Punjab

Ludhiana

CC/19/323

M/s G.K.Traders - Complainant(s)

Versus

United India Insurance Co.Ltd - Opp.Party(s)

Inderjit Singh Adv.

03 Nov 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:323 dated 09.07.2019.                                                         Date of decision: 03.11.2023.

 

M/s. G.K. Traders, B-XXIX-92/1-C/4, Oswal Agro Complex, Street No.2-1/2, B.M.S. Nagar, Daba Road, G.T. Road, Ludhiana through its authorize/SPA and Manager Sh. Ajay Sareen S/o. Vijay Kumar, aged about 31 years, resident of House No.1364, Phase No.2, Urban Estate Dugri, Ludhiana.                                                                                                               ..…Complainant

                                                Versus

1. United India Insurance Company Limited, B-17, Phase-II, Focal Point, Ludhiana-141010 through its Manager.
2. United India Insurance Company Limited, Regd. Head Office – 24, Whites Road, Chennai-600014, through its General Manager.                                                                                               …..Opposite parties 

Complaint Under section 12 of the Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. I.S. Luthra, Advocate.

For OPs                          :         Sh. Rajeev Abhi, Advocate.

 

ORDER

PER JASWINDER SINGH, MEMBER

1.                Shorn of unnecessary details, the facts of the case are that the complainant is proprietorship firm of Ms. Anju Bhatia, who authorized Ajay Sareen to institute and file the present complaint. The complainant firm is engaged in business of manufacture, marketing, sale and export of cycle parts, rickshaw parts, paddle E-Rickshaw, E-rickshaw and other allied and related goods. The complainant firm had been purchasing insurance policy of the OPs since 1961 on year to year basis and also purchased policy No.201400217P114092789 having validity from 01.01.2018 to 31.12.2018 having coverage for stock in trade and goods in custody of the complainant. On 21.03.2018, burglary was committed by accused persons at the premises of the complainant by forcibly locking the security guard in a room after snatching the keys and took away articles amounting to Rs.2,04,290/-. Intimation to the police of Police Control Room, Ludhiana and P.S. Focal Point, Ludhiana was given who registered an FIR No.237 dated 23.03.2018 U/s.457, 380 IPC. The complainant also gave intimation to OP1 on telephone and written request was also made for processing the claim. OPs appointed their Surveyor and Loss Assessor who visited the premises and demanded certain documents which were supplied to him accordingly. However, the OPs did not process the claim despite numerous visits and requests made by the complainant. The complainant further stated that in the month of November 2018, the OPs told him that the claim is not admissible. The decision of the OPs has been claimed as arbitrary and malafide. In the end, the complainant prayed for issuing directions to the OPs to pay the claim amount of Rs.2,04,290/- along with compensation of Rs.1,00,000/- and litigation expenses of Rs.25,000/-.

2.                Upon notice, the opposite parties appeared and filed written statement and by taking preliminary objections, assailed the complaint on the ground of its maintainability; suppression of material facts; the bar u/s.26 of Consumer Protection Act and also raised the plea of estopple. The opposite parties stated that immediately after the receipt of the claim it was duly registered, entertained and processed. The complainant had obtained burglary floater insurance policy No.2014001217P114092789 valid from 01.01.2018 to 31.12.2018 covering the stocks of all kinds of cycle parts/auto parts/hand tools/finished/un-finished/semi-finished goods/raw material/packing material/oil/lubricants and or all other goods pertaining to insured trade whilst lying /stored in process in open at the above address i.e. 2, Hargobind Nagar, Street No.7, Sua Road, Ludhiana; B-XXIX-92/1, C-4, Oswal Agro Complex, Street No.2-1/2, B.M.L. Nagar, Daba Road, Ludhiana and B-XXIX-83/6N/2, Hargobind Nagar, Street No.7, Sua Road, Ludhiana and goods held in trust or on comm. basis are also covered. Basement is also covered for a sum insured of Rs.22,500,000.00 subject to the terms, conditions warranties and exclusions mentioned in the policy. It is one of the exclusion clause (ii) of the policy that "the company shall not be liable in respect of loss or damage where any inmate or members of insured's house hold or 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 whether such loss or damage have been expedited or anyway assisted or brought about by any such person or persons." Further it has been written in the policy that "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 exist from the premises) and holdup." The complainant has reported the loss on 21.03.2018 in connection with the said policy at shop of M/s G.K. Traders, Hargobind Nagar, Gali No.7. Sua Road, Giaspur, Ludhiana. Immediately on the receipt of the claim CA Rajiv Arora, an IRDA approved licensed surveyor and loss assessor, Forensic Auditor, Fire, Marine and Misc., 321-A, Medical Enclave, Amritsar was appointed as surveyor and loss assessor. The said surveyor had personally inspected the spot, took the photographs and other documents and thereafter prepared his final survey report dated 08.08.2018 under his signatures and submitted the same with the opposite party assessing the loss to Rs.2,04,290/- without prejudice and strictly as per terms, conditions and exceptions of the relevant insurance policies.

