Delhi

East Delhi

CC/116/2019

M/S. SIEKO FARMS - Complainant(s)

Versus

ORIENTAL INS. - Opp.Party(s)

07 Feb 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. No. 116/2019

 

	M/S SIEKO BRUSHWARE (INDIA), HAVING OFFICE AT:- SEIKO HOUSE, 4/15, BAGICHI STREET VISHWAS NAGAR, SHAHDARA, DELHI -110032 THROUGH ITS PARTNER ASHOK GUPTA	….Complainant
Versus
	THE ORIENTAL INSURANCE CO. LTD. HAVING ITS BRANCH OFFICE AT:- 9, RAJ BLOCK, 1ST FLOOR, NAVEEN SHAHDARA, NEAR GYANAND CINEMA, DELHI – 110032 THROUGH ITS BRANCH MANAGER	……OP

 

 

Date of Institution: 02.04.2019

Judgment Reserved on: 25.01.2023

Judgment Passed on: 07.02.2023

QUORUM:

 

Sh. S.S. Malhotra (President)

Ms. Rashmi Bansal (Member)

Sh. Ravi Kumar (Member)

 

Order By: Ms. Rashmi Bansal (Member)

 

 

 

JUDGEMENT

The present complaint filed by the complainant against OP alleging deficiency of service for repudiating his insurance claim under standard burglary policy and claiming for the insurance amount along with the pendente-lite as well as future interest at the rate of 18% per annum from the date of repudiation till the date of realisation along with compensation for harassment, physical inconvenience and mental agony caused to it due to deficiency in service and unfair trade practice on the part of OP.

1. Brief facts as stated by the Complainant in the complaint are that Complainant is a partnership firm occupied in manufacturing of paintbrush. It is the case of the complainant that it got insured all stocks of finish goods, paint, brushes, semi-finished goods, goods under process, raw material, for the manufacturing of finish goods and trading of PIG hair bristles, polyester filaments etc.  with the OP vide Burglary Standard Policy, bearing number 271702/48/2017/199, for a period from 19.04.2016–18.04.2017, for a sum assured of Rs. 50,00,000/-.  Complainant further submits that besides policy schedule, the OP had not provided any terms and conditions of the policy to him. Complainant has also taken another insurance policy from OP for covering risk of fire and earthquake, having sum assured of Rs. 50,00,000/-.  

 

