State Consumer Disputes Redressal Commission
The New India Assurance Company Ltd. vs M/S Gupta Traders on 10 December, 2015
Daily Order FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. First Appeal No.1477 of 2012 Date of Institution: 05.11.2012 Date of Decision: 10.12.2015 1. The New India Assurance Co. Ltd., Patiala, through its Senior Divisional Manager, Second (361500) Ist Floor, Leela Bhawan, Opposite Income Tax Office, Patiala. 2. The New India Assurance Building, 87, Mahatma Gandhi Road, Fort Mumbai Now through Sh. A.L. Madan Manager, New India Assurance Company Limited, SCO 36-37, Sector 17-A, Chandigarh Appellants/Opposite Parties Versus M/s Gupta Traders, Namdar Khan Road, Karan Ashram Patiala through its Prop. ..Respondent /Complainant First Appeal against order dated 20.09.2012 passed by the District Consumer Disputes Redressal Forum, Patiala. Quorum:- Shri J. S. Klar, Presiding Judicial Member.
Shri. H.S. Guram, Member Present:-
For the appellants : Sh.G.D Goyal, Advocate For the respondent : Sh.Rakesh Gupta, Advocate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . J.S KLAR, PRESIDING JUDICIAL MEMBER :-
The appellants of this appeal (the opposite parties in the complaint) have directed this appeal against the respondent of this appeal (the complainant in the complaint), challenging order dated 20.09.2012 of District Consumer Disputes Redressal Forum Patiala, accepting the complaint of the complainant by directing the OPs to make the payment of Rs.1,33,094/- with interest @ 9% per annum from the date i.e. 10.09.2011 till final disbursement and to pay costs of litigation of Rs.3,000/-. The instant appeal has been preferred against the same by the opposite parties now appellants in this appeal.
2. The complainant M/s Gupta Traders through its proprietor has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that the complainant who carries on the business of confectionary goods including milk products, juices, cold drinks, desi ghee, chocolate etc got insured stock of all leading companies i.e. Haldi Ram Namkeen and gift pack, Cadbury nestle, verka, Cadbury, dairy milk etc from 26.12.2009 to 25.12.2010 with OPs. The policy was to cover insurance in case of fire, burglary etc and required premium in this regard was paid by complainant to OPs/insurer. Sh. Naresh Kumar and Dinesh Kumar closed the shop of complainant on 6.11.2010 at about 10.00 pm and Dinesh Kumar opened the shop at 7.30 am and found that things and material lying in the shop were lying spread on the floor and cash box was also lying opened and Dinesh Kumar immediately called Naresh Kumar on the shop forthwith. They went up stairs and saw that the main door on the top floor was broken by some unidentified persons, who committed burglary in the shop of the complainant. It was found that 9 boxes of dairy milk chocolate 38, 22 boxes of centerfresh- mono, 6 boxes of chatpati batten, Haldi Ram Namkeen and gift pack, 9 boxes of five star chocolate, 11 boxes of diary milk chocolate 22m, 5 boxes of shots diary milk, i.e. nearly 76 boxes in all were stolen including Rs.40,000/- as cash. The loss to the tune of Rs.2,64,852/- was suffered by the complainant in above theft. The complainant inspected the top floor of the shop and observed that some persons climbed on the top floor of the shop by using stairs and supports lying in the adjacent shop, which is a building construction material shop and also used to store, stairs and supports and which stairs and supports were used by some unidentified persons to reach up to the top floor of the shop of complainant. The complainant reported the matter to the Police Station Kotwali Patiala and FIR No.407 dated 7.11.2010 was registered at P.S Kotwali Patiala about it. The complainant also brought matter to the notice of the OPs, vide letter dated 05.08.2011 and D.S Chadha Investigator admitted this fact that culprits entered the shop through 2 feet wide space over the iron gate of Ms/ Suchdeva Shuttering Store, adjoining the shop of the complainant and also used wooden ladder to reach the roof of the shop and entered the shop by breaking the door. The OPs have not paid the loss to the complainant. The OPs mentioned in their letter dated 05.08.2011, that owner of M/s Suchdeva Shuttering Store, stated that no one could enter or come out of two feet space over the iron gate of his store, which was totally false. No payment was made by the OPs towards the reimbursement of the loss suffered by the complainant to the extent of Rs.2,64,852/- plus Rs.40,000/- (Total amount of Rs.3,04,852/0). Legal notice 10.09.2011 was also served upon OPs by the complainant for payment of Rs.3,04,852/-. The complainant has, thus, filed the complaint directing the OPs to pay the amount of Rs.3,04,852/- along with interest @ 12% per annum to complainant, besides Rs.10,000/- for deficiency in service and Rs.5,000/- as costs of litigation.
