National Consumer Disputes Redressal
United India Insurance Co. Ltd. & Anr. vs Iqrar Hussain Razvi on 8 February, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1128 OF 2018 (Against the Order dated 29/12/2017 in Appeal No. 522/2010 of the State Commission Uttar Pradesh) 1. UNITED INDIA INSURANCE CO. LTD. & ANR. THROUGH MANAGER, 14, HAZARATGANJ, LUCKNOW` UTTAR PRADESH 2. SENIOR DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD. DIVISIONAL OFFICE FIRST 28/45, ASHOK MARG, LUCKNOW` UTTAR PRADESH ...........Petitioner(s) Versus 1. IQRAR HUSSAIN RAZVI S/O. LT. SAYYAD WAKAR HUSSAIN RIZVI, R/O. 25/26, COMPOUND MUBARAK PS THAKURGANJ, LOCALITY MUFTIGANJ, LUCKNOW UTTAR PRADESH ...........Respondent(s)
BEFORE: HON'BLE DR. INDER JIT SINGH,PRESIDING MEMBER
FOR THE PETITIONER : MRS. NANITA SHARMA, ADVOCATE
MR. SURANJAN S ROY, ADVOCATE FOR THE RESPONDENT : MR. RITESH KHARE, ADVOCATE
Dated : 08 February 2024 ORDER
1. The present Revision Petition (RP) has been filed by the Petitioners against Respondent as detailed above, under section 21 of Consumer Protection Act 1986, against the order dated 29.11.2017 of the State Consumer Disputes Redressal Commission, Uttar Pradesh (hereinafter referred to as the 'State Commission'), in First Appeal (FA) No.522/2010 in which order dated 09.02.2010 of District Consumer Disputes Redressal Forum, Second, Lucknow (hereinafter referred to as District Forum) in Consumer Complaint (CC) No. 216/2003 was challenged, inter alia praying for setting aside the impugned order dated 29.12.2017 passed by the State Commission in Appeal No.522/2010.
2. While the Revision Petitioner(s) (hereinafter also referred to as OP/Insurance Company) was/were Appellant(s) before the State Commission and Opposite Parties before the District Forum and the Respondent (hereinafter also referred to as Complainant) was Respondent before the State Commission in the said FA/522/2010 Complainant before the District Forum in the CC No.216/2003.
3. Notice was issued to the Respondent on 11.09.2018. Parties filed Written Arguments/Synopsis on 21.09.2023 (Petitioner) and 03.02.2021 (Respondent) respectively.
4. Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Forum and other case records are that: -
The Complainant got his shop insured with the Petitioner/Insurance Company for the period from 08.11.2001 to 07.11.2002. During the validity of the insurance, in the night of 22/23.03.2002 theft was committed in the complainant's shop by breaking the lock and goods worth Rs.5,60,000/-were stolen. The complainant registered the First Information Report (FIR) in the Police Station, Thakurganj. The complainant gave information of the theft to the OP and filed insurance claim. Police investigated the matter and filed final report which was admitted by the concerned Magistrate on 20.01.2003. The Surveyor was appointed. According to the survey report, the claim complainant is based on forgery. The Insurance Company repudiated the claim on 31.11.2002. Hence, the complainant filed complaint before the District Forum.
5. Vide Order dated 09.02.2010, in the Dispute No. 216/2003, the District Forum admitted the dispute of the complainant and directed the OP to pay Rs.5,01,423/- loss occasioned due to theft in the insured shop of complainant with interest @9% p.a. from the date of incident till the date of actual payment. The District Forum also directed the OP to pay to the Complainant Rs.2000/- as cost of dispute.
6. Aggrieved by the said Order dated 09.02.2010 of District Forum, Petitioner(s) appealed in State Commission and the State Commission vide order dated 29.12.2017 in FA No. 522/2010 dismissed the Appeal.
