State Consumer Disputes Redressal Commission
Balbir Singh vs National Insurance on 24 May, 2010
H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA-9. FIRST APPEAL No.378/2009. DECIDED ON 24.05.2010. In the matter of: Shri Balbir Singh son of Shri Chanan Singh, Resident of Village Partap Nager, Amb, Tehsil Amb, District Una, through Proprietor M/s Balbir Hardware Store, Una Road, Amb. 171 006. Appellant/Complainant. Versus The National Insurance Company Limited, Hamirpur Road, Near Main Bus Stand, opposite Suvidha Hotel, Una, H.P., through its Branch Manager. Respondent/Opposite Party. . Hon'ble Mr. Justice Arun Kumar Goel (Retd.), President. Honble Mrs. Saroj Sharma, Member.
Honble Mr. Chander Shekhar Sharma, Member.
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Whether approved for reporting? Yes.
For the Appellant: Mr. Parveen Chandel, Advocate vice Mr. Ajay Sharma, Advocate.
For the Respondent: Mr. Rajinder Singh Thakur, Advocate vice Mr. Varinder Tajta, Advocate.
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O R D E R:
Justice Arun Kumar Goel (Retd.), President (Oral).
Consumer Complaint No.104/2007 filed by appellant has been dismissed on 31.08.2009 by District Forum below. As per averments made in the complaint, appellant is running a hardware store at Village Partap Nagar Amb, Tehsil Amb, District Una. Appellant had obtained cash credit loan facility in May, 2002 from Kangra Central Cooperative Bank Limited at its Amb branch. Material of appellant was insured from year to year basis. Annexure C-4 is the copy of cover note. Stock of appellant being insured on the date when theft of 30 quintals of saria (iron bars) was found missing in between 8.30 p.m. on of 02.04.2007 and 8.40 a.m. of 03.04.2007 per the appellant. According to him 40 quintals saria was already there and he had purchased 30 quintals more as per bill annexure C-5. This saria was kept under chain duly locked for its protection by him. On 02.04.2007 he left his shop at 8.30 p.m., after having closed the shop as usual and went to his house. The next morning, i.e. on 03.04.2007 at about 8.40 a.m., when he reached his shop, it was found that iron chain was broken and about 40 quintals saria was missing. He went to Police Station, Amb. Police instead of recording FIR, recorded a daily diary report, annexure OP-3. It has been observed in this report that appellant could not produce bill of saria in question, nor cash memo, or stock register etc. Theft complained of was ruled out by the police and it was observed that saria might have been sold. Thereafter appellant appears to have filed a complaint before JMIC-I, at Amb who forwarded it to police under Section 156 (3) of Cr.P.C. As a result of it, FIR No.92/2007 was registered at Police Station Amb. What was the fate of this FIR, learned counsel for the parties were unable to tell us today during the course of hearing.
2. After noticing the theft of saria, case of appellant is that he informed both, i.e. the financier bank, as well as respondent-insurer. Surveyor was deputed, who found that saria was kept at a distant place from the insured premises, as such claim was not tenable. On this ground complaint was contested by the respondent before the District Forum below.
After taking note of material before it and hearing the parties, District Forum below dismissed the complaint. Hence this appeal.
3. Mr. Chandel submitted that his client had taken due care for the safety of the saria, and he had tied it with iron chain, which was duly locked.
He further submitted that his client did not incur any business transaction of the saria that was purchased by him vide annexure C-5 or that was already there at the spot. Per Mr. Chandel theft had actually taken place and the stand of the respondent, as well as observation made in the Daily Diary Report, annexure OP-3 to the contrary were not correct. He thus prayed for allowing this appeal and consequent grant of compensation as claimed in the complaint.
4. While contesting the case of appellant, Mr. Thakur on behalf of respondent-insurance company submitted, that policy conditions were violated by the appellant by stacking saria in the open, that too at a distant place from the insured premises.
5. If this was factually correct, and the respondent wanted to take benefit of policy conditions, it was incumbent upon it to have placed such conditions on the record. After referring to complaint file, nothing could be pointed out on behalf of respondent-insurance company, as such plea of violation of policy conditions is being noted to be rejected.
6. Next contention urged while supporting the order of District Forum below, by the learned counsel for the respondent-insurance company is, that his client had only insured what was lying inside the shop premises, but not outside the premises. As according to him saria in this case was stacked at a distance of about 25 metres from the shop. With a view to support this submission, great emphasis was laid by Mr. Thakur on the report of Surveyor Shri Rajan Kumar Soni annexure OP-5.
