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Judgment
This appeal has been filed by the appellant Sree Ganesh Enterprises against the order dated 03.09.2012 of the State Consumer Disputes Redressal Commission, West Bengal, (in short 'the State Commission') passed in SC Case No.CC/32/2010.
Briefly stated the facts of the case are that the complainant took a burglary policy for her Glass Ampoules producing factory located at C-13, Bind Bihar Ghosh (west) (John Nagar Road) Serampore, District Hooghly from the opposite party Insurance Company. The said policy was valid from 03.09.2001 to midnight of 02.09.2002 for an assured sum of Rs.50 lakhs only against the machines installed inside the factory premises. The complainant also took a Fire & Special Perils Policy of Rs.50 lakhs for the same period. Complainant paid a total amount of Rs.26,250/- towards premium against the said two policies. Her husband namely Kuldip Garg used to look after and control the affairs of the factory but owing to sudden illness of Shri Garg, operation of the factory remained suspended for about 5-6 months. Registered watch and ward staff was deployed. During that time, some unknown hoodlums committed burglary at the factory on 28th August, 2002. The extent of the burglary was so daring that the machines for manufacturing of Ampoules were taken away along with finished goods, furniture etc. by the miscreants by overpowering the two watch and ward staffers. The burglars could not be identified as they were in black masks. However, the claim of the complainant was not settled by the opposite parties on the ground that since the factory was understood to have been closed for 5-6 months when the burglary took place and was uninhabited in violation of the terms of the insurance policy i.e. Clause 8 A of the insurance policy. The State Commission dismissed the complaint by holding that complainant failed to prove with adequate evidence that the burglary took place at her factory premises during the wee hours of 28th August, 2002. The following observations were made by the State Commission:-
"The complainant too took no initiative to produce the 'watch and ward staffs' to get their statements/version recorded as evidence in support of her complaint, although the said two security personnel were marked (P) in the Duty Chart on 28.8.2002 and thereafter. While the Police Report is silent on the actual happening of the burglary during the 'wee hours of 28 August, 2002' the Surveyor's Report holds that 'the incident appeared to be true.' The Surveyor reported to have 'made some local enquiries and had taken some statement of them'. No such statement is found to have been enclosed and we are constrained to take the Surveyor's Report with a grain of salt. The complainant's version of the fact of burglary suffers from lack of adequate evidence and she fails to explain as to how and exactly when the alleged burglary took place at her place of business, as pointed by the opposite parties in their written objection filed before this Commission."
Hence the present appeal.
Heard the learned counsel for the parties and perused the record. Learned counsel for the appellant stated that though the factory was closed since February, 2002, but there was watch and ward for guarding the machinery and the premises of the factory. As soon as the husband of the complainant recovered from his illness, he went to the factory on 28.8.2002 and found that no machinery and other materials were there and same were taken away by the thieves. The insurance claim was lodged with the Insurance Company and a surveyor was appointed by the Insurance Company. Surveyor has stated that he has verified from the Investigating Police Officer and has verified that the incident was true. Thus, the State Commission is not justified in holding that the complainant has not been able to prove incident of burglary on 28.8.2002. The policy was valid from 3.9.2001 to 2.9.2002 and therefore, the incident of burglary happened within the policy period. The Insurance Company has repudiated the claim on the ground of condition No.'8A' vide its repudiation letter dated 25.4.2007. It was contended by the learned counsel for the appellant that there was no condition '8A' in the policy that was supplied to the complainant. In fact, Condition No. '8A' appears in the policy, which is 'burglary and house breaking policy', whereas the policy taken by the complainant was only 'burglary policy' where there is no condition as '8A' and the only condition is condition No.8. Thus, the exclusion relating to '8A' cannot be put to the policy taken by the complainant. Hence, the repudiation letter is invalid ab initio. However, the State Commission has accepted the repudiation on the ground of Condition No.'8A' as valid. The surveyor in its report dated 31.12.2005 has mentioned the policy as burglary policy, and not as burglary and house breaking policy.
It was further stated by the learned counsel for the appellant/complainant that when initially the complainant tried to lodge the FIR, the same was not registered by the Police and after requesting Senior Officers of the Police Department, the same was registered on 09.12.2002. Though there is a delay in lodging the FIR, the complainant is not responsible for the same. Final report was submitted by the Police and the same was accepted by the concerned Magistrate on 24.5.2004. It has been stated by the Police in its final report that the identity of the culprits could not be established. This clearly shows that the incident of burglary has not been denied by the Police. It was submitted by the learned counsel for the appellant that the incident of burglary is true as observed by the surveyor in his report. The surveyor has also assessed the loss of Rs.4,77,040/- and has recommended for the payment of the same. The Insurance Company is liable to pay this amount. Based on these grounds the learned counsel for the appellant prays that the appeal may be allowed.
On the other hand, learned counsel for the Insurance Company stated that FIR has been lodged after a delay of more than three months, thus, the authenticity of the incident becomes doubtful. Condition No. '8A' of the policy states that if the premises are kept uninhabited for more than one week, then the claim is not payable. The State Commission has clearly observed that the complainant has not produced any evidence in respect of two staffers of watch & ward, which were allegedly present on the date of incident. Thus, the fact is that there was no watch and ward for guarding the premises and therefore, condition No.'8A' of the policy is fully applicable.
It was further contended by the learned counsel for the opposite party/Insurance Company that the repudiation of the claim was on 25.4.2007, whereas the complaint has been filed in the year 12.5.2010. Thus, the complaint was clearly time barred and this issue was raised in the written statement filed by the opposite parties. The State Commission has treated the complaint as filed in time by observing that the complainant had moved first before the Insurance Ombudsman and after receiving the letter dated 31.3.2009 from the Ombudsman ordering him to approach the competent court, the complaint has been filed by the complainant.
