National Consumer Disputes Redressal
New India Assurance Co. Ltd. vs Satish Kumar on 16 September, 2010
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NATIONAL CONSUMER
DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION
PETITION NO. 1105 OF 2010
(Against the order dated 08.12.09
in First Appeal No.
225/2009 of the
Himachal Pradesh State Consumer Disputes Redressal
Commission, Shimla)
New India Assurance Co.
Ltd.
Branch Office
Mehatpur
Tehsil and District Una
Himachal Pradesh
........ Petitioner (s)
Vs.
1. Shri Satish Kumar
Proprietor of M/s Shiva
Traders
Bangana, Tehsil Bangana
District Una, Himachal Pradesh
2. Shri Satish Kumar
S/o Shri Gauri Chand
R/o Bangana, District Una
Himachal Pradesh
3. The Manager
The Central Bank of India
Bangana, Tehsil Bangana
District Una, Himachal
Pradesh
........ Respondent(s)
BEFORE:
HONBLE MR. JUSTICE R.C. JAIN,
PRESIDING MEMBER
HONBLE
MR. SURESH CHANDRA, MEMBER
For the Petitioner : Mr. P.K.
Seth, Advocate
For the Respondents : In person
For the Respondent
No.3 : Mr. Rakesh Kumar, Advocate
Pronounced on : 16th September, 2010
ORDER
PER MR. SURESH CHANDRA, MEMBER The complainant, Respondent No.1 herein had obtained a shopkeeper insurance policy on 26.5.2006 for a sum of Rs.20,00,000/- for the period from 26.05.2006 to 25.05.2007 covering the risk of stocks of hardware, paints, cement, tiles, sariya etc. lying in the shop premises. On 22.09.2006, when the shop was opened, it was noticed that 7.5 ton steel of 12 mm, 10 mm and 8 mm had been stolen by breaking the lock of outer gate and the locks fixed by chaining the bundles of steel valuing Rs.1,90,000/-. The matter was reported to the police, Respondent No.3 Bank and the petitioner Insurance Co. The petitioner Insurance Company deputed a surveyor to assess the loss. However, the petitioner Insurance Company repudiated the claim. The complainants, Respondent Nos. 1 & 2 herein thereafter filed their complaint before the District Consumer Forum against the petitioner Company / OP-1. The Respondent No.3 Bank was included as OP-2 in the complaint before the District Consumer Forum. The petitioner Insurance Co. contested the complaint before the District Forum submitting that soon after receipt of intimation regarding the alleged theft from the respondents, they had deputed Mr. Ranjan Kumar Sony to carry out the investigation who reported that the alleged stolen goods were lying at a distance of about 20-25 metres from the insured shop in open area on the other side of the road and as such the loss was not covered under the policy in question. They had also deputed Mr. Vikas Sikka, Surveyor and Loss Assessor to carry out the survey and assess the loss who also in his report mentioned that the stolen goods were lying about 20-25 metres away from the shop at the road side in open area, although in their report, they assessed the loss at Rs.1,77,208.56/-. After the examination and scrutiny of the aforesaid reports and the relevant documents, including the terms and conditions of the policy in question, the petitioner Insurance Company repudiated the claim of the complainants since the same was not covered by the insurance policy and hence, the complaint is liable to be dismissed.
2. Vide its order dated 26.05.2009, the District Forum dismissed the complaint holding that it is evident from the record that the stolen stocks were lying in open space on the other side of the road premises as such the same is not covered under the insurance policy. Aggrieved by this order of the District Forum, the complainants filed an appeal before the Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla (for short, the State Commission). The State Commission vide its impugned order dated 08.12.2009 set aside the order dated 22.05.2009 passed by the District Forum and allowed the appeal of the complainants/appellants. It was held by the State Commission that the appellants are entitled to be indemnified by Respondent No.1, petitioner Insurance Company herein, to the extent of Rs.1,77,208.56 along with interest on the amount @ 9% p.a. from the date of filing of the complaint, i.e, 29.05.2007 till the date of payment/deposit whichever is earlier besides Rs.10,000/- on account of harassment and mental torture caused to the Appellant No.2 as well as cost of litigation quantified at Rs.25,000/- of the appeal as well as the proceedings before the District Forum. While setting aside the order dated 22.05.2009 of the District Forum, Una in complaint case no.81 of 2007 by its impugned order, the State Commission, interalia held as under:-
16. We are of the view that primarily it was for respondent No.1 to have placed material on record by way of proposal form as well as other documents to show as to where the premises were exactly located and whether there was any compound attached to those having been fenced with barbed wire with a gate duly locked as also whether the stock part of which was stolen and is subject matter of this case, had in fact been chained/locked by the appellants. Respondent No.1 has miserably failed to place anything on record. We are of the view that as a Public Sector Undertaking, it cannot be allowed to shun its responsibility by dealing with the matter in a cursory manner when insurance was undertaken. And as already observed, none of the decisions relied upon by Mr. Sharma, learned counsel for respondent No.1 advance the case of his client in any manner on the facts of this case, as also on the basis of the view that we have taken.
