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loss due to burglary and house breaking (theft following upon an actual forcible and violent entry). = The case of the Complainant M/s Biswanath Traders before the State Commission was that they were storage agent of the State Civil Supply Corporation; in which capacity they had a storage godown in Jagathsinghpur District. Stocks of rice, wheat, sugar etc. stored in this godown were covered under a policy of protection against burglary and house breaking up to a limit of Rs.6 lakhs. The policy was taken on 15.7.1999 and was designed to indemnify the insured against any loss due to burglary and house breaking (theft following upon an actual forcible and violent entry). =It is not the case of the appellant/National Insurance Company, that the burglary was occasioned by any act of commission or omission on the part of the complainant. Therefore, the question of violation of the terms of the policy does not arise. 13. As for resort to the exclusion clause 4 (a) to justify the repudiation, we note that the case of the appellant/insurance company does not travel beyond stating that the burglary occurred two days after the cyclone. The State Commission has therefore noted the absence of any material, which could suggest that the burglary happened because of the cyclone. It is also not the case of the appellant that the cyclone had so destroyed or damaged the godown as to expose the stocks to burglars. The Written Response of the OP (appellant before us) shows that the burglars had forced opened the grill gate to enter the godown. This kind of forcible entry could have taken place even before the cyclone. Therefore, in our view, the State Commission has rightly and justifiably rejected the argument of the insurance company and rejection of the claim by resort to exclusion 4(a). 14. In the result, we find no merit in this appeal.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

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NEW DELHI

 

 

FIRST APPEAL NO. 673 OF 2006

(Against the order dated 18.8.2006 in C.D. Case No.86 of 2001

of the State Commission, Orissa)

National Insurance Company Ltd.,

Cuttack Divisional Office –II,

Managalabag,

Cuttack

 

Through

Regional Office –I,

Jeewan Bharti Building,

Connaught Circus,

New Delhi- 110 001                                                                                                                         ……….Appellant

Versus

 

M/s. Biswanath Traders

Through its Proprietor,

Mrs. Urmila Acharya,

W/o Narayan Acharya,

Vill. Okala, P.O. Kathamal,

P.S. Tirtol, Jagatsinghpur

Orissa                                                                                                                                               ………Respondent

 

BEFORE

HON’BLE MR. JUSTICE V.B. GUPTA,

                               PRESIDING MEMBER

HON’BLE MR. VINAY KUMAR, MEMBER

 

For the Appellant         :   Mr. Kishore Rawat, Advocate

For the Respondent     :  Mr.Suchit Mohanty,  Advocate &

                                           Mr. G. Biswal, Advocate

 

PRONOUNCED ON:   31.01.2012

 

 

ORDER

 

PER MR.VINAY KUMAR, MEMBER

This appeal is filed by the National Insurance Company Ltd. against the order of the Orissa State Consumer Disputes Redressal Commission in CD No.86 of 2001 pronounced on 18.8.2006.

 

2.      The case of the Complainant M/s Biswanath Traders before the State Commission was that they were storage agent of the State Civil Supply Corporation; in which capacity they had a storage godown in Jagathsinghpur District. Stocks of rice, wheat, sugar etc. stored in this godown were covered under a policy of protection against burglary and house breaking up to a limit of Rs.6 lakhs.  The policy was taken on 15.7.1999 and was designed to indemnify the insured against any loss due to burglary and house breaking (theft following upon an actual forcible and violent entry).

 

3.      On 29.10.1999, the area was hit by a cyclone.  Two days later, on 31.10.1999 a theft took place, by breaking open the lock and grill of the godown. An FIR was lodged on the same day.  Police investigation, which followed led to arrest of some persons and recovery of some stolen goods. The police thereafter filed a chargesheet against the concerned.  In the meanwhile, the Complainant made a claim under the insurance policy on 8.11.1999, which was repudiated by the OP/National Insurance Company through their letter of 31.7.2001 i.e. after a lapse of 20 months.

 

4.      The letter of the Insurance Company explained its decision to reject the claim in the following terms:-

“Please refer Clause 4 (A) of Exclusion of Burglary and Housebreaking Policy (business premises) which states that “Loss or damage directly or indirectly proximately or remotely occasioned by cyclone or other convulsion of nature or atmospheric disturbance”.

In view of the above exclusion of Burglary Policy we express our inability to accept the liability in the above claim.”