According to the OPs, the surveyor CA Rajiv Arora in his report dated 08.08.2018 under the head Sign of Forcible Entry stated that "the entry was not forceful as the guard of the firm had the keys with him. However, the escape was forcible as they overpowered the second security guard Mr. Nar Bahadur Singh."

After the receipt of the survey report of CA Rajiv Arora dated 08.08.2018, FIR No.237 dated 23.03.2018 and after scrutinizing the documents placed in the claim file and after due application of the mind by the officials of the opposite party in terms of the insurance policy the claim of the complainant was repudiated as no claim vide letter dated 27.09.2018 on the grounds that the claim falls under Exclusion Clause (ii) of the policy and the aforesaid decision of the company to repudiate the claim was also conveyed vide email dated 27.09.2018. According to the OPs, the claim of the complainant has rightly been repudiated as no claim. The complainant after the receipt of the repudiation letter had called upon the opposite party vide his letter dated 05.11.2018 with a request to settle the claim. the said letter was duly replied by the opposite party vide their letter dated 22.11.2018 clearly stating that the claim has rightly been repudiated as per terms and conditions of the policy as duly conveyed vide mails as well as repudiation letter dated 27.09.2018.

                   On merits, the opposite parties reiterated the crux of averments made in the preliminary objections. According to the opposite parties, Dharminder Kumar, the security guard, who was employed with the complainant had stated that he is  going on leave for five days and in his place Rakesh Kumar will perform the duty and he is an employee of firm which has been hired by the complainant for security purpose. Thereafter, Mr. Rakesh Kumar joined the duty in firm of complainant in place of Dharminder Kumar. On 21.03.2018, as usually the factory was closed at 08.30 PM and all the employees went to their respective homes and in the factory only one Chowkidar namely Nar Bahadur and Mr. Rakesh Kumar who was sent by the security agency were on duty. In the night at about 12.00 AM a phone call on unknown number was received from Chowkidar Nar Bahadur who stated that that the newly employed security guard went to take meal at about 09.30 PM and came at 10.00 PM with two other unknown persons. The said security guard along with those persons came in factory and after locking Nar Bahadur in the room of factory, they stolen nickel, copper and other materials and took the same in black auto used for taking passengers. Further the OPs stated that the value and quality of the loss is not mentioned in the FIR and even there is a delay of one day in filing the FIR. The entry of security guard Rakesh Kumar along with other persons was not forcible as the guards of the firm had the keys with him. Even as per survey report, the escape was forcible as they over powered the chowkidar Mr. Nar Bahadur Singh.  The OPs further averred that the alleged persons have not taken the articles worth Rs.2,04,290/-. The surveyor CA Rajiv Kumar no doubt has assessed the loss of Rs.2,04,290/- but he has not recommended the said loss of Rs.2,04,290/- to be paid to the complainant on the grounds mentioned in his report under the head recommendations. The opposite parties have denied that there is any deficiency of service and have also prayed for dismissal of the complaint.

