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Judgment
BY way of this complaint the complainant has prayed for compensation in the sum of Rs. 9,59,014/- with interest at the rate of 12 per cent per annum from the date of complaint till payment and cost quantified at Rs. 50,000/- on following brief allegations of facts: Complainant is the sole Proprietor of M/s. Patel Jewellers carrying on business as jewellers at the address stated in the complaint. He had taken Jewellers'' Block Policy from the opponent Insurance Company upon payment of net premium of Rs. 11,115/- and the said insurance was renewed from 10.10.2001 to 9.10.2002. The business hours of the complainant for carrying on business of making and selling gold and silver ornaments are 9 O''clock morning to 7.30 evening. During the business hours the complainant has been bringing out the ornaments from the safe and keeping in the display block. At the time of closing the shop he has been keeping the ornaments in the Godrej Safe after taking them out from the display block. Accordingly he has also been keeping cash in the safe and bringing out during the business hours. On 27.2.2002 he had cash on hand in the sum of Rs. 99,504/- and the gold ornaments as particularized in the complaint. At about 7 O''clock in the evening on 27.2.2002 a mob of rioters approached near Shubh Complex where the complainant shop was situated. Riots had broken out in the city pursuant to the incident that occurred near Godhra on 27.2.2002. With a view to save both his person as well as property the complainant had speedily closed shutters of his shop at around 7 O''clock in the evening seeing the mob of rioters proceeding towards the complex. All other traders in the complex also closed their respective shops and ran away to save their lives. According to the complainant he did not have enough time to take out the ornaments from the display block and place them in the Godrej Safe in the shop. Similarly he could not take out the cash from the counter and place it in the Godrej Safe. However, in order to save his person as well as property in ornaments he had applied the shutters and locked/closed the shop and had to run away from the place. Yet, by way of abundant caution he had tried to see the shop at about 10 O''clock in the night of 27.2.2002 but the people had collected there and there was every likelihood of riots to occur at that place. Hence he could not open the shop with a view to take out the ornaments and cash respectively from the display block and the cash counter and place them in the safe. He has set out the circumstances with regard to the nature of risk which was attached to opening of the shop at 10 O''clock at night when he again tried to visit the shop. He, therefore, did not open the shop at that point of time.
THERE was Gujarat Bandh on 28.2.2002. At around 12 O''clock at noon he had received a phone call from one Manishbhai of neighbouring shop informing him that his shop was put to fire. That occurred on account of the fact that adjoining hair cutting shop was put to fire by the rioters. He had also information about the locks of the shutters of his/complainant''s shop being broken open by the rioters. When he visited his shop he found that the goods of his neighbnouring shop were destroyed by fire and one side shutter of the complainant''s shop was half open. The furniture lying in the shop was also in burnt condition. The signboard of the complainant shop was totally damaged on account of the fire. After going through the shop he found that ornaments weighing around 1 kg. lying in the display block were missing and the cash was also not there in the cash counter and the said property was looted by the rioters. He immediately called his relative Mr. Mahendrakumar with a welding machine in order to save whatever property that was left in the shop and the safe. He made arrangement for lodging the FIR with regard to the ornaments and the cash having been stolen away in the riots that broke out at around 12 noon on 28.2.2002. As there was Gujarat Bandh and subsequent riots and disturbances in the city followed by call for Bharat Bandh on 1.3.2002 and again followed by holidays being second Saturday and Sunday on 2nd and 3rd March, 2002 respectively the complainant intimated the opponent Insurance Company on 4.3.2002 about the incident and the loss sustained by him. Complainant accordingly lodged his claim before the opponent Insurance Company. The FIR was registered at C.R. No. 76/2002 and Panchnama was recorded by the police. The complainant supplied these papers along with copies of the Balance Sheet and the stock Patra to the opponent Insurance Company. Complainant also supplied report of the Chartered Accountant and required affidavit to the opponent Insurance Company. He finally supplied all other documents which were required by the opponent Insurance Company. Yet, the opponent Insurance Company intimated the complainant about his ''No entitlement of the claim'' by reporting ''No claim''; that is how the complainant was required to file present complaint before this Commission. He has prayed for the amount of Rs. 5,22,900/- being the value of the gold ornaments as particularized in para-9 of the complaint. He has also claimed loss of cash in the sum of Rs. 99,504/-, damaged to the furniture in the sum of Rs. 2,31,010/-, damage to the Signboard and Air Conditioner in the sum of Rs. 59,000/-, damage to the Granite/Stone in the sum of Rs. 10,000/-, damage to the box, pouch and plastic bag in the sum of Rs. 25,000/- and damage to the main gate glass in the sum of Rs. 11,600/-, in all Rs. 9,59,014/-.