It was further pointed out by the learned counsel for the Insurance Company that the FIR actually does not mention the date of incident. However, it mentions that occurrence of offence is before 29.5.2002. Thus, prima facie the story of the complainant that burglary happened on 28.8.2002 is contradicted by the FIR itself.
It was argued by the learned counsel that there are many judgments of this Commission, wherein it has been clearly laid down that the limitation period is to be counted from the date of repudiation letter and therefore, the observation of the State Commission is not justified.
I have given a thoughtful consideration to the arguments advanced by the learned counsel for both the parties and have examined the material on record. So far as the question of delay in filing the complaint in the circumstances of the case, I agree with the finding of the State Commission that the complaint may be treated as filed in time because of the fact that the complainant first approached Insurance Ombudsman and on their advice filed a complaint. I also agree with the contention of the learned counsel for the appellant that the policy issued to the complainant was 'burglary policy', which does not has any condition No.'8A' and therefore, the repudiation on the ground of condition No.'8A' does not hold good.
A perusal of the FIR shows that the FIR was filed on 09.12.2002. The FIR does not mention any specific date of incident of burglary rather it mentions the period before 29.5.2002. The following is mentioned in the FIR:-
"(a) Occurrence of Offence: day.........Date From........Date to......... Time Period Before 29-05-02 Time From............ Time To ........."
An application of the complainant dated 29.8.2002 (there is a cutting on month in this application) is attached with the FIR, which only mentions the following:-
"Yesterday as my husband after recovery, went there but to his utter surprise noted that there was a theft in factory premises and all the plant and machines, Raw materials, finished goods, stores, furniture, and allied documents and papers etc., have been carried away some there by some anti- social elements/persons."
Even in the application, the complainant has not mentioned any date of the incident of burglary. Moreover, there is no mention of any forcible entry or exit from the premises of the factory. The policy mentions the following:-
"NOW THIS POLICY WITNESSETH that subject to the terms exceptions limitations and conditions contained herein or endorsed hereon the Company will indemnify the insured against loss of or damage to the Property Insured described in the Schedule whilst contained in the Premises by theft following upon Burglary or Housebreaking accompanied by the actual forcible and violent breaking into or out of the premises or any attempt thereat occurring during the Period of Insurance."
From the above, it is clear that the policy is attracted only when theft is followed by Burglary or Housebreaking accompanied by actual forcible and violent entry whilst breaking into or exit out of the premises. As seen in the FIR, the application on which the FIR is supposed to have been registered, does not mention anything about use of force while entering the premises or while coming out of the premises. The State Commission has also observed the following:-
"The whole incident is said to have taken place in the wee hours of 28th August 2002 and 'two watch and ward staffs' being overpowered by the hoodlums could do nothing. The names of such 'staffs', though not mentioned in the letter dated 29.08.2002 addressed to the IC, Serampore are found in 'the Duty Chart..' annexed to the evidence on affidavit filed by the Complainant on 30.06.2011 and it reveals therefrom that (1) Ajay Datta and (2) Ashok Samanta were on duty on the date of the incident (and also after that incident). They were overpowered by the burglars according to the complainant, but they must have been aware for sure when and how the burglary happened and when and how the miscreants left after the operation. Not a single word is heard from either of the two and nothing about any injury sustained by either of the two is on record. They were crucial eyewitnesses, but, as pointed by the Ld. Advocate of OPs during final hearing by this Commission, were never contacted by the Investigating Police and the OP-appointed Surveyor during his visit immediately after the incident and later observed that 'There were no security guards employed by the insured'. The complainant too took no initiative to produce the 'watch and ward staffs' to get their statements/version recorded as evidence in support of her complaint, although the said two security personnel were marked (P) in the Duty Chart on 28.8.2002 and thereafter. While the Police Report is silent on the actual happening of the burglary during the 'wee hours of 28 August, 2002' the Surveyor's Report holds that 'the incident appeared to be true.' The Surveyor reported to have 'made some local enquiries and had taken some statement of them'. No such statement is found to have been enclosed and we are constrained to take the Surveyor's Report with a grain of salt. The complainant's version of the fact of burglary suffers from lack of adequate evidence and she fails to explain as to how and exactly when the alleged burglary took place at her place of business, as pointed by the opposite parties in their written objection filed before this Commission."
From the FIR and above observations of the State Commission, it is quite clear that either there was no 'watch or ward staffs' guarding the premises and even if somebody was there to watch the factory, there was no use of force to overpower them and there was no forcible entry or forcible exit out of the premises of the factory. Hence, the basic condition under which the insurer has to indemnify the insured is not satisfied.
Based on the above examination, I reach to the conclusion that though the ground of repudiation i.e. condition No. '8A' of the policy is not applicable in the present case and even the surveyor has recommended indemnification of loss by the insurer to the tune of Rs.4,77,040/-, the basic condition on which the loss is to be indemnified in respect of theft followed by Burglary or Housebreaking accompanied by the actual forcible and violent breaking into or out of the premises or any attempt thereat occurring during the Period of Insurance is not met. The authenticity of the incident is also doubtful as the FIR has been lodged after a delay of more than three months and the date of alleged burglary by the complainant is 28.8.2002, whereas the FIR mentioned no particular date of incident, however, the period mentioned is before 29.5.2002.
Consequent to the above discussion, I do not find any ground to accept the First Appeal and the same is accordingly dismissed.