 

5.      It is alleged by the Complainant that the grounds for rejection of the claim is flimsy, colourable and illegal, which has put the Complainant to financial and mental suffering.  The Complainant therefore claimed a sum of Rs.6 lakhs with 18% interest from 31.10.1999, i.e. the date of the incident together with Rs.2 lakhs for loss of goodwill/mental agony and Rs.10,000/- towards costs.  Per contra, the case of the National Insurance Company was that it is not a case of deficiency in service, but of consideration of the claim as per the terms of the contract.

 

6.     The State Commission noted that there was no dispute about the stocks being covered under the policy. The fact of burglary on 31.10.1999 is also not denied by the OP, Insurance Company. It also noted that an FIR had been registered on the same day and investigation taken up by the Police.  In the chargesheet, which was filed it was mentioned that local people numbering 2000 to 3000 came with deadly weapons and forcibly broke open the grill gate of the store and took away the stored article.  In the course of investigation, two quintals of rice, 20 kg of sugar and 4 liters of pamolein were seized from the house of some accused persons.

 

7.      The claim of the Insurance Company, that this incident was occasioned by the cyclone of 29.10.1999 and therefore, covered under Exclusion Clause 4 (a) of the Policy, was rejected by the State Commission observing that:-

“It is a fact that just prior to the date of occurrence the area was hit by super cyclone but in our opinion that has got nothing to do with the burglary committed by the accused persons who were charge sheeted.  It is futile to argue that because of cyclone theft was committed by the accused persons.  There is nothing on record to suggest it.  Therefore in absence of any material, it cannot be held that the burglary was occasioned because of cyclone.  Stock of essential commodities was removed dishonestly from the petitioner’s possession without his consent.  It is a clear case of theft or burglary.  For the reasons mentioned above, we hereby overrule the objection of the opposite party that the claim is hit by the exclusion clause.”

 

8.      In the above background, the State Commission accepted the assessment of the Surveyor appointed by the OP/Insurance Company and directed the OP to pay Rs.5 lakhs with interest at 9% for delay in payment after October, 2006.

 

9.      We have seen the records as produced by the appellant/national Insurance Company and heard the counsels for the two parties.  The appeal has been filed with a delay of 38 days. We do not feel that this delay has been adequately explained. Therefore, on this count alone, it is liable to be dismissed.

 

10.    Coming to the merits, the main ground of appeal is that the State Commission has grossly erred in holding that the super cyclone, which hit the area had nothing to do with the burglary.  According to the appellant, the facts and circumstances of the case clearly indicates that the loss was directly and proximately caused by the super cyclone and lawlessness and chaos that prevailed after it. It is also argued that if the interpretation of the State Commission is to be accepted, the purpose of Exclusion Clause 4 (a) in the policy would get defeated.  The intention and purpose of the exclusion, it is alleged, have not been correctly appreciated by the State Commission.

 

11.   The written response of the OP before the State Commission had also claimed:-

“That admittedly, there being a contract of Insurance between the complainant and the opp. Party, the parties are bound by the specific terms and conditions of the said contract of insurance. The policy in question being admittedly a Burglary and House breaking one in respect of the business firms, it has been always subject to the exclusion clauses.  The present matter being squarely covered under the violation of the terms and conditions of the policy and not being related to any deficiency of service as alleged by the complainant, the instant complaint, therefore, deserves to be dismissed on the ground of maintainability and unsustainability.”

 

 

12.    We are unable to appreciate this argument of the appellant that it was a case of violation of the terms and conditions of the contact. It is not the case of the appellant/National Insurance Company, that the burglary was occasioned by any act of commission or omission on the part of the complainant. Therefore, the question of violation of the terms of the policy does not arise.

 

13.    As for resort to the exclusion clause 4 (a) to justify the repudiation, we note that the case of the appellant/insurance company does not travel beyond stating that the burglary occurred two days after the cyclone. The State Commission has therefore noted the absence of any material, which could suggest that the burglary happened because of the cyclone. It is also not the case of the appellant that the cyclone had so destroyed or damaged thegodown as to expose the stocks to burglars. The Written Response of the OP (appellant before us) shows that the burglars had forced opened the grill gate to enter the godown. This kind of forcible entry could have taken place even before the cyclone. Therefore, in our view, the State Commission has rightly and justifiably rejected the argument of the insurance company and rejection of the claim by resort to exclusion 4(a).

 

14.    In the result, we find no merit in this appeal. The same is dismissed on the ground of limitation as well as merit. The order of the Orissa State Consumer Disputes Redressal Commission in CD Case No. 86 of 2001 is confirmed. The parties shall bear their own costs.

 

.…………………………

(V.B.GUPTA,J.)

PRESIDING MEMBER

 

………………………….

(VINAY KUMAR)

                                                                                           MEMBER

s./-

 

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