7. Petitioner(s) have challenged the said Order dated 29.12.2017 of the State Commission mainly on following grounds:
Fora below failed to appreciate that the alleged burglary claim of the Respondent was found fake and manipulated after detailed investigation of the matter and found that the claim is not payable. The detailed survey report is evident that the insured started dealing in retail of Zari Embroidered Sarees, ladies suits and Lehangas on 22.09.2001 i.e. just about 06 months prior to the alleged burglary incident dated 22/23.03.2002 after taking Rs.6.00 lacs loan from Punjab National Bank, while prior to that insured was doing job work of Zari Embroidery in association with his brother. The shop was neither registered with Trade Tax department nor insured was paying income tax. The insured produced stock purchase bills but failed to provide any sale statement of stock for any period.
All such purchase bills were apparently manipulated since they are of only two shops. Out of two, one is of his own brother's shop and all bills are in serial number but of different dates. Even the shop of one of the said seller/ supplier was not found at the given address on bill. Apart from these, many facts were observed by the Surveyor which led to the Surveyor to hold that the claim was fabricated only to extract money from the Petitioner/Insurance Company.
The Fora below has erred in holding the said burglary claim genuine merely on the basis of FIR, FR and acceptance of FR by Court, the claim was based on forgery.
The Surveyor has specifically assessed the loss "Nil" in his report and concluded that insured had not suffered any loss by the reported burglary thereby the award of Rs.5,01,423/-on the basis of Survey Report was unsustainable.
The order of the District Forum to pay Rs. 5,01,423/- with 9% per annum interest w.e.f. date of loss and Rs. 2,000/- as cost to be payable in one month of order was illegal, arbitrary and against the provisions of Consumer Protection Act which provide only for compensation and/or cost in case of any deficiency in the services. There is no provision for interest as penalty as such orders of the Fora below are illegal and bad in law. The entire approach of the Fora below in holding in favour of the Respondent/complainant is erroneous and suffers from error of both facts and law. The orders of the Fora below are perverse and based on presumptions, conjectures and surmises instead of facts and evidence on record. The survey report is an authentic document which cannot be so easily discarded, especially when the surveyor has given cogent reasons for repudiation of the claim.
The State Commission, without discussing the legal pleas and survey report has dismissed the appeal only on the ground that the police found the theft as genuine and same has been accepted by court as such the incident of the theft is proved. The finding of the State Commission regarding the report of the surveyor is without any evidence.
The Fora below have erred in ignoring the report of the investigator to the effect that the claim was fake and fictitious and the insured had no stock at the time of reported burglary and as such no loss was suffered by him. The Respondent's shop was neither registered in Trade Tax Department nor the Respondent filed any Income Tax returns. The Survey report along with the affidavit of the Surveyor were never contradicted by the Respondent/Complainant. The findings of the Surveyor ought not to have been ignored.
8. Heard counsels of both sides. Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.
8.1 In addition to the averments made under the grounds (para 7), the Petitioners/OPs contend that in the night of 22/23.03.2002 a thief broke open the lock of the insured shop of the complainant and committed theft of about Rs.5,60,000/- worth goods. FIR was registered in the Police Station, Thakurganj and also gave information of the theft to the Petitioner Company along with claim form. Police investigated the matter and filed the final report which was admitted by the concerned Magistrate on 20.01.2003. The alleged burglary claim of the complainant was found fake and manipulated after detailed investigation of the matter and on the basis of Survey Report, the insurance company repudiated the claim. The shop was neither registered with Trade Tax Department nor the insured was paying any income tax. The insured produced stock bills but failed to provide any sale statement of stock for any period. All such purchase bills were apparently manipulated, since they pertain to only two shops. Out of the two shops, one was of his own brother's shop and all bills were in serial numbers but of different dates. Even the shop of one of the said seller/supplier was not found at the given address on bill. Many other facts were observed by the Surveyor which led to the Surveyor to hold that the claim was fabricated, only in order to extract money from the Petitioner. It is further contended that the Fora below erred in hold the said burglary claim as genuine merely on the basis of the FIR, FR and acceptance of FR by the Court. However, the claim was based on forgery. The Surveyor has specifically assessed the loss 'NIL' in his report and has concluded that insured had not suffered any loss by the reported burglary thereby the award of Rs.5,01,423/- on the basis of Survey Report was 'unsustainable'. The entire approach of the Fora below in holding in favour of the Respondent is erroneous and suffers from error of both facts and the law. The Survey report was never contradicted by the Respondent/complainant.
