IMPORTANT POINT
Roof is an integral part of building.

Jagroop Singh Mahal, Member—This is OP’s appeal, under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act), directed against the order dated 12.9.2011, rendered by the ld. District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter referred to as the District Forum) vide which it allowed the complaint filed by the complainant/respondent and directed the OP/appellant to make payment of the loss suffered by the complainant, as per the IDV of the insured goods, after making deduction of depreciation, as per the policy, within 45 days from the date of receipt of copy of the order, failing which to pay the amount with penal interest @ 12% p.a. from the date of repudiation of claim i.e. 4.12.2009 till actual payment to the complainant The OP was also directed to pay to the complainant Rs.10,000/- as compensation and Rs.7,000/- as costs.

2. The facts, in brief, are that the complainant took an insurance policy from the OP for electrical fittings at his premises and the insured goods included 14 units of Hitachi Microcool split AC units which were fixed on the roof and the rear wall of its premises valuing Rs.12,06,000/-. However, a theft took place in its premises in which compressors, fan motors, copper coils, relays etc., valuing approximately Rs.4.15 lacs of 8 units of ACs, were stolen. It lodged an FIR with the police on the same day and also lodged a claim with the OP but the same was rejected vide letter dated 3.7.2010. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Act was filed.

3. In its written reply, the OP admitted that the electrical fittings in the premises of the complainant were insured with it but it was denied that those installed on the roof and on the rear wall of the showroom were also insured. It was stated that as the items were stolen from the roof, hence the claim was outside the purview of the policy and, therefore, the claim was rightly repudiated vide letter dated 4.12.2009. Remaining averments were denied, being wrong.

4. After hearing the ld. Counsel for the OP and on going through the evidence on record, the ld. District Forum allowed the complaint, as stated above.

5. Feeling aggrieved, the instant appeal has been filed by the appellant/OP.

6. We have heard the arguments of the ld. counsel for the appellant as to whether the appeal should be admitted for regular hearing or not.

7. The learned Counsel for the appellant/OP argued that as per the insurance policy Annexure A-1 (colly) only the stocks in trade was insured as mentioned therein and not the goods which were not for sale. The learned counsel argued that the machines of spilt AC which were fixed on the roof have been stolen, was not stocks in trade and therefore, it was out of the purview of the insurance policy. We do not find any merit in this argument. In fact this ground was never taken by the OP in their written statement before the learned District Forum and is being evolved at the appellate stage, which cannot be permitted to be done. The OP had appointed a surveyor who submitted his report Annexure R-2 and he also did not mention if the articles, which were not for sale and were for the use of the complainant-insured were not covered by the insurance policy. The OP/appellant repudiated the claim vide their letter Annexure R-3 in which also no such distinction was made by the OP/appellant that the goods, which were not for sale were not insured. The OP therefore, cannot be allowed to go beyond Annexure R-3 and the written reply filed by it before the learned District Forum, to take up any such plea, which was neither the basis for repudiation nor forms part of the pleadings.

8. The contention of the OP/appellant before the learned District Forum was that the parts of spilt AC, which were fitted on the roof were not covered under the insurance policy as the same were outside the purview of the building. It w