State Consumer Disputes Redressal Commission
Dharamkot Gas Service vs Oic on 14 January, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SCO NOS.3009-12, SECTOR 22-D, CHANDIGARH.
First Appeal No.139 of 2005
Date of institution: 25.01.2005
Date of decision : 14.01.2011
M/s Dharamkot Gas Services, Moga Road, Dharamkot through its sole proprietor
Gurinderjit Kaur.
.....Appellant
Versus
The Oriental Insurance Company Ltd., Moga through its Branch Manager.
.....Respondents
First Appeal against the order dated 07.12.2004
passed by the District Consumer Disputes
Redressal Forum, Moga.
Before:-
Hon'ble Mr.Justice S.N.Aggarwal, President
Mrs.Amarpreet Sharma, Member
Present:-
For the appellant : Sh.Sameer Sachdeva, Advocate For the respondents : Sh.Rohit Goswami, Advocate for Sh.Naveen Kapur, Advocate JUSTICE S.N.AGGARWAL, PRESIDENT The appellant was running the business in the name and style of M/s Dharamkot Gas Service, Moga Road, Dharamkot. She had taken the insurance policy for the period from 6.6.2002 to 5.6.2003. The theft had taken place in the godown of the appellant on the night intervening 18/19.3.2003 and 230 gas cylinders for the total value of Rs.2,18,040/- were stolen for which a criminal case was got registered by the Manager of Dharamkot Gas Service in Police Station Dharamkot at FIR No.42 dated 19.3.2003. The intimation was also given to the respondents. However, the insurance claim has not been settled by the respondents. Hence, the complaint.
2. The respondents filed the written reply. It was pleaded that no evidence was produced by the appellant for the alleged theft which had allegedly taken place on the night intervening 18/19.3.2003. It was also pleaded that on the receipt of the information from the appellant regarding the alleged theft, the Surveyor/Loss Assessor was appointed who submitted his report dated 5.5.2003 and doubted, if any, such theft had taken place. Thereafter, the investigator was First Appeal No.139 of 2005 2 appointed by the respondents. He had also opined in his report dated 27.11.2003 that no such theft had taken place. Hence, the insurance claim of the appellant was repudiated by the respondents vide letter dated 3.3.2004. Hence, dismissal of the complaint was prayed.
3. The appellant filed her affidavit Ex.A1. She also filed her supplementary affidavit Ex.A2. She also filed the affidavit of Karamjit Singh Manager as Ex.A3 and proved documents Ex.A4 to Ex.A9. On the other hand, the respondents filed the affidavit of B.S.Ahuja, Branch Manager as Ex.R1 and also proved documents Ex.R2 to Ex.R4.
4. The learned District Forum dismissed the complaint vide impugned order dated 7.12.2004.
5. Hence, this appeal.
6. The submission of the learned counsel for the appellant was that the appeal be accepted and the impugned judgment dated 7.12.2004 be set aside.
7. The submission of the learned counsel for the respondents was that the alleged theft is not proved. Hence, it was prayed that the appeal be dismissed.
8. Record has been perused. Submissions have been considered.
9. It is not disputed by the respondents as Gurinderjit Kaur appellant is running the business in the name and style of M/s Dharamkot Gas Service, Moga Road, Dharamkot. She had taken the insurance policy from the respondents for the period from 6.6.2002 to 5.6.2003 and the insurance policy has been proved as Ex.A6 to Ex.A8.
10. So far as the theft is concerned, the appellant had got registered the criminal case through her Manager in Police Station, Dharamkot at FIR No.42 dated 19.3.2003 (Ex.A9) in which also, it is specifically mentioned that 230 gas cylinders were stolen.
11. However, the alleged theft had taken place on the night intervening 18/19.3.2003 and the matter was reported to the police on 19.3.2003 at 5.20 p.m. First Appeal No.139 of 2005 3
12. However, the appellant has not placed on the file any document relating to the investigation of this case nor it is proved if the stolen gas cylinders were not traced out during the investigation. It was also necessary on the part of the appellant to prove that the stolen articles were not recovered by the police during the investigation. Since the untraced report has not been filed, therefore, the appellant has not completed the necessary formalities for the receipt of the insurance claim.