3.                In support of his claim, the complainant firm tendered affidavit Ex. CA of Sh. Ajay Sareen, authorized person in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of special power of attorney, Ex. C2 is the copy of insurance policy w.e.f. 01.01.2018 to 31.12.2018, Ex. C3 is the copy of FIR, Ex. C4 is the copy of repudiation letter dated 27.09.2018, Ex. C5 is the copy of letter of surveyor dated 17.04.2018, Ex. C6 to Ex. C14 are the copies of bills of purchase of goods/stock, Ex. C15 is the copy of stock summary w.e.f. 01.04.2017 to 21.05.2018, Ex. C16 is the copy of list of stolen goods and claim bill dated 12.05.2018 and closed the evidence.

                   The complainant in its additional evidence tendered affidavit Ex. CX Sh. Niraj Priyadarshi along with document Ex. C1/A is the copy of his Aadhar card and closed the additional evidence.

4.                On the other hand, counsel for the opposite parties tendered affidavit Ex. RA of Sh. Sangeeta Karkara, Senior Divisional Manager of the OPs as well as affidavit Ex. RB of Sh. Rajiv Arora, Surveyor and Loss Assessor and  along with documents Ex. R1 is the copy of letter dated 22.11.2018, Ex. R2 is the copy of repudiation letter dated 27.09.2018, Ex. R3 is the copy of email dated 27.08.2018, Ex. R4 is the copy of email dated 24.09.2018, Ex. R5 is the copy of letter dated 05.11.2018 of the complainant, Ex. R6 is the copy of FIR, Ex. R7 is the copy of survey report dated 08.08.2018, Ex. R8 is the copy of tax invoice dated 08.08.2018 of surveyor, Ex. R9 and Ex. R59 are the copies of insurance policy w.e.f. 01.01.2018 to 31.12.2018, Ex. R10 is the copy of claim form, Ex. R11 is the copy of list of stolen goods and claim bill dated 12.05.2018, Ex. R12 is the copy of FIR, Ex. R12-A is the copy of statement of Ajay Sareen with the police, Ex. R13 is the copy of news paper, Ex. R14 is the copy of stock account statement, Ex. R15 is the copy of ITR for 2015-16, Ex. R16 is the copy of computation of income, Ex. R17 is the copy of depreciation chart for 2015-16, Ex. R18 is the copy of ITR for 2016-17, Ex. R19 is the copy of computation of income, Ex. R20 is the copy of depreciation chart for 2016-17, Ex. R21 is the copy of ITR for 2017-18, Ex. R22 is the copy of computation of income, Ex. R23 is the copy of depreciation chart for 2017-18, Ex. R24 is the copy of Form GSTR-3B for March 2017-18, Ex. R25 is the copy of Form GSTR-3B for February 2017-18, Ex. R26 is the copy of Form GSTR-3B for January 2017-18, Ex. R27 is the copy of Form GSTR-3B for September 2017-18, Ex. R28 is the copy of Form GSTR-3B for August 2017-18, Ex. R29 is the copy of Form GSTR-3B for July 2017-18, Ex. R30 is the copy of Form GSTR-3B for December 2017-18, Ex. R31 is the copy of Form GSTR-3B for November 2017-18, Ex. R32 is the copy of Form GSTR-3B for October 2017-18, Ex. R33 is the copy of VAT return details, Ex. R34 is the copy of Form VAT 15 for 2017-18, Ex. R35 is the copy of registration certificate of the complainant firm, Ex. R36 is the copy of ID card of Anju Bhatia, Ex. R37 is the copy of memorandum for new registration number, Ex. R38 is the copy of PAN card of Anju Bhatia, Ex. R39 is the copy of Audit report of the complainant firm, Ex. R40 is the copy of sales register, Ex. R40A is the copy of cash book, Ex. R41 is the copy of purchase register, Ex. R42 to Ex. R49 are the copies of goods/stock, Ex. R50 is the copy of stock summary, Ex. R51 is the copy of rent agreement, Ex. R52 to Ex. R54 are the copies of letters issued by the surveyor to the complainant, Ex. R55 to Ex. R58 are the copies of photographs and closed the evidence.

