State Consumer Disputes Redressal Commission
M/S Nisa Industrial Services Pvt. Ltd. vs Marshall Retreat Residents ... on 9 March, 2017
1
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI - GOA
FA No. 67/2016
M/s. Nisa Industrial Services
Pvt. Ltd., 607, Shiv Towers,
Patto, Panjim Goa:
Represented by Deputy General Manager,
Mr. Rajesh Kumar Patharkar
Deputy General Manager,
Goa region,
Having its registered office
19th floor, Lotus Grandeur,
Veera Desai Road Extn,
Andheri (West)
Mumbai 400053. ... Appellant
(Ori. Opposite Party no. 1)
v/s
1. Marshall Retreat Residents
Maintainance Association Co-op.
Society, Betalbhatim,
Salcette, Goa:
Through its chairman,
Mr. Russell Bird,
Office at Raw House no. 2,
Marshall Retreat, Ranvaddo,
Betalbatim,
Salcete - Goa. ... Respondent no. 1
(Ori. Complainant)
2. The New India Assurance Co. Ltd.
With office at 87,
Mahatma Gandhi Road,
Kala Ghoda, Fort,
Mumbai,
Maharashtra. ...Respondent no. 2
(Ori. Opposite party no. 2)
3. The Oriental Insurance Company Limited
Lakshmi Commercial Center,
Senapati Bapat Marg,
Dadar (W), Mumbai,
Maharashtra - 400028. ...Respondent no. 3
(Ori. Opposite party no. 3)
2
Mr. V. V. Falari, Lr. Counsel for the Appellant.
Mr. E. Afonso, Lr. Counsel for the Respondents No. 2 and 3.
Respondent No. 1 absent.
Coram: Shri. Justice U. V. Bakre, President
Smt. Vidhya R. Gurav, Member
Dated: 09/03/2017
ORDER
[Per Justice Shri. U. V. Bakre, President] This appeal is directed against the order dated 23/09/2016 passed by the Consumer Disputes Redressal Forum, South Goa (the "Forum" for short) in Complaint No. 86/2013. The Appellant was the Opposite Party No. 1 (OP No. 1), Respondent No. 1 was the Complainant, Respondent No. 2 was the Opposite Party No. 2 (OP No. 2) and Respondent No. 3 was the Opposite Party 3 (OP No. 3) in the said Complaint. Parties shall hereinafter be referred to as per their status in the said Complaint.
2. The Complainant had filed the said Complaint initially against the OPs No. 1 and 2 to direct them to pay to it an amount of Rs. 80,400/- per month and pound sterling 400 and compensation of Rs. 2,00,000/- on account of pain and suffering undergone by Mr. and Mrs. Bird together with interest at the rate of 18% per annum.
3. Case of the Complainant, in short, was as follows:
The OP No. 1 had entered into an agreement dated 01/06/2012 with the Complainant in terms of which the OP No. 1 had agreed to provide security to residential complex of the Complainant. The agreement was titled as 'Security Services Agreement'. Accordingly, the OP No. 1 was providing two security guards being one for the day shift and other for the night shift. The Complainant had regularly paid the agreed fees to the OP No. 1. The security personnel provided by the OP No. 1 were not particularly efficient or alert which fact was brought to the notice of the OP No. 1 and thereafter the OP No. 1 had posted an efficient 3 person for the night shift, who however, was changed sometime in early April, 2013 and another younger and untrained person was posted in his place. On 20/04/2013, Mr. Russell Bird (chairman of Complainant) and his wife, being occupants of Complainant returned home at about 0.30 hours and went to sleep. The security guard was on duty. That on waking up in the morning at around 8 a.m., Mr. and Mrs. Bird noticed that the house had been burgled, ransacked and things were strewn all around. By the time Mr. and Mrs. Bird went out there was a change in the security guard. The Complainant informed the guard about the incident as also the Manager of the Complainant namely Sanjay Panda, who both immediately came up to investigate and witnessed the scene. The said Manager informed the OP No. 1 about the incident and obtained the address of the guard who was on night duty. Thereafter, the Complainant picked up the said security guard and proceeded to the police station where the police recorded the first information report No. 56/2013 dated 20/04/2013 under sections 454, 457 and 380 of IPC. The said security guard made a statement to the Colva Police Station stating that he had fallen asleep on duty and therefore could not determine what happened. The Colva Police immediately came to the scene with the sniffer dog, which dog after sniffing the place took the route by the side of Row House no. 1 along the pathway that proceeds towards the rear and stopped there. The police also took finger prints and found footprints of the burglar climbing along the pathway outside Row House No. 2 occupied by Mr. and Mrs. Bird. As a consequence of the robbery, said Mr. Bird had suffered a total