8.2 On the other hand it is contended by the Respondent/complainant that he is carrying out the business in the name and style of M/s Fatima sarees, dealing in Zari Work and material, Lahnga, Suit, Sarees etc. at Shop No.2, Haji Market near Masjit Masahibganj Thakurganj, Lucknow. The theft was committed during night of 22/23.03.2002. FIR was lodged at P.S. Thakurganj, Lucknow on 23.03.2002 in connection with the crime No. 115/2002 under section 457/380 IPC and also informed the Petitioners regarding the same and requested for registration of claim. On the advise of the Petitioner, the complainant submitted his claim for Rs.5,85,590/- on 06.06.2002 on prescribed format and submitted relevant particulars in support of his claim. In the Crime Case No. 115/2002 instituted on the report of the Complainant, the police filed the Final report which was accepted by the concerned Magistrate vide order dated 20.01.2003. The Petitioner on one pretext of the other are harassing the Respondent and not yet settled the claim of the Respondent. The claim of the complainant was repudiated on the ground that the incident is forged and fake. Hence, filed complaint before the District Forum. The District Forum admitted the complaint. The State Commission has not committed any illegality or material irregularity in appreciating the facts and the laws. Therefore, the order of the State Commission should be upheld.
9. We have carefully gone through the orders of State Commission, District Forum, other relevant records and rival contentions of the parties. The main reason for repudiating the claim of the complainant by the Insurance Company is that the alleged burglary claim was found fake and manipulated after detailed investigation of the matter on the basis of surveyor report. The surveyor in his report has casted doubts on the incident of burglary. The relevant extract of report of the surveyor is reproduced below:-
"I examined the internal scene of the shop, its rolling shutter and locks stated broken by burglar(s) very carefully and found as under:
(a) Only a small superficial rub mark was visible on right side of the flat strip welded with the bottom of rolling shutter. Besides this, no other mark was found near the kundas of the rolling shutter to justify forcible entry into the shop.
(b) One of the pad locks stated to have put and locked in kundas of rolling shutter of the shop, before occurrence of reported burglary incident, was in tact and other was broken.
(c) The internal scene of the shop was almost undisturbed.
(d) Only two steel almirahs were kept together side by side in South East corner of the shop, their shutters were open having no sign of any force application, the mortise lock of the built in cash chest of one of the said steel almirahs was open but shutter of the said cash chest was also having no sign of any force application. On opening the shutter of the cash chest, an empty small tin box was found kept in it but it was empty. One of the keys of the three keys bunch was found fastened in key hole of full size steel almirah and remaining two keys stated of other steel almirah, were hanging together. Prior to alleged burglary incident, the entire stock in trade was stated kept in there two steel almirahs only but at the time of my survey, no stock of any kind was found in these steel almirahs. All the stock was stated burgled.
(e) One wooden cash box was kept on the floor of the shop which was locked by a very small & thin pad lock having no sign of any force application on it but the lid of the said cash box was having quite a big broken hole, some of the ejected broken chips of which were lying on the floor around the said cash box, the insured stated that the keys of the aforesaid almirahs were kept in the said cash box as per his usual routine which the burglar(s) took out and obtained after breaking its lid. My question, "why burglar(s) did not break the small & thin locked pad lock of the said cash box in place of breaking hole in the lid of the Cash box" was not replied by the insured.
(f) No key of any type and cash money were found kept inside the said Cash Box but the items, whatsoever found kept in cash box, were in well arranged manner without any disturbance.
(g) The shelves and drawer of one wooden cupboard kept in South-west corner of the shop was empty. Only some registers & one note book were found kept on its shelves.
(h) A nezzanine built on south side of the shop was covered with curtain but no stock was found kept on it.
(i) One ceiling fan was found kept in West-North corner of the shop which was stated unbolted/detached and got down by burglars. One rod of ceiling fan was found hanging with hasp fixed with roof.
(i) Both the built in masonary's almirahs of the shop were undisturbed as the items, whatsoever, were kept on their shelves in arranged manner. After completion this part of survey, the photographs of the shop of its different scenes and situations were taken as and where required.
In order to confirm the genuineness of the reported burglary incident, I interviewed a local resident and following two shopkeepers of the locality of the shop.
