NATIONAL INSURANCE CO LTD vs MANISH AJMANI

-CHALLENGE in this appeal is to the order dated 27. 3. 2006 passed by the District Consumer Disputes Redressal Forum, Ambala whereby while accepting the complaint of the respondent-complainant following directions have been given to the appellant-opposite party: "the complaint is accepted and the OP is directed to comply with the following directions within a period of 30 days from the receipt of this order- (i) To pay the insured amount to the complainant as per policy. (ii) To pay Rs. 500 as costs of proceedings. (iii) To pay Rs. 500 as compensation for harassment caused to the complainant. "

ACCORDING to the case set up by the complainant he had purchased the mobile phone make Nokia-1100 from M/s. Mohan Lal Mukand Lal and Company, Bank Road, Anant Building, Ambala Cantt vide case memo dated 14. 3. 2004 for Rs. 4,800. The INEI Number of the said mobile is 00670400063563350121. It was insured for a period of one year from the date of purchase with the opposite party vide cover note No. 234858. Accordingly, he was issued policy of insurance bearing No. 351700/46039500324. His further version is that he lost the above said mobile in the area of Market Complex of Sector-9, Urban Estate, Ambala City from his car while he was busy in the market. D. D. R. No. 11 dated 11. 8. 2004 was lodged by him. He also informed the loss of mobile to the opposite party. The necessary documents were furnished to the opposite party but the opposite party repudiated the claim on the ground that the loss of mobile was because it was misplaced, which in absence of actual and threatened force is not covered under the condition as per Clause IB (d) of the certificate of insurance issued by the opposite party. Challenging the action of the opposite party present complaint was filed. It was alleged by him that the Clause IB (d) of the certificate of insurance was illegal and against the law. Accordingly, it was prayed that the direction be given to the opposite party to pay the sum insured of the handset mobile in question; to pay interest @ 12% per annum from the date of loss till realization and Rs. 20,000 as compensation on account of mental agony and harassment caused to him. The complaint was contested by the opposite party. In the written statement filed it was pleaded that concocted version had been given by the complainant in order to get the compensation from the opposite party. It was further stated that the complainant never completed the required formalities and had never lodged any report to the Police Station Sadar Ambala and in fact a false story had been rendered by the complainant in the D. D. R. and for that reason risk of the complainant was not covered as per the terms and conditions of the policy. Accordingly, it was prayed that the complaint merited dismissal. On the basis of the pleadings of the parties and evidence adduced on record the District Forum while accepting the complaint came to the conclusion that without any sufficient cause the opposite party had repudiated the claim and issued the directions as per order dated 27. 3. 2006 noticed above. It is against the said order the present appeal has been filed. None has chosen to appear to argue the matter on behalf of the appellant-opposite party. The respondent-complainant in person has been heard at length.

The certificate of the insurance issued in the name of the complaint contains the following conditions relating to the insurance cover of the hand set mobile sold to the complainant: "1. Insurance Benefits. A. Explained Warranty identical to Manufacturer''s (NOKIA) warranty conditions on handset for 1 year from the date of the expiry of manufacturer''s warranty. However this does not cover. (a) Damage caused by negligence, abuse or misuse in respect of the handset including failure to use the handset in accordance with manufacturer''s instruc-tions and maintenance re-commendations. (b) The use of batteries, charger and/or accessories not approved by manufacturer, incorrect electrical leads or connections. (c) Faulty software programming or electrical power or surge or fluctuation. (d) Wear and tear, gradual deterioration, cracks, scratch-ing and chipping or surfaces. (e) Any repair/alteration of the handset carried out by anyone other than a service centre authorized by HCL Infinet Ltd. (HCL ). Batteries, charger and accessories even though part of original sales package/handset are not covered under the scheme.

B. Theft coverage for Nokia GSM handset for 1 year from the date of purchases subject to following exclusions: (a) Theft of handset whilst kept in unattended vehicles unless the vehicle is blocked, handset placed out of sight and the handset is taken out by forced and violent entry. A copy of the repairer''s bill for such damage to vehicle and corresponding insurance claim, if any, must be submitted with claim. (b) Theft of handset from being left on roof, bonnet or boot of the vehicle. (c) Theft of handset from any property or premises unless such theft has occurred through forced and violent entry or exit. (d) Theft of handset from any public place/public con-veyance except where the handset is taken by actual or threatened force. In all the above instances, a claim shall be entertained only if accompanied by a copy of a registered F. I. R. duly numbered, signed and stamped (First Information Report) to the local Police Station pertaining to such theft of handset.

C. Public Liability: Any damage or injury to any third party due to use of this handset, for which buyer is held legally liable, up to an extent of Rs. 10,000 (Rupees ten thousand only ).

Claim Process/documents in the event of a claim please do the following: a. For Theft- (a) (i) Lodge FIR with the Police Station in whose jurisdiction the theft occurred, within 24 hours of the occurrence of the same. (ii) Within 3 days of the theft block your SIM Card With Your Service Provider (Operator) and (iii) Send intimation to the Insurance Company giving full details of the incident. (b) Documents required- (i) Original Invoice (ii) Original FIR or certified copy by the Police Station thereof (iii) Translation of--- docu-ments in English/hindi (iii) Original Insurance certificate (iv) Certificate from the service provider that the SIM card is blockade (v) Copy of intimation sent to the Insurance Company (vi) Complete claim form. "

