State Consumer Disputes Redressal Commission
New India Assu.Co. vs M/S Prabhu Dayal on 19 March, 2019
M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PLOT NO. 76, ARERA HILLS, BHOPAL (M.P.)
FA No. 1073 /2013.
1. The New India Assurance Co. Ltd.,
Through the Divisional Manager,
Rinva Complex, Main Road,
Mandideep, Raisen (M.P.).
2. The New India Assurance Co. Ltd.,
Thgough the Divisional Manager,
Civil Lines, Vidhsha (M.P.).
3. Branch Manager,
Bhartiy State Bank,
ADB Branch, Hospital Road,
Vidisha. .... APPELLANT.
VERSUS
M/s Prabhu Dayal Jewellers
Through the Proprietor Rajendra Jadiya
s/o Prabhu Dayal Jadiya,
R/o Near Hanuman Mandir, Nikas Road,
Vidisha (M.P.). .... RESPONDENT.
BEFORE:
HON'BLE SHRI JUSTICE SHANTANU S. KEMKAR, PRESIDENT
HON'BLE DR. (SMT) MONIKA MALIK, MEMBER
COUNSEL APPEARING FOR THE PARTIES :
SHRI MAHAVIR BHATNAGAR, LEARNED COUNSEL FOR THE APPELLANT.
SHRI DEEPESH JOSHI, LEARNED COUNSEL FOR THE RESPONDENT.
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ORDER
(Passed on 19 /3/2019) The following order of the Commission was delivered by Shantanu S. Kemkar, J :
This appeal at the instance of the Insurance Company is filed against the order dated 27.5.2013 passed by the District Consumer Disputes Redressal Forum, Vidisha (for short the "Forum") in CC No.77/2012.
2. Briefly stated the respondent filed a complaint stating therein that he owns a jewellery shop at Vidisha in the name of M/s Prabhudayal Jewellers which is insured with the appellant / opposite party. According to him in the midnight of 23 rd and 24th July, 2010 an incident of burglary occurred in his jewellery shop, which was informed in the early morning to him by a morning walker Subhash Bohat who was known to him. On receiving the information he immediately rushed to his shop. He found the locks of the shutter of the shop were broken and the shutter was half open. An FIR was lodged and the incident was intimated to the appellant. The police registered offence under Section 457/380 of the Indian Penal Code against unknown person as Crime No.507 of 2010. Since the shop and the jewellery which was burgled was insured he submitted claim for compensation before the appellant.
3. The appellant referred the matter to the Surveyor. The Surveyor visited the shop and after necessary enquiry submitted his report. In his report -3- the Surveyor observed that there was violation of the policy conditions by the complainant. The appellant after considering the Surveyor's report repudiated the claim vide letter dated 13th April, 2011. The said letter was assailed by the complainant before the Forum in the complaint as aforesaid and claimed compensation of Rs.8,12,000/- under various heads. The Forum after considering the evidence led by the parties by impugned order partly allowed the complaint and awarded in all compensation of Rs.2,21,946:50 to the complainant under different various heads with interest @ 9% p.a. Feeling aggrieved by this order, the appellant has filed this appeal.
4. We have heard learned counsel for the parties and perused the record.
5. It is not in dispute that the appellant repudiated the claim of the complainant vide letter dated 13th April, 2011 on the ground of breach of following policy warranties :-
"1. Warranted that all properties including cash and currency notes whilst at the premises specified in the schedule shall be secured in lock safe of standard make at all times out of business hours.
2. Warranted that insured having stated in his proposal form that all the premises specified herein are fully protected by employment of watchman, all the 24 hours of the day, they will be so continued to be employee during the currency of the policy..
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6. So far as the breach of first condition is concerned the Surveyor in his report which he submitted after physical verification of the shop has stated that "all the safes were intact and no items burgled. The items stolen were kept in the showcase of shelves in the front portion of the shop which were burgled after the business hours (while the shop was lying closed for the night)". So far as the breach of condition no.2 as referred to above the Surveyor in his report stated "that no watchman had been employed by the insured. During night also only the common watchman for the entire colony took rounds at regular interval". After considering the Surveyor's report the impugned letter dated 13th April, 2011 was issued containing the aforementioned reasons for repudiation of the claim. In the circumstances, when the reasons for repudiation of the claim was known to the complainant it was incumbent upon the complainant to have explained or denied the same in his complaint. However, an evasive denial or an averment to the effect has been made, which reads thus :- ";g gS fd esjs izfr"Bku dk lEiw.kZ lkeku lsQ esa j[kk tkrk gSA vukosnd Ø-2 dk ;g fy[kuk iw.kZr;k xyr gS fd Tosyjh vkbZVe dks [kqys 'kksdl s esa j[kk x;k Fkk tks nqdku ds lkeus okys Hkkx esa j[ks Fks] tks jkf= dks nqdku cUn gksus ij pksjh gks x;sA esjk lEiw.kZ Tosyjh dk lkeku nqdku ds lsQ esa j[kk tkrk gS] esjs }kjk ches dh fdlh Hkh 'krZ dk mYya?ku ugha fd;k tk jgk gS] mlesa of.kZr lEiw.kZ rF; lgh o lR; gSA losZ;j }kjk losZ fjiksVZ feF;k o xyr rF;ksa ij vk/kkfjr nh gS] tks eq>s Lohdkj ughaA losZ;j us okLrfodrk rF;ksa dh tkudkjh esjs ls ugha yhA" No specific averment has been -5- made by the complainant in the complaint that on the date of incident the jewellery items were removed from showcase or the drawer and were kept in lock safe. In fact, the jewellery kept in the safe was found to be there and the safe was intact as per the Surveyor's report. This clearly establishes that the burglary was only of the jewellery which was kept in the showcase in breach of the policy condition. It is also not the case of the complainant that the lock of the safe inside the shop was found broken. In the FIR lodged by the complainant incident has been narrated by him as under :
"eSaus 'kVj mBkdj ns[kk rks esjh nqdku esa 'kksdsl esa j[ks pkanh ds tsoj ik;y] fcNqM+h] cj/kkSuh] vaxwBh] cPpksa ds dM+s] rFkk daxu vkfn pkanh ds tsojkr j[ks ugha feys rFkk iqjkuh pkanh o lksus ds VkIl o vaxwBh VwVh gqbZ tks njkt esa j[kh Fkh ugha feys o uxnh :- 5]000@& ugha feysA " (emphasis supplied)
7. On the basis of aforesaid, it is clear that there was breach of the condition no.1 by the complainant as he did not put the jewellery in lock safe in a secured position after the business hours and that the jewellery which was burgled was kept in the showcase.
8. So far as breach of second policy condition it is pertinent to mention that when in the repudiation letter it was specifically mentioned that "no watchman had been employed by the insured and a common watchman for the
- 6- entire colony used to take rounds at regular intervals", it was expected from the complaint to deny or explain the alleged breach, but strangely there is neither any averment in the complaint nor in the affidavit stating therein that the insured premises was fully protected by employment of watchman on all the 24 hours of the day as was the requirement of policy condition. In the circumstances, the complainant breached the second condition also.
9. In view of the above clear breach of the policy conditions in our considered view the Forum has committed error in partly allowing the complaint. The order of the Forum is clearly based on misreading of evidence.
10. In the circumstances, the impugned order deserves to be and is hereby set- aside.
11. The appeal is allowed.
12. No order as to costs.
(Justice Shantanu S. Kemkar) (Dr. Monika Malik)
PRESIDENT MEMBER
Phadke