State Consumer Disputes Redressal Commission
Sh. Pankaj Rattan, Proprietor. vs New India Assurance Co. Ltd. on 24 June, 2015
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA.
First Appeal No.49/2015
Date of Presentation: 05.05.2015
Date of Decision: 24.06.2015
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Pankaj Rattan,
Proprietor M/s. Rudra Traders,
Village & Post Office Amb, Tehsil Amb,
District Una, H.P.
.......... Appellant .
Versus
The New India Assurance Company Limited,
Through its Branch Manager,
Mehatpur, District Una, H.P.
.......... Respondent.
..................................................................................
Coram
Hon'ble Mr. Justice Surjit Singh, President.
Hon'ble Mrs. Prem Chauhan, Member.
Hon'ble Mr. Vijay Pal Khachi, Member.
Whether approved for reporting?1
For the Appellant: Mr. Dheeraj K. Vashisht, Advocate.
For the Respondent: Ex-parte.
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O R D E R:
Justice Surjit Singh, President (Oral) Appellant is aggrieved by the order dated 05.02.2015, of learned District Consumer Disputes Redressal Forum, Una, whereby, his complaint, under Section 12 of the Consumer 1 Whether Reporters of the local papers may be allowed to see the order? Pankaj Rattan Proprietor Versus New India Assurance Co. Ltd.
(F.A. No.49/2015) ____________________________________________________________ Protection Act, 1986, which he filed against the respondent, has been partly allowed and against the claim of `12,81,870/-, a sum of `1,36,749/-, with interest at the rate of 9% per annum, has been ordered to be paid, on account of insurance claim and in addition, a sum of `5,000/- has been ordered to be paid, on account of litigation cost.
2. Appellant filed a complaint, under Section 12 of the Consumer Protection Act, 1986, against the respondent, alleging that he had been running a business of mobile handsets and prepaid recharge coupons at Amb, in the name and style of "M/s. Rudra Traders" and that for the period from 18th December, 2009 to 17th December, 2010, his stock-in-trade was insured with the respondent in the sum of `13.00 lacs. It is alleged that on the night, intervening 1st & 2nd April, 2010, a burglary was committed in his shop and the burglars after stealing handsets and recharge coupons, worth `12,81,870/-, set the shop on fire due to which the entire record of sale and purchase of handsets and recharge coupons, had been destroyed. Page 2 of 8 Pankaj Rattan Proprietor Versus New India Assurance Co. Ltd.
(F.A. No.49/2015) ____________________________________________________________
3. Intimation of theft was given to the respondent, who deputed a Spot Surveyor. Report, Annexure R-6, was submitted by the Sport Surveyor. Thereafter, Final Surveyor was deputed, who assessed the loss at `1,36,749/-. Respondent did not pay even that amount of money, which was assessed as loss by its Surveyor and repudiated the claim on the ground that appellant had committed an act of fraud, by exaggerating his claim. Appellant filed a complaint, under Section 12 of the Consumer Protection Act, 1986, seeking a direction to the respondent to pay a sum of `12,81,870/-.
4. Respondent contested the complaint and pleaded that appellant, by showing the value of stock-in-trade to be `12,81,870/- against the actual stock of just `1,37,749/-, had tried to commit fraud upon the respondent and, therefore, in accordance with condition No.7 of the insurance policy, which reads as follows, his claim had been repudiated:-
"7. Fraud: - If any claim under this policy shall be in any respect fraudulent or if any fraudulent means or device are used by Page 3 of 8 Pankaj Rattan Proprietor Versus New India Assurance Co. Ltd.
(F.A. No.49/2015) ____________________________________________________________ the insured or anyone acting on the insured's behalf to obtain any benefit under this policy, all benefits under the policy shall be forfeited."
5. Also, it was pleaded that as per Surveyor's report, the value of stock, that was available in the shop of the appellant at the time of burglary/theft, was only `1,37,749/- and that after deducting an amount of `1,000/-, on account of excess clause, a sum of `1,36,749/-, had been assessed as net loss by the Surveyor.
