National Consumer Disputes Redressal
The New India Assurance Company Limited vs M/S. Indicarb Limited on 24 January, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2926 OF 2008 (Against the Order dated 16/01/2008 in Appeal No. 499/2007 of the State Commission Karnataka) 1. THE NEW INDIA ASSURANCE COMPANY LIMITED Assistant Manager Delhi Regional Office, Level-5, Tower II, 124, Connaught Circus, NEW DELHI-11001 DELHI ...........Petitioner(s) Versus 1. M/S. INDICARB LIMITED Executive Director, Shri R.S.Kathotia No.301, Ramashree Chamber,No.31 Lady Curzon Raod, BANGALORE -56001 KANRNATAKA ...........Respondent(s)
BEFORE: HON'BLE DR. B.C. GUPTA,PRESIDING MEMBER HON'BLE MR. PREM NARAIN,MEMBER For the Petitioner : Mrs. Pankaj Bala Verma, Advocate For the Respondent : NEMO Dated : 24 Jan 2017 ORDER This revision petition has been filed by the petitioner, New India Assurance Company Ltd. against the order dated 16.01.2008 of the State Consumer Disputes Redressal Commission, Karnataka ( hereinafter referred to as 'the 'State Commission') passed in F.A. No. 499 of 2007.
2. Brief facts of the case are that the complainant/respondent had got insured the stock-in-trade kept in its business premises with the OP/petitioner and obtained a policy covering the risk of "Burglary and Housebreaking" by paying the necessary premium. According to the complainant, on 17.12.2004 when the Director of the complainant went to the Administrative Block of the Factory, he found that the doors of the first and second floors were opened by breaking open the seal and three computers were missing and that again on 18.12.2004 he found that 400 sets of different types of press tools, moulds and punches used in manufacture of tungsten carbide tins were missing and the locks were cut with hacksaw blade. In this regard, the complainant lodged a complaint on 21.12.2004 to the Hosur Police and also brought the incident of burglary to the notice of the OP. Thereafter, the OP appointed a surveyor to assess the loss and submit a report. The surveyor assessed the loss and submitted a report. The surveyor has observed that there is no evidence of housebreaking and burglary within the meaning of "Burglary" and hence, the OP may reject the claim of the complainant as per the terms and conditions of the policy. In view of the said observation, the OP repudiated the claim of the complainant. Challenging the repudiation the complainant filed the complaint before the III Additional Bangalore Urban District Consumer Disputes Redressal Forum, Bangalore (hereinafter referred to as 'the District Forum'). On the complaint, the District Forum ordered notice to be issued to the OP and the OP on service of notice filed its version. So far as the fact of breaking open of the doors of the first and second floors and also the damage to the Articles is concerned, the OP has stated that it is for the complainant to prove the same. The complaint was thus resisted by the OP. The District Forum allowed the complaint vide its order dated 14.02.2007 as under:
"The Opposite Party-Insurance company shall pay Rs.8,60,000/- to the insured complainant company alongwith interest at 09% per annum right from the date of the claim petition, till payment. In addition to the same, the Opposite Party-insurance company shall pay a sum of Rs.5,000/- to the complainant company towards cost and compensation. The Opposite Party insurance company is granted 30 days time from this date to comply this order and to report compliance to this Forum."
3. Aggrieved by the order of the District Forum, the insurance company preferred an appeal before the State Commission which dismissed the appeal vide its order dated 16.01.2008.
4. Hence, the revision petition.
5. The notice was published in pursuance of order dated 24.05.2016 for service upon the respondent and on 16.08.2016 this Commission observed that in spite of publication, none was present for the respondent. Though the case was adjourned for hearing many times, but respondent never appeared. Hence, the respondent was proceeded ex parte vide order dated 02.12.2016 and the learned counsel for the petitioner was heard.
