AI Structured Summary
Not yet generated for this judgment
Judgment
PETITIONER /Complainant had filed present revision petition against Respondent/Opposite Party, being aggrieved by impugned order dated 23.9.2013 passed by State Consumer Disputes Redressal Commission, UT Chandigarh (for short, ''State Commission) in (First Appeal No. 381 of 2013). Brief facts are that petitioner was running a business of making Steel Valves of different dimensions for Industrial use with the help of 4 -5 workers, solely for the purpose of self -livelihood. It was further stated that petitioner got the stock of his business premises insured with the respondent, vide Policy No. 353301/46/10/04/204 dated 22.11.2010. It was further stated, that on the night intervening 17/18.8.2011, a theft accompanied by forcible entry into the locked premises of the petitioner i.e. factory by breaking the shutter took place, by some unknown persons. Intimation of theft was given to the police, as well as to the respondent. Sh. Jaswant Dhawan, Surveyor, was appointed by the respondent, who visited the site of occurrence, took photographs and got completed all the necessary formalities from the petitioner. The reason for raising wall outside the broken shutter was explained, to the Surveyor. The Surveyor was told about the loss to the tune of Rs. 2,00,456 only. Further, the documents as demanded by the respondent from time to time, were duly supplied. Respondent vide letter dated 17.2.2012, sought some clarification from the petitioner which was clarified, vide letter dated 23.5.2012. However, petitioner was shocked to receive letter dated 1.8.2012, vide which respondent illegally repudiated the genuine claim of the petitioner on the ground, that only burglary was covered under the Policy in question and in petitioner''s case, only theft had taken place. Petitioner again requested the respondent to look into the matter properly, vide letter dated 24.9.2012, but to no effect.
LASTLY , legal notice dated 17.11.2012 was sent to the respondent, but to no avail. The aforesaid acts of the respondent, amounted to deficiency in rendering service as also indulgence into unfair trade practice. When grievance of petitioner was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (for short as ''Act'') seeking directions to the respondent, to pay an amount of Rs. 2,00,456 on account of actual loss occurred due to burglary along with interest @ 18% per annum w.e.f. 1.8.2012; Rs. 2,00,000 as compensation for mental agony and harassment; and Rs. 35,000 towards litigation expenses, was filed, Respondent in its written version took up preliminary objections to the effect, that petitioner was not a consumer as it was running the business of manufacturing and selling valves for commercial purpose. On merits, it was admitted that stocks lying in the business premises of the petitioner were insured with the respondent. It was stated that the said policy covered the risk of burglary or house -breaking (theft following upon an actual forcible and violent entry of and/or exit from the premises) and hold -up. It was further stated that Surveyor confirmed that there was no forcible entry into the premises of the petitioner. It was denied that the theft was committed after breaking the shutter. It was further stated that Surveyor was appointed on the day of incident i.e. 18.8.2011, who reached the spot on the same day. It is alleged that petitioner had erected the wall to cover the shutter. There was clear finding of the Surveyor, that there was no forcible entry into the premises of the petitioner. The petitioner had constructed the wall, before the spot inspection by the Surveyor and even before the inquiry by the police. It was further stated that petitioner failed to clarify, whether there was forcible entry by the burglars into the premises. Thus, there was neither any mention of forcible entry by breaking the shutter nor about the burglary by actual forcible and violent entry to the premises of the petitioner in the F.I.R. No. 308, dated 14.10.2011. The claim of petitioner was rightly repudiated as the same did not fall within the ambit of the terms and conditions of the policy. Thus, neither there was any deficiency in rendering service on the part of respondent nor did it indulge into unfair trade practice.
DISTRICT Consumer Disputes Redressal Forum -I, UT Chandigarh (for short, District Forum) after going through the evidence and hearing the parties, dismissed the complaint holding as under; "14. Undisputedly, under the Policy R -I, only the Burglary was covered. But since the complainant has failed to prove the said theft as a case of burglary, hence the repudiation done by the OP Company is held to be. justified.
In view of the foregoings, we are of the opinion that the complaint lacks merit Therefore, the same is dismissed, with no order as to costs."
BEING aggrieved, petitioner filed appeal before the State Commission, which dismissed the same being devoid of any merit at the preliminary stage. Hence, this revision.
WE have heard the learned Counsel for the petitioner and gone through the record.
IT is submitted by the petitioner''s Counsel that pleadings are totally absent in the case of respondent. Respondent has only filed reply by way of defective affidavit of one Gulshan Satija, Senior Divisional Manager. Further, if it is evidence by way of affidavit then, it cannot be taken into consideration in the absence of pleadings. It is further submitted that repudiation of the claim by the respondent is only on the ground, that there is no forcible/violent entry and theft is not covered as per provisions of Burglary Policy.
