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2006 (3) CPR 236
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, THIRUVANANTHAPURAM
Hon’ble Mr. Justice T.M. Hassan Pillai, President & Mrs. A. Radha, Member
Kairali Marketing & Processing Co-operative Society Ltd.—Petitioner
versus
National Insurance Co. Ltd. & Ors.—Opposite Parties
O.P. No. 81 of 1999
Decided on 10.6.2005
Counsel for the parties:
For the Petitioner:Mr. P. Rahim, Advocate.
For the Opposite Party No. 1:Mr. N.B. Mahadevan Pillai, Advocate.
For the Opposite Party No. 2 :Mr. C. Parameswaran, Advocate.
For the Opposite Party No. 3 :Mr. P. Jayachandra Babu, Advocate.
IMPORTANT POINT
The case of the complainant for burglary insurance is liable to be dismissed as exclusion clause in policy of insurance applies.
Headnote:(i)Consumer Protection Act, 1986 — Sections 2(1)(b) and 2(1)(d) — “Complainant” and “Consumer” — Kairali Marketing and Co-operative Society Ltd. — Dealing in Copra Cakes — Under the custody of its Depot Manager one Alex Zacharia — Society alleging it was stolen by him whereas a member of society (OP 3) alleging Alex Zacharia was not complainant’s employee and story of theft/burglary by him is incorrect — Policy FIR naming Alex Zacharia as Depot Manager of complainant — Whether 3rd O.P. is complainant-consumer? (No) — Whether his statement is relevant in a dispute between Society and Insurance Co. ? (No) — Held: Alex Zacharia was an employee of the society of complainant.(Para 10)
Held: We may repeat that no case is pleaded by the complainant that Alex Zacharia was not the employee of the complainant at the time of alleged commission of theft and, therefore, we have to hold that there is no dispute between complainant and 1st opposite party on the aspect whether Alex Zacharia was complainant’s depot manager or not. That dispute is only between the complainant and 3rd opposite party and 1st opposite party is least concerned with that dispute. Even if we assume that there is inter se dispute between the 1st opposite party and 3rd opposite party that dispute cannot be resolved by us in this proceeding. Consumer dispute arose only between the complainant society and the 1st opposite party.(Para 7)
We may point out here again that the very case pleaded in the complaint is that Alex Zacharia was the depot manager of the complainant society at the time of alleged commission of theft by him on 1.2.1998. It is asserted in the complaint that the godown was kept locked by using 2 locks. Of these 2 locks keys of one lock were kept with the Bank and that the keys of the other lock were kept by the Depot Manager of the said godown one Alex Zacharia, Chennakadu, Chunkam, Alappuzha employed by the complainant.(Para 8)
(ii)Consumer Protection Act, 1986 — Section 12 — Complaint of theft of copra cake duly insured by OP-1 — Claim of insurance — Complainant admitting in pleading that theft done by one Alex Zacharia, its depot manager — Later stand taken by complainant that he was not an employee of the society and was paid only commission by the society for the work done by him — Whether such an volte face or somersault is permissible under law? (No) — Case law discussed.(Paras 11 to 20)
Held: There is clear and unambiguous admission that employed by it. Alex Zacharia was the depot manager of the complainant from 1997 and the explanation attempted to be given in the affidavit dated 13.5.2002 is unacceptable.(Para 20)
Held further: So the conclusion emerges from the discussion held above is that Alex Zacharia was the depot
manager of the complainant society employed by it and he continued to be an employee of complainant’s society at the time of commission of the theft of copra from the godown belonging to the complainant society.(Para 23)
(iii)Consumer Protection Act, 1986 — Section 12 — Complaint of claim for burglary insurance — Theft committed by one of the complainant’s employee — FIR lodged — Police investigation — Revealing doubt about theft being committed by making forcible entry into the godown by breaking open the door — Case law ref.
Held: We are not able to accept the case of the complainant regarding commission of theft after making forcible entry into the godown by breaking open the door. (Para 26)
(iv)Consumer Protection Act, 1986 — Section 12 — Complaint about non-settlement of burglary insurance claim — Exclusion clause — Whether applies? (Yes) — Result — Complaint dismissed. AIR 2004 SCW 5481 rel. on.