6. The learned counsel for the petitioner stated that the insured factory was under lock out since 2002 and the respondent company had hired security agency for the security of the whole premises even from prior to the inception of the present insurance policy. The insurance was valid from 1.10.2004 to 30.9.2005. Though in the complaint it is stated that the Police was informed on 21.12.2004 but the FIR No.20/05 is dated 18.1.2005. Thus, the FIR has been lodged after a lapse of about 27 days. A perusal of the FIR shows that Occurrence of Offence Day is mentioned as 01.08.2003 to 18.12.2004. Thus, it is not clear when the actual offence took place. The FIR covers the period much beyond the period of validity of the insurance policy. Moreover, it is clearly stated in the surveyor's report that there is no evidence of housebreaking and burglary within the meaning of "Burglary" and only the locks of internal doors have been found broken but the main gate of the factory has been found in-tact and sealed. Thus, this may be a handy work of the employees of the factory or the security staff hired. The burglary has to be from the outside, but in the present case, there is no evidence that somebody has entered after breaking the outer boundary. There is a specific exclusion clause in the policy that the insurance company will not be liable if loss or damage where any inmate or member of the insured's household or of his business staff or any other person lawfully in the premises in the business is concerned in the actual theft or damage to any of the article or premises or where such loss or damage have been expedited or any way assisted or brought about by any such person or persons. In the FIR, the complaint has been registered basically against the security agency and their staff. This itself proves that exclusion clause mentioned in the policy would become applicable. Both the fora below have not correctly appreciated the terms and conditions mentioned in the policy and the inherent meaning of 'Burglary' and have wrongly allowed the claim against the insurance company.
7. We have carefully considered the arguments advanced by the learned counsel for the petitioner and have gone through the material on record. The insurance policy was valid from 01.10.2004 to 30.09.2005. As per the FIR and the complaint itself, it is brought out that the representative of the respondent for the first time detected the theft of three computers on 17.12.2004 when the internal door of one of the rooms was found broken. The respondent did not complete the whole check-up of items on that date itself and the respondent found some other items missing on the next day of his visit. The FIR shows that the occurrence of theft may have occurred from 01.08.2003 to 18.12.2004. Much of this period falls outside the period of validity of the insurance policy. The sum assured of Rs.27,50,000/- was for stock in trade, Rs.2,50,000/- for Lab Equipment, Rs.5,35,804/- for moulds and punches and Rs.47,984/- for Air conditioners. Thus, the total sum assured comes to Rs.35,83,788/-. The complainant has claimed Rs.8,60,000/- towards the loss of goods caused due to burglary alongwith interest @ 18% p.a. from 17.12.2004 till the payment is made together with cost and damages. However, no details of costing has been given either in the FIR or in the complaint filed. Obviously, the insurance company is not liable to pay anything for the theft occurred before the inception of the current policy. If the respondent treated the first case of missing of three computers as a case of burglary, he should have verified all the stocks to see what loss has the respondent suffered due to burglary. But the same was not done, rather the representative of the respondent found some other items missing on the next day. If this was the case of burglary, the FIR should have been lodged on 17.12.2004 itself. However, even if we take the complainant's words as true that the police was informed on 21.12.2004, the records show that the FIR has been registered only on 18.01.2005. Under these circumstances, we find ourselves unable to agree to the findings of the State Commission.
8. From the sequence of events, however, it comes out that some items were found stolen from one of the rooms of which the doors were found open by breaking the lock on 17.12.2004. This is the sign of burglary. At the most, we can treat this event of 17.12.2004 as burglary and the missing items found on 17.12.2004 as items affected by burglary. As no costing of separate items has been given either in the policy or in the FIR or in the complaint, we take the value of three old computers to be Rs.1 lakh only. We are unable to treat further missing items found on future dates as affected by burglary.
9. From the above analysis, we find that there is no justification for allowing the whole claim of Rs.8,60,000/-. We feel that in the circumstances, only claim of Rs.1,00,000/- can be allowed under the policy. Accordingly, the revision petition is partly allowed and the petitioner insurance company is directed to pay Rs.1,00,000/-(Rupees One Lakh only) to the complainant alongwith interest @ 8% p.a. from the date of the order of District Forum i.e. 14.02.2007 till actual realization. The petitioner insurance company is directed to comply with this order within a period of 30 days, failing which, an enhanced interest of 10% p.a. shall be payable by the insurance company from the date of this order till actual payment. Orders of the Fora below stand modified in terms of this order. No order as to costs.
...................... DR. B.C. GUPTA PRESIDING MEMBER ...................... PREM NARAIN MEMBER