National Consumer Disputes Redressal
Rajesh Verma vs United India Insurance Co. Ltd. on 13 October, 2011
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 2 OF 2006 (From the order dated 06.10.2005 in Complaint No. 09/1999 of Uttar Pradesh State Consumer Disputes Redressal Commission) Rajesh Verma, S/o Shri Ranvir Singh Verma, R/o 48, Amar Vihar, P.S. New Agra, U.P. Appellant Versus 1. United India Insurance Co. Ltd. Block No. 57, 1st Floor, Kaveri, Opp. Azad Petrol Pump, Sanjay Place, Agra 282002 [U.P.] 2. Branch Manager United India Insurance Co. Ltd. Block No. 57, 1st Floor, Kaveri, Opp. Azad Petrol Pump, Sanjay Place, Agra 282002 [U.P.] 3. S.K. Mittal, Surveyor and Loss Assessor, Prateek Tower, 54/10, First Floor, Sanjay Place, Agra 282002 [U.P.] . Respondents BEFORE HONBLE MR. JUSTICE V.R. KINGAONKAR, PRESIDING MEMBER HONBLE MR. VINAY KUMAR, MEMBER For the Appellant Ms. Avni Singh, Advocate Mr. Amarjeet Singh, Advocate Mr. Ravi Prakash, Advocate For the Respondents Mr. A.K. De, Advocate Mr. Sanjay Kr. Chhetry, Advocate PRONOUNCED ON : 13th OCT. 2011 JUDGEMENT
MR.
JUSTICE V.R. KINGAONKAR, PRESIDING MEMBER This appeal arises out of judgement rendered by Uttar Pradesh State Consumer Disputes redressal Commission (hereinafter referred to as the State Commission) in complaint case no. 09/99. By the impugned judgement, the complaint of the appellant came to be dismissed.
2. Briefly stated, the appellants case before the State Commission was that he was dealing in business of Gulf, Bharat Shell, Waxpol lubricants, Air Conditioners, etc. in the name and style of M/s. Devangana Associates at Agra. The stock kept in the shop premises had been insured with the National Insurance Co. Ltd. under insurance policy against loss due to fire, burglary, P/L by CLT. The sum assured under the policy was Rs.5 lakh. The period of insurance was from 9.11.1996 to 8.11.1997. The business of the appellant was increased and, therefore, he took another policy from the respondent no. 1 which covered the stock in the building, shop, godown and all places of the trading. The insurance policy issued by the respondent no. 1 vide no. 13980/96 dated 1.02.1997 was for a sum assured of Rs.15,75,000/-. The insurance period was between 1.2.1997 till 31.1.1998. In the evening falling between 24th and 25th July 1997, an incident of burglary took place in his godown. Some unknown culprits had opened the godown by breaking locks and the shutters. In the morning of 25.07.1997, he received a telephonic information about the theft and burglary. He went to the godown and found that some of the items were lying in disorderly manner. He gave information to New Agra Police Station. On basis of his complaint, an FIR was registered for offence under section 380 of I.P. Code and crime under 401 of 1997 was investigated by the Police. He was mentally disturbed due to the occurrences of the incident and, therefore, did not give details of the goods which were burgled. He later on submitted the list of stolen goods. He gave intimation to the respondent no. 1 about the loss. He urged the respondents to re-investigate the matter. The respondent no. 1 (insurer) repudiated the claim on the ground that there was no burglary in the godown and the loss was not caused to him. Consequently, he filed the complaint.
3. The respondents denied truth into all the material averments made by the appellant / complainant. The respondents alleged that the appellant failed to establish incident of burglary in the godown. The respondent no. 1 came out with a case that the inquiry made by the surveyor indicated stage managed case of loss put forth by the appellant. There was no forceful entry in the godown nor things were stolen away by use of criminal force. The appellant, in fact, had less transactions of Waxpol and Gulf items. The agency for sale of Waxpol lubricants or engine oil was discontinued from Jan. 1997 and, therefore, the appellant could not have stocked huge quantity of the said items, valued at Rs.5,33,786.42ps. The respondent no. 1, therefore, justified the repudiation of the claim.
4. On merits, the State Commission held that the appellant failed to prove that there was burglary in the godown during the relevant night. The State Commission also came to the conclusion that items of Waxpol were unavailable in the godown of the appellant and moreover there was no sufficient proof to infer that the appellant had stocked such huge quantity of the lubricants in the godown. Hence, the complaint was dismissed.
5. We have heard learned counsel for the parties. We have perused the relevant documents filed by the parties in support of their contentions.
6. Clinching question is whether the appellant proved that the premises of the godown had been subjected to burglary in the night between 24th and 25th July 1997 and during course of such incident his stock of Waxpol lubricants, engine oil, Gulf lubricants, stabilizers etc. was lost.