IT is also submitted that as per policy schedule, the same is in the name of M/s. Telcon Valves, whereas complaint was filed in the name of Tecon Valves Pvt. Ltd. Although, the above said fact was not in issue or disputed by respondent in its affidavit evidence, the same was duly clarified before the State Commission by showing the originals of the endorsement made by the respondent itself, regarding change of name to Tecon Valves Pvt. Ltd. But the said fact was also not taken cognizance by the State Commission. Hence, impugned order is liable to be set aside.
IN support, learned Counsel has relied upon the following judgments: "(1) New India Assurance Co. Ltd. & Anr. v. M.S. Venkatesh Babu, IV : (2011) CPJ 243 (NC);
(2) Bio -Med Pvt. Ltd. & Anr. v. Rumi Saikia (Kalita), : III (2011) 402 (NC);
(3) Vinod Kumar v. Punjab State Electricity Board & Ors., : III (2011) CPJ194 (NC);
(4) Kattinokkula Murali Krishna v. Veeramalla Koteswara Rao and Others, : I (2011) SLT 438 : (2010) 1 Supreme Court Cases 466;
(5) Mono Industries v. New India Assurance Company Ltd., : II (2008) CPJ 125 (NC);
(6) National. Insurance Company Ltd. v. Mohd. Ishaq, : I (2012) CPJ 538 (NC) : 2012(1) CPR 386 (NC). and
(7) B. Shantilal & Co. (Deceased) & Ors. v. New India Assurance Company Ltd. & Anr., : III (2011) CPJ 468 (NC)."
The District Forum, while dismissing the complaint in its order has held: "10, Undoubtedly, the report of the Surveyor has to be relied upon, but the same is not the last, and final word in settling the claim as has been held by the Hon''ble National Commission in National Insurance Company Ltd. v. Giriraj Proteins, : IV (2012) CPJ 151 (NC). It is also correct that the Surveyor Report if not supported by an affidavit of the Surveyor, who had prepared it, looses its evidentiary value, as has been held by the Hon''ble National Commission in National Insurance Company Ltd. v. Mohd. Ishaq, : 2012(1) 386 (NC).
But in the present case, besides the report of the Surveyor, there is also a report of Investigator, who has investigated the whole matter and gave its separate report vide Ann. R -4. The Investigator has opined that ''the case is not of burglary''. It is also opined that ''...Police has nowhere admitted in the documents submitted in the Court that theft took place by breaking open the shutter of the godown. Even the claimant has not stated in his statement made to the Police u/w 161, Cr.P.C. on 29.10.2011 that theft was committed by breaking the shutter of Company''s godown.''
Moreover, the perusal of the F.I.R. also shows that there is no mention about the theft having taken place in the premises of the complainant by breaking open the shutter of the godown nor it finds mention in the statement of complainant recorded under Section 161, Cr.P.C. (Ann. R -6).
IN this view of the matter, the onus shifts on the complainant to prove that the theft was committed by breaking the shutter of the godown and it was a forcible and violent entry, to constitute burglary. The element of force, in the said theft, is to be proved to make it a case of burglary. But the complainant has not been able to prove the same by leading any cogent, convincing and authentic evidence. The bold assertion of the complainant that the theft was committed by making forcible entry, without any substantial evidence/document to that effect, cannot be believed. Reliance has been placed on the judgment of Hon''ble National Commission in Mono Industries v. New India Assurance Company Ltd. : II (2008) CPJ 125, (NC) and Paresh Mohan Lal Parmar v. New India Assurance Company Ltd. & Ors.,, II (2011) CPJ146 (NC)" 13. The State Commission while dismissing petitioner''s appeal, vide its impugned order observed:
"9...After giving our thoughtful consideration, to the contentions, raised by the Counsel for the appellant/complainant and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons to be recorded hereinafter.
Clearly the Policy Schedule for Burglary (Single Location) Insurance (Annexure R -1) was in the name of "M/s. TELCON VALVES, (NL 5833634)'' whereas the complaint was filed in the name and style of ''Tecon Valves Pvt. Ltd.'' There was, thus, no privity of contract between the appellant/complainant and the respondent/Opposite Party. The Surveyor, in its report (Annexure R -2) has also taken note of this fact. Since there was no privity of contract, between the parties, the complaint was not maintainable.
