NATIONAL INSURANCE COMPANY LIMITED Vs. PRABHAT KUMAR GUPTA

JUDGEMENT

(1.) THIS appeal, under Section 15 of the Consumer Protection Act, 1986, arises out of the order dated 12.4.2005, passed in Complaint No. 316/2004 by the District Consumer Forum, Raipur (hereinafter referred to as the "District Forum" for short) whereby the complaint was allowed by the District Forum.

(2.) BRIEF facts necessary for disposal of this appeal are that the complainant/respondent, who is an Advocate, had purchased a Nokia mobile handset from the O.P. No. 5 and the same was insured with the appellant. On 20.10.2004 the complainant went to take bath leaving the aforesaid handset on his study table. The door of the room was not bolted. When the complainant came after taking bath, he did not find the handset on the table. He lodged FIR with the police, the complainant also paid necessary fee and got the sim -card blocked. Thereafter the complainant preferred a claim with the insurer. However, the insurer repudiated the claim on the ground that during theft there was no forced or violent entry or exit as was necessary under the terms of the policy. Hence the complainant had approached the District Forum. It was averred in the complaint that force or violence is a necessary element for constituting the offence of dacoity but the same is not at all a necessary element for theft. It was further averred that the complainant had lodged his claim for theft of his handset and under the circumstances of the case he was entitled to get the claim and by repudiating the claim the insurer had committed deficiency in service.

(3.) IN their written version the opposite party Nos. 1 and 2/appellants denied the allegations of deficiency in service and averred that use of violence or force was a pre -condition for making payment under the terms of policy and in absence of the same the claim cannot be allowed.