1.       The present Revision Petition (RP) has been filed by the Petitioner against Respondents as detailed above, under section 21(b) of Consumer Protection Act 1986, against the order dated 08.12.2017 of the State Consumer Disputes Redressal Commission, Rajasthan, (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No.467/2017 in which order dated 23.03.2017 of District Consumer Disputes Redressal Forum, Sikar (hereinafter referred to as District Forum) in Consumer Complaint (CC) No. 382/2013 was challenged, inter alia praying for setting aside and quashing the impugned order dated 08.12.2017 passed by the State Commission in FA/467/2017. Revision Petition has been filed with a delay of 40 days.  IA/7882/2018 filed for condonation of delay is allowed after considering the reasons stated therein.

2.       While the Revision Petitioner (hereinafter also referred to as Complainant) as Respondent and the Respondents (hereinafter also referred to as OP/Insurance Company) were Appellants in the said FA/467/2017 before the State Commission, the Revision Petitioner was Complainant and Respondents were OPs before the District Forum in the CC No. 382/2013. Notice was issued to the Respondents on 28.01.2018.  Parties filed Written Arguments/Synopsis on 04.02.2020 (Petitioner) and 01.11.2019 (Respondents) respectively.

3.       Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Forum and other case records are that:

(i)      The petitioner has different circle stores under the Corporation in Sikar and for the purpose of insurance of various articles/goods kept in the stores the petitioner obtained insurance policy No. 141300/11/11/13/00000162 (Standard Fire and Special Perils Policy (Floater Basis) and 141300/46/11/53/00000145 (Burglary Floater Policy) through Respondent Insurance Company which were valid from 30.05.2011 to 29.05.2012.  The said insurance policies covered all the security risk for entire goods kept in the circle store.

(ii)     In the night of 03.10.2011, theft of 6 Drums containing wires occurred.  The Assistant Store Controller, Sikar under Corporation had informed about the theft of Drums wherein unknown thieves broke open the main gate of Circle Office and took away the drums.  A report was lodged with the Police Station Kotwali  vide FIR No. 616/2011 under Section 380 IPC and investigation commenced.  The Petitioner immediately informed about the theft to the Insurance Company. The report of the surveyor appointed by the Insurance Company assessed the loss of Rs.6,33,948/-. The police conducted investigation.  Thereafter, the Petitioner raised the claim of Rs.6,33,948/- for theft of 6 drums with insurance company and also provided all the documents required by the Insurance Company.  On 30.03.2012, the Insurance Company refused to pay the claim.  Hence, the Petitioner filed the complaint before the District Forum.   

4.       Vide Order dated 23.03.2017 in the Complaint Case No. 382/2013 the District Forum has allowed the complaint and directed the Insurance Company to pay Rs.6,33,948/- to the Complainant Corporation within one month from the date of order.  The OP/Insurance Company was also directed to pay Rs.10,000/- towards cost.

5.       Aggrieved by the said Order dated 23.03.2017 of District Forum, OP/Respondents appealed in State Commission and the State Commission vide order dated 08.12.2017 in FA No. 467/2017 has allowed the Appeal and set aside the order passed by the District Forum.

6.       Petitioner has challenged the said Order dated 08.12.2017 of the State Commission mainly on following grounds:

(i)      The petitioner, in support of his contentions,  has relied upon the judgment of Hon’ble Apex Court in National Insurance Company Ltd. Vs. Nitin Khandelwal IV (2008) CPJ 1(SC), wherein it was held that in the matter of theft of vehicle, breach of conditions of policy was not germane and also held further “The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non-standard basis.”  It was held by the Apex Court in Lakshmi Chand Vs. Reliance General Insurance that “Before embarking on an examination of the correctness of the grounds of repudiation of the policy, it would be apposite to examine the nature of a contract of insurance. It is trite that in a contract of insurance, the rights and obligations are governed by the terms of the said contract. Therefore, the terms of a contract of insurance law have to be strictly construed and no exception can be made on the ground of equity.

