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Judgment
COMPLAINAN T as well as the Opposite Party before the State Commission have filed these appeals against the judgment and order dated 26.2.2007 passed by the State Consumer Disputes Redressal Commission, Rajasthan, (in short, ''the State Commission'') in Complaint No. 1/04 whereby the State Commission partly allowing the complaint has directed the Opposite Party Insurance Company to pay a sum of Rs. 5,50,800 to the Complainant along with interest @ 9% p.a. from the date of filing complaint, i.e., 16.1.2004 till payment within a period of two months. Facts: Complainant, a partnership firm of husband and wife, deals in creating and manufacturing statues and paintings of Lord Ganesha under the banner of Ganesham - Mahadev Exports. Complainant/Appellant in FA No. 201 of 2007 and Respondent in FA No. 209/07 (hereinafter to be referred to as the "Appellant") obtained a Burglary Insurance Policy bearing No. GOI/1401/9999/00003329 for a sum of Rs. 80,00,000 on "agreed value basis" from the Respondent in First Appeal No. 201/07 and Appellant in F.A. No. 209/07 (hereinafter to be referred to as ''the Respondent'') for getting insured the series of 1000 paintings of Lord Ganesha on 250 sheets (each sheet containing four different postures of Lord Ganesha) along with furniture, fixtures, fittings, utensils, appliances, household items, computer system, scanner, printer, etc. The policy was valid for the period from 4.1.2002 to 3.1.2003.
ON 28.12.2002, a theft took place at the insured premises and 162 painting sheets of Lord Ganesha (each sheet containing four different postures of Lord Ganesha) along with other items such as Camera, digital camera, suitcase, sarees, silver and gold ornaments were stolen. An FIR was lodged with the police authorities. Respondent Insurance Company was also informed about the theft, vide letter dated 1.1.2003, Appellant informed the Police Authorities that 153 paintings have been stolen instead of 162 paintings as reported earlier. Appellant submitted a claim of Rs. 50,34,986 including the cost of 153 painting sheets of Lord Ganesha at Rs. 48,96,000 with the Respondent Insurance Company towards the loss suffered by it. Respondent, on being informed, appointed Dr. M.A. Qureshi, Claim Investigator to investigate into the matter. He submitted his report on 3.7.2003 stating that no burglary had taken place as there was no evidence of forceful entry by the miscreants through the balcony gate after removing the glass panel from outside. Thereafter, Respondent appointed another Surveyor, P.K. Gupta to further investigate into the matter. The said Surveyor submitted his report on 18.4.2003 stating that there was no evidence of burglary or house breaking. However, he assessed the loss at Rs. 5,50,800 taking the cost of one painting of Lord Ganesha @ Rs. 900. Respondent vide letter dated 24.11.2003 repudiated the claim of the Appellant on the ground that the Appellant has failed to establish through documentary and visible evidence that there was burglary as defined in the policy. Complainant, being aggrieved, filed the complaint before the State Commission claiming the compensation of Rs. 71,52,986.
RESPONDENT , on being served, entered appearance and filed its written statement resisting the complaint on the grounds that Dr. M.A. Qureshi, Surveyor appointed by the Respondent to investigate into the matter, has stated in his report dated 3.7.2003 that though the alleged theft took place on 28.12.2002 at the insured premises but the Police registered the case on 3.1.2003 only; that the Surveyor, P.K. Gupta submitted his report on 18.4.2003 stating that the alleged theft occurred on the night of 28.12.2002 but the incident of breaking of glass pane of balcony door was added subsequently on 30.12.2002; that there was no evidence of burglary or house breaking; that there was no evidence of forcible and violent entry through exterior door after breaking open glass panel; that the paintings were not kept in locker or safe or almirah in violation of the terms and conditions of the policy which required due observance and reasonable precautions from the insured; that the Respondent was justified in repudiating the claim as there was no evidence to show that burglary/theft had taken place at the insured premises on 28.12.2002.
