ORISSA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CUTTACK
Dr. D.P. Choudhury, President, Pramode Kumar Prusty, Member and Sudhiralaxmi Pattnaik, Member
Sukanta Kumar Behera – Appellant
versus
Sr. Branch Manager, National
Insurance Company Ltd. – Respondent
First Appeal No.A/973 of 2006
Decided on 1.2.2023

IMPORTANT POINTS
(1) Repudiation - Repudiation of the claim by the opposite party is the deficiency in service on the part of the opposite party.
(2) Exclusion clause - By citing the fact, the complainant stated that exclusion clause of the policy cannot come into play in this case, thus, the risk is covered under the policy.
(3) Burglary and House Breaking Policy - Since it is a Burglary and House Breaking Policy, the exclusion clause 4(a) will not apply as it is alleged by the complainant that after cyclone, some miscreants took away the properties from the go-down of the complainant.

Headnote:

Consumer Protection Act, 1986 – S.15[Consumer Protection Act, 2019 – S.41] – Appeal Against order of District Commission – Services – Insurance - Burglary and House Breaking policy – Repudiation of Claim – Not justified - paddy insurance – Burglary – Exclusion Clause - Policy if covers burglary also - The Policy shows that it was purchased for covering the risk of house and the go-down, particular description of property shows that stock of paddy and flattened rice was insured. However, the policy covers the house also – Exclusion clause shows that any damage or loss occasioned or arises out of or in connection with flood or storm is not covered. Since it is a Burglary and House Breaking Policy, the exclusion clause 4(a) will not apply as it is alleged by the complainant that after cyclone, some miscreants took away the properties from the go-down of the complainant. It is not a case that damage is caused due to cyclone – thus, policy covers the risk which is alleged in this case – therefore, by citing the fact, the complainant stated that exclusion clause of the policy cannot come into play in this case, thus, the risk is covered under the policy. Therefore, repudiation of the claim by the opposite party is the deficiency in service on the part of the opposite party – On facts, there is a loss occurred to the complainant but the policy shows that the sum assured is Rs.2,00,000/-. Therefore, the loss is to be settled at Rs.2,00,000/- payable to the complainant.

Held: The surveyor’s report shows that the complainant could not prove the burglary or removal of paddy and flattened rice from his go-down. On the other hand, the Surveyor’s report shows that due to super-cyclone, roof of the complainant was blown off for which the burglary took place causing damage to the complainant. They have verified the damaged crops. They have also information at the spot that go-downs were looted by the miscreants on 30.10.1999. On these materials, it was the duty of the Surveyor to make the assessment of the loss, but he has not performed the same.

So far the letter of repudiation, it is found that the opposite party closed the file as ‘no claim’. By citing the fact, the complainant stated that exclusion clause of the policy cannot come into play in this case. We have held that the risk is covered under the policy. Therefore, repudiation of the claim by the opposite party is the deficiency in service on the part of the opposite party.

Learned District Forum has observed in their order that the occurrence took place on 30.10.1999, but it was reported to the police on 10.11.1999 and the complaint was filed on 20.6.2001. At the same time, they observed in paragraph-6 of the impugned order that 12 months rule was almost observed by the complainant to lodge the complaint after two days. But after going through the same, we are of the view that two years has to be computed from the date of repudiation. Since the complaint was filed on 20.6.2001 and repudiation was made on 19.6.2000, it is within the time limit as prescribed under Section 24-A of the Consumer Protection Act, 1986. 12 months rule is not applicable so far filing of case before the Consumer Forum. 12 months rule from date of occurrence is applicable so far claim is to be filed before insurer. Since the claim has already been filed within 12 months, the observation of 12 months rule does not appear to be relevant for direction by the learned District Forum. Be that as it may, the complaint is not barred by limitation.

Now the question arises as to whether in case of burglary the delay has been explained so as to make continuance of the terms and conditions of the policy in view of the decision of the Supreme Court of India in Om Prakash vs. Reliance General Insurance & Anr. reported in (2017) 9 SCC 74.

We have gone through the records. It appears that occurrence took place on 30.10.1999 and the F.I.R. was filed on 10.11.1999. It has taken the plea that due to super cyclone, devastation could be measured by the complainant later on and then informed the police. Considering the delay under the appropriate circumstance, we are of the view that delay has been properly explained in lodging F.I.R. In view of the decision of the Hon’ble Supreme Court of India passed in Om Prakash (supra), where their Lordships observed that in case of delay properly explained, the claim can be acceptable, we have discussed fact that the delay has been explained as per the facts and circumstances, we find no error in granting relief to the complainant. So far the question of compensation for loss is concerned, it is always settled in law that the report of the Surveyor to show the loss if it is not biased. In the instant case, the Surveyor has not computed the loss. On the other hand, the complainant has proved and filed the report of the Chartered Accountant who has assessed the loss at Rs. 2,50,040/-. He has also submitted the Borrower’s statement. From the police report, it appears that about 300 bags of stock have been removed. Considering all these facts, we are of the view that there is a loss occurred to the complainant but the policy shows that the sum assured is Rs.2,00,000/-. Therefore, the loss is to be settled at Rs.2,00,000/- payable to the complainant. [Paras 13 to 22].

Result: Appeals disposed off.