17. Great emphasis was laid by Mr. Sharma for upholding the order of the District Forum below on the basis of FIR, Annexure R.1; Report of Er.
Ranjan Kumar Soni, Surveyor & Loss Assessor, Annexure R.4; Annexure R.7 the theft Investigation report by the same Surveyor; and Annexure R.8, assessment made by Shri Vikas Sikka, Surveyor & Loss Assessor. This submission so far based on Annexures R.1, R.4 and R.7 cannot be accepted in the light of what has been held in the preceding paras of this order, as such the same is rejected.
3. Aggrieved by the aforesaid order of the State Commission, the Opposite Party No.1, petitioner Insurance Company herein has filed the present revision petition under section 21 (b) of the Consumer Protection Act.
4. We have heard Mr. P.K. Seth, learned counsel for the petitioner and the respondent/complainant who appeared in person as well as Mr. Rakesh Kumar, the authorized representative of Respondent No.3 Bank.
5. Learned counsel for the petitioner Insurance Company has challenged the impugned order mainly on the ground that the goods in question, which were stolen, were lying in the open outside the shop premises and hence cannot be considered as covered under the policy. It was his contention that the State Commission failed to appreciate the true scope of the contract of insurance while holding that the petitioner Insurance Company should have verified the fact regarding the location and nature of shop as well as its size and whether there was any attached compound to it before undertaking the insurance in this case. He submitted that the terms and conditions of the policy in question, which formed the basis of the contract between the two parties specifically mentions that the coverage is in respect of the goods of the respondent insured lying in the shop premises. The open area outside this shop premises, therefore, cannot be considered as covered under the policy. He submitted that this aspect is not only established by the two reports of the investigator as well as the surveyors but by his own admission of the complainant in the FIR filed by him in which it has been specifically mentioned that since there was no space for keeping the sariya in the shop, it was stored at the corner of the main road in the open area. In view of this, undisputed facts admitted factual position the impugned order of the State Commission cannot be sustained in the eyes of law and hence this has to be set aside.
6. We have given our thoughtful consideration to the submissions made by the parties before us and also perused the record of the case. The short point which arises for our consideration in the present revision petition is as to whether the stolen goods in question were in the shop premises covered by the insurance policy or not. Burglary / house breaking is fully covered by the policy in question. However, Sl No.2 of the description of covers/perils in the policy reads as under:-
Burglary, Housebreaking : All contents in the shop premises stated at the above address.
7. It is clear from the aforesaid specific condition of the policy that the coverage to the goods of the respondent insured was in respect of the goods lying in the shop premises. It is not in dispute that the goods in question, which were stolen on the date of the incidence were lying in the open area at the corner of the main road and were not kept in the shop for want of adequate space therein. Whatever be the reasons for storing the goods in the open area, once it is established that the same were not in the shop premises covered by the policy, the State Commission erred in holding that the stolen goods would be covered by the policy in question. Besides, the specific terms and conditions of the policy in question which rightly provide the basis of consideration of the claims emitting from this policy. We also find that the FIR filed by the complainant himself confirms that the goods in question were lying outside the covered premises. It does not make any difference as to whether the policy in question was obtained by Respondent No.3 Bank on behalf of the complainant or the complainant directly got the policy and hence that issue has no relevance in deciding the present petition.
In view of the aforesaid undisputed factual position, we are convinced that the impugned order of the State Commission cannot be sustained in the eye of law. The same is accordingly set aside and the revision petition stands allowed. In the facts and circumstances of the case, there shall be no order as to costs.
..........................
(R.C. JAIN, J) PRESIDING MEMBER .......................
(SURESH CHANDRA) MEMBER SS/