State Consumer Disputes Redressal Commission
M/S Oriental Insurance Company Ltd. vs Alpana Nandi on 26 September, 2008
JHARKHAND STATE CONSUMER DISPUTES REDRESSAL COMMISSION, RANCHI
JHARKHAND
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, RANCHI
FA no. 94 of 2008
Against order dated
18.01.2008, passed by Palamu District Consumer Disputes Redressal Forum at Daltonganj,
in Consumer Complaint no.29 of 2007.
M/s Oriental
Insurance Company Ltd.
- Appellant
Vrs.
Alpana Nandi -
Respondent
For Appellant : M/s Abhay Kumar Mishra & S.K.
Dubey, Advocates
For Respondent : M/s H. Waris & M. Waris, Advocates
Before:
Justice Gurusharan Sharma-President
Mrs. Kalyani Kar Roy- Member
And Mr.Satyendra Kumar Gupta-Member Judgment Kalyani Kar Roy : Appellant was opposite party before the Palamu District Consumer Disputes Redressal Forum at Daltonganj, in Consumer Complaint no.29 of 2007. The Forum below vide its order dated 18.01.2008 awarded to the complainant a sum of Rs.1,31,175.00 payable within sixty days from the date of order, failing which the awarded amount would carry interest @ 8% per annum till the date of payment.
2. Feeling aggrieved with the aforesaid impugned order dated 18.01.2008 passed by the Forum below, the present appeal has been filed by the appellant Oriental Insurance Company Ltd.
3. Allegation of complainant, in brief, are that the General Store of the complainant respondent, namely , Alpana General Store, was insured by the opposite party-appellant Insurance Company for Rs.3,50,000.00 and the same was financed by the State Bank of India with credit facility, to the tune of Rs.2 lacs. The insurance policy was valid for the period 28.09.2005 to 27.09.2006. On 23/24.04.06 night, theft was committed in the said shop and as per the complainant, articles worth of Rs.1,78,763.50 and cash of Rs.40,000.00, kept in the shop for purchase of eggs were stolen away, HR no. 151 of 2006 /G.R. 586/06 under sections 457, 380 I.P.C. was been lodged at Town P.S. Daltonganj. Information of theft given to the opposite party Insurance Company and a Surveyor was appointed by them for detailed survey and report, who finally assessed the total loss to the tune of Rs.41,616.00 (vide Annex -5 - Surveyors report dated 07.09.06). Accepting report of the Surveyor, a discharge voucher dated 29.1.2007 was also issued in favour of the complainant respondent, which was not accepted by her. She, therefore filed complaint in the Forum below claiming payment of the loss in theft to the tune of Rs.2,18,763.50 and Rs.10,000.00 as compensation for mental agony.
4. The Counsel for the appellant-Insurance Company submitted :
(i) The respondent did not submit any valid proof, namely the stock register, sale register, purchase register, cash book, cash memo, bills etc. for the purpose of assessing the loss of articles . The statement of purchase and sale of goods from January 2006 to 21.4.2006 submitted by the respondent in the Forum below were based on memory only.
(ii) Admittedly the complainant was a borrower from SBI, Daltonganj branch, she was granted cash credit loan upto the limit of Rs.2 lacs for Alpana General Store, to the same was hypothecated to the SBI and on the proposal of SBI, the appellant Insurance Company had issued a shopkeepers insurance policy in favour of SBI, Daltonganj, subject to the terms and conditions as entertained in the policy.
Therefore, SBI, Daltonganj was a necessary party in the complaint.
(iii) In the terms and conditions of the policy, it was specifically provided that if any dispute and difference shall arise as to quantum to be paid under the policy, such dispute shall be referred to the decision of an arbitrator and it was expressly stipulated and declared that it shall be conditionprecedent to any right of action that the award of arbitrator of the amount of loss or damage, shall be first obtained.
(iv) During the survey, the Surveyor made inventory of the goods, which were found in the shop, which was duly signed by the respondent. The value of those goods was calculated to the tune of Rs.17,440.00. Taking into consideration of the points noted in course of investigation, the final assessment of the Surveyor dated 7.9.06, was of Rs.48,960.00 and after deduction of 15% thereof towards margin of uncertainty, net loss assessed was to the tune of Rs.41,616.00.