1. Mr. Sharaft Hussain alias Chhabban S/o Mr. Abbas Hussain a local resident.
2. Mr. Munavvar Mirza alias Raju, the owner of the stationery shop situated diagonally opposite to the insured shop.
3. Mr. Mohd. Tahir alias Munna S/o Mr. Mohd. Fakire, the owner of the Halwai (confectioner) shop situated just opposite to the shop.
Their replies supported by their written statements (encl. No. 2 bcd) suggest that it was the scene, situation and its surroundings environment of the shop only from which they perceived the shop burgled."
10. On the other hand, the complainant alleged that in the night of 22/23.03.2002, the thief broke upon the lock of the insured shop of the complainant and committed theft. The complainant got registered the First Information Report (FIR) in the Police Station Thakurganj, Crime No. 115/2002 under section 457/380 IPC was registered. The complainant also gave information of the theft to the Insurance Company and filed insurance claim. The police investigated and filed the final report which was admitted by the concerned Magistrate on 20.01.2003.
11. Now the question arises is, as to whether in the case of crime, who is the appropriate authority to investigate, whether the role of surveyor is confined to the assessment of the loss or whether he has the powers to investigate a crime under IPC and play the role of a Police? In this case, the Police has not suspected the incident of burglary/theft and after their enquiry, have filed report before the concerned Magistrate, which has been accepted also. Can a surveyor over-rule the finding of a police, who has been assigned the role to undertake investigation of crimes under IPC, and give a finding that no such crime took place? In our considered view, the surveyor cannot assume such responsibility of investigating the crime per se and overrule the findings of police enquiry which has been accepted by the Magistrate. Hence, we are of the view that reliance cannot be made on the report of the surveyor with respect to the fact of the incident of theft/burglary.
12. As regard the contentions of the Insurance Company that the shop was neither registered with Trade Tax Department nor the insured was paying any tax, if these two requirements were mandatory, the Insurance Company ought to have raised these issues even before the issuance of the policy and cannot raise these issues at the time of examining the claim.
13. The State Commission has duly considered the contentions of the Insurance Company with respect to the incident of theft being fake but has rejected the same. The State Commission observed "During police investigation the incident of theft has been found true and correct and the police has also filed final report in the Court which has been admitted by the Court. In this manner the incident of theft is proved. The arguments of the appellants is without any force. Appeal being without merit liable to be dismissed." In this regard extract of relevant para of the order of the District Forum are also reproduced below:-
"After conducting investigation by police in this case, the final report of Police was accepted by competent Court and Insurance Company. Because the Opposite Party did not file any appeal against order of competent court accepting final report of Police. Surveyor of Opposite Party went to wrong address and gave conclusion; which is without any force. If Opposite Party had any doubt about the theft occurred in the shop of Complainant, then objection was to be filed before competent Court which accepted final report of the Police. he objection was to be filed before the same and should be cancelled it. Now there is no reason not to rely on FIR, Police Report and acceptance of final report by the Court. This has been himself admitted in the end of survey report of surveyor of Opposite Party the loss of Rs.5,01,423/- occasioned due to theft, due to any legal difficulties and otherwise if claim of Complainant is accepted, then it is reasonable to order to Pay Rs.5,01,423/- to the Complainant. Thus in the opinion of Forum, Opposite Party Insurance Company committed extreme deficiency and error by not giving claim amount of the Complainant is liable to be admitted on evidences and merits."
14. We do not find any reason to interfere with the well-reasoned concurrent findings of both the Fora below. As was held by the Hon'ble Supreme Court in Rubi Chandra Dutta Vs. United India Insurance Co. Ltd. [(2011) 11 SCC 269], the scope in a Revision Petition is limited. Such powers can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order. In Sunil Kumar Maity Vs. State Bank of India & Ors. [AIR (2022) SC 577] held that "the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity."
15. We find no illegality or material irregularity or jurisdictional error in the order of the State Commission, hence, the same is upheld. Accordingly, the Revision Petition is dismissed.
16. The pending IAs in the case, if any, also stand disposed off.
................................................ DR. INDER JIT SINGH PRESIDING MEMBER