3. Upon notice, OPs appeared and filed written reply by raising preliminary objections that complaint is not maintainable because the claim of the complainant stood repudiated on 17.10.2011 as per terms and conditions of the policy and he has been duly intimated about it. The complaint is not maintainable, as complainant is not a 'consumer'. The complex questions of facts and law are involved in the case, which cannot be adjudicated in summary manner by consumer Forum. Any violation of Contract of Insurance by the parties renders it void. On merits, OPs admitted that they issued Shopkeeper Policy in favour of complainant for a sum of Rs.20 lacs covering the risk of on the stock of all kinds of confectionary goods, juices, milk products, cold drinks, desi ghee, jams etc and other goods of like nature belonging to the insured lying in the shop. The policy covers the risk of theft and burglary, as per the terms and conditions of the policy. It was denied that on 6.11.2010 at about 10.00 pm, complainants closed the shop, as pleaded in the complaint. It was averred that on 7.11.2010, Sh. Dinesh Kumar opened the shop at 7.30 am and noticed that things and material lying in the shop were lying spread on the floor and cash box was also lying open. It was further submitted that on receipt of intimation of loss on 7.11.10, the OP deputed Sh. Deepak Malhotra C.A Surveyor and Loss Assessor to assess the loss and Sh.D.S Chadha Ex-Deputy Inspector General Vigilance Patiala was appointed Investigator by OPs to investigate the case. The investigator visited the spot on the same day and recorded statements of the complainant and other persons and found that no theft had taken place. The complainant had enacted a drama to get a false claim. The owner of Sachdeva Shuttering Store stated that no one could enter or come out from the space of 2 ft over the iron gate of his store. OPs denied that complainant suffered a loss of Rs.2,64,852/-, besides Rs.40,000/- in cash. OPs controverted the averments of the complainant and prayed for dismissal of the complaint.
4. The complainant tendered in evidence, his affidavit Ex.C-1, Affidavit of Dinesh Kumar Ex.C-2 along with copies of documents Ex.C-3 to Ex.C-8. As against it; OPs tendered in evidence affidavit of Prabh Dass Senior Divisional Manager, New India Assurance Company Ltd Divisional Office, Patiala Ex.R-1, affidavit of Sh. D.S Chadha Ex.R-2, affidavit of Deepak Malhotra Surveyor & Loss Assessor Ex.R-3 along with copies of documents Ex.R-4 to Ex.R-7. On conclusion of evidence and arguments, the District Forum, Patiala, accepted the claim of the complainant by virtue of order dated 20.09.2012. Dissatisfied with the order of the District Forum Patiala dated 20.09.2012, the OPs now appellants have preferred this appeal against the same.
5. We have heard learned counsel for the parties and have also examined the record of the case.
6. The forceful submission of counsel for appellants is that Sh. D.S Chadha, Investigator recorded statement of adjoining owner Amarjit Singh and on the basis of that statement, no foot mark of left out items were found near the ladder, which was allegedly used by the culprits to enter the shop for taking out the stolen material. Even, the owner of the Sachdeva Shuttering Store stated that no one could enter or come out from the space of 2 feet over the Iron Gate of his store and insured have just created a drama only. On the basis of statement of Amarjit Singh and owner of Sachdeva Shuttering Store, the investigator found the case of the complainant to be not genuine. Amarjit Singh has neither been examined before District Forum nor his affidavit to this effect has been placed on the record. We are mindful of this fact that the adjoining owners are generally jealous of the shopkeepers, on account of some matter or the other. The report of D.S Chadha, Investigator, which is based solely on the recorded statement of Amarjit Singh adjoining owner of the shop, is not conclusive in our opinion. Even otherwise, it is not possible that footprints would be available at the spot because so many persons come to the place after theft and there is every scope of their obliteration. The complainant has lodged FIR about this matter Ex.C-5 with police station Kotwali Patiala about it. We have examined this FIR and generally FIR is not lodged in false matters and lodging of FIR is not an easy task with the police authority in the present set up. The evidence of the complainant contained in affidavit of Naresh Gupta sole proprietor of complainant finds corroboration from affidavit of Dinesh Kumar Ex.C-2 on the record and it has received further corroboration from FIR Ex.C-5 on the record. On the other hand, there is affidavit Ex.R-1 of Prabh Dass Senior Divisional Manager, New India Assurance Company Ltd Divisional Office Patiala by the OPs to counter it. This witness was not present at the spot; he simply filed his affidavit on the basis of the record and rather the report of investigator D.S Chadha, which led to repudiation of the insurance claim of the complainant. Deepak Malhotra swore his affidavit Ex.R-3, who was appointed as Surveyor and his survey report Ex.R-5 is on the record. The surveyor was appointed under the Insurance Act and his report is generally a valuable piece of evidence, unless there are contrary reasons to that effect. He found