6. Learned District Forum, vide impugned order, has rejected the respondent's plea that claim was liable to be repudiated, in accordance with condition No.7 of the insurance policy, pertaining to fraud. However, learned District Forum has concluded that appellant is entitled to a sum of `1,36,749/- only, by way of insurance money, in view of the report of Surveyor and also the fact that appellant has failed to supply the IMEI numbers of the handsets, allegedly purchased by him, from Page 4 of 8 Pankaj Rattan Proprietor Versus New India Assurance Co. Ltd.
(F.A. No.49/2015) ____________________________________________________________ various suppliers, which were available in the shop, at the time of incident of theft.
7. Nobody has appeared for the respondent. On the previous date also, nobody was present on behalf of respondent and, therefore, it was ordered that respondent be proceeded ex- parte.
8. We have heard learned counsel for the appellant and gone through the record.
9. According to vouchers placed on record by the appellant, purchases worth `2,15,962/- had been made from Nitin Telecom, Nangal, against Annexures C-94 to C-162, for the period from 01.04.2009 to 31.03.2010, purchases worth `9,98,777.62 had been made from M/s. Rudra Traders, Mubarikpur, the business concern of the father of the appellant, against Annexures C-72 to C-78 from 11.01.2010 to 17.03.2010 and purchases worth `16,75,845/-, had been made against Annexures C-91 to C-93 from 16.02.2010 to 08.03.2010. That means, according to the vouchers, relied upon by the complainant, he had Page 5 of 8 Pankaj Rattan Proprietor Versus New India Assurance Co. Ltd.
(F.A. No.49/2015) ____________________________________________________________ made purchases worth `2,15,962/- plus `9,98,777.62 plus `16,75,845/- = `28,90,584.62 from 01.04.2009 to the date of alleged theft. The total sales during this period, as per para 14.3 of report, Annexure R-5 of the Surveyor, which is based on the VAT statement, submitted by the appellant to the Sale Tax Authorities were `4,58,740/- plus `7,31,000/- plus `14,34,604/- plus `14,68,609/- = `40,92,953/-.
10. Vide para-13 of the report, the value of closing stock at the start of the year 2009-2010 was `7,40,250/-. According to this very paragraph, the value of closing stock, as per trading account was `11,61,165.38, as on the date of the alleged theft. This figure of `11,61,165.38 is inclusive of the purchases worth `9,98,777.62, allegedly made by the appellant from his father's shop at Mubarikpur, against cash payment, which purchases have been observed to be suspicious/doubtful by the Surveyor, for the reasons, which are stated in the report itself. Reasons are that the payments were made in cash, whereas in respect of all other suppliers, payments Page 6 of 8 Pankaj Rattan Proprietor Versus New India Assurance Co. Ltd.
(F.A. No.49/2015) ____________________________________________________________ are shown to have been made, through bank, with whom the appellant was having cash credit facility arrangement. Another reason given by the Surveyor is that when he wanted to verify the purchases from the shop of the father of appellant and took him to his father's shop, the shop was found locked, upon which the appellant stated that shop had been closed about six months back. Now, if the shop had been closed six months back, the appellant was supposed to be in the know of this fact and he should have disclosed this fact to the Surveyor before taking him to the shop of his father. Further, as per report of Surveyor, appellant was required to give the details of mobile sets in the form of their IMEI numbers, which he purchased from his father and other suppliers, which the appellant did not supply.
11. During the course of proceedings before the Forum also, appellant did not supply the IMEI numbers or any other particulars of the mobile sets. Since the purchase of stock worth `9,98,777.62 by the appellant from his father's shop is of doubtful Page 7 of 8 Pankaj Rattan Proprietor Versus New India Assurance Co. Ltd.
(F.A. No.49/2015) ____________________________________________________________ nature and the total stock value, as per trading account of the appellant is shown to be `11,61,165/-, there should be no hitch in holding that the total value of stock in the shop, at the time of the alleged theft was `11,61,165/- (-) `9,98,777.62 = `1,62,387.38. Against this amount of `1,62,387.38, Surveyor has assessed the loss at `1,36,749/-, after making a cut at the rate of 10%. Assessment made by the Surveyor, thus, does not suffer from any serious error, or mistake. Consequently, the appeal is dismissed.
12. A copy of the order be sent to each of the parties, free of cost, as per Rules.
(Justice Surjit Singh) President (Prem Chauhan) Member (Vijay Pal Khachi) Member June 24, 2015.
*dinesh* Page 8 of 8