United India Insurance Co. Ltd vs Ramprakash Alias Ram Prasad

This revision petition has been filed by the petitioner United India Insurance Co. Ltd. against the order dated 12.05.2016 of the State Consumer Disputes Redressal Commission, Rajasthan, (in short 'the State Commission') passed in Appeal No.289 of 2011.

Brief facts of the case are that the respondent/complainant is a businessman and he got one plot No.G-504 allotted to him for factory at Boranada. He got one shed constructed and three machines costing Rs.1,59,960/- were kept in the shed. He got the machines insured from the petitioner company from 11.7.2007 to 10.7.2008, (Policy No.140507/46/07/00000129). On 08.01.2008, when the respondent/complainant came to his factory, he found that the machines kept in factory had been stolen. On the same day, the complainant lodged FIR at PS- Jhanwar in this regard and also informed the petitioner company regarding theft. On 24.03.2008, the petitioner company sent its representatives at the spot and got the matter investigated by their investigator. On 03.4.2008, on the basis of the report of the investigator, the FIR and the statement made before the police, the petitioner company repudiated the claim of the respondent complainant in terms of the exclusion clause 8(a) of the Policy conditions. On 06.10.2008, the respondent/complainant filed a complaint before the District Consumer Disputes Redressal Forum Jodhpur, (First) (in short 'the District Forum') against the petitioner company alleging deficiency of service. The petitioner company filed the written reply to the above mentioned and contested the case. The District Forum, however, dismissed the complaint vide its order dated 21.11.2011. Aggrieved from the order dated 21.11.2011 passed by the District Forum the complainant filed an appeal before the State Commission, which was accepted allowing the complaint on non-standard basis vide order dated 12.05.2016. Aggrieved from the order of the State Commission the petitioner/opposite party has approached this Commission under Section 21 of the Consumer Protection Act by filing the present revision petition.

Heard the learned counsel for both the parties and perused the record. Learned counsel for the petitioner stated that the premises of the complainant were unmanned and the machines were lying without any protection for more than 7 days and as per Exclusions Clause viii (a) of the policy the claim is not payable. Clause viii (a) of the policy reads as under:-

"if the premises shall have been left uninhabited by day and night for seven or more consecutive days and nights."

It was stated by the learned counsel for the petitioner that the complainant has forged a story that he had employed a chaukidar for safety of the premises, who had gone on leave when the incident of theft happened. There is no mention of chaukidar in the FIR. Even in the narration of his case given to the investigator, there is no mention of chaukidar and it has been stated by the complainant before the investigator that when the building was complete the machines were shifted and were kept there. From that very day till the date of theft, machines were lying in the factory compound. After receiving machines and up till date of theft the factory was lying closed because work was not started and factory gate was locked. This statement given by the complainant before the investigator clearly shows that there was no chaukidar kept for safety of the machines otherwise the complainant would have also stated the same.

Learned counsel for the petitioner stated that no evidence in respect of the guard was filed by the complainant. The complainant could have very well produced the guard in person who would have provided his testimony. The complainant has filed the affidavit of Mr. Nathu Ram, the alleged guard after three years.

Learned counsel for the petitioner pointed out that the final report submitted by the Police after investigation for closing of the case reads as follows:-

"The facts of the case are that on 08.01.08 at 9.30 AM the applicant Sh Ramprakash S/k Sh Jaluram by caste Jangid, aged 37 years, resident of Gotan Distt Nagaur came at police station and stated that to start a factory in the name of M/s. Ramprakash Jangid at Boranada, he constructed a premises at G-504 EPIP Boranada Riico Industrial Area and kept two balm milea and one atater total three machines there in the factory. The factory is not operational till date. Before one month from today, when I had checked my factory, all three machines were available there. After that today morning when I again went to factory, I found the gate of my factory open and the above three machines, two ball mile and one atator were not available there which has been stolen by some thieves from factory. On this complaint, report was registered and investigation started.

