas with old dust in undisturbed condition, plant and machinery appear to be undisturbed. They wrote letters dated 18.09.2006, 29.10.2006, 20.11.2006, 07.12.2005, 05.02.2007, 13.03.2007 and various reminders to the insured for submission of documents/information and clarification but insured submitted only few documents. On visiting police station they were informed that during investigation police has not noticed any forcible entry into the premises and has therefore registered the case u/s 380 IPC only. In reply to their letter they received letter from M/s Amity Engineers dated 23.03.2007 wherein it observed that factory premises was closed since March, 2006 till 04.09.2006. The insured has not provided any detail of loss in terms of quantity, costing, production, record etc. and not produced their account record for verification and hence loss is not substantiated.
9. It is pertinent to note that in the complaint itself the complainant admits that the surveyor visited the site. He has not assailed the contents of the surveyor report, neither in evidence nor in pleadings. It is worth mentioning that in reply the OP mentioned the details of findings given by the surveyor specifying these as 19 subparas of Para 10(1). In replication there is general denial thereof, terming the surveyor report as false, without coming out with any material to refute the facts stated in report, for instance finding that the unit was non operational at the time of loss, the factory premises was closed since March 2006, no stock register was there after March 2005, the security agency was found not to have been paid for after March 2006, excise details after March 2006 were not made available, no invoices were produced for the period after December 2005. It further mentions that the complainant gave no response to the letters of the surveyor dated 07.08.2006, 08.09.2006, 18.09.2006, 28.10.2006, 29.10.2006, 20.11.2006, 07.12.2006, 27.01.2007, 05.02.2007 & 13.03.2007.
10. The surveyor did not find any sign of forcible entry in the factory premises. FIR has also been lodged u/s 380 IPC. Honble National Commission in Revision Petition no. 4555 of 2009 has held that words used in contract of insurance are to be assigned the meaning which parties intended to mean without making any addition or subtraction therein. The policy issued by the OP in favour of the complainant specifies that OP company has agreed to indemnify the insured for any loss due to burglary or house-breaking, specifically mentioning (theft following upon and actual forcible and violent entry of and/or exit from the premises) and Hold up. Honble Supreme Court of India in case reported as V(2004) SLT 876 has ruled that element of force and violence condition is precedent for burglary and house-breaking, to substantiate claim it has to be established that theft or burglary took place preceding with force or violence and if it is not, Insurance Company is well within their right to repudiate claim of insured.
11. It is further significant to note that as per the complainants own case in the complaint, he came to know about burglary on 04.09.2006 while FIR of the incident has been registered on 15.09.2006 and intimation was given to the OP. Honble National Commission in cases reported as (III) (2006) CPJ 240 (NC) and (III) (2003) CPJ 77 (NC) has ruled that delay in lodging FIR and sending claim intimation to insurer is clear violence of policy condition requiring claim intimation to be sent immediately after accident/loss/damage to insured property.
12. From the above it is to be seen that terms and condition precedent to saddling OP with liability have not been observed.
13. It is further significant to note that the complainant has not been able to substantiate its allegations of loss of Rs.26,31,331/-. As per police record, the goods reported to be stolen from the premises were electric motors, compressor engine, stainless steel rolls, CRCA rolls, transformer, copper rings, aluminum rings, motor cycle, zinc plating, iron nails, chemicals etc. In claim form submitted to the insurer the complainant stated that Roofing Nails, Air Compressor, Stainless Steel sheet roll and CRCA Sheet Coil belonging to it had been stolen. However these do not find mention in Statement of Stock submitted by the complainant to its bankers to whom it had hypothecated its stock for availing Cash Credit Limit. Copies of Stock Statements placed on record by the complainant rather show that since 28.02.2006 till 02.09.2006, only finished goods, Zinc and Chemicals were its stock. Thus there is discrepancy in the items reported to have been stolen as mentioned in FIR and items mentioned by the complainant in his Statement of Stock Position submitted to its bankers. As per FIR zinc and chemical were also reported to have been stolen from the premises but the complainant does not mention these in his claim form. It is further worth noting that in the claim for Rs.26,31,331/-, the complainant included loss of CMT worth Rs.4,73,284/-, but it had no right to claim it from its insurer when that CMT belonged to its sister concern Amity Engineer as stated in the claim form itself. Admittedly the theft took place in the factory premises of its sister concern having its own material also. In these circumstances allegation of the alleged loss of the alleged value having been suffered by the complainant cannot be said to be proved on record
14. Compensation has also been claimed alleging that discarding the claim is shameful, painful which consequently caused the complainant firm to have suffered mental agony, depression. A firm having those mental states is not understandable. Moreover these allegations have not been substantiated. These do not find support even in the sole affidavit filed as evidence by the complainant.
15. The OP has repudiated the claim of the insured on the basis of the surveyor report, which has virtually gone unassailed and it cannot be said to be deficiency in service as held in 1(1996) CPJ 121.
16. For the reasons stated above, we come to the conclusion that the complainant has failed to make out any case. Therefore this complaint is dismissed.
17. A copy of this order as per statutory requirements be forwarded to the parties free of charge and , thereafter , the file be consigned to Record Room.
(JUSTICE BARKAT ALI ZAIDI) PRESIDENT (KANWAL INDER) MEMBER Arya