Thus, it needs little emphasis that in construing the terms of a contract of insurance important, and it is not open for the court to add, delete or substitute any words. It is also well settled that since upon issuance of an insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risk covered by the policy, its terms have to be strictly construed to determine the extent of liability of the insurer. Therefore, the endeavour of the court should always be to interpret the words in which the contract is expressed by the parties.” 

(ii)     The lower forum has not awarded any interest in favour of the complainant on the amount which has been ordered to be payable to the complainant on account of the losses assessed by the surveyor.  It is prayed that the reasonable amount of interest as prescribed by the RBI on deposit @8% ma be awarded looking to the facts and circumstances of the case as per the doctrine of “unjust unrichment”. 

(iii)  The District Forum while deciding the fate of complaint case had dealt the entire aspect involved into the case in between the parties.  The complainant is having an insurance policy  for the period from 30.05.2011 to 29.05.2012 whereby , the goods lying at the premises of  complainant was fully insured, therefore, the risk to the goods were being covered on 02/03.10.2011 as per the admitted position of the case, thus, an incident of theft which was well proved as per the FIR dated 04.10.2011 reported to the police and further, as per outcome of the police as they submitted a FR No. 264/11 final report on 05.12.2011, wherein, it has been mentioned that the FR is submitted as “Adam pata Mall Mulzim” this finding of independent state agency is not questionable in any manner as they have thoroughly examined all aspects involved into the matter and finally came to the conclusion by saying that the offence had been committed, an office of commissioning of theft of 6 number of drums were proved to be stolen from the Sabalpura Power Station House at Sikar Store Campus, therefore,   the OP has not acted reasonably while rejecting the genuine claim of the complainant. 

(iv)    It is submitted that the fact of commissioning the offence of theft once examined and found in order by the investigating authority are not subject matter in any manner contrary to alleged just to save lawful liability to deny the genuine claim of the insurer complainant.  Thus the letter of repudiation has no force as treating unreasonable by the Forum below in the facts and circumstances. OPs are duty bound to fllow the rules and regulations as per the mandate of setting the claim as per the mandate of the IRDA. 

7.       Heard counsels of both sides.  Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.

7.1     In addition to the averments made in the Petition, the Petitioner contended that the order passed by the State Commission is wholly erroneous without due application of mind and grossly erred in reversing the order passed by the District Forum.  The OP has preferred the Appeal  just to cause delay in this matter as they have withheld the payment on false pretext as per procedure of filing appeal in routine manner without any lawful excuse, as they have preferred the appeal on baseless contention which was thoroughly examined by the District Forum. The non-action of the OP is contrary to the basic mandate issued by the IRDA to protect to the larger interest of the policy holder, as no heed was ever paid towards the complainant’s grievances by the OPs.  Therefore, the case of unfair trade practices have been made out as such the misleading conclusion is a glaring instance of rendering the services on the part of the insurer. As OPs avoid to fulfil the lawful obligation on false pretext and assurances at the time of coverage of risk of alleged policy. 

7.2     On the other hand it is contended by the Respondents that the petitioner has not filed the complete evidence and documents filed by the parties before the District Forum. The Respondents have filed the documents which may be necessary for adjudication of the present case.  It is contended that on receiving the intimation, the Respondent deputed Sh. M.L. Bhatia, Surveyor who visited the premises on 07.10.2011 and asked the petitioner to submit necessary information and documents.  In the course of inquiry the said surveyor also recorded the statements of Moolchand Verma and Ghisarasm, the Chowkidars (Guards) alleged to have been present at the time of alleged burglary. Since there were contradictions in the statement of the said Guards, the surveyor bringing the contradiction to the notice of the petitioner, requested them to send the departmental inquiry report vide letter dated 10.11.2011.  Vide letter 16.12.2011, the surveyor informed the petitioner that from the written statements of Guards there are indication that the drums were carried from the office with the consent or with connivance of the staff and as such the claim does not fall under the purview of the policy. Surveyor submitted his report on 15.03.2012.  He observed that during his visit on 07.10.2011 he asked for visible proof of burglary from the insured and the insured did not produce broken locks or any other proof of entry and exit of burglars.  Further, there was no sign of breakage anywhere at the main gate. The surveyor concluded that looking to the bulky/heavy/special nature of goods it is not practicable that the same can be stolen without the consent/connivance of the staff.  As such the claim is not admissible as per Exclusion Clause II of the policy.  The surveyor, however, assessed the loss at Rs.6,33,948/-.  The State Commission also observed that the stolen goods are of such nature which could not have been moved easily.  The weight of the six drums is stated to be 6,000 kilograms and therefore, every drum was around 1,000/- kgs. and to push the same many persons are required.  The drum of 1,000 kgs. cannot be loaded without the help of a crane.  The State Commission also held that there is also no evidence on record to prove as to when these drums were kept in the store.  The State Commission held that there is no deficiency in service of the respondent insurance company and appeal was allowed by setting aside the order of the District Forum.