STATE Commission, after considering the material available on record and the evidence led by the parties, came to the conclusion that there was breach of principle of utmost good faith by both the parties since the Respondent has failed to prove as to how they had assessed the value of series of 1000 painting sheets of Lord Ganesha to the tune of Rs. 80,00,000. That on bare perusal of the painting sheet of Lord Ganesha produced before it on 12.2.2007, it is revealed that by any stretch of imagination the value of one painting sheet could not be more than Rs. 1000 which has rightly been assessed by the Surveyor, P.K. Gupta. State Commission accepting the report of the Surveyor, P.K. Gupta, allowed the complaint and directed the Respondent Insurance Company to pay a sum of Rs. 5,50,800 to the Appellant along with interest @9% p.a. from the date of filing complaint, i.e., 16.1.2004 till payment within a period of two months. State Commission in its order observed as under: In this case, it appears that principle of utmost good faith has been breached by both the parties including Opposite Party Insurance Company as it is not clear how they assessed the value of series of 1000 painting sheets of Lord Ganesha to the tune of Rs. 80,00,000 because a bare perusal of painting sheet of Lord Ganesha containing four difference postures of Lord Ganesha produced before this State Commission on 12.2.2007 reveals that value of one painting by any stretch of imagination could not be more than Rs. 1000 and the Surveyor has rightly observed that market value of each printing did not exceed rupees one thousand and he rightly assessed the loss to the tune of Rs. 5,50,800.
Thus, for the reasons stated above, though the case of alleged theft/burglary appeared to be of doubtful nature, but looking to the peculiar facts and circumstances of the case and looking to the fact that principle of utmost good faith has been breached by both the parties including opposite party Insurance Company this State Commission thinks it just and proper and in the interest of justice to award a sum of Rs. 5,50,900 to the complainant, as assessed by the Surveyor, along with interest @ 9% p.a. from the date of filing complaint i.e. 16.1.2004 till payment was made and to that extent, this complaint deserves to be partly allowed.
STATE Commission also held that it is doubtful whether the burglary had taken place and observed as under: In our considered opinion, looking to the entire facts and circumstances narrated above and looking to the facts that at the time of lodging report Ex. 11, no stock register or photograph of the painting of Lord Ganesha was produced by the complainant before the police and no painting of Lord Ganesha was brought to the knowledge of the police at the time of investigation and looking to the fact that initially the case of the complainant was that 162 painting sheets of Lord Ganesha were stolen and later on it was the case of complainant that in place of 162, 153 painting sheets of Lord Ganesha were stolen and looking to the fact that incident of breaking glass was added later on and not in the report which was lodged by the complainant on 28.12.2002 and looking to the fact that no broken locks were found by the police nor produced before the Surveyor, it cannot reasonably be inferred or presumed or concluded that there was burglary or house breaking viz. the theft of material following an actual forcible and violent entry or exist from the premises and the Surveyor has rightly observed so. The findings of the Surveyor that no burglary/theft had occurred and the sequence of breaking of glass pane of balcony door was brought into picture on 30.12.2002 to make incident as burglary though circumstances point otherwise and the veracity of the incident looked doubtful, are based on correct appreciation of entire materials and evidence available on record. The Surveyor has also looked at the broken glass pieces of balcony door, which were more or less of even size and not of uneven size. According to the Surveyor, in case the glass was broken by wind/breeze, the pieces would by of uneven size and this aspect, has been overlooked by the complainant and his sudden return to his house on getting information of the broken glass of the balcony door was beyond comprehension and he has no explanation to account for this. The Surveyor further observed that no broken locks were found by the police nor produced before him and there was no tampering with the almirah. Thus, after elaborate discussion and minute examination and consideration of each and every aspect of the matter and after sifting of evidence available on record, the Surveyor had come to the conclusion that no burglary/theft had occurred and the case of theft appeared to be doubtful. We are in agreement with the findings of the Surveyor that no burglary/theft had taken place and the case of theft/burglary appeared to be doubtful, as they are based on correct appreciation of entire materials and evidence available on record and they do not suffer from any basic infirmity or illegality or infirmity. We see no reason to differ with the view taken by the Surveyor on point of alleged theft/burglary.