13. This FIR reveals that there was some delay in reporting the matter to the police when the alleged theft was noticed at 10 a.m., the FIR should have got registered immediately whereas it was got registered at 5.20 p.m. It is also proved on the file that the appellant had given intimation to the respondent on 21.3.2003 i.e. after the delay of 2 days. If the theft had actually taken place on the night intervening 18/19.3.2003, then intimation about the theft could also have been given by the appellant to the respondents on 19.3.2003 itself or on 20.3.2003 but it was given on 21.3.2003.
14. In this context, reference may be made to the judgment of the Hon'ble National Commission dated 09.12.2009 passed in First Appeal No.321 of 2005 (New India Assurance Company Limited v. Trilochan Jane). It was held as under : -
"In the case of theft where no bodily injury has been caused to the insured, it is incumbent upon the respondent to inform the Police about the theft immediately, say within 24 hours, otherwise, valuable time would be lost in tracing the vehicle. Similarly, the insurer should also be informed within a day or two so that the insurer can verify as to whether any theft had taken place and also to take immediate steps to get the vehicle traced. The insurer can coordinate and cooperate with the Police to trace the car. Delay in First Appeal No.139 of 2005 4 reporting to the insurer about the theft of the car for 9 days, would be a violation of condition of the Policy as it deprives the insures of a valuable right to investigate as to the commission of the theft and to trace/help in tracing the vehicle."
15. After the receipt of the information from the appellant regarding the alleged theft, the respondents had appointed Shri O.S.Kohli of Kohli Surveyors as Surveyor/Loss Assessor. He visited the spot on 21.3.2003 itself at 5.30 p.m. and submitted his report dated 5.5.2003 Ex.R4. He also made enquiries and also recorded the statement of Kamaljit Singh Manager. He deposed that Gurbhej Singh was working as a Chowkidar. The thieves had shut the Chowkidar in a room by bolting the room from outside. Karamjit Singh also deposed that he had come to know about the theft only on 19.10.2003 at about 10 a.m. when he went to the godown and found the locks of the godown broken and Gurbhej Singh shut in the room. The Surveyor has concluded as under : -
"CONCLUSION & OPINION From the above it is concluded that M/s Dharamkot Gas Service is in the name of Smt.Gurinderjit Kaur, who is wife of a DSP posted at Khanna and Sh.Karamjit Singh has been employed as Manager. As alleged by the Manager that 230 cylinders were removed by some miscreants on a truck on 18/19.3.2003 night, while the chowkidar was shut in a room. FIR No.42 has been lodged with P.S.Dharamkot. As per physical verification 10 filled and 417 empty cylinders were there in the godown on 21.3.2003 evening. The theft occurred on 18/19.3.2003 night but the intimation was given on 21.3.2003 afternoon and regular sale had been carried out by the Manager of the First Appeal No.139 of 2005 5 agency. No opportunity has been given to the insurer for proper investigation. Moreover, entry of theft of cylinders has not been made in the register maintained in the gas agency. Undersigned tried to contact the person i.e. Gurtej Singh Chowkidar but he could not be contacted and ultimately a letter dated 21.4.2003 was issued whereupon he along with another person came to our office. The case was discussed in detail, but he could not reply to our queries. The window of the room in which he was shut, is quite opposite to a village Katcha road which is used by farmers while going to their fields and in the early hours some persons might be going there for walk and others to meet the call of nature in the fields. To our queries, he confirmed that he did not raise any alarm and called for help at the time of incident or in the early hours of the next morning. The Manager of the agency visited the godown at about 11 a.m. and he opened the door as alleged by the employees. It is very difficult to assume that a person, who had been under captivity for whole night, did not raise any alarm from early morning i.e. 5.30 a.m. to 11 a.m. Even on our local inquiry it is whispered in the town that the theft as alleged is not genuine. So, it is requested that some detective agency or retired higher officer from the police may be deputed for thorough investigation, as the matter seems doubtful. This report has been issued without prejudice."First Appeal No.139 of 2005 6