8.       We have carefully gone through the orders of the State Commission and District Forum, Surveyor’s Report, other relevant records and rival contentions of the parties.  State Commission while allowing the Appeal of the Insurance Company has given a well-reasoned order.  The Petitioner has not been able to establish his case of theft beyond reasonable doubt.  Surveyor has also noted in his report that insured did not produce broken locks or any other visible proof of entry and exist of burglars.  There is no sign of any breakage anywhere at the main gate. The Surveyor further states “Looking to the Bulky/Heavy & spacious nature of goods we do not find as practical that such heavy weighted items can be stolen without the consent/connivance of staff. In our opinion the case comes under the purview of exclusion clause II of the policy and hence claim is not admissible.” As was held by the Hon’ble Supreme Court in Khatema Fibres Ltd. vs New India Assurance Company Ltd. & Anr., II (2021) 9 S.C.R.268 that “A Consumer Forum which is primarily concerned with an allegation of deficiency in service cannot subject the surveyor’s report to forensic examination of its anatomy, just as a civil court could do. Once it is found that there was no inadequacy in the quality, nature and manner of performance of the duties and responsibilities of the surveyor, in a manner prescribed by the Regulations as to their code of conduct and once it is found that the report is not based on adhocism or vitiated by arbitrariness, then the jurisdiction of the Consumer Forum to go further would stop.” We do not find any reason to question the report of the surveyor in the present case. 

9.       The State Commission in its order has also observed as follows:-

“We agree to this contention of Insurance Company that no signs of theft were found at the site of incident because stolen goods are of such nature which could not have been moved easily. Weight of six drums are told to be more than 6000 kilograms, every drum’s weight is approx. 1000 Kgs and several persons are required for rolling those drums. Ld. Advocate of Insurance Company has contended that this compound is situated on the road  and often theft happens by loading the articles in the vehicle, but if any vehicle comes and stop there, then the marks or signs thereof should be there. Still one thousand kg weighed drums cannot be loaded without the help of crane. How could it be loaded in the truck, if rolled down for loading, then lot of arrangements are required for the same and this would have created some noise and took lots of time, but no such signs are found at the site of incident. It also appears from the statement of Ghisa Ram that the In-charge of the Store had come in the morning to the site of incident, however, there is no statement that who informed him about the incident,. In this way, the behavior of both the Chowkidars are suspicious. They did not consider it necessary to inform about the incident of theft to any one because according to them In-charge of the Store had reached there. What was the reason of the In-charge coming to store early morning, there is no affidavit or any other evidence. Police also could not find any evidence and it does not prove that the incident took place. Police filed the report as no address or where about of accused could be ascertained. In fact, if the police would have investigated properly, this incident of theft could have been exposed because the goods which were stated to be stolen could not have been squandered so easily and the information was given to police within few hours. Ld. Advocate of the Insurance Company stated that it is a result of the nexus of employees of the Corporation who squandered the property of Corporation and described it as a case of theft. This suspicion cannot be rejected so easily. There is no evidence as to when these drums were brought to the store. Sometimes the goods are entered on the papers only. Keeping in view all such circumstances, I am of the opinion that Insurance Company has not done any deficiency in service while dismissing the claim. Appeal is liable to be accepted”.

10.     The State Commission has given a well-reasoned order. In view of the foregoing, we find no illegality or material irregularity or jurisdictional error in the order of the State Commission, hence, the same is upheld.  Accordingly, the Revision Petition is dismissed.

11.     The pending IAs in the case, if any, also stand disposed off.