loss of Rs. 80,400/- and pound sterling 400 approximately worth Rs. 33,600/- at the relevant time. The agreement was signed with the OP No. 1 to provide full protection to the Complainant's complex and the premises occupied by members of the Complainant. In terms of the said agreement the OPs were duty bound to compensate the Complainant for the entire loss suffered on account of the burglary which took place entirely 4 and exclusively due to negligence and inefficiency of the security guard posted by the OP No. 1. The Complainant issued a legal notice dated 01/06/2013 to the OPs calling upon them to pay to the Complainant the said sum and further compensation of Rs. 2,00,000/- on account of pain and suffering undergone by Mr. and Mrs. Bird. The OP No. 1 replied to the notice on or about 12/06/2013 and refused to acknowledge their liabilities. The OP No. 1 claimed that they are insured with the OP No. 2 under policy No. 140402/46/10/39/00000031 under the legal liability insurance and therefore it is the OP No. 2 who has to bear the liability.
4. The OP No. 2 filed its written version thereby disclosing that the policy No. 140402 /46/10/39/00000031 was for the period from 00:00 hrs on 10/09/2010 to midnight of 09/09/2011, whereas, as per the complaint and FIR the incident of theft had occurred on 20/04/2013, therefore there was no insurance policy coverage to the OP No. 1 as on 20/04/2013.
5. The OP No. 1, in its written version, denied that the Complainant had regularly paid all the agreed fees. The OP No. 1 stated that the Complainant defaulted in making payments of various bills and the total outstanding amount was Rs. 87,469/-. Vide notice dated 12/06/2013 the OP No. 1 had requested the Complainant to pay the outstanding amount alongwith interest. The Complainant therefore is in breach of the agreement dated 01/06/2012 and therefore cannot approach the Forum seeking the reliefs as prayed for. It is false that the security has made a statement to Colva police that he had fallen asleep on duty and could not determine what had happened. Even otherwise the statement before the police is not admissible in evidence. It is false that the police took finger prints and found footprints of the burglar climbing along the pathway outside Row House No. 2 outside the house of Mr. and Mrs. Bird. At the time of survey, the OP No. 1 had suggested to the Complainant to deploy more than two guards to provide security to the premises of the 5 Complainant but the Complainant opted for two guards only. The Complainant did not install security camera or alarm. It was also suggested to the members of the society to affixed security iron grills and steel rods on the window. It was necessary that the security personnel be stationed at the entrance gate to detect and deter unwarranted people, since the society was active even during night time and the residents used to go in and out of their premises at odd times. The damage or loss was liable to be recovered by the Complainant through the legal liability insurance policy. The service provider was insured with the Oriental Assurance Company Limited under policy no. 124200/48/2013/11094 under the Legal Liability Insurance and the Company is covered to the extent of Rs. 10,00,000/-. The Complainant should have instituted a claim against the said insurance company by following due process. The Complainant never co-operated with the OP No. 1 to find out the cause of the loss. The prayers sought for did not mention the proper particulars of claims on the basis of which the alleged amounts are claimed.
6. Thereafter, the Complainant filed application for amendment to add the Oriental Insurance Company Limited as OP No. 3 which application was allowed and thus the OP No. 3 came to be added as party. The prayer clause of the complaint was amended to be as against the OPs No. 1 and 3.
7. The OP No. 3 in its written version alleged as under:
"The policy bearing No. 124200/48/2013/11094 issued by it was a "Public Liability Non-Industrial Policy" and not the legal liability Insurance Policy and the insured was not the OP No. 1 but one "New Industrial Security Agencies Pvt. Ltd." Hence the OP No. 1 was not insured with the OP No. 3. The Complaint being in respect of the grievances of the Complainant against the OP No. 1, the Complainant was free to get his grievances redressed from OP 6 No. 1. The Complaint was barred by law of limitation. As per the security service agreement, the matter was required to be referred to arbitration and the jurisdiction was before the appropriate Courts at Mumbai and not in Goa."
