IMPORTANT POINT
Burglar proof safe is the misnomer, but expression safe in common parlance is understood as the safest receptacle which protects against theft.

R.K. Batta, Presiding Member—These two revisions arise out of the same order and as such, were heard together and are being disposed by a common order.

The complainant Sri T.S. Vevekananda Kumar, Prop. M/s. Srikanteshwara Jewelers has taken Insurance policy covering jewellery, gold and silver ornaments etc. for a sum of Rs.12,00,000. During the currency of the policy, theft took place in the business premises on 28.8.2003 at about 2 a.m. Report of theft was lodged with the police. The loss was assessed by surveyor, S. Upendra. However, claim filed by the complainant was repudiated by the Insurance Company. The complainant challenged the repudiation before the District Forum.

3. Admittedly, jewellery, which was stolen, had been kept in the glass show case and drawer of the shop. The jewellery kept in the safe locker was not stolen. The complainant had taken the plea that he had converted the entire shop into a burglar proof shop inasmuch as collapsible gates and rolling shutters were provided with locks. The Insurance Co. had relied upon the warranty in the policy, as also exclusion Clause No.12 of the Insurance Policy. The District Forum as also the State Commission had accepted the case put up by the complainant that the shop had been converted into burglar proof shop and Insurance Co. was liable to pay. The District Forum allowed the complaint in part and directed the Insurance Co. to pay Rs.8,00,000 with 6% interest per annum from the date of repudiation till payment with costs of Rs.500. The State Commission on the basis of surveyors report reduced the said claim to Rs.6,63,000 with 9% interest per annum from the date of repudiation of the claim till payment and further directed to pay costs of Rs.2,000.

4. We have heard the Ld. Counsel appearing on both sides.

5. Ld. Counsel appearing on behalf of the Insurance Co. drew out attention to the policy at pages 35 to 40 of the record of R.P. No.569/07. It is submitted before us that claim has been filed by the complainant under Section 1 of the said policy in which jewellery in display windows was insured for Rs.8,00,000 and jewellery in locked safe was insured to the tune of Rs.2,00,000. According to him, the warranty contained under Section 1 has an important bearing on the decision of the case. The warranty reads as under:

“Warranted that all stocked whilst at the premises specified in the schedule shall be secured in locked burglar proof safe at night and at all times out of their business hours.

Classification Warranties.

Class III without warranty

6. It provides that stock specified in the Schedule is required to be secured in locked burglar proof safe at night and at all times out of their business hours. It has been pointed out that jewellery, which was kept in the safe, was not stolen but jewellery from the glass show case/display window, which as per warranty was required to be secured in the locked proof safe at night, was stolen and in view of the said warranty, Insurance Co. was not liable to make good the loss suffered on account of theft. He also urged that before us that even under exclusion Clause 12, loss or damage to property insured whilst in window display at night or whilst kept out of safes after business hours was not covered and Insurance Company shall not be liable under the policy. On merits, it was contended by him that the Surveyor had assessed the loss at Rs.5,22,064, which was reported to the police and the claim of the complainant even otherwise could not exceed the said amount. He also urged that the State Commission was not justified in increasing the interest from 6% to 9%.

Learned counsel for the complainant submitted before us that the claim of the petitioner/complainant is under Section 1 of the policy and that even though, the stolen items had been kept in the show cases, yet, the shop had been converted into burglar proof shop by providing collapsible gates and rolling shutters with locking arrangement. According to him, the