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Judgment
COMPLAINAN T /Appellant has filed this Appeal against the judgment and order dated 27.11.06 passed by the State Consumer Disputes Redressal Commission, Orissa (in short, ''the State Commission'') in Complaint Dispute Case No. 39/03 whereby the State Commission has dismissed its complaint. FACTS: -
BRIEFLY stated the facts of the case are that the Complainant/Appellant herein obtained a credit facility of Rs.10,00,000/ - from the State Bank of India, C.I.I.C. Branch, Bhubaneshwar (Opposite Party No. 5 before the State Commission) which took the burglary policy from the Respondent Insurance Company in respect of the stock of watches and spare parts kept in the Appellant''s business premises. The policy was valid for the period from 15.11.99 to 14.11.2000. In the intervening night of 5/6 December, 1999, a burglary took place in the business premises of the Appellant and the entire insured stock was stolen. F.I.R was lodged on the following day at Capital Police Station, Bhubaneswar.
INTIMATION of loss was also given to the Respondent Insurance Company. On receiving the intimation, Respondent appointed the Surveyor, Mr. P.K. Nanda to assess the loss suffered by the Appellant. Thereafter, Respondent in order to carry further investigation of the claim, appointed another Surveyor, T.K. Mukherjee who visited the business premises and submitted his report assessing the net loss at Rs.10,30,863.00. Since the claim was not settled for a long period by the Respondent Insurance Company, Complainant, being aggrieved, filed the complaint before the State Commission alleging deficiency in service on the part of the Respondent. Respondent Insurance Company, on being served, entered appearance and filed its written statement resisting the complaint mainly on the ground that the alleged theft took place in the business premises of the ground floor of Plot No.87/9 which was place other than the insured premises and the bills submitted by the Appellant in proof of purchase of watches from Cenzor Shop, Mumbai were fake.
STATE Bank of India filed its separate reply stating that since the Complainant had violated the terms and conditions of the facility extended, it had filed O.A. No. 63 of 2003 against the Appellant for recovery of the loan amount in Debt Recovery Tribunal, Orissa, Cuttack.
STATE Commission, after considering the facts, pleadings and the evidence led by the parties, dismissed the complaint on the ground that the place where the burglary took place was not insured premises. Since the burglary had taken place in the premises other than the insured premises, Insurance Company was not liable to reimburse the loss suffered by the Appellant.
THE relevant observations of the State Commission read as under: - " The burglary and house breaking policy is at Annexure -1. The name of the complainant was mentioned as follows: -
S.B.I. CIIC, Br. BBSR, M/s. Taj Watch and Co., Plot No. 87/9 (Ist Floor), Bapuji Nagar, Bhubaneswar. In the other column of the policy, it was mentioned as follows: -
"On the stock of watches, spare parts, to the extent of Rs.13,53,000/ - situated on the above address." From the above, we have no hesitation to hold that stock of watches and spare parts kept in the 1st floor of Plot No. 87/9 was insured with the opposite parties 1 to 3. The clear and specific case of the insurer is that burglary took place in the ground floor of Plot No. 87/9. As mentioned above, stock in the ground floor was not insured. The onus lies on the complainant to prove that burglary took place in the premises which was the subject matter of the insurance. It failed to discharge its burden by producing any evidence."
APPELLANT , being aggrieved, has filed the present First Appeal.
WE have heard the learned counsel for the parties at length.
LD . Counsel appearing for the Appellant contends that the insurance in question was in respect of the same venue in the shop which was the subject matter of earlier insurance policy issued by the New India Assurance Co. Ltd. That the proposal form was signed by the officer of the Bank and not by the Appellant and even then it was clearly mentioned that the nature of trade business as shop cum godown. Therefore, the only stocks in the entire shop cum godown which covers both the ground floor and the Ist floor was to be covered. That the Insurer has clearly excluded the yard, garden, open space or out building from the insured premises which presupposes that the ground floor was very much covered because only the ground floor in locality in question could possibly have yard or garden. That the Bank which had extended the facility of loan in order to safeguard its own interest, had taken the policy for the entire premises and not a part of it. As against this, Ld. Counsel for the Respondent support the order passed by the State Commission.
WE do not find any substance in the submission made by the Ld. Counsel for the Appellant. A perusal of the proposal form (which has been placed on record) would show that the insured premises were 87/9, Ist Floor, Bapuji Nagar, Bhubaneshwar and not 87/9, Ground Floor, Bapuji Nagar, Bhubaneshwar. Respondent issued the policy for the premises as per proposal form. It is the case of the Complainant that burglary took place at 87/9, ground floor, Bapuji Nagar, Bhubaneshwar which was a place other than the insured premises. Insurance Company can be held liable to indemnify the loss suffered by insured only if the theft/burglary takes place at the insured premises. Since the burglary had not taken place at the insured place, Respondent was justified in repudiating the claim.
COUNSEL for the Appellant pointed out that earlier the Appellant had taken the Fire Policy as well as Burglary Policy from New India Assurance Company Ltd. for the period from 22.4.98 to 21.4.99 covering the risk in respect of the stocks kept in 87/9, shop -cum godown (Ist and ground Floor). This has nothing to do with the policy in question issued by the Respondent Insurance Company. As stated above, Respondent Insurance Company had issued the policy for the premises as per the proposal form.
REALIZING that the Appellant could not succeed against the Insurance Company, it has moved an application seeking amendment of the complaint alleging deficiency against its Banker, i.e, State Bank of India for not taking the policy for the entire premises including the premises where the burglary took place. It may be mentioned here that though the Appellant had arrayed the State Bank of India as a party respondent before the State Commission but it neither allege any deficiency in service on the part of the Bank nor seek any relief against it. State Bank of India has not been arrayed as party respondent in the present appeal. In the Amendment Application, Appellant has made the following prayers: - i) In amendment to Para NO.17, the following lines be added: - "OP NO.5 has committed gross deficiency in service by providing incorrect particulars of the insured premises to the insurance company". ii) In amendment to the prayer clause, the words "the Opposite Parties be held jointly and severally liable" be added.
WE are not inclined to allow the amendment application at this belated stage as it would lead to a de -novo trial of a complaint filed in the year 2003 relating to a dispute which had arisen in 2000. It will change the course of entire case. Appellant cannot be permitted to put the State Bank of India to a trial of the cause of action which had arisen in the year 2000, at this belated stage.
FOR the reasons stated above, we do not find any merit in the appeal and dismiss the same with no order as to costs.