State Consumer Disputes Redressal Commission
Praveen Kumar Gupta vs The Oriental Insurance Co. Ltd. on 9 April, 2009
IN THE STATE COMMISSION: DELHI IN THE STATE COMMISSION: DELHI (Constituted under section 9 clause (b) of the Consumer Protection Act, 1986) Date of decision: 09.04.2009 Complaint Case No.35/2003 Sh. Praveen Kumar Gupta . Complainant. Sole Proprietor of M/s. K. M. Cables, 4A/17, Gautam Street, New Vishwas Nagar, Shahdara, Delhi. Versus The Oriental Insurance Co. Ltd. Opposite Party Branch Office No.12, A-159, Vikas Marg, Shakarpur Delhi. CORAM: Justice J.D.Kapoor President Ms. Rumnita Mittal Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice J.D.Kapoor (Oral)
1. On the allegation of having wrongfully repudiated the insurance claim of the complainant, the complainant has through this complaint filed under section 12 of Consumer Protection Act, 1986 has sought following relief:
(i) Cost of copper stolen (3718 KgsX150.80) Rs.5,60,780/-
(ii) Interest accrued during the period of Rs.2,57,959/-
Claim @24% per annum.
(iii) Damages Rs.31,000/-
(iv) Cost incurred in filing the present Rs.21,000/-
Complaint Total Loss Rs.8,70,739/-
2. Relevant facts averred by the complainant in brief are that the complainant insured its stock against risk including burglary vide policy cover note No.921053 commencing from 02.11.2000 to 01.11.2001. The total sum assured was Rs.20 lacs. On 28.02.2001 the complainant came to factory and it was found that somebody has broken off the locks of the main gate and noticed that the spools of copper wire were missing and the goods of the factory were lying scattered. Immediately the complainant called the PCV van on the spot who noticed about the theft/burglary committed in the factory premises of the complainant and thereafter an FIR No.33/2001 dated 28.02.2001 under section 457/380 IPC was registered by PS Vivek Vihar, Delhi. The complainant after registering the FIR prepared the details of the goods which were missing in the theft and it was found that 3718.780 kg. copper was missing and the details of the stolen goods were submitting to the police.
3. The complainant lodged claim with the OP vide letter dated 28.02.2001. The OP appointed M/s. Soni & Company to assess the loss. The complainant submitted all the documents as were required by the assessor and there was a loss of Rs.5,60,780/- which was the cost of the copper weighing about 3718.700 kg. which was stolen from the factory of the complainant. The assessor also demanded the sales bill books and purchaser bills and the same was given to them for making assessment. The assessor finally returned the books to the complainant on 30.03.2001. The report was submitted to the OP by the Assessor and Surveyor OP and found the actual loss of the complainant to the aforesaid extent. The information about the burglary was also given to Central Excise Office vide letter dated 02.03.2001 and Manager, Jain Cooperative Bank Limited vide letter dated 28.02.2001.
4. The complainant thereafter visited the OP to have the claim from the OP but the OP inspite of the fact that the amount has been assessed by their surveyor as claimed by the complainant failed to make the payment and settle the claim. The complainant repeatedly requested the OP on phones as well as making personal visits. The complainant also approached higher authorities but no reply was given to the complainant. The police authorities also closed the file on 28.04.2001 wherein the police could not recover the stolen gods and could not apprehend the culprits. The closing report of the police was given to the complainant on 28.04.2001.
5. The surveyor investigated the matter and submitted the report to the OP. Thereafter the OP also deputed its own investigator and the investigator was also satisfied by the complainant about the theft/burglary taken place in the factory premises of the complainant and the investigator of the OP was interested to have undue favour from the complainant but the complainant did not oblige him. Thereafter repeated reminders were sent to the OP to settle the claim as already the matter was over delayed and on account of the loss the production of the complainant was suffering. Finally a letter dated 09.09.2002 was received by the OP wherein the complainant requested to make the payment of the claim as the funds were needed in the business. Inspite of the fact that the complainant rushed from pillar to post the OP) did not make the payment of the claim and finally sent a letter dated 08.01.2003 closing the claim on false grounds.