7. Before we embark upon scrutiny of the evidence adduced by the parties, let it be noted that the appellant did not place on record copy of the spot panchnama, statements of the witnesses recorded under section 161 of the Cr. P. C. and the material in the context of Police investigation. The appellant has placed on record only copy of the report submitted by the PSO which shows that no information could be gathered about the stolen goods, identity of the accused and there was no possibility to detect the case, and hence the case was being closed. The final report dated 10.09.1997 does not show that during the course of inquiry the incident of alleged burglary was found to have occurred. In other words, there is hardly any material to substantiate the contention of the appellant that the godown was burgled during the relevant night. He simply filed copy of FIR (Annex. A-6). The FIR purports to show that the drums of mobile oil (Bharat shell, Waxpol and Gulf) had been stolen by unknown thieves from his godown. The FIR does not show that the godown was forcibly opened and burglary was committed during the relevant night.
8. We may now advert to the evidence adduced by the appellant. The appellant filed details of sale in the year 1996. The appellant ought to have placed on record verified stock register in order to show that the quantity of Waxpol lubricant and engine oil was stored in the godown as per the details given by him. The case of the appellant is that the loss of Rs.6,32,185.26p was due to burglary of Waxpol lubricant, engine oil etc. valued at Rs.5,33,786.42p and Gulf lubricant valued at Rs.36,617.20p. The other items like stabilizer and air conditioner are not covered by the insurance policy. The case of the appellant was that stabilizers valued at Rs.32,700/- were purchased on the same day from a local party and, therefore, the transaction was not entered in the book of accounts. The appellants claim about loss of air conditioner worth Rs.26,450/- was not accepted by the respondent no. 1 for the reason that it was old air-conditioner stored in the godown for services and was not covered by the terms of the insurance policy. To the extent of items of stabilizers and air-conditioner, in fact, the appellant could not prove his case in any manner.
9. It has come on record that the agency of the appellant for sale of Waxpol lubricants and engine oil had come to an end by about Jan. 1997. The surveyor appointed by the respondent no. 1 gave details about sale of Waxpol for period from Jan. 1997 to June 1997. The appellant issued letter dated 20.10.1997 in order to explain decrease in the sale of Waxpol. According to the appellant, such decrease in the sale was because new business of distribution of Bharat Shell was taken by him. Anyhow it is clear that the sale of Waxpol lubricants had decreased. It is important to notice that the appellant did not place on record any other material evidence about the stock of Waxpol lubricants and engine oil which was available in the godown prior to 24.06.97. The surveyor made inquiry with the office of M/s. Waxpol Industries Ltd., the supplier of lubricants. The Branch Manager of M/s. Waxpol Industries Ltd. gave a letter to the effect that dealership of the appellant was terminated and, therefore, the stock position could not be ascertained.
10. We cannot overlook the fact that the quantity of Waxpol lubricants and the engine oil was allegedly so huge that for carriage of that stock at least 2 3 trucks were required to be used for transportation. There is absolutely nothing on record to show that any movement of truck was found in the proximity of the godown of the appellant during the relevant evening. The Police and the surveyor found that there was not a single container of Waxpol lubricant in the godown.
11. Learned counsel for the appellant attempted to show that cross-examination of Mr. S.K. Mittal, surveyor appointed by respondent no. 1, is sufficient to reject the report of the surveyor. We need not go into details of such cross-examination for the simple reason that the appellant himself did not prove the alleged fact of burglary in the godown. Learned counsel for the appellant invited our attention to Mono Industries Vs. New India Assurance Co. Ltd. [II (2008) CPJ 125 (NC)]. This Commission held that the removal of the goods by the culprits after removal of the roof-sheets and thereafter their exit after breaking of the locks of the godown could be indicative of burglary. In the present case, however, there is no iota of evidence to show that the entrance of the godown was opened by use of force. The appellant failed to place on record any material to show that the theft had preceded breaking open of the lock of the godown or causing entry by use of force. What appears from the record is that after Jan. 1997, the appellant was not the distributor of Waxpol engine oil or lubricants. He has not placed on record the order which showed termination of the agency. There is also nothing on record to show that shelf life of the products was in existence and, therefore, value of the stock was as per the details given by the appellant.
12. Considering the quality of evidence adduced on record, the State Commission appears to have duly appreciated the rival contentions. We do not find any substantial error committed by the State Commission in appreciation of the evidence. Needless to say, there is no substance in the appeal. In the result, the appeal is dismissed. No costs.
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(V.R. KINGAONKAR J.) PRESIDING MEMBER ..
(VINAY KUMAR) MEMBER RS/