FEELING aggrieved by the order passed by the State Commission, both parties have filed appeals. First Appeal No. 201 of 2007 has been filed by the complainant seeking enhancement of the amount whereas First Appeal No. 209 of 2007 has been filed by the Opposite Party/Respondent for setting aside the impugned order of the State Commission. We have heard the learned Counsel for the parties at length. Learned Counsel appearing for the Appellant contends that there is difference between "Agreed Value" and "Valued Policy"; that the policy issued by the Respondent was on "Agreed Value Basis" and, therefore, the sum insured should be the basis of indemnification of the loss suffered by the Appellant; that the sum insured was fixed by the Respondent Insurance Company after consultation with two pre -eminent artists of national repute having knowledge and experience on the subject and the premium was charged accordingly by the Respondent; that having insured the property for Rs. 80,00,000 and charging the premium on the basis of value arrived at, the Insurance Company could not turn around and contend that the value of the property was less than the agreed price; in support of his contention, learned Counsel for the Appellant has relied upon the judgment of the Hon''ble Supreme Court in the case of Dharmender Goel v. Oriental Insurance Co. Ltd., : IV (2008) ACC 750 (SC) : III (2008) CPJ 63 (SC) : (2008) 8 SCC 279; that the thieves had entered into the insured premises by removing the glass of the window and not by breaking the lock; that the State Commission has erred in recording the finding that the incident of theft/burglary had not taken place; that the paintings which were stolen were drawn with the help of water colour, expensive stone colours and real gold and the paintings which were shown by the Surveyor to the various persons for evaluation, were not taken from the Appellant; that the Appellant has suffered loss in respect of several other items like, jewellery, digital camera, etc. but the Surveyor has not assessed the loss on those items.
AS against this, learned Counsel appearing for the Respondent contends that there was no breach of principle of utmost good faith by the Respondent as the policy for Rs. 80,00,000 was issued on the basis of declaration made by the Appellant regarding the value of the paintings; that the State Commission ought to have dismissed the complaint after recording the finding to the effect that the incident of burglary/theft was doubtful; that the Hon''ble Supreme Court in the case of United India Insurance Co. Ltd. v. Harchand Rai Chandanlal, : IV (2004) CPJ 15 (SC) : V (2004) SLT 876 : (2004) 8 SCC 644, has held that the theft has to be considered in terms of the definition of theft as defined in the policy and not in terms of definition of theft as defined under Indian Penal Code; that the Respondent was justified in repudiating the claim of the Appellant as there was no evidence of burglary/theft having taken place in terms of the policy.
THE findings recorded by the State Commission are contradictory in term. After recording the finding that no theft/burglary had taken place. State Commission goes to say that the case of theft appeared of doubtful nature and keeping in view the pecuniary facts and circumstances of the case and the fact that principle of utmost good faith has been breached by both the parties, State Commission went ahead and awarded the sum of Rs. 5,50,800 to the Appellant towards the theft/burglary of the goods. The finding recorded by the State Commission regarding the theft/burglary is based on ifs and buts. State Commission in its order has observed that the principle of utmost good faith has been breached by both the parties. It has not been firmly spelt out as to how the principles of utmost good faith were breached by both the parties. The finding is conjectural in nature. No firm finding has been recorded on the pleas raised by the parties. In our considered opinion, the State Commission being the Court of original jurisdiction should have recorded firm findings on the points raised by the parties. We are not satisfied with the order passed by the State Commission and the same is set aside and the case is remitted back to the State Commission to decide it afresh in accordance with law on the basis of evidence present on record. Counsel for the parties are directed to appear before the State Commission on 23.4.2013. All contentions are left upon. Nothing stated herein be taken as an expression of opinion.
Since, it is an old case, we would request the State Commission to dispose of the complaint as expeditiously as possible and preferably within a period of four weeks from the date of appearance.
Office is directed to refund the statutory amount of Rs. 35,000 deposited by the Respondent Insurance Company in its appeal along with the accrued interest, if any.