During investigation, inspected the place of incidence and taken statements of witnesses. Place from where the goods were stolen inspected, Sh Joraram, Jagdish, Amraram, Ghisaram Chainaram Goparam were interrogated, recorded their statements. Despite so many efforts, the stolen goods and culprits were not traced out and in future also there is no possibility to trace out the same."

From the above report also it is clear that no person by the name of Nathu Ram has been interrogated by the police. Had there been a guard, chaukidar Nathu Ram must have been interrogated by the police. This Final Report also impliedly proves that no chaukidar was kept by the complainant.

Based on the evidence, the District Forum had dismissed the complaint rightly. However, the State Commission has allowed the complaint by awarding claim on non-standard basis in the light of the judgment of Hon'ble Supreme Court in Amalendu Sahoo Vs. Oriental Insurance Co. Ltd., II (2010) CPJ 9 (SC). The State Commission has treated violation of Condition viii (a) as violation of only peripheral condition whereas this condition is an intrinsic condition and if this condition was not met then claim would have to be repudiated. Moreover, the judgment of Amalendu Sahoo Vs. Oriental Insurance Co. Ltd.(supra) is only in respect of the motor claims and not in respect of life insurance policies and other general insurance policies. It was further pointed out by the learned counsel for the petitioner that the policy is the Burglary BP Policy, wherein the following provision is there:-

"a) Any loss of or damage to property or any part thereof 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 above provision, it is clear that until the forcible and violent entry is proved, the claim does not become payable under this policy. Only the incident of theft is not sufficient to get the claim under this policy until the theft is accompanied by forcibly entry or exit. The State Commission has not examined this aspect and has allowed the claim as if it was a policy against theft only. Even if the story of the complainant in respect of the guard is assumed to be true, clearly the complainant's case was that the guard was on leave. Thus, there cannot be any forcible entry if no resistance was offered in the insured premises. Thus, the State Commission was not justified to pass any order of allowing the claim under Burglary BP Policy.

On the other hand, learned counsel for the respondent/complainant stated that obviously the guard was on leave when the incident happened and that is why the State Commission has allowed the claim on non-standard basis considering the violation of condition viii (a) of the policy. The complainant has filed affidavit of guard Nathu Ram before the District Forum though the same was filed after the final hearing. The Insurance Company has not filed any document controverting this affidavit. Thus, it is clear that the complainant had deployed chaukidar for the safety of the premises and therefore, condition viii (a) of the policy is not applicable in the present case.

I have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties and have examined the material on record. In respect of the applicability of the Clause viii (a) of the policy, if is to be seen whether there was any regular guard in the factory premises or not. There is no mention of chaukidar in the FIR. Even the FR filed by the police does not indicate anything about chaukidar. The name of the chaukidar does not appear in the list of persons, who have been interrogated by the police. It clearly means that the complainant never informed the police about the chaukidar. This will imply that there was no chaukidar employed by the complainant. Even the affidavit of alleged chaukidar Nathu Ram has been filed after three years before the District Forum that too after the conclusion of the final hearing. Had the complainant employed Nathu Ram as chaukidar, affidavit of Nathu Ram could have been filed along with the complaint. All these circumstances are sufficient to believe that there was no chaukidar appointed for the safety of the machines. Moreover, it has been alleged by the complainant that the chaukidar had gone to his native place, therefore, there was no chukidar in the factory premises when the incident took place. In such circumstances, clearly the use of force in entering the premises cannot be established. This has to be treated as simple case of theft as forced entry cannot be proved.

Based on the above discussion, it is clear that the factory premises remain unmanned for a long time, therefore, the condition viii (a) of the policy is clearly applicable in the present case and no claim is payable by the Insurance Company in the light of this condition. The issue whether this was a forcible entry or not into the factory premises need not be decided at this stage as the claim is not payable otherwise also being hit by condition viii (a) of the policy.

Based on the above discussion, the revision petition is allowed and order dated 12.5.2016 passed by the State Commission is set aside and order dated 21.11.2011 of the District Forum is upheld.