State Consumer Disputes Redressal Commission
M/S Sri Balaji Jewellers vs Bajaj Allianz, Rep. By Its Manager on 8 November, 2012
BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD F.A.No.1154 OF 2010 AGAINST C.C.NO.35 OF 2009 DISTRICT FORUM-II HYDERABAD Between: M/s Sri Balaji Jewellers Rep. by its Partner, Sri Praveen Kumar Shop No.4-1-968/1 Opp. To Santosh & Sapna Theaters Abids Road, Hyderabad. Appellant/opposite party A N D Bajaj Allianz, rep. by its Manager General Insurance Co.Ltd., Regional Office: Far East Plaza 3-6-111/8, Street No.18, Main Road Himayathnagar, Hyderabad Respondent/opposite party Counsel for the Appellant M/s D.V.Srinivasa Rao Counsel for the Respondent M/s N.Mohan Krishna QUORUM: SRI R.LAKSHMINARASIMHA RAO, HONBLE MEMBER
AND SRI THOTA ASHOK KUMAR, HONBLE MEMBER THURSDAY THE EIGTH DAY OF NOVEMBER TWO THOUSAND TWELVE Oral Order (As per Sri R.Lakshminarasimha Rao, Honble Member) ***
1. The unsuccessful complainant is the appellant. The complainant filed complaint seeking direction to the respondent-insurance company for indemnification to the extent of `9,50,000/- with interest and costs.
2. The appellant, a partnership-firm engaged in the business of gold, diamond and studded jewellery, obtained insurance policy bearing number 1801-4099-0000020 covering risk on the entire property. The appellant-firm lodged claim with the respondent-insurance company on the premise of loss of plastic bag containing gold ornaments weighing 950 gms worth of `9,50,000/- on being caused theft, by some unknown offenders and that on complaint lodged by the appellant firm, the police, Abids, Hyderabad, registered a case in crime No. 273 of 2007 and the appellant got issued notice to the respondent on 6-11-2008 and filed the complaint.
3. The claim is resisted by the respondent/insurance company on the premise that the appellant is not a consumer and that the insurance policy was issued for the period from 2-12-2006 to 1-12-2007 covering risk on the property placed in window display during business hours and box was not kept in the window display when it was lost.
4. It is contended that the appellant lodged claim with the police on 18-10-2010 and the theft of the property took place on 8-10-2007 and no complaint was lodged for a period of 10 days and that the cause of loss is not a peril which is not covered by the terms and conditions of the insurance policy.
5. The proprietor of the appellant-firm filed his affidavit and the documents, ExsA1 to A14 and on behalf of the respondent/insurance company, its Senior Legal Executive filed his affidavit and the documents Ex. B1 to B5.
6. The District Forum dismissed the complaint on the premise that the loss of property occurred when the gold was kept in window display and it is not covered by the terms of insurance policy as also the appellant violated condition of insurance policy by not lodging the complaint with the police and not passing on intimation immediately to the respondent.
7. The complainant firm has filed appeal contending that the District Forum failed to consider that the proprietor of the appellant firm filed affidavit before the District Forum and lodged complaint with the police concerned and that the respondent insurance company has not filed the survivors report.
8. At the time of hearing, the counsel for the appellant submitted that certain documents filed before the District Forum could not be marked due oversight. The documents are called for from the District Forum and marked as Ex. A15 to A25.
9. The learned counsel for the appellant-firm filed written arguments.
10. The point for consideration is whether the order of the District Forum suffers from mis-appreciation of facts or law ?
11. The appellant-firm obtained insurance policy from the respondent-insurance company far indemnification of loss in case it sustained on account of house breaking , burglary etc. The property placed in window display if lost by an act of burglary or housebreaking is covered where by the respondent- insurance company is liable to indemnify the appellant subject to that terms and conditions of the insurance policy.
12. The relevant terms and conditions of the insurance policy read as under :
Section I Loss or damage to property Insured under Items (a) to (d) under Section I of the Schedule whilst contained in the premises where the Insureds business is carried on or at other premises where the Insured property is deposited as specified in the schedule, by FIRE EXPLOSION, LIGHTING, RIOT AND STRIKE, MALICIOUS DAMAGE, BURGLARY, HOUSE-BREAKINTG, ROBBERY AND HOLDUP RISKS ONLY.