                   In rebuttal to additional evidence, the counsel for the OPs tendered affidavit Ex. RX of Ms. Lipi Moitra, Assistant Manager of the OPs and closed the rebuttal to additional evidence.

5.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written reply along with affidavit and documents produced on record by both the parties.

6.                    The complainant firm, a holder of insurance policies since 1961, has moved the present complaint through its Proprietor stating therein that on 21.03.2018, burglary of articles worth Rs.2,04,290/-was committed in the premises of the complainant firm after snatching the keys from the security guard and wrongfully confining them in a room during the subsistence of the policy. The matter was reported to the police and resultantly FIR No.237 dated 23.03.2018 Ex. C3 = R12 U/s.457, 380 IPC at P.S. Focal Point, Ludhiana was registered. On receipt of intimation of the claim, the surveyor CA Rajiv Arora, an IRDA approved licensed surveyor and loss assessor, Amritsar was appointed who submitted his report dated 08.08.2018 Ex. R7 with the OPs with recommendations, which reads as under:-

“Recommendations

The loss was caused by one of the person who was lawfully present in the premises and had keys with him and was hired by the insured through a Security agency.

Secondly there is delay in filing of FIR by 1 day and the value of lost item and quantity of lost item is not mentioned in the FIR. The assessed loss of Rs.2,04,290/- (Two Lakhs Four Thousand Two Hundred Ninety only) is not recommended to be paid to the insured due to the following reasons:-

1. The loss was caused by one of the person who was lawfully present in the premises and had keys with him and was hired by the insured through a security agency. As per point No.2 this comes under Exclusions the point No.2 of the policy exclusions is as under:-

Loss or damage where any inmate or members of insured's house hold or 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 whether such loss or damage have been expedited or anyway assisted or brought about by any such person or persons.

2. There is a delay in filing the FIR by 1 day.

3. Value and quantity of loss is not mentioned in the FIR.”

7.                    The Ops after the scrutiny of the report and annexed documents, repudiated the claim of the complainant vide repudiation letter dated 27.09.2018 Ex. C4 = Ex. R2, operative part of which reads as under:-

                                                                                                                   “With reference to the captioned loss reported on 21.03.2018 in                                     connection with said policy. We are sorry to state for closure of                                       your claim as per exclusion No.2 of our policy, which is as                                                under:-

                                                                                                  "Loss or Damage where any inmate or member of the insured’s   household or 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 article or premises or where such loss or damage have been expedited or anyway Assisted brought about by any such person or persons.”

                                                                                                  Further in reply to your query vide your letter dt. 06/09/2018 addressed to you has duly clarified that in Exclusion no.2. It is not mentioned anywhere that if force is used by the person who is lawfully present in the premises then claim becomes payable. The word force is not used in this exclusion. It only says that if a person who is lawfully present assists in the loss then the claim is not payable.

Hence we are sorry to state for Closure of your claim as Repudiated as it falls under exclusion No.2 of the policy.”

                      

8.                    Before Adverting to the merits of the case, it will be apposite to reproduce the relevant clauses contained in the policy schedule Ex. R59, which has been invoked by the OPs:-

                       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) Damage caused to the premises to be made good by the Insured resulting from burglary and/or house-breaking or any attempt there at any time during the period of insurance.

Provided always that the liability of the Company shall in no case exceed the sum insured stated against each item or Total Sum Insured stated in the Schedule.

Exclusions

The Company shall not be liable in respect of:

(ii) Loss or damage where any inmate or members of insured's house hold or 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 whether such loss or damage have been expedited or anyway assisted or brought about by any such person or persons.

 

9.                Now the point of determination arises whether the loss or damage which has occurred to the complainant firm is any way assisted or brought by the inmate or member of insured’s business staff or not.      

