MODERN JEWELLERS Vs. NEW INDIA ASSURANCE CO LTD

JUDGEMENT

(1.) This first appeal has been filed by the appellant M/s. Modern Jewellers against the order dated 28.08.2012 of the State Consumer Disputes Redressal Commission, Maharashtra, (in short 'the State Commission') passed in Complaint Case No.CC/07/114.

(2.) Brief facts of the case are that the complainant is appellant herein and opposite party is respondent herein. During validity of a Jewellers' Policy, the shop of the complainant was burgled and ornament worth Rs.42 lakh were stolen. FIR was lodged and, because the accused could not be traced, the case was closed. Opposite parties were informed of the incident immediately. Surveyor was appointed who submitted his report. However, the claim was repudiated by the Insurance Company on the ground of breach of policy condition namely 3(a) of the exclusion clause of the policy para 2. Being aggrieved, complaint was filed before the State Commission claiming total amount of Rs.49,82,058/-. The State Commission directed the opposite party to pay the complainant Rs.12,00,000/- together with interest @9% p.a. from the date of filing of complaint till realization. Undisputed facts are that the complainant subscribed to the insurance policy issued by insurance Company to provide insurance cover to the valuables at the business premises of the complainant with sum assured of Rs.42 lakh. The theft/burglary that occurred on the crucial night in between July 26, 2005 and July 27, 2005 and the loss as assessed by the surveyor is not in dispute. Only point disputed by the Insurance Company is that the safe in the shop premises was not damaged and there was no mark of burglary either on wall or on the face of the safe. In short the repudiation of the insurance claim was mainly based on "absence of physical marks on the safe". Contention of the insurance company was disproved by the complainant with physical demonstration at the shop premises by the expert appointed by the Insurance Company. On 29.09.2004, the appellant/complainant takes jewellers Block Policy No.112800/46/04/00226 for the period 30.09.2004 to 29.9.2005 from the respondent opposite party. Insurance claim citing breach of condition 3(a) pertaining to 'Entrustment' of property; and para 2 (b) of exclusion clause dealing with 'loss to property due to mysterious circumstances by contending that there were no visible forcible marks on the door of the safe and the number lock was found intact and not broken. In May, 2006 to October 2006 various representation are made by the appellant/complainant to respondent. In July 2006- January 2007, the appellant/complainant takes up the said issue with Government of India, Directorate of Public Grievances. On 06.02.2007, Government of India, Directorate of Public Grievances write to the Chairman of the respondent/Insurance Co. and directs them to appoint an Investigator. On 17.07.2007, the appellant/complainant files a consumer complaint. On 26.10.2007, the respondent/opposite party files written statement. However, the respondent suppresses the fact that in response to GOI letter dated 06.02.2007, an Investigator was appointed who had given a favourable report and had concluded that the loss was caused by insured peril. It was also mentioned that an experiment was conducted by the representative of Godrej and Boyce in the presence of investigator to demonstrate how the safe can be forced open even in the locked condition using a sharp object without the safe sustaining any visible physical damage to the door and the safe body. The said report of the Investigator is suppressed by the respondent. In November, 2007, appellant/complainant files rejoinder and submits that the report of the Investigator appointed by the Respondent Co. has not been filed by the respondent along with their written version and prays that the respondent be directed to file the same forthwith. In January, 2008, the respondent files affidavit of evidence but does not produce a copy of the Investigator's report. In July, 2008, the appellant/complainant files additional affidavit of evidence and files with it a copy of Investigation Report dated 01.10.2007 issued by the Investigator appointed by the respondent Insurance Co. which conclusively concludes that the loss was covered by the insured peril.

(3.) Heard the learned counsel for the parties and perused the record.