Section II Loss or damage to property Insured under items (a) and (b) Section II of the schedule and carried/conveyed outside the specified premises for the purpose of Insureds business by FIRE, EXPLOSION, LIGHTING, RIOT AND STRIKE, MALICIOUS DAMAGE, BURGLARY, HOUSE-BREAKING, ROBBERY AND HOLDUP RISKS ONLY.
Section III Loss or damage to the property insured whilst in transit as specified in terms(a),
(b) and (c) of Section III of the Schedule within the geographical area specified in the schedule by any cause whatsoever except as hereinafter provided.
Section IV Loss or damage to office furniture, fixtures fittings which are the property of the insured being of the insured being used connection with the Insureds business whilst contained in the premises where the insureds business is carried on by FIRE, EXPLOSION, LIGHTING, RIOT AND STRIKE, MALICIOUS DAMAGE, BURGLARY, HOUSE-BREAKING, ROBBERY AND HOLDUP RISKS ONLY.
13. The loss or damage to the prosperity insured is excluded in the following circumstances:
1.
Loss and/or damage to the property Insured which may be sustained whilst the same is being actually worked upon or from any process of cleaning, repairing or restoring and directly resulting therefrom.
2.
(a) Property missing at stock taking in respect of which no claim has been previously notified unless the loss be proved by the insured to be due to a peril covered by the policy.
(b) Loss of and/or damage to property insured due to mysterious circumstances/disappearance or unexplained reasons.
3. Loss of and/or damage to the property Insured whilst the same is being worn or used by the Insured or ny director or partner of the insured or their spouses, member of their families , relatives of friends or whilst in their custody for this purpose.
4. Loss of and /or to the property hereby Insured whilst any public Exhibition whether promoted or financially assisted by any Public Authority or by Trade Association or otherwise.
5. Theft or disappearance of property hereby Insured from road vehicles of every description owned hired by or under the control of the Insured and/or their partners, servants, agents or representatives where such vehicles are left unoccupied.
6. Loss or damage caused by or arising from depreciation gradual deterioration, wear and tear, moth, vermin and mildew.
7. Loss or damage to any items of glass crockery, porcelain, chinaware and other articles of brittle or fragile nature unless such loss or damage arises from accident to vessel, train vehicle or aircraft by which such property is conveyed.
8. Loss or damage occasioned by theft or dishonesty or any attempt threat commited by or where such loss or damage has been expedited or any way sustained or brought about by
a) any of the insureds family members
b) any servant or traveler or messenger in the exclusive employment of the insured
c) any customer or broker or brokers customer or angadias, cutter or goldsmith in respect of the property hereby Insured entrusted to them by the insured, his or their servants or agents.
9 (a) Loss or damage occurring whilst in transit in India or ultimate destinations outside the Geographical area stated in the Schedule.
(b) Loss or damage to property hereby Insured intended for export from the time such property leaves the insureds premises in the ordinary course of processing for transit and during transit for delivery to customs or carrier or post office.
(c) Loss or damage to property imported whilst in transit from the time delivery is taken from the post office or the carrier or customs as the case may be until delivered at the insureds premises.
10. Loss or damage arising from detention, confiscation, nationalization, requisition, occupation or willful destruction by or under the order of the Government or any public or local authority.
11. Any loss following use of the key to the safe or in built locker or steel cupboard as applicable or any duplicate thereof belonging to the insured or person in whose custody the insured property is, unless such key has been obtained by threat or by violence.
12. Loss or damage to property insured whilst in window display at night or whilst kept out of safes after business hours.
13. Any consequential loss or damage including delay.
14. a) Loss or damage occasioned by or through or in consequence, directly or indirectly of any of the following occurrences namely earthquake, volcanic eruption, cyclone, typhoon, hurricane, tornado, flood, storm, tempest or other similar convulsion of nature unless specifically covered by payment of additional premium.
b) Subterranean fire or atmospheric disturbances.
c) War, invasion, acts of foreign enemy, hostilities (whether war be declared or not), civil war, rebellion, revolution, insurrection, military or usurped power, martial law.
14. Thus, instances where the respondent is liable to indemnify the appellant-firm included Burglary which in defined as burglary mean theft involving entry to or exit from the premises stated therein by forcible and violent means or following assault or violence or threat thereof to the insured or to his employees or to the members of his family.