in his report that all the drawers of the shop were disturbed and material was scattered here and there. He rather observed in his survey report that the investigator stated that loss had not occurred, but this fact was not got counter-affirmed from the police authorities. The surveyor found that the loss to the extent of Rs.1,33,094/- has been caused to the complainant by means of theft and due intimation was given to OPs by the complainant about this theft. There is no dispute this fact that complainant took the insurance policy from OPs, which covered the risk of Rs.20 lac of the stock. The surveyor found the loss occurred due to theft to complainant as genuine, as per his report Ex.R-5, vide his affidavit Ex.R-3. The report of D.S Chadha Investigator Ex.R-6 is based on the statement of adjoining owner Amarjit Singh. But the fact that police has not questioned him in this matter and he made statement voluntarily to the investigator to the effect that no person could climb the 2ft space because iron gate is fixed is of no consequence. Firstly, he has not been examined before District Forum on oath nor his affidavit is on the record to substantiate it. He is not expert witness in this matter. The evidence of the complainant adduced on the record is further corroborated by FIR Ex.C-5 on the record. The OPs failed to prove this fact that FIR was lodged falsely because they have not placed on record any Cancellation report or Untraceable report thereto by the police authorities. Once FIR has been lodged to the police, it is taken to logical conclusion that the FIR has been lodged against unidentified persons and sometime it takes long time to trace them. In the absence of any cancellation report or untraced report by the police, we cannot ignore this FIR lodged by the complainant from consideration about the fact of this theft. The survey report submitted by Deepak Malhotra Ex.R-5 goes a long way in proving the genuineness of the claim of the complainant regarding loss suffered due to theft. The complainant has not placed on record any stock statement duly verified regarding actual loss suffered by them. Even cash of Rs.40,000/- was not kept in any safe by the complainant and rather it was kept in the till only, which is made of wood or iron and is not a safe and secured place, hence it was not considered by the surveyor. The insured has to establish theft, which took place by using of force or violence. Herein, we find that the unidentified thieves sneaked into the shop of the complainant and forcibly opened the locks, which is an indicator of use of force, as they elbowed their entry into the shop by the use of force. Unidentified persons were armed with iron rode, which was left by them on the spot and it a pointer to the use of force only. Consequently, the argument of counsel for appellants is that the claim is liable to be repudiated on the basis of report of the investigator D.S Chadha is not a sufficient ground to repudiate the claim of the complainant, moreso; when the surveyor found the loss of insured to be genuine. The appellants relied upon law laid down in United India Insurance Company Ltd Vs. Harchand Rai Chandan Lal reported in 2005 ACJ Page 570 that insured has to establish that theft or burglary which took place by use of force or violence, otherwise insurance claim would be repudiated. Facts of the case have proved the use of force in this case and hence ratio decidendi of this authority is not attracted to this case.
7. With regard to quantum of compensation, the complainant failed to substantiate it in absence of any cogent evidence on the record. The complainant simply stated in the oral version and furnished affidavits about aforesaid loss and relied upon Ex.C-6 to corroborate it. Ex.C-6 is just an estimate, which could be prepared at any time, and we are not able to rely upon this document. On the other hand, the surveyor appointed under the Insurance Act and is controlled by the IRDA and he has found the loss to the extent of Rs.1,33,094/-. The report of the surveyor is a valuable piece of evidence and is generally to be accepted, unless there is inspiring evidence on the record to rebut it. The surveyor assessed the loss in its report as Rs.1,77,456/- and by deducting the less amount, the loss assessed as Rs.1,33,094/- was payable in net to complainant. We find that District Forum passed the order correctly in this case on the basis of the report of the surveyor; which is a valuable piece of evidence. As such, the order of the District Forum cannot be said to be unsustainable in law and same is hereby affirmed in this appeal.
8. In light of our above discussion, finding no merit in the appeal, the same is hereby dismissed.
9. The appellants have deposited an amount of Rs.25,000/- with this Commission at the time of filing the appeal. This amount with interest, if any, accrued thereon, be refunded by the registry to the complainant by way of crossed cheque/demand draft after the expiry of 45 days. Remaining amount shall be paid by the appellants to the complainant after 45 days from the date of receipt of copy of this order.
10. Arguments in this appeal were heard on 08.12.2015 and the order was reserved. Copies of the order be communicated to the parties as per rules.
11. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (H.S.GURAM) MEMBER December 10, 2015 (ravi)