Even if, it is assumed for the sake of arguments that there was a privity. of contract between the parties, the appeal is liable to be dismissed, on merits. No doubt, the Insurance Policy for the period from 22.11.2010 to 21.11.2011 in relation to stock of all kinds of raw material/finished goods/semi finished goods, and stock in process/goods held in trust on commission basis, whilst lying kept/stored at the address of the insured, to manufacture valves on payment of premium of Rs. 657.00 was subject to BURGLARY POLICY clauses attached to the same (Policy). Receipt of intimation regarding theft from '' the complainant and appointment of Surveyor to assess the loss are the admitted facts, by the parties. It is evident from Annexure R -5 that on the basis of information received on 14.10.2011, the F.I.R. was lodged. A perusal of the contents of the F.I.R. reveals that Mr. Vicky Jain S/o. Shri Mahabir Jain had on 17/18.8.2011 stolen finished valves and 10/12 Kg. Brass. Along with the F.I.R., there is statement of Shri Gursharan Singh Saghu who stated that some unknown person had stolen approximately 200 finished valves and 10/12 kg. Brass material from his factory.
The operative clause from the Burglary and Housebreaking Insurance Policy (Business Premises) is extracted below -
"Operative Clause
XXX XXX XXX
Any loss 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."
From the perusal of contents of the aforesaid ''extracted clause, presence of ingredient of actual forcible and violent entry of and/or exit from the premises, was required to be established for maintainability of the claim. In the instant case, as is evident, from the contents of the F.I.R., as also the statement of Shri Gursharan Singh Saggu (Annexure R -5), there was reportedly theft There is not even a slightest averment in the F.I.R., that there was forcible and violent entry. The plea that the gate was damaged was only an after thought version. For obvious reasons, the appellant/complainant did not bring, on record, copy of the FIR/untraced report, and the same was brought on record by the respondent. Not only this, even approximate value of the material stolen was not mentioned. In the face of the facts and evidence, on record, by no stretch of imagination, the incident, in the absence of force and violent entry, could be said to be relating to burglary. When there was no evidence, to prove the act of burglary, the question of entertaining the insurance claim did not arise.
Evidence, on record, reveals that even the information sought by the Surveyor was not promptly furnished. Annexure C -2 (Colly) claim bill is also not in consonance with the material reportedly stolen, as it includes production cost of Rs. 1,19,227.00 out of which an amount of Rs. 81,000.00, is on account of wages/salary for three months. The above position emerges from the facts and evidence on record.
THE Counsel for the appellant/complainant by relying upon the case titled as National Insurance Co. Ltd. v. Giriraj Proteins. : IV (2012) CPJ 151(NC) argued that the report of the Surveyor is not the last and final word. As per the aforesaid judgment, the Surveyor report can be ignored, if it is perverse or arbitrary, based on mere inferences or surmises. The appellant/complainant has failed to adduce any cogent evidence for establishing that the report of the Surveyor is arbitrary or perverse. The Surveyor inspected the site on the very first day of the incident. The Surveyor in its report stated that as per the Insurance Policy, name of the insured was M/s. Telecon Valves whereas the name of the Company is M/s. Tecon Valves P. Ltd. It was further stated that the Managing Director of the complainant Company did not provide the detailed information of the incident and even the letter of incident given to the Police Station despite repeated requests. It was further stated that the Managing Director of the complainant after repeated requests gave the FIR on 10.1.2012 which mentioned the date of incident as 14.10.2011 under Section 379, IPC and, as such, the reported incident did not fall within the term ''Burglary and House -breaking''. It was further stated that as per the information given, by the staff of the Insured, when they opened the gate on 18.8.2011, the valves were found missing. It was further stated that the insured submitted the claim form in which it mentioned that burglar entered the premises by breaking open the shutter but in the F.I.R. nothing was mentioned about breaking of shutter. It was further stated that the net loss assessed was Rs. 47,950 but since the occurrence of reported incident was not substantiated, the proximate cause did not cover the loss. The Surveyor considered and evaluated all the facts and circumstances, before coming to the conclusion, that the claim was not admissible. It was further stated by the Surveyor that it was a sheer negligence, on the part of the insured, and as such the claim was not admissible. Not only this, the report of the Surveyor was duly corroborated by the report of the Investigator (Annexure R -4), who was appointed by the Opposite Party. We do not find any perversity, in the report of the Surveyor duly corroborated by the report (Annexure R -4) of the Investigator. There was, thus, no deficiency, in rendering service, on the part of the Opposite Party." 14. The claim of petitioner was repudiated vide letter dated 1.8.2012 of the respondent which states:
"1. This refers to your letter dated 18.8.2011 intimating us that a theft has taken place in between this period of 5 p.m. dated 17.8.2011 and 8.30 a.m. dated 18.8.2011 at your factory at Zirakpur, Ambala Road, Zirakpur.
That the above referred policy issued to you covers the risk of burglary of House -breaking (theft following upon an actual forcible and violent entry of and/or exit from the premises) and Hold -up. The relevant clause is reproduced hereinunder"
"The Company hereby agrees subject to terms conditions and exclusions herein contained or endorsed or enclosed or otherwise expressed hereon to indemnify 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 threat 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 in the Schedule.