2. It is further stated that on the night of  24–25 October  2016, a theft took place in its business premises in which about 16 cartons of pig hairs, weighing around 400 KG, amounting to Rs.15 lakhs were stolen by unknown person, which fact came into its knowledge when the premises was opened in the morning. A written complaint was filed with the police station on 25.10.2016, however, no FIR was lodged by the police, therefore, an e -FIR was registered by complainant on 04.11.2016. The complainant has informed OP about the said incident vide its letter dated 05.11.2016, along with the copy of the policy, complaint dated 25.10.2016 and copy of e-FIR. 
3. It is further submitted that on or before 11.11.2016, he came to know that one Mr Devi Singh had taken one of his staff member namely Mr Kailash in confidence, and both have stolen the goods by preparing duplicate keys of the premises after taking prints on the wax. Complainant immediately conveyed the same to the concerned police officials on the same day to enquire and investigate the matter. Again vide letter dated 16.11.2016, the complainant had further informed the police officials about the recovery of duplicate keys used in the offence detailing the involvement of Mr Devi Singh and Mr Kailash. The complainant has also provided the said information to the OP. The complainant submitted stolen stock claim of Rs.12,79,090/- vide its letter dated 15.02.2017, which was repudiated by the OP vide its letter dated 05.04.2017, relying upon the surveyor report, citing the exclusion clause no. 2 of the policy, stating that company’s liability would be only if there is burglary or house breaking, i.e., theft, following up on an actual forcible and violent entry or exit, and in case of loss or damage where any inmate or member of the insured’s household or of his business staff is involved, the company would not be liable, thus claim is not payable under the operative exclusion clause no. 2 of the policy. Complainant further submitted that the said clause is absolutely arbitrary and without any basis and grounds. Complainant submits that police filed a closure/ untraced report about the incident as well as no arrest of any of the accused was made by police and the said report was accepted by the Ld. MM-2 Shahdara, Karkardooma Court, vide  Order dated 19.02.2019, thus the OP cannot reach to the conclusion regarding involvement of any staff/employee of the complainant. Moreover, OP has no evidence regarding involvement of any staff or the employee of the complainant in the theft, as the same had not been found by the police officials in their detailed investigation.
4. The complainant submits that  he has specifically demanded from the OP the copy of the exclusion clause, duly signed and accepted by the complainant through its legal notice dated 05.06.2017, however, OP failed to provide any such copy along with its reply. The OP has also failed to file any terms and conditions of the subject policy with its reply and the same has also not been provided to him. The policy schedule given to the complainant has mentioned the page number 1&2 only which established that only two pages were provided and not the other pages of terms and conditions. Complainant further submits that the OP on 13.10.2020 filed the manipulated forged terms and conditions with its evidence affidavit and the terms and conditions mentioned therein are verbatim different from the repudiation letter dated 05.04.2017, which shows that OP had neither provided any terms and conditions to the complainant at the time of issuing policy nor filed the said before this commission and since no terms and conditions of the policy or the exclusion clause had ever been delivered to the complainant the same should not be binding on the complainant and OP cannot be allowed to take advantage of their own exclusions which were never intimated or brought to its notice. The complainant submits that the exclusion clause of the policy is justified only when there would be involvement of insured in the offence. The complainant further submits that the terms burglary or forcible entry or housebreaking has nowhere defined in the policy and in the absence of non-supply of the policy terms and conditions, the claim of the complainant is liable to be compensated by the OP as it has not received any Terms and Conditions with the Policy Cover.  Alleging Deficiency in Service and Unfair Trade Practice on the part of the OP the Complainant filed the present Consumer Complaint before this Commission seeking claim amount along with the compensation for deficiency in service and unfair trade practice on the part of OP.
5. OP has filed its written statement admitting the issuance of the Burglary Standard Policy subject to clause, warranty, endorsement for a period starting on 19.04.2016 to midnight of 18.04.2017 against any losses covered under the policy. The OP has denied that the terms and conditions of the policy were not given to the complainant as the policy itself mentions that policy is subject to condition, clauses, warranties and endorsements as per forms attached and the same was within the knowledge of the complainant. Further, at no point of time the complainant has brought this to the knowledge of OP that he has not received the terms and conditions of the policy. 
6. The OP denied that any theft took place at the premises of the complainant. OP submits that the alleged date of theft mentioned by complainant is 24/25.10.2016 whereas the police complaint was filed on 04.11.2016 and OP was informed on 05.11.2016 i.e. after a delay of 11 days of the alleged theft without giving any valid reasons for the delay in informing in time which is against the terms of the policy requiring the insured to inform OP immediately. Even the documents/ information sought by the Surveyor were also not provided in time which  is also an infringement of the terms and conditions of the policy.   
7.   OP relied on the operative clause of the policy:

The Operative Clause:

The Company hereby agrees subject to terms, conditions and exclusions herein contained or endorsed or otherwise expressed hereon to indemnify the Insured to the extent of intrinsic value of:

(a) Any loss of or damage to property or any part thereof whilst contained in the premises described in the schedule hereto due to Burglary or House-breaking (theft following upon an actual forcible and violent entry of and/ or exit from the premises) and Hold- up.

(b) …..

8. The exclusion clause no.2 of the policy states that:

Exclusions:

The company shall not be liable in respect of:

1.  

2. Loss damage where any inmate or member of the Insured’s household or of his business staff or any other person lawfully in the premises in the business is concerned in the actual theft or damage to any of the articles or premises or where such loss or damage have been expedited or any way assisted or brought about by any such person or persons. 

