State Consumer Disputes Redressal Commission
Dharam Paul vs Oico. Ltd. on 31 March, 2011
Dharam Paul Sharma v/s OIVC J&K STATE CONSUMER DISPUTES REDRESSAL COMMISSION, JAMMU Quoram: Honble Mr., Justice (Retd) G.D.Sharma, .President Mr. B.L.Saraf .....Member
Complaint No: - 2729/05 Date of Institute:-30-09-2005 Date of Decision:-31.03.2011 Dharam Paul Sharma S/O Shri Ram Rattan Sharma Prop M/S Sharma Medicines & Surgicals, Resham Garh Colony.
R/O Village Aghore Tehsil and Distt Jammu Complainant Versus
1. Oriental Insurance Company Limited, Through its Divisional Manager, Jammu
2. Branch Manager, Oriental Insurance Company Limited Branch Office 1, Canal Road, Jammuu .OPs
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Counsel for the parties Mr. Sudershan Sharma advocate for the complainant Mr. Sunil Malhotra advocate for the OPs __________________________________________________________________________ Whether to be reported in press /MediaYes/No Whether to be reported in Digest/Journal.Yes/No
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Per Justice G.D.Sharma
1. The complainant herein was carrying on the business of sale of drugs, medicines and surgical equipments and was a tenant of one Bal Krishen. His place of business was situated at Resham Ghar Colony, Jammu. He had taken limit of Bank loan from Punjab National Bank to the extent of Rs 5 lac. The stocks in trade had assured cover under the Insurance Policy to the extent of Rs 8 lac. It is alleged that during the intervening night of 17th / 18th December, 2002, theft took place in his shop by breaking open the locks and insured stocks in trade in the form of medicines, drugs, surgical tools, and instruments were stolen. On the next date; the incident was reported in the concerned police station namely, Bakshi Nagar Jammu where FIR No 380/2002 was registered for the Commission of offences falling under sections 457/380 RPC. The OPs deputed Sh. Dharam Vir Chopra surveyor and loss assessor to assess the loss. He gave his report to the OPs that complainant had not cooperated with him despite repeated reminders to fulfill the required formalities and recommended in his report that it was a case of no claim. Thereafter, OPs appointed Lt. Col. R.M.Khanna (retd) to investigate the case. The complainant has alleged that neither the report of loss assessor and surveyor namely, Dharam Veer Chopra nor that of the Investigator Lt. Col. R.M.Khanna (Retd.) was shown to him. The complainant served legal notices to the OPs for the settlement of his claim (copies whereof are placed on the record) but the claim was not settled. The grouse of the complainant is that after the receipt of notices; the OPs sent him letter dated 30.09.2003, whereby he was informed that his claim had been treated as No Claim.
This act gave him cause of action as the service was not rendered. Accordingly the complaint was filed with a prayer for indemnification of a sum of Rs.7.50 lac for the loss of missing stocks in trade alongwith interest and compensation in the amount of Rs.5 lac. Litigation expenses to the extent of Rs 20,000/- are prayed.
2. In the written version, it is pleaded that there was no forcible entry in the business premises of the complainant because the central lock on the shutter of business premises was found intact and no damage was caused to the shutter. According to them, it is a fraudulent case concocted on the debris of the Insurance Policy for the purpose of getting beriched. The report of the loss assessor and surveyor M/S Dharam Vir Chopra is against the claim of the complainant which also finds support from the inquiry report of investigator Lt. Col. (Retd.) R.M.Khanna. His report is self-explanatory to debar the complainant from getting any relief. The complainant had not co-operated with him as well as with his financier namely, Punjab National Bank Branch Hari Market Jammu with whom the stocks in trade were hypothecated. The statement of the financier Bank is that from 06.02.2002, the complainant had become irregular in liquidating the loan as well as he did not observe the legal formality in submitting the statements of stocks in the Bank. The complainant had violated condition no.10 of the policy of insurance as he has not filed the complaint within 12 months.
In support of the complaint, the complainant filed his affidavit and he was cross examined. Mr.Yashpal has also deposed on affidavit as his witness and he was cross examined. Mr. Zakir Hussain sub-Inspector J&K Police who initially had started the investigation has stated in his affidavit filed on behalf of the complainant, that it was a clear cut case of theft. The complainant did not produce him for cross-examination for many dates and when final report of investigation was received from the Police in the Commission vide order dated 18-12-08; his cross examination was closed. The OPs produced Girdhari Lal Branch Manager as their witness. The affidavit of Dhoni Singh witness was produced but he was not produced for his cross examination.
3. The complainant Mr. Dharam Paul in his affidavit has supported the averments made in the complaint and has further stated in cross-examination that prior to the obtaining of the Insurance Policy in question; he had got his insured. His Land-lord namely, Bal Krishen was on inimical terms with him because due to his illness, he could not pay him the arrears of rent. After the incident, he reached the spot within one and half hour and the neighbourers had told him that they saw the shutter of the shop half opened and he also noticed the same. That central lock of the shutter was not functional which fact was brought to the notice of the surveyor as well as the investigator. He had shut the shutters of the shop by locking them from outside but the locks were not found on spot. Inadvertently he had mentioned in the complaint that theft took place in the month of November but actually the theft had taken place during the intervening night of 17/18 December 2002. In cross-examination, he stated that neither the shutters nor the roof of the shop was broken. The shutter of the shop was lying open and from that gap entry could be made by anyone inside the shop. He admits that he had not submitted the statement of the stocks in trade to his financier Bank from February 2002 as he had fallen sick. He admits that the shutter was not broken but the shutter had been opened. He had not been admitted in any Government or Private hospital but had been receiving treatment continuously and the concerned medical record was attached with his affidavit.
