Naba Kishore Sahoo vs National Insurance Co. Ltd. & 2 Ors

Deepa Sharma, Presiding Member

The present Appeal has been filed against the order dated 30.09.2014 of the State Consumer Disputes Resdressal Commission, Orissa (for short “the State Commission”) in Complaint No.114 of 2009 whereby the Complaint of the Appellant  (hereinafter referred to as “the Complainant”) was dismissed having no merit.

The brief admitted facts of the case are that the Complaint had insured his jewellery shop in the name and style of “Nababhai Jewellery” at Arnapurna Market Complex near Sharma Square, Talcher which was valid from 12.06.2007 to 11.06.2008.  At about 2:45 a.m. on08.04.2008, shutter of his shop was broken.  Miscreants took away certain gold and silver ornaments which according to the Complainant were worth ₹20 Lakhs.  The watchman of the shop namely Srimukha Sahoo informed the Complaint about the incident and also reported him that the miscreants were having deadly weapons and had also covered their faces with black clothes and out of fear he could not offer any resistance.  A complaint was lodged.  An FIR was registered at Police Station Colliery, Talcher.  A Constable visited the shop and reported that the gold and silver ornaments which were kept in the display counter were taken away by the miscreants but the miscreants could not break open the lock, no theft had taken place from the locker.  On the same day, around 12 noon, a scientific team along with higher police officers came at the shop and the locker was opened by the Complainant.  The Complainant also filed his claim with the Insurance Company, i.e. the Respondent which did not settle his claim and hence, a Complaint was filed.  In the Complaint, the Complainant had stated that the ornaments which were on display and the ornaments which were on counter/drawer were looted.  It was contended in the Complaint that the locker of the shop was opened by the police and the locker was opened in the presence of the Complainant.  It has been contended that since the Insurance Company had failed to settle his claim, it amounted to deficiency in service and claimed that he be awarded claimed amount of ₹31,59,895/- along with interest from the date of filing of the Complaint till the date of payment.

The claim was contested by the Respondent Insurance Company wherein they have taken several contentions and had taken the plea that as per the exclusion clause no.12, the articles stolen from the window display and kept out of safe after visiting hours were not covered under the policy.

Parties led their evidences and after hearing the arguments of learned Counsel for the parties and perusing the relevant record, the State Commission has held as under:

“On the other hand, learned counsel for the Opposite Parties – Company contends that as per policy condition contained in proviso no.12 of Section IV of the policy, if there is any loss or damage to property insured whilst in window display at night or whilst kept out of safes after business hours, the Opposite Parties – Company is not liable to indemnify the loss.  In the present case, the alleged occurrence took place at 2:15 A. M. dated 8.4.2008 and it is the case of the complainant himself and as per the report of the surveyor-cum-loss assessor, the culprits tried to break open the safe, but they could not succeed.  It is also the case of the Complainant that the ornaments which were kept on window display counter were only stolen away by culprits.  So, in view of proviso 12 of Section – IV of the policy, Opposite Parties – company are not liable to indemnify the loss sustained by the Complainant and accordingly, prayed to dismiss the Consumer Complaint.

As it appears from the pleadings of the parties and the documents available on record, including the final form, there was theft from the window display counter of the Jewellery Shop of the complainant at about 2.30 in the night.  Proviso 12 to Section IV f Jewellery Block Insurance Policy, which was taken by the complainant reads as follows:-

Provided always that 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 safes after business hours”.

In view of the above quoted provision, Opposite Parties – Insurance Company shall not be liable in respect of any loss said to have sustained by Complainant.

Accordingly, the Consumer Complaint stands dismissed.  Parties shall bear their own cost.”

This order is impugned by the Complainant before this Commission.  It is argued that the Complainant could not file the relevant documents as demanded by the Insurance Company, with the surveyor as well as in the court while filing the Complaint and since these documents were filed at a later stage by the Complainant before the State Commission, the State Commission did not consider these documents and dismissed his Complaint.  It is submitted that the documents could not be filed on earlier stage because the documents were seized by the police and were not in possession of the Complainant and that the report of the surveyor is incomplete.

It is argued by learned Counsel for the Respondent that the Complaint was not dismissed because of late filing of the documents but it was dismissed because the insurance policy was not covering the theft and since the articles were stolen from the window display and other places during the night hours and were not stolen from the locker, the claim was not covered by the terms and conditions of the policy.  It is further argued that nowhere in the Complaint, the Complainant has stated that the articles stolen were from the locker itself and were not from the window display or other places of the shop.  It is further argued that as per the report of the police, the miscreants who entered the shop could not break open the locker and the locker was opened by the Complainant in the presence of the police.  It is argued that when the miscreants were not able to break the locker, apparently, no theft of any articles lying in the locker had taken place.  It is further argued that the State Commission has therefore rightly dismissed the Complaint.

I have given thoughtful consideration to the arguments of the learned Counsel for the parties and perused the file.

From the perusal of the Complaint, it is apparent that nowhere in the Complaint, the Complainant has alleged that the articles were stolen from the locker.  It is also apparent from the contentions in the Complaint itself that the locker was opened in the presence of the Complainant by the police and the report of the police is that the locker could not be broken open by the miscreants and was intact.  There is no contention in the Complaint that the locker was broken open by the miscreants.  Hence, the finding of the State Commission that the Complainant had failed to prove the theft of any article from the locker and since the theft of the articles from other places was duly covered under the exclusion clause of the policy, the Complainant was not entitled to any claim, could not be said to be perverse.

I found no illegality or infirmity in the impugned order. The present Appeal has no merit and the same is dismissed with no order as to costs.