9. OP submits that admittedly complainant’s own firm staffer was involved in the said alleged theft by using duplicate key which have been managed with the help of taking impression on the wax, whereas, both the original set of keys remained in complainant’s custody.  It is the carelessness of the complainant that he could not keep an eye on the activity of his employees. This clearly proves that there was no burglary / house breaking or any forceful or violent entry in the premises as per the complainant’s letter dated 11.11.2016 and 16.11.2016 to the SHO where admittedly complainant states involvement of one its staff in the offence and further stated that there are two sets of keys of the keys of the factory and office, out of which one set permanently kept at house whereas second set of keys always remain with him and for opening the office and factory premises, he used to give the keys to staff in his presence.  Even when there is need to open the Godown, the complainant gives keys in his presence and takes them back immediately. The whole conduct of the complainant clearly shows that the complainant himself was careless when he handed over the keys to his employees and given them opportunity to make duplicate keys. The staff of complainant has managed to take the impression of the keys and committed the crime.  OP further submits that as per the terms and conditions in the exclusion clause, the liability of the OP will only be, when there is/ was burglary or house breaking i.e. theft falling upon the actual and violent entry or exit has happened and no staff or inmate is involved in the alleged theft.  Since, this is clear case involvement of the staff member of the complainant firm in the alleged theft, the claim is not payable under the terms and conditions and the exclusion clause no. 2 of the policy and therefore the claim has been rightly repudiated by the OP.
10. OP has also taken the objection with respect to the statutory period of limitation of 2 years within which the complaint was required to be filed by the complainant and therefore states that the complaint is barred by law of limitation. OP has relied upon the United India insurance Co. Ltd. vs M/s. Harchand Rai Chandan Lal, CA no. 6277/2004, AIR 2004 Supreme Court 4794; and Gurshinder Singh vs Shriram General Insurance Co. Ltd. CA no. 653/2020.

 

11. Complainant has filed its rejoinder thereby denying the contents of the Written Statement OP taken and has reiterated its version in complaint. Both the parties have filed their evidences and written arguments along with documents in support of their case.   
12. The  Complainant has filed the following documents: 
    1. Insurance policy number 271,702/48/2017/199 dated 19.04.2016, EXCW1/1.
    2. Insurance policy number 271,702/11/2017/6 dated 19.04.2016, EXCW1/2.
    3. Complaint dated 25.10.2016, with SHO, EXCW1/3.
    4. E-FIR number, ED - FB- 000231 dated 04.11.2016, EXCW1/4
    5. Letter dated 05.11.2016, addressed to OP, EXCW1/5
    6. Information dated 11.11.2016, EXCW1/6
    7. Intimation letter dated 16.11.2016, PXCW1/7 
    8. Stock claim bill dated 15.02.2017 of Rs.12,79,000 090, EXCW1/8
    9. Repudiation letter dated 05.04.2017, EXCW1/9
    10. Legal notice dated 05.06.2017, EXCW1/10
    11. Reply dated 05.07.2017 of the OP to the legal notice of the complainant, EXCW1/11
    12. Order dated 19.02.2019 of the MM-2/ Shadara, Karkardoma Court
13. The OP has filed following documents:
    1. Copy of the burglary policy no. 271702/48/2017/199, Ex.1/1 and 1/2
    2. Terms and conditions of the said burglary policy Ex. 2/1 and 2/2
14. The Commission has carefully perused the documents filed by both the parties.
15. The first objection of the OP is with respect to the limitation, which  needs to be decided first before the Commission proceeds further. The repudiation letter admittedly issued by the OP on 05.04.2017 and the present complaint has been filed by the complainant on 02.04.2019, i.e. within the period of two years which  is with in limitation as per Sec. 24A of the CPA, 1986.  This contention of OP is not well found. 