(v) As per the insurance policy, shop of the respondent was insured under the Shopkeepers Insurance Policy only for the stock of general store and cash in counter was insured to the tune of Rs.5,000.00 only.
(vi) Referring to Annexure 6 it was submitted that when the spot Surveyor, Mr. S.N. Thakur asked for the stock register, the respondent expressed her inability to produce, but later on detailed list of altogether of more than 300 items was shown based on her memory. Even in the FIR on 25.04.2006, no list of articles had been given and it was stated therein that all the articles of the shop were stolen /taken away by the thieves.
(vii) From some of the purchase slips supplied to the Surveyor, it transpired that those shops were situated in the District of Burdwan, West Bengal and the purchased products were related to Hindustan Lever Limited, whereas dealer of that company was already available at Daltonganj, where the shop was situated. Further those purchased articles from another state were without payment of CST as well as form for their transportation.
(viii) Finally in theft case like this, the report of the Surveyor can not be brushed aside.
In support of his submission, Counsel for the appellant cited following decisions:
( a) IV (2007) CPJ 196 NC-Jagadam Bhairava Murthy -
versus- Oriental Insurance Company Ltd.
(b) S.C. & National Commission Consumer Law Cases (2005-2008) at page 462 -
Sarvalaxmi Marines -versus- Oriental Insurance Company Ltd. & anr.
5. In opposition, Counsel for the respondent submitted that these are not valid grounds. The report of the Surveyor has been prepared in an arbitrary manner in collusion with Insurance Company. The Forum below after thorough and careful examination of all the documents and records, was pleased to award on the basis of calculation of average of opening and closing stock till March, 2006 alongwith compensation for mental agony, the aforesaid amount of Rs.1,31,175.00. As such, there was no infirmity in the impugned order.
6. We heard the Counsel for the parties at considerable length. There is no dispute about the fact that the hypothecated General Store was insured during the relevant period and it is also not in dispute that when the matter was reported to the appellant, they appointed a Surveyor as per law, who finally assessed the loss to the tune of Rs.41,616.00 vide its final report dated 07.09.2006 (Annex-5). In our view it is also a matter of record that during the spot survey dated 15.5.06 the respondent expressed her inability to supply the purchase invoice and only few of them were supplied and based on those documents the Surveyor prepared his final assessment on 7.9.2006 to the tune of Rs.41,616.00, whereas after filing the complaint in the Court below, the respondent complainant came out with detailed list of more than 250 items, based on her memory alongwith cash memoes/purchase vouchers from another State. It is pertinent to mention here that higher amount purchase chits filed by the respondent in the District Forum are mostly from the District Burdwan, West Bengal. We are surprised to note that all these inter state purchase and inter-state transportation involving few thousands of rupees were made without any sales tax formalities. Hence, in our opinion, lesser said that better, about the conduct of complainant. The unauthorized transactions of the respondent were shown with the sole purpose of presenting exaggerated insurance claim. To cover up such false claim, the respondent made allegation that the Surveyor made final assessment in an arbitrary manner in collusion with the Insurance Company, which was completely baseless.
7. It is well settled that report of Surveyor, who is an independent agency and is qualified and licenced, to carry out such work, can not be brushed out lightly. In the present case the Surveyor submitted a detailed, and thorough report based on scientific assumptions. The total loss claimed by the respondent was false and not genuine. After final report of the Surveyor, Insurance Company issued a discharge voucher to the claimant on 29.01.07 and thereafter, also sent two reminders dated 02.02.07 and 12.03.07, requesting her to return the same duly singed by her, but she did not return the discharge voucher for the reason best known to her. Hence, in our view, the appellant Insurance Company was not deficient in its services.
8. In view of the above discussion, we are unable to sustain the order dated 18.01.2008, passed by the Palamu District Consumer Forum at Daltonganj and it is set aside and the appeal is allowed in part with a direction to the appellant Insurance Company to pay Rs.41,616.00, the insured amount as per the final survey report dated 07.09.2006 to the complainant-respondent within two months. There shall be no order as to costs.
The 26th September, 2008.
Ranchi.
Member Member President