6. While justifying the rejection of the claim the OP has come up with the version that a claim was allegedly report by the complainant on 29.02.2001 informing the OP about the theft at their factory premises wherein the complainant also submitted a copy of the FIR lodged by Sh. Praveen Kumar on 28.02.2001 and registered by the police vide FIR No.33/2001 dated 28.02.2001 at 12.45 hours. The statement of Sh. Praveen Kumar as reproduced in the FIR stated as under stated that I live at the aforementioned address own a factory in the name of M/s. K.M. Cables at Gautam Gali, Vishwas Nagar. Yesterday on 26.02.2001 I left after locking my factory. Today dated 28.02.2001 at about 10 AM when I reached my factory, I fond that the lock of the main gate on the side of road of the factory was broken. When I checked inside the factory, I found that bundles of copper wire were found missing That after receipt of aforesaid papers from M/s. K.M. Cables, a surveyor M/s. G.S. Soni & Co. were deputed by the office of the OP on the same day to survey the loss who visited the complainant factory, surveyed the same and desired to have some additional information and issued a letter dated 01.03.2001 which was sent to surveyor by the complainant vide their letter dated 09.03.2001 and 23.06.2001. The surveyor submitted their report dated 28.06.2001 to the OP office on 29.06.2001. The OP after going through the papers submitted by the aforesaid surveyor and the statement of complainant given to the police and to surveyor found various inconsistencies due to which the OP was forced to depute another investigator to investigate the details of the same and submit its report.
7. M/s. G.B. Mathur & Co., the investigator deputed by the OP submitted their report in details giving information of the various inconsistencies such as :
(i) While loding the report with the police Sh. Praveen Kumar that he came to factory at 10AM. In certificate forwarded with letter dated 17.07.2002, Sh.
Gupta has not mentioned the time or arrival at the factory.
(ii) The time recorded in the attendance register by four workers (out of six) present in the factory on 28.02.2001, is 9.00 AM. One of the worker Sripati Suman in his statement dated 01.03.2001 to the surveyor has stated that he came for duty on 28.02.2001 he saw all the workers and the owner were standing outside.
(iii) The entry of the factory was said to have taken place by breaking open of the lock and the hook of the latch of the wooden door on the main roadside. It is report that the broken lock on the piece of the hook was found at the site on 28.02.2001 but was never shown to the OPs.
(iv) The crime branch had taken photographs of the entry point. We were provided by the insured a copy of the four photographs, said to have been taken by police. On a close examination of the photographs it will be observed that there is no chipping mark of the wood on the doorframe. Even the area adjoining the gate inside the factory is seen. Heavy material is not seen in the photographs to suggest that it was placed to obstruct the opening of the door to its full breath.
(v) The insured had reported to the police that the lock on the main roadside door was broke. The broken lock was reported to be missing at the site. On being asked the make or size of the lock, the insured in his statement dated 28.02.2002 confirmed that he is not sure if the make of the lock was Harrison or Link. The insured did not appear to have the key of the lock. If the main roadside door was locked the insured should have the key with him and could produce for the confirmation of the make and size of the lock.
(vi) It has also been pointed out by the investigator that the factory falls under the norms of Polluting Industries and the same was ordered to be shut down by Supreme Court. In addition so many other observations were made by the investigator.
8. It was further averred that the OPs have carefully gone through all the papers, viz. Fir, final report of the police, claim form, Surveyor report, investigatory report and the entire record of statement made by the various persons and after going through the entire set of papers came to the conclusion that complainant is playing frond on the respondents just to recover other losses and also that the complainant failed to prove any forcible entry in their shop and as per Insurance Contract (Policy) Section II Burglary and House breaking the company will indemnify the insured in respect of loss or damage to the contents whilst contained in the insured premises by burglary and/or house breaking subject to special exclusion exceptions:
9. Similarly clause 12 of the General condition of the policy gives definition of burglary as under:
The term burglary and/or house breaking shall mean theft involving entry into or exist from the insured premises by forcible and violent entry means or theft following assault or violence or threat thereof to the insured or any employee of the insured or member of the insured family.