15. The proprietor of the appellant firm lodged complaint with the police Abids, Hyderabad stating that This is to inform you that missing the incident happened around 11.30 A.M. on 8-10-2007 I removed the plastic box containing plain gold and studded gold ornaments and kept it on my table. After a few minutes I was shocked to see the box missing from the counter table. On that day only two outsiders one Vijay working with a wholesaler of Swaroop Jewelers and another was a dumb and deaf person who came in to ask for help and both of them left the shop before me. Another businessman Manish of Jaipur came to the shop and left. Apart from them my employees namely Srikanth Reddy, Srinivas and Raj were available in the shop at the time of missing of jewelry box in the showroom.
16. The appellant submitted Claim form Burglary which is silent as to whether burglary was committed at the premises of the appellant firm. In the column C dealing with as to how the entrance was effected is kept blank. The statement in the claim form that the premises was broken opened at 10.45 A.M. 8-10-2007 is contrary to the contents of the FIR. In the FIR dated 18-10-2007 the appellant has stated that at 11.30 A.M. on 8-10-2007 the plastic box containing plain gold and studded gold ornaments were kept on the table whereas in the claim form it is stated that the premises was break opened at 10.45 A.M. on 8-10-2007, when the box was kept on the table at 11.30 A.M. on 8.10.2007, the question or breaking open of the locks of the premises at 10.45 A.M., as mentioned in the claim form does not arise.
17. A panchanama was prepared by the police after receiving he complaint from the appellant firm. The FIR and Panchanama if read together, would disclosed that no burglary or housebreaking taken place at the premises of the appellant firm. The learned counsel for the appellant has submitted that as per the terms of the insurance policy, theft of jewellery is covered and the appellant orally informed the police on 8-10-2007 and lodged complaint on 18-10-2007 and the police could detect the offenders and that the respondent insurance company has not disputed the FIR.
18. The claim was repudiated on the premises that the complaint lodged by the appellant with the police , the survivors report proved that no burglary was committed in the premises of the appellant firm and the theft of the armaments is not a peril covered by the insurance policy.
19. The notice dated 6-11-2008 got issued by the appellant firm would support the ground for repudiation of the claim that theft and not burglary was committed and theft is not covered by the terms of the policy. It is mentioned in the notice that :
While so on 8.10.2007 around 11.30 A.M. unknown persons committed theft of the plastic box containing plain and studded gold ornaments weighing about 9.50 grams valued at Rs.9,50,000/- (Rupees Nine Lakhs Fifty Thousand Only) accordingly a complaint has been lodged with Police at Abids and the policy registered the same in Cr.No.273/07 for the offence U/S.380 I.P.C.
20. The appellant has not satisfied the terms of the insurance policy that the incident said to have been occurred on 8-10-2007 falls within the definition of housebreaking or burglary or attempted thereat and that immediate intimation was passed on to the respondent-insurance company. The appellant, on terms of the Insurance Policy is obligated to immediately inform the respondent so as to enable it to investigate. The appellant has not given opportunity by not intimating the respondent to look into the matter by conducting enquiry as to know about the cause of theft of the gold.
21. The appellant-firm lodged complaint with the police 10 days after the incident. The appellant informed the respondent-insurance company about the theft of the property 10 days after the occurrence of the incident. The inordinate delay on the part of the appellant in lodging compliant with the police would disentitle the appellant to claim the amount from the respondent-insurance company as the delay would deprive the insurance company to investigate into the incident. The Honble National Commission in New India Assurance Company Ltd vs Trilochan Jane in F.A.No. 325 of 2009 decided on 9.12.2009 held that the delay of 9 days from the date of theft in lodging complaint with the police by the insured would disentitle the insured from claiming the amount under the insurance policy as it is a violation of the terms of the insurance policy. The National Commission held that :
In the case of theft where no bodily injury has been caused to the insured, it is incumbent upon the respondent to inform the Police about the theft immediately, say within 24 hours, otherwise, valuable time would be lost in tracing the vehicle. Similarly, the insurer should also be informed within a day or two so that the insurer can verify as to whether any theft had taken place and also to take immediate steps to get the vehicle traced. The insurer can coordinate and cooperate with the Police to trace the car. Delay in reporting to the insurer about the theft of the car for 9 days, would be a violation of condition of the Policy as it deprives the insures of a valuable right to investigate as to the commission of the theft and to trace/help in tracing the vehicle.
22. For the foregoing reasons, the appellant-firm is not entitled to claim the amount from the respondent-insurance company and the respondent-insurance company is held to have not rendered any deficient service in repudiating the claim. The appeal is liable to be dismissed.
23. In the result, the appeal is dismissed confirming the order of the District Forum. The parties shall bear their own costs.
MEMBER MEMBER Dt.08.11.2012 KMK*