Held: The clause provides for lawful entry into the premises of a person who is not an inmate or member of the insured’s household or of his business staff. If a person who is not an inmate or member of the insured’s household or his business staff lawfully enters in the premises and causes loss or damage the exclusion clause applies.(Para 28)
Here it is the case of complainant that Alex Zacharia was the depot manager at the time of alleged commission of theft. He being a staff of the complainant society the exclusion clause squarely applies to the facts of the case. On that ground also the complainant society is not entitled to any compensation under Ext. Bl policy.(Para 29)
In the result, the complaint is dismissed, No order as to costs.(Para 30)
Result : Complaint dismissed.
Mrs. A. Radha, Member — We are called upon to adjudicate in this O.P. filed by the complainant the claim made to grant the relief of allowing it to realise from the 1st opposite party an amount of Rs. 14,03,867.50; being the value of the copra kept in the godown of the complainant and alleged to be stolen by the depot manager of the complainant on 1.2.1996 with interest on that amount at the rate of 18% per annum from 30.7.1998 on the ground that copra stolen was insured with the 1st opposite party. Further relief prayed for is to award to the complainant cost of the proceedings.
2. The main plank of the case of the complainant adumbrated in the complaint is that there was a stock of 640 quintals 71.450. kgs. of copra in the godown of the complainant on the date of alleged commission of theft and depot manager Alex Zacharia committed theft on 1.2.1998 after breaking open the lock of western door of the godown. The copra was packed in gunny bags (each gunny bag contained 50 kgs. of copra). The complainant got information that someone after breaking open the western door of the godown committed theft. The total quantity of copra stolen from the godown was 390.5 quintals. After investigation police charge-sheeted a case against the depot manager before the Judicial First Class Magistrate Court, Alappuzha under Section 454 and Section 380 of I.P.C. as CC 23/99. The stock of copra in the godown was insured with the 1st opposite party for Rs. 30 lakhs against burglary, house breaking and fire etc. The complainant informed the 1st opposite party about the burglary at the earliest opportunity after getting information. The 1st opposite party is duty bound and ought to have made necessary inquiries on getting the information of theft and the complainant tried its level best to make the 1st opposite party to investigate upon the matter and determine the loss. But the attitude of the 1st opposite party was non-co-operative. The 1st O.P. is liable to compensate the loss sustained by the complainant. It is also alleged by the complainant that it suffered a loss of Rs. 14,03,867.50, being the value of the stolen copra and the 1st opposite party is duty bound to compensate the loss. The complainant is entitled to realise value of stolen copra from the 1st opposite party as per the terms of the policy.
3. The 1st opposite party in the written version filed not disputed the fact that the goods alleged to be stolen from the godown of the complainant were insured jointly by complainant and 2nd opposite party. The liability is denied by the 1st opposite party mainly on the ground that the theft was committed by an employee (Depot Manager) of’ the complainant and as such the exclusion clause in the policy applied to the facts of the case and the complainant is not entitled to any compensation. The other contentions raised by the 1st opposite party will be dealt with by us at the appropriate stage.
4. The 2nd opposite party filed version supporting the claim made by the complainant asserting that goods stolen were insured jointly by complainant and the 2nd opposite party.
5. It is an undisputed fact that key loan was obtained from 2nd opposite party hypothecating the goods kept in the godown.
6. For adjudicating the question whether the complainant is entitled to get compensation we have to first decide the question whether Alex Zacharia who is accused of having commissioned theft of copra was the Depot Manager of the complainant at the material time. The necessity for deciding that question arose for the reason that the additional 3rd opposite party who got impleaded contended in his written version that the statements of the complainant to the effect that Alex Zacharia was the employee and he was entrusted with the key of the godown and burglary was committed are not true and correct.
7. Before dealing with that question we may point out here that we entertain doubt regarding the competency of the additional 3rd opposite party (hereinafter referre