10.              Perusal of FIR, report of surveyor and even the repudiation letter clearly indicate that the burglary was carried out by snatching the keys from one Nar Bahadur Singh, watchman, a regular employee of the complainant firm and thereafter, he was locked in a room and the assailants decamped with the stolen articles amounting to Rs.2,04,290/-. The assailants gained entry by fraudulent means and their exit was forceful and violent. The operative clause and the exclusion cause when read as conjunction stipulates that when either entry or exit is forceful and violent and there is no connivance of employees or staff of business house, as such, the loss or damage to the property becomes payable under the policy.       It can also be borne from the record that the complainant  had hired the services of one security agency known as Strong Smart Facility Security Service, Jamalpur Chowk, Ludhiana whose outsourced security guard  were performing duties w.e.f. 08.00 PM to 08.00 AM on each day. One such employee of the security agency namely Dharminder Kumar was working in the premises of the complainant firm for more than 2½ years who went on leave on the day of occurrence after unauthorizedly deputing one Rakesh Kumar. The said Rakesh Kumar who along with other assailants had gained entry into the premises claiming himself to be an employee of the security agency and on getting opportunity, they committed burglary. Mr. Niraj Priyadarshi, being the Incharge and responsible officer of this security agency has tendered his affidavit Ex. CX whereby he has categorically stated that Rakesh Kumar was never deputed by his security agency as night guard nor Dharminder Kumar was ever authorized to substitute himself with another without the consent or concurrence of officials of the security agency. So, therefore, the complicity or the connivance of the employee of the employees of the complainant firm stands ruled out. As such, the OPs were not justified in invoking exclusion clause in order to deny the claim of the complainant.

11.              In the present case also, Sh. Rajiv Arora, Insurance Surveyor, Valuer and Chartered Account vide his report dated 08.08.2018 Ex. R7 has assessed the insurance company’s liability as Rs.2,04,290/-, the details of which are given hereunder:-

	Details of loss given by the Insured
Sr. No.	Item Name	QTY	Price	Amount
		PCS/KG
1.	Copper Hanger	111	730	81030
2.	Copper Hanger	45	670	30150
3.	Nickel	48	950	45600
4.	Copper Wire	74	450	33300
5.	Copper Kundi	21	600	12600
			Total	204290

 

Although, the surveyor had assessed the aforesaid loss but has not recommended the same to be paid to the complainant for the reasons mentioned herein before in para No.6. It has already been concluded by this Commission that the OPs were not justified in invoking exclusion clause. In the present case, the occurrence took place in the intervening night of 21.03.2018 and 22.03.2018 and on becoming aware of the occurrence, the informant of the FIR Mr. Ajay Sareen, Manager reached at the spot in the following day and after making preliminary assessment, the FIR was lodged. So by that time without making comprehensive enquiry, it was not possible for Manager Ajay Sareen to mention the value and quantity of the loss in the FIR. So the grounds taken by the surveyor for not recommending the payment of assessed loss are devoid of any substance or merits. In the given facts and circumstances, it would be just and appropriate if opposite parties are directed to settle and reimburse the claim of Rs.2,04,290/- to the complainant as per survey report Ex. R7 as per policy terms and conditions within 30 days from the date of receipt of copy of order failing which the complainant shall be held entitled for interest @8% per annum from the date of order till date of actual payment. Opposite parties are also burdened with composite cost of Rs.10,000/-.

12.                  As a result of above discussion, the complaint is partly allowed with direction to the opposite parties to settle and reimburse the claim of Rs.2,04,290/- to the complainant as per survey report Ex. R7 as per policy terms and conditions within 30 days from the date of receipt of copy of order failing which the complainant shall be held entitled for interest @8% per annum from the date of order till date of actual payment. The opposite parties are further directed to pay composite compensation of Rs.10,000/- (Rupees Ten Thousand only) to the complainant within 30 days from the date of receipt of  copy of order. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

13.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                     (Sanjeev Batra)

Member                         Member                                       President         

 

Announced in Open Commission.

Dated:03.11.2023.

Gobind Ram.