THE complainant has lodged the D. D. R. No. 11 dated 11. 8. 2004 with the Police Station Sadar Ambala City wherein it was stated that the loss of the mobile phone was due to the fact that the complainant had misplaced the mobile set in the Shopping Centre of Sector-9, Urban Estate, Ambala City on 10. 8. 2004, whereas in his letter dated 11. 8. 2004 addressed to the General Manager, N. I. C. Ambala he had intimated that the mobile set Nokia-1100 had been stolen when he had gone to shop in Sector-9, Ambala City on 11. 8. 2004 at about 8. 00 a. m. The D. D. R. No. 11 dated 11. 8. 2004 A-6 placed on record clearly shows that in the report made to the police the complainant had mentioned the date of misplacement of mobile set as 10. 8. 2004. The complainant has changed his version on two counts than what he mentioned in the D. D. R. , because in the report dated 11. 8. 2004 Annexure A-2 addressed to the General Manager of the opposite party firstly he had stated that his Nokia handset had been stolen from the Shopping Centre of Sector-9, Ambala City and secondly this instance had taken place on 11. 8. 2004 at about 8. 00 a. m. In para No. 3 of the complaint he has mentioned that mobile handset was stolen on 10. 8. 2004 in the market of Shopping Centre, Sector-9, Ambala City. Even in the report lodged it was not mentioned that it was removed from his car. Therefore, these circumstances clearly indicate that definitely the complainant has tried to make the improvement with regard to the version than what was recorded in the D. D. R. recorded with the police. The complaint came to be filed on 6. 4. 2005 and as such he had sufficient time to put up coloured and deliberate version. The opposite party had taken notice of the different version given by the complainant and for that reason while repudiating the claim it was clearly stated as under: "claim Rejected and Reasons thereof-1. Original invoice, Original Insurance Certificate and Original FIR have not been furnished in spite of having written on 18. 8. 2004. 2. As per photocopy of F. I. R. Information Report No. 11/11. 8. 2004 registered for Non-cognizable Offence, the reason stated for the loss of mobile phone is ''misplaced'' Which In Absence of ''actual OR Threatened Force'' is not covered under the conditions as per Clause IB (d) of Certificate of Insurance. 3. The reason stated in the intimation letter to the Insurers "stolen at shopping complex" does not corroborate with the photocopy of F. I. R. registered for Non-cognizable Offence by the Police. "

While communicating the repudiation to the complainant he was informed as per letter dated 18. 8. 2004 as under: kindly refer to your claim Nokia set No. 1100 which you have preferred on National Insurance Company Limited, New Delhi. We regret to inform you that your claim is not payable as per the terms and conditions of the policy due to the following reasons- "1. Original invoice, Original Insurance Certificate and Original FIR have not been furnished in spite of having written on 18. 8. 2004. 2. As per photocopy of F. I. R. Information Report No. 11/11. 8. 2004 registered for Non cognizable Offence, the reason stated for the loss of mobile phone is ''misplaced'' Which In Absence of ''actual OR Threatened Force'' is not covered under the conditions as per Clause IB (d) of Certificate of Insurace. 3. The reason stated in the intimation letter to the Insurers ''stolen at shopping complex'' does not corroborate with the photocopy of F. I. R. registered for Non-cognizable Offence by the Police. This letter is issued without any prejudice. "

Therefore, from the evidence on record it has to be concluded that the story put up by the complainant is that the mobile set was stolen but it being an afterthought and deliberated version cannot be accepted. The theft coverage for Nokia GSM handset had been provided under terms and conditions of ''certificate of Insurance''. Sub-clauses (b), (c) and (d) of Clause B specifically say that theft coverage of Nokia handset is subject to the exclusion namely theft of handset whilst kept in unattended vehicles unless the vehicle is locked, Handset placed out of sight and the handset is taken out by forced and violent entry. Theft of handset from being left on roof, bonnet or boot of the vehicle. Theft of Handset from any property or premises unless such theft has occurred through force and violent entry or exit. In this case the complainant was duty-bound to establish that the theft of the handset of mobile was committed from the above mentioned places or was taken by actual or threatened force. None of these conditions are fulfilled in the present case. In this regard reference may be made to the case United India Insurance Co. Ltd. v. Harchand Rai Chandan Lal, IV (2004) CPJ 15 (SC)=v (2004) SLT 876=2004 CTJ 1018 (SC), wherein it was held by the Hon''ble Supreme Court that theft should have been proceeded with force as per terms and conditions of the insurance policy. It was further stated that in order to substantiate claim of the insurance, the insured was required to have established that theft or burglary took place preceding with force or violence and if it is not, then the Insurance Company will be well within its rights to repudiate the claim of insured. In the present case, as already noticed above, the admitted position spelt out from the documents on record is that there was no force or violence entry or exit as was necessary in the terms of the policy at the time when misplacement of the Nokia was committed. For the aforesaid reasons the complaint merited dismissal.

IN fairness to the Counsel for the opposite party reliance was placed on case Sanjay Garg v. United India Assurance Company Ltd. , III (2005) CPJ 24 (NC)=2005 (1) Con. LT 534, wherein while construing terms of the police covering the risk it was concluded that physical loss would include the loss by leaving it somewhere, by robbery or theft by some body else in any accident. It would be manifest that the above stated clause of the police was entirely different than what was the terms of the certificate of insurance issued in this case and noticed above. Therefore, the above stated reasons on fact of the present case does not advance the case of the complainant. The District Forum has not taken into consideration earlier noted circumstances while accepting the complaint and for that reason the order of the District Forum, as such, cannot be sustained. For the aforesaid reasons while accepting the appeal the impugned order is set aside and the complaint is accordingly dismissed. Appeal allowed.