4. Heard the arguments.
5. Mr. Sudershan Sharma, the learned counsel of the complainant has stated that Mr. Zakir Hussain Sub Inspector who on 18.12.2002 had initially investigated the case in the statement of the complainant recorded under section 161 CrPc has stated that when he reached the place of incident from his house which is situated at a distance of about 30 Kms, he found that the locks of his shop were broken and some articles of sale were lying in a scattered position. He had also stated that theft had taken place.
The counsel has referred to the statement of witness Yashpal recorded on 18.12.2002 by Sub Inspector Zakir Hussain wherein he has stated that he is a co-tenant of the complainant and the latter had not visited the place of incident for the last 7/8 days from the date of theft. The complainant was also not regular in opening his shop. That when he (the witness) came to the place of incident, he saw that the landlord Mr. Bal Krishen was already there and the latter in his presence informed the complainant through telephone. Some articles of trade in the form of surgical instruments were lying in a scattered condition. The Police had reached the spot in his presence. The statement of the landlord Bal Krishen was also recorded on the same day by the same Sub Inspector.
In his statement, Bal Krishen has deposed that the shutter of the shop was opened in his presence and it was found that some medicines were found lying in a scattered condition. The learned counsel could not show us any statement or fact recorded in the Case Diaries which support the contents of his affidavit. According to him, the Police has not fairly conducted the inquiry after the case was taken over from Zakir Hussain and given the final opinion which is against the complainant. Bal Krishen has turned hostile to the complainant because he wanted the vacation of the shop from the complainant. The complainant had not obtained loan from the Financier Bank (Punjab National Bank B/O Ragunath Bazar, Jammu) but it was only a limit of loan on which only the interest was payable. Since the arrears of interest was the only liability subsisting against the complainant which he had been discharging so there was no necessity of submitting any statement of stocks in trade to the Financier Bank. The Financier Bank on its own had been getting the renewal of the Insurance Policy from OPs and the complainant had no knowledge of it. The entry by the thief was made inside the shop by making a way after pushing the shutters and then theft was committed.
6. In rebuttal Mr. Sunil Malhotra, the learned counsel has contended that Police has given a negative report by stating that no theft had taken place and the complainant in order to grab the money of the Insurance limit had lodged a false report. The surveyor Mr. Dharam Veer Chopra loss assessor and surveyor who is an independent witness had visited the spot after the incident and his report is of credulous nature. He has clearly stated that:- In the absence of basic records provided by the Insured in spite of our repeated reminders to fulfill the formalities reported above and anomalies observed in the documents submitted by the Insured, we are constrained to assess the loss as: NO CLAIM. In the same manner, the investigator appointed by the OPs namely Lieutenant Colonel Mr. R.M.Khanna (Retd.) has stated, case seems to be a fraud and recommended to be rejected. Since the complainant has failed to prove the forcible entry of a miscreant to cause the loss to the insured goods so condition no.12 of the Insurance Policy has not bee observed which envisaged theft should have been committed by forcible entry or by assault or violence or threat to the insured or any employee of the insured. Since there is no evidence to prove the fact that the thief had made violent entry or forcible entry or other conditions which have been reproduced above, so the OPs are not liable to indemnify the complainant. While concluding his arguments, he had contended that the complainant has not co-operated either with the loss assessor and surveyor Mr. Dharam Veer Chopra or with Lieutenant Colonel Mr. R.M.Khanna (Retd.). In support of his contention, he has cited the case of United India Insurance Co.
Ltd. versus Harchand Rai Chandan Lal (2004) 8 SCC 644.
7. We have considered the respective contentions of the counsel appearing for the parties and perused the record. In the case of United India Insurance Co. Ltd. (supra), the Honble Supreme Court has held that the terms of the Policy shall govern a contract between the parties and they have to abide by the definition given therein and all those expressions appearing in the Policy had to be construed as it is and something cannot be added, subtracted or substituted. The definition contained in the Policy of Burglary defined in the Policy as theft preceded by use of force or violence was accepted as the definition and a theft committed not so preceded on facts if governed by Policy cannot be construed to be falling within the definition of Burglary.
Adverting to the facts of the present case, we have found that complainant has failed to prove any of the ingredients of the terms of the Policy which have been spelled out by Mr. Sunil Malhotra from condition no.12 of the Insurance Policy and need not to be repeated here. Rather, the investigation conducted by the Police clearly shows that no theft had been committed and the complainant had lodged a false report with the purpose of defrauding the Insurance Company. The learned counsel appearing for the complainant was very much harping on the affidavit filed by Sub Inspector Zakir Hussain who had carried the preliminary investigation but the contents of his affidavit are inadmissible in evidence as he has not submitted himself for cross-examination. Also the contents had no value because he seems to have filed affidavit at the bidding of the complainant as not supported by any entry made by him in the Case Diaries in support of these contents. The final investigation conducted by the concerned Police officers has the evidentiary value and not the initial expression of opinion made by Sub Inspector Zakir Hussain. There are other surrounding circumstances also which show that it is a false case and one among them is that the complainant had failed to submit the statement of stocks in trade to his financier Bank coupled with the findings recorded by the surveyor and loss assessor Dharam Veer Chopra and investigator Lt. Colonel Mr. R.M.Khanna (Retd.). Taking stock of all these facts, we have no hesitation in holding that complainant has failed to prove his claim and as such his complaint is dismissed as not proved and consigned to records. The parties are left to bear their own costs.
Member President