16. Thereafter, the respondents got the matter investigated from Shri Satnam Singh Investigator. Shri Satnam Singh investigator submitted his report dated 27.11.2003 Ex.R3. He examined the stock register. He had also recorded the statement of Karamjit Singh, Manager, Gurbhej Singh Chowkidar and Gurinderjit Kaur owner. He also recorded the statement of Bibi Mohinder Kaur, President of Municipal Council, Dharamkot and of Vinod who was a godown keeper and of Inderjit who was helper of the driver of the canter who used to supply the gas cylinders from door to door. He also examined Babloo driver of the canter No.PB04-F-9755 and of Manoj Kumar and Vijay Kumar, Rickshaw drivers who used to supply the gas cylinders in the city. He also recorded the statement of Shri Ram Gupta, Trolley Driver who used to supply the gas cylinders in the city, towns and villages. He also recorded the statement of ASI Jaswant Singh, Police Station Dharamkot. He also examined the stock registers of the appellant. The details of the stock register and the opinion of the Investigation read as under : -
"14. As per statements given by Sh. Karamjit Singh, Manager, as well as the stock register maintained by them there was the following stocks :
Dated Filled Empty
Opening Receipt Issued Closing Opening Receipt Closing
Balance balance balance
17.3.2003 362 - 68 294 195 68 263
18.3.2003 294 - - 294 263 - 263
19.3.2003 294 - - 294 263 - 263
20.3.2003 294 - - 290 263 4 267
21.3.2003 60 306 360 6 267 360 421
It shows that no theft took place in the midnight of 18/19.3.2003.
15. Regarding no entries made in the stock register of theft cylinders. Sh.Karamjit Singh had stated that it First Appeal No.139 of 2005 7 is due to that he had informed to Sh.Vineet Seth, 217-C, Rajguru Nagar, Sales Officer, Indian Oil Corporation, Ludhiana on 19.3.2003 who had instructed him not to make any entries of theft cylinders in the register unless he verify it.
16. Sh.Vineet Seth, Sales Officer had visited the gas agency on 21.3.2003, and had verified the stock and then he had made less these 230 stolen cylinders in the stock register on 21.3.2003 which is also doubtful.
17. No entries regarding these theft cylinders had been made in stock register, only he had mentioned on 18.3.2003 (before theft took place), that 230 cylinders had been stolen away in the night of 18/19.3.2003.
18. Theft had took place on the night of 18/19.3.2003, but entries had been made on 18.3.2003 i.e. before the theft, which is also doubtful as entries is required to be made about these theft cylinders on 19.3.2003.
19. It is don't' know, that how Sh.Karamjit Singh, has presumed that theft will took place in the night time, is also doubtful.
20. Sh.Karamjit Singh had also stated that he always make the entries of challan of the receipt of the cylinders from the plant in the stock register after the end of every month while preparing the monthly report and not making entries in this behalf regularly, is serious lapse on the part of Manager from accounts of view, as daily entries required to be made in the stock register about the receipt of the cylinders. First Appeal No.139 of 2005 8 OPINION Stock register maintained by M/s Dharamkot Gas Agency does not confirm the theft of 230 cylinders in the night of 18/19.3.2003. Also Mr.Vineet Seth neither confirmed the theft entry nor he countersigned the same, confirm the doubt of the claim. Statements given by the Manager and other persons are fake. In my opinion the claim is not genuine. Submitted without prejudice."
17. Since as per the report of the stock registers of the appellant, the number of gas cylinders which were existing in the godown on 18.3.2003 was also the same in the morning on 19.3.2003 as also in the morning of 20.3.2003. If the theft had taken place on the night intervening 18/19.3.2003, then the stock of 19.3.2003 would have been less than what it was on 18.3.2003. Since as per the stock registers, the same stock was detected on 19.3.2003 which was on 18.3.2003, therefore, no theft had taken place on the night intervening 18/19.3.2003. The appellant had wrongly introduced the figure of 230 gas cylinders on 21.3.2003 which demolishes the case of the appellant if any theft had taken place on the night intervening 18/19.3.2003.
18. In view of the above discussions, there is no merit in the present appeal and the same is dismissed.
19. The arguments in this appeal were heard on 10.1.2011 and the order was reserved. Now the order be communicated to the parties.
20. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(JUSTICE S.N.AGGARWAL)
PRESIDENT
(AMARPREET SHARMA)
MEMBER
January 14, 2011.
Paritosh