8. The Complainant filed the affidavit-in-evidence of Mr. Russell Bird. The OP No. 3 filed the affidavit-in-evidence of Shri. P. Saibaba, Sr. Divisional Manager of the Company. The OP No. 1 did not file affidavit-in-evidence. Written arguments were filed by the parties before the Forum. The Forum also heard oral arguments.
9. Vide the impugned order, the Forum held that the FIR dated 20/04/2013 showed that there was robbery in the premises of Mr. Russell Bird and this fact was not denied by the OPs. The Forum further held that there was clear understanding between the Complainant and the OP No. 1 that in the event of loss or damage, the OP No. 1 shall be answerable. The Forum however held that there was no insurance cover given to the OP No. 1 by the OP No. 3. The Forum also held that Mr. Russell Bird suffered a loss of Rs. 80,400/- plus Rs. 33,600/- towards the pound sterling and this fact was not denied by OP No. 1. Hence the Complaint was partly allowed. Only the OP No. 1 has been directed to pay to the Complainant a sum of Rs. 1,14,000/- towards the loss on account of robbery and also a sum of Rs. 1,00,000/- towards pain and sufferings to the Complainant with 10% interest. It has been further directed that the said sum shall be paid within a period of 30 days from the date of receipt of the order. The OP No. 1, aggrieved by the said order, has filed the present appeal.
10. Records and proceedings of Complaint No. 86/2013 were called for. Mr. Falari, Lr. Counsel argued on behalf of the OP No. 1 and Mr. Afonso, Lr. Counsel argued on behalf of the OP No. 3. The Complainant, though duly served with the notice chose to remain absent. We have gone through the entire material on record.
711. There was no prayer at all as against the OP No. 2 and hence the name of OP No. 2 had to be deleted. The OP No. 3 had insured New Industrial Security Agencies Pvt. Ltd., 402-B, VIP Plaza, Veera Dessai, Indl. Estate Andheri Link Rd., Andheri (W), Mumbai-400053 and the Complainant did not produce any evidence to establish that it was also insured with the OP No. 3. Hence, rightly no relief has been granted as against the OPs No. 2 and 3.
12. It is seen that as per the first information report, the stolen property was cash of Rs. 80,400/- and pound sterling 400. This currency was alleged to be personnel belongings of Mr. and Mrs. Bird. It is seen that in the written version, the OP No. 1 had clearly stated that it did not know where any loss was caused to the Complainant. It was for the Complainant to prove that loss of Rs. 80,400/- and pound sterling 400 was caused to Mr. and Mrs. Bird. Burden of proof lies upon the person who asserts. Except a statement in the complaint and in the affidavit-in-evidence there was absolutely no evidence to establish that such cash of Rs. 80,400/- and pound sterling 400 was with Mr. and Mrs. Bird and was lying in their house. Merely because an FIR was lodged, that did not mean that the fact of theft had been proved. It is not known as to what was the result of the said investigation carried out by the police. There was absolutely no evidence on record to establish that there was theft in the house of the said Mr. and Mrs. Bird and more particularly that Rs. 80,400 and pound sterling 400 were stolen from the house of Mr. and Mrs. Bird. As per the complaint, it was Mr. and Mrs. Bird who suffered pain and suffering. It cannot be understood as to how the Complainant which is a Co-operative Society would be entitled to the relief of compensation on account of pain and suffering undergone by Mr. and Mrs. Bird.
13. Even otherwise as per the security services agreement, it was the Insurance Company which was liable to pay. However it is seen that neither the OP No. 2 nor the OP No. 3 had covered the 8 Complainant under any policy. Since there was no insurance cover the question of payment of the amounts to the Complainant also did not arise.
14. In view of the above, the impugned order is not in accordance with the settled principles of law and therefore the same deserves to be quashed and set aside.
15. Hence, the appeal is allowed. The impugned order is quashed and set aside. The Complaint No. 86/2013 stands dismissed. No order as to costs.
[Smt. Vidhya R. Gurav] [Justice Shri. U. V. Bakre]
Member President
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