10. That the complainant has foisted a false claim of theft upon the respondents as is apparent appeared from the FIR lodged and other papers/information made available by the complainant himself.
11. As is apparent from the aforesaid rival facts and contentions of the parties. The main premises on which the claim was rejected was that the FIR lodged with the police did not disclose the commission of burglary and as such the claim was not covered under the policy. In order to controvert this plea of the OP, the complainant has relied upon the report of the surveyor made on 28.06.2001 which is to the following effect:
The culprits took away the cooper wire, stock of raw material kept in the insured premises by breaking the hook of the door, latch, which was locked. This door is on the main roadside of the premises. Even this door showed signs of force used to it on its middle as there are some dents and the Kundi of the door latch was also noticed in twisted condition. Thus there were clear signs of force used to gain entry into the premises In addition to the signs of forcible entry, which were clearly visible at the premises, we observe that there was a lot of empty space in the premises and there were signs that these spaces have been used for keeping stocks. Further in between the date of discovery of theft on 28.02.2001, and the day when everything was left intact, on the evening of 26.02.2001, there was weekly off day in the area and thus the premises was unmanned/closed for two nights and one full day i.e. about 36 hours and there was ample time during which theft could have been committed.
12.
Admittedly the FIR was registered by the police under section 457/380 IPC and not a simplicitor theft. We have taken a view that whenever any criminal offence takes place and a report is lodged with the police, the statutory authority to investigate into the offence of theft and other aspects as prescribed by Code of Criminal Procedure is police and no other authority including the investigator to be appointed by the insurance company. The police is the solitary authority to investigate into the offence and submit the report and the insurance company has no escape form acting upon the report of the police as the insurance company cannot run parallel investigation. However, if the insurance company is of the view that a false report has been lodged it may appoint investigator to investigate the report and place the material before the concerned investigating office so as to find out whether theft/burglary has taken place or some mischief has been played by the insured and it is on the basis of the opinion of the investigating officer whether offence has taken place or not that the insurance company will adjudicate the claim.
13. After perusing the aforesaid report of surveyor and investigator who assessed the matter so minutely and technically that they agree that the offence committed under section 457/380 IPC are all together different and moreover whenever any entry is made in any locked premises or latched premises it has to be presumed that the entry was unauthorised and forced entry and moreover aforesaid observations of the surveyor based upon the statement of employee and also of the neighbourer make out clear cut case of burglary.
14. There is distinction between the ingredients of burglary and theft. Section 379 prescribed following ingredients of theft:-
(1)Dishonest intention to take property.(2)
The property must be movable (3) It should be taken out of the possession of another person.(4)
It should be taken without the consent of that person.(5)
There must be some removal of the property in order to accomplish the taking of it.
15. In our view the fact and manner in which occurrence took place are tested on the aforesaid ingredients it clearly false within the offence of burglary. Thus the claim of the complainant was wrongly rejected on the ground that it was not a case of burglary and therefore was not covered under the policy.
16. Admittedly the surveyor at the same assessed the loss also, which was a good practice as sometime the surveyor do not assess the loss and just recommend for closing of the claim by making observations that it was not a case or burglary or theft or otherwise. Since in the instant case the complainant has not convinced us through any documentary evidence that the loss was on lower side, we allow the complaint only in respect of the loss as assessed by the surveyor. In the result the complaint is allowed in following terms:
(A) The OP shall pay Rs.5,60,780/- towards loss by way of burglary as assessed by the surveyor.
(B) The OP shall pay Rs.50,000/- towards compensation for wrongful rejection of the claim and cost of litigation.
17. The order shall be complied with within one month from the date of receipt of this order.
18. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to Record Room.
Announced on 09th day of April 2009.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member Tri