That the Company is liable to indemnify you in case the loss is caused by Burglary or Housebreaking (theft following upon an actual forcible and violent entry of and/or exit from the premises) or Hold -up. In the instant claim lodged by you, the loss has occurred due to theft and there is no actual forcible and violent entry of and/or exit from the premises.
That the surveyors M/s. Surya Surveyors Pvt. Ltd. were deputed by the Company to assess the loss and investigate the claim and they visited your premises on 18.8.2011 and observed that when they visited the site of insured on 18.8.2011, the construction of the side door with bricks was in progress and there was no sign of broken shutter. They further observed that the insured site was in very bad shape and not properly maintained. So the surveyor has confirmed that there is no forcible entry by breaking of shutter in committing the theft.
We have gone through the claim form dated 10.1.2012 submitted you, and against column 4c of the claim form ''How the entrance effected?'' you have mentioned ''By breaking the shutter''. However, the copies of FIR No. 308 dated 14.10.2011, your statement dated 29.10.2011 given to Sh. Bhupinder Kumar, HC/66, report dated 15.3.2012 of Sh. Pawan Kumar, HC/315, report dated 21.4.2012 submitted by Sh. Bhupinder Singh, HC/66 in the Court of SDJM, Derabassi and the untraced report dated 21.4.2012 issued by the Court, submitted by you" in support of your claim, nowhere mention about breaking of shutter. In all these documents, it has been stated that a theft has occurred in the intervening night of 17 -18.8.2011. Hence, it is clear that there was no forcible and violent entry as claimed by you in the claim form. 6. The surveyor has confirmed that there was no forcible and violent entry. That the cause of. loss, theft is not covered as per the provisions of the Burglary Policy mentioned in detail at para 2 above. We, therefore, regret to inform you that your claim does not fall within the scope of the policy, and hence we ''repudiate our liability''."
Petitioner in its complaint about the alleged incident has averred: "That on the intervening night of 17/18.8.2011, theft accompanied by forcible entry into the locked premises of the factory of the complainant took place by. some unknown persons and intimation of the same was immediately given to the OP and the police on the very same date of knowledge of the said incident i.e. on 18.8.2011. The abovesaid theft accompanied by forcible entry had been -committed by breaking the shutter of the factory premises by some unknown persons, Surveyor i.e. Sh. Jaswant Dhawan. appointed by the OP visited the site of occurrence, at around 4.00 p.m. on 18.8.2011."
ADMITTEDLY , the FIR in the present case was lodged by the petitioner only on 14.10.2011. '' However, there is no explanation at all for the long delay in lodging of the FIR. More so, in the FIR, there is no mention of "forcible entry" at all.
THUS , petitioner improved its case at the time of filing of consumer complaint before the District Forum, by alleging that there was "forcible entry" into his premises, which was not its case at all initially. Be that as it may, as per copy of the policy schedule (Page No. 74 of the paper book) initially, the insurance was in the name of "M/s. telcon valves, (NL5833634)", whereas complaint was filed in the name and style of "Tecon Valves Pvt. Ltd." Interestingly, the policy was endorsed in the name of "Tecon Valves Pvt. Ltd." only on 19.8.2011 (Page No. 106 of the paper book) that is, after the date of incident.
THUS , there was no privity of contract between the petitioner and the respondent, on the date of theft, the surveyor, in its report has also Liken note of this fact. Since, there was no privity of contract between the parties, the consumer complaint is not maintainable at all.
IT is well settled that under Section 21(b) of the Act, scope of revisional jurisdiction is very limited. Under this section, this Commission can interfere with the order of the State Commission where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. Hon''ble Supreme Court in Mrs. Rubi (Chandra) Dutta v. United India Insurance Company, : IV (2011) SLT 303 :II (2011) CPJ 19 (SC) : 2011 (3) Scale 654 has observed: "Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21(b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view that what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter we are of the considered opinion that that the jurisdiction conferred on the National Commission under Section 21(b), of the Act has been transgressed. It was not a case where such a view could have been taken, by setting aside the concurrent finding of two Fora."
BOTH the Fora below have dealt with all the relevant issues in great detail. We fully agree with the reasoning given by them. There is no jurisdictional error, infirmity or illegality in the impugned order.
NONE of the judgments (supra) relied upon by the petitioner are applicable to the facts of the present case. Accordingly, present revision is hereby dismissed with cost of Rs. 10,000 (Rupees ten thousand only).
COSTS be deposited by way of demand draft in the name of ''Consumer Legal Aid Account'' of this Commission within four weeks, failing which petitioners shall be liable to pay interest @ 9% p.a. till realization. List on 13.2.2015 for compliance.