 

16. The issuance of the policy is not in dispute. The policy covered the period from 19.04.2016 – 18.04.2017. The undisputed facts transpiring from the record are that the alleged theft took place on the night of 24/25.10.2016, the premises was locked and the locks were opened by the complainant in the morning and after opening the lock of the premises noticed that theft has taken place, as per complainant own admission in the police complaint dated 25.10.2016, Ex. CW1/3, theft committed by making the duplicate keys of his factory, further admission as per letter dated 11.11.2016 to police, Ex. CW1/6, that theft has been committed by one Mr Devi Singh with the connivance of its staff Mr.  Kailash who have taken print of the keys on the wax and committed theft in the business premises of the complainant and further admission as per  letter dated 16.11.2016 to police, Ex. CW1/7, that duplicate keys have been recovered. The complainant has  stated in detail that he has two sets of the keys, one is kept at home and the other one is used to open the premises which are to be given to staff to unlock factory and godown and taken back once the factory and godown is opened. Upon inquiry from staff the complainant found that Mr Kailash has committed theft by making duplicate keys. The entire admission on the part of complainant discloses that complainant had provided enough chances to the staff to get the keys in duplicate  which act further establishes carelessness on the part of complainant. Since admittedly, the lock of the premises were not broken and the locks of the premises were opened by the complainant itself which establish that there was no breaking or forcible entry into the premises, which is the condition precedent on the Burglary Standard Policy taken by the complainant and also, admittedly, the staff of the complainant is involved in the theft, therefore,  the claim of the complainant clearly falls under the exclusion clause of the policy and OP is well within its right to repudiates the claim of the complainant.
17. The further question arise for consideration is whether the said  exclusion clause duly communicated to the complainant as it is also the case of the Complainant that the OP had not provided the Terms and Conditions of the said Policy to the Complainant and, therefore, the Complainant was not at all aware about the Exclusion Clause which has been made the basis of repudiating the Claim. The policy document filed by complainant, Ex. CW1/1, as well as by OP, clearly mentions that the insurance under this policy is subject to conditions, clauses, warranties, endorsements as performance attached. Therefore, the complainant cannot allege that the Terms and Conditions were not attached to the Policy.. This would mean that the policy clauses were actually attached to the aforesaid policy schedule.  If the said clauses were not attached thereto, as is being claimed by the Complainant, it either ought not to have accepted the policy schedule or it ought to have at least demanded the same immediately from OP stating therein that no policy clauses were attached to the policy schedule received by it.  It is unnatural for anyone obtaining such a policy to remain silent on receiving the policy schedule without policy clauses when the policy schedule expressly states that the said clauses were attached thereto.  The failure of the Complainant to take any such step clearly indicates that the plea taken by it is just an after-thought in order to support the Claim.  No reliance on the said plea therefore, can be placed. Therefore, the contention of the complainant that the policy clauses were not attached to the policy schedule received by the Complainant is not tenable and is rejected. The other objection of the complainant that the terms and conditions filed by OP with its evidence affidavit and the terms and conditions mentioned in repudiation letter are verbatim and is of no help to the complainant as the exclusion clause conveys the same thing.
18. Moreover, the complainant has also not informed the police immediately. The Ex. CW1/ 3 shows the date at the top as 25.10.2016, however the receipt stamp of the police station bears date 04.11.16 which  has been overwritten by hand to make it 25.20.16, which  is clearly visible and observed by the Commission and also pointed out by the OP, therefore, complainant failed to show that it has informed the police immediately, rather police was informed on 04.11.2016.

 

19. In view of the above discussion, this Commission is of the view that complainant has failed to establish its case and in view of the admitted case of the complainant, the complainant is dismissed without any cost.

 

20. The copy of the order be supplied / sent to the parties as per rules of CPA, 1986 and thereafter the file be consigned to Record Room.
21. The complainant could not be decided within statutory time due to heavy pendency of the cases.
22. The order contains 10 pages each bears ours signature.

Announced on 07.02.2023.