By order dated 25th March, 2003 notice was issued pending admission to the opponent Insurance Company making it returnable on 9.5.2003 permitting direct service. Complainant has placed on record xerox copy of this notice duly receipted under the stamp of the opponent Insurance Company bearing date 31st March, 2003. Thereafter the matter was adjourned from time-to-time, but no one has appeared for the opponent Insurance Company.
WE had issued notice pending admission of the complaint to the opponent Insurance Company with a view to see that the opponent Insurance Company might submit its counter and detailed reasons as to why it had issued letter of ''No claim'' to the complainant. In our considered opinion it was incumbent upon the opponent Insurance Company to satisfy this Commission with reasons of issuing such a letter. For the purpose of finalizing this matter we may reproduce what the Insurance Company said in the letter of ''No claim'', copy whereof has been placed on record at page 52. It is dated 20th December, 2002. It is sent to the complainant without prejudice. It reads as under: "This is in reference to your intimation dated April 4, 2002 for claim of damages due to riots on February 27, 2002 and all claim papers submitted by you on the subject cited above. WE have observed from the claim papers submited that, you have committed the breach of terms and conditions of the policy by keeping the insured property out of the safes after business hours. WE draw your attention to Clause 12 of Section IV of Jewellers'' Block Insurance Policy. ''Provided always that the company shall not be liable for under this policy in respect of- (12) Loss or damage to property insured whilst in window display at night or whilst kept out of safe after business hours. It has also been observed from the claim papers submitted by you, that you have misrepresented for the claim: It has been established on record that you have committed the breach of terms of contract i.e., insurance policy and hence we are not liable to entertain your claim. Therefore, your claim is hereby repudiated and we close the file as ''No claim'' ".
In order to satisfy ourselves whether the clause which has been canvassed by the opponent Insurance Company would prima facie apply to the complaint we had scrutinized the facts after hearing the learned Advocate for the complainant. It would clearly appear that the incident occurred during day time at around 12 O''clock at noon on 28th February, 2002. The condition contained in Clause 12 reproduced by the opponent Insurance Company speaks about loss or damage to property insured whilst in window display at night or whilst kept out of safe after business hours. Obviously the loss appears to have occurred during business hours although it was not possible for any one for making any effort/attempt to put back the ornaments and cash in the safe on the earlier day as stated above. Therefore, prima facie the clause canvassed by the opponent Insurance Company would not be applicable to the present case. Thus, there clearly appears non-application of mind in canvassing Clause-12. It would, therefore, clearly appear that the opponent Insurance Company ought to have proceeded with processing and considering the claim set up by the complainant. We had issued notice pending admission only with a view to see that that exercise is undertaken by the opponent Insurance Company.
IN our considered opinion this complaint is required to be disposed of by issuing appropriate direction to the opponent INsurance Company as under: Opponent INsurance Company is directed to process the claim set up by the complainant and settle the same after giving opportunity to the complainant and decide it within eight weeks from the date of receipt of true copy of this order. It will be open to the complainant to challenge the decision if he is not satisfied with the decision rendered by the opponent who will send decision taken by it to the complainant along with report of the Surveyor and/or INvestigator as the case may be. If the aforesaid direction is not complied with by the opponent INsurance Company the concerned officers/personnel of the opponent INsurance Company will be liable for being dealt with under Section 27 of the Consumer Protection Act, 1986. On account of default on the part of the opponent Insurance Company as aforesaid opponent Insurance Company is directed to pay cost of this complaint quantified at Rs. 10,000/- within eight weeks from today to the complainant. This complaint is accordingly disposed of with liberty to the complainant to approach Appropriate Authority/Forum in case the claim is repudiated or in case the claim sanctioned by the opponent is not acceptable to the complainant. Complaint disposed of.