For the reasons to be recorded hereinabove, this plea being without substance, is being rejected.
7. It is the duty of insurer like respondent in this case under Insurance Regulatory and Development Authority (Protection of Policyholders Interests) Regulations, 2002 to explain to an insured like appellant expressly telling him all the pros and cons, benefits, scope of benefits, the extent of insurance cover and also to further explicitly explaining the warranties, exceptions and conditions of insurance policy cover. In addition to this insurer or its agents or other intermediatary is duty bound to provide all material information in respect of insurance, to the insured so as to enable him to decide on its basis of cover that what would be in his or her interest. We called upon Mr. Thakur to point out anything from complaint file, whether these Regulations, 2002 (supra) framed under the provisions of Insurance Act, 1938 and Insurance Regulatory and Development Authority Act, 1999 were complied with, by his client in this case. He could not point out anything. Suffice to say in this behalf that when the law requires anything to be done in particular manner, the party concerned has to demonstrate from the acceptable material, that needful was done accordingly. Therefore, plea that saria was stored at a distant place from the shop by the appellant cannot be accepted.
8. Faced with this situation, Mr. Thakur submitted that his client had only insured the stock of respondent that was lying in the shop. Suffice it to say in this behalf that at the time of undertaking the insurance, person who insured must have visited the spot and satisfied himself about what was the stock in trade that was lying inside the shop and what was lying outside. Who had done the insurance, respondent is silent. Whether he had clarified the factual position existing on the ground, again the respondent is silent. In case goods lying outside the shop were not insured, whether the appellant was informed that these are excluded as per policy. If this was factually correct situation, agent would have specifically informed the respondent in this behalf. There is nothing on record produced by the respondent. In fact, learned counsel for the Insurance Company relied upon the report of Surveyor annexure OP-5, coupled with Daily Diary Report, annexure OP-3. Both these documents in our opinion do not advance its case. In the light of the above facts we are of the view that saria was stolen and respondent is liable to indemnify the appellant.
9. At this stage, learned counsel for the respondent pointed out that as per averments made in the complaint on 27.03.2007 there was approximately 70 quintals saria including 30 quintals purchased vide bill annexure C-5 by appellant, and there being either no sale or shop of the appellant having remained closed, would only show that saria was being sold between 27.03.2007 and the evening of 2nd April, 2007. As such the plea of appellant that there was theft of 30 quintals of saria cannot be accepted. Thus the learned counsel for the respondent urged, that the impugned order does not suffer from any infirmity and prayed for upholding the same. Such a plea cannot be accepted, as we are of the view that theft of saria had taken place as discussed hereinabove.
10. Now coming to question as to what relief the appellant is entitled to. From the record what is made out is that the appellant had purchased 30 quintals saria and according to him about 40 quintals was already lying there. We cannot presume and or accept the submission of Mr. Chandel, that no sale had taken place between 27.03.2007 to 02.04.2007.
In the face of this position, we are of the view that we have two options at this stage either to grant the relief as prayed for, or to remand the case after setting aside the impugned order. Another option is get into realm of some guess work and then to dispose of the matter.
We are of the view that with a view to avoid further litigation, this appeal needs to be disposed of here only instead of being remanded back after setting aside the impugned order.
Therefore, in our view interest of justice will be well served if appellant is allowed a sum of Rs.42,000/- only by treating his claim as 50%. Ordered accordingly. Appellant would also be entitled to interest at the rate of 9% per annum on this sum from the date of filing of complaint, i.e. 29.08.2007 till payment/deposit, whichever is earlier.
11. No other point was urged.
12. In view of discussion aforesaid while accepting the appeal, order of District Forum, Una, passed in Consumer Complaint No.104/2007, dated 31.08.2009 is set aside and consequently while allowing the said complaint, it is ordered that the appellant is entitled to Rs.42,000/- with interest at the rate of 9% per annum from the date of filing of complaint, i.e. 29.08.2007 till the date of payment/deposit whichever is earlier, leaving the parties to bear their own costs.
13. Learned counsel for the parties have undertaken to collect copy of this order from the Court Secretary free of cost as per rules.
SHIMLA 24.05.2010 ( Justice Arun Kumar Goel ) (Retd.) President.
(Saroj Sharma) Member.
(Chander Shekher Sharma) Member.
*dinesh*