State Consumer Disputes Redressal Commission
Reliance Gen. Insu. Co. Ltd. vs V.Automat & Instruments Pvt. Ltd. on 21 December, 2020
IN THE STATE COMMISSION : DELHI
(Constituted under Section 9 of the Consumer Protection Act, 1986)
Date of Arguments :16.12.2020
Date of Decision : 21.12.2020
FIRST APPEAL NO.706/2011
In the matter of:
Reliance General Insurance Co. Ltd.,
60 Okhla Industrial Area,
Phase-III, New Delhi. ........ Appellant
Versus
M/s. V. Automat & Instruments Pvt. Ltd.,
F-61, Okhla Industrial Area Phase-I,
New Delhi-110020. ........Respondent
CORAM
Hon'ble Sh. O. P. Gupta, Member (Judicial)
1. Whether reporters of local newspaper be allowed to see the judgment? Yes/No
2. To be referred to the reporter or not? Yes/No
Present : Mr. Anuj Chauhan, counsel for appellant.
None for respondent.
Shri O.P. Gupta, Member (Judicial)
JUDGEMENT
1. The present appeal assails order dated 05.08.11 passed b y District Forum -VI allowing CC no.29/09 and directing the OP/ appellant herein to pay Rs.6,09,000/ - for with interest @9% p.a. from the date of claim and Rs.50,000/ - inconvenience and harassment.
2. Perusal of the impugned order reveals that the same is cryptic. It does deal with the contents of complaint in detail, defence of the OP. It simply proceeded on the line that OPs defence was struck off as no evidence was filed. But the W S of Op was on record and 1 same should have been considered. The other folly in the impugned order is that plea of OP that there was delay in informing the OP has not been dealt wit h.
3. In appeal the grievance of the appellant is that intimation to it was provided after 13 days of happening of event. Even then it appointed surveyor who opi ned that there was no sign of forcible entry in the premises. Thereafter the claim was liable to b e repudiated. The District Forum did not consider report of surveyor. It did not deal with delay of 13 days in intimating the insurance.
4. The respondent has filed reply stating that it sent mail dated 05.11.07 to appellant and informed that theft took place in its factory in the night of 03.11.907. The burglary was eviden t from report under Section 173 Cr.PC submitted by police which was accepted by ld. M.M. New Delhi.
5. I have gone through the material on record and heard arguments advanced by counse l for the appellant. I am not much impressed by the plea of delay in intimating the insurance company. Copy of mail dated 05.11.07 is available on the file of District Forum. Thus the contention of appellant that there was delay of 13 days is not tenable.
6. Anyhow there are two important things. One is that initially the complainant/ respondent herein inform ed the police on 04.11.07 that one number level transmitter head was los t. Subsequently the complainant wrote another letter to the police on 05.11.07 in 2 which police was requested to change quantity of level transmitte r head from 1 to 17 which was noticed during rechecking of actual quantity. The change is substantia l. It could have been ignored if it was a small change. But multiplying the loss by 2 7 times cannot be lost sight of. Complainant cannot be heard to say that he found difference in rechecking of actual quantity. It is not the case of the complainant that complainant checked the quantit y only after giving the first report on 04.11.07. Rath er its case is that on rechecking, the difference was found. It means that checking had already been done before 04.11.07. It was the second checking which multiplied the quantity of stock los t. Such a conduct on the part of complainant shows malafide on its part.
7. The other things is that initially complainant lodged FIR for theft.
In email dated 05.11.07 to insurance company copy of which is Exbt. CW ¼ and is available at page -4 of the bunch of evidence of complainant on the file of District Forum shows that complainant used the word theft. That is why FIR was registered for theft simpliciter under Section 380 IPC. Later on the complainant got section 457 IPC added in untrace report. Mere mentioning of section 457 in report under Section 173 Cr.PC is of no consequences. Police was closing the case by finding that it was not possible to trace the culprit. It was not concerned with the nature of offence committed. In any event the opinion of the police is not the final word.
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8. The insurance policy shows that it was for burglary and not theft. Copy of the insurance policy is available at page -41 of the bunch of evidence by affidavit filed by the complainant on the file of District Forum.
9. The question regarding difference in theft and burglary came up for decision before NC in Vishal Chandra vs. Royal Sundram III (2016) CPJ 359. It was held that in burglary entry by use of force is must.
10. In the instant case the defence of the appellant is that intimation to it was given after 17 days. The surveyor visited the pre mises on 21.11.07 and did not find any damage in the door, which had been reportedly got repaired, prior to their visit. The survey was conducted after 17 days of occurrence of loss and it was not possible to verify after 17 days that forcible entry had b een made in the premises by breaking upon the door.
11. It is true that one would prefer to get the door repaired o r replaced as early as possible but nevertheless he must show the damaged door to the police and the surveyor before getting the same repaired or replaced. There is no reason why the respondent did not do so in this case.
12. It is useful to mention here that as per Mr. Ranjit Singh Gua rd who was on duty at the time of incident , when he went to have a glass of water, he saw two un identified persons aged 11 -12 years near the window. On noticing the same he went to that si de and observed that door was open and some material had been stolen. 4 He referred to the door being open and not door being broken. Breaking of door would have cause d noise and would have taken considerable time. That would have cause d alarm to the security guard. If the security guard did not hear any such noise, it means that the door was left open, may be by mistake.
13. In view of the above discussion I find that it is case of theft and not burglary. That be ing so the claim was not covered b y insurance policy. Consequently the impugned order cannot be upheld.
14. Appeal is accepted, impugned order is set aside and complaint is dismissed.
15. Copy of the order be sent to both the parties free of cost.
16. One copy of the order be sent to District Forum for information.
17. File be consigned to record room.
(O.P. GUPTA) MEMBER (JUDICIAL) nk 5