National Consumer Disputes Redressal
Oriental Insurance Co. Ltd vs Sri Balakrishna Tobacco Co on 28 February, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CIRCUIT BENCH AT HYDERABAD, A.P. FIRST APPEAL NO. 243 OF 2009 (Against the order dated 25.03.2009 in Complaint No. 10 / 2006 of the Andhra Pradesh State Consumer Disputes Redressal Commission) The Divisional Manager, Oriental Insurance Co. Ltd. Divisional Office, 58-9-17, 1st Floor, Kamasastri Street, Santhapet, Ongole 523001 Prakasam District Also at: Oriental Insurance Co. Ltd., A-25/27, Asaf Ali Road, New Delhi Through its Manager Appellant (s) Versus Sri Balakrishna Tobacco Co. Tangutur, Prakasam District, Represented by its Partner Takkellapati Venkata Krishna Rao, S/o Balaiah, R/o Tangatur Prakasam District Respondent(s) BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON'BLE DR. B.C. GUPTA, MEMBER For the Appellant (s) Mr. Manish Pratap Singh, Advocate For the Respondent(s) Mr. K.L. N. Rao, Advocate PRONOUNCED ON : 28th FEBRUARY, 2013 ORDER
PER DR. B.C. GUPTA, MEMBER This appeal has been filed by Oriental Insurance Co. Ltd (hereinafter referred to as insurance company) under section 19 of the Consumer Protection Act, 1986 against the order dated 25.03.2009 passed by the Andhra Pradesh State Consumer Disputes Redressal Commission, (hereinafter referred to as State Commission) whereby the State Commission allowed the complaint filed by the respondent in the appeal, i.e., Balakrishna Tobacco Co., Tangutur, represented by its Partner Takkellapati Venkata Krishna Rao. As per the impugned order, the appellant was directed by the State Commission to pay an amount of Rs.7,85,000/- with interest @9% p.a. from the date of repudiation of the claim till the date of realization together with the costs of Rs.5,000/- to the complainant.
2. The appeal has been filed after a delay of 31 days excluding the time taken for obtaining the copy of the impugned order. The appeal was first heard by this Commission on 15.07.2009 when it was decided to issue notice on the application for condonation of delay as well as on the appeal to the respondent. It was also decided to stay the operation of the impugned order passed by the State Commission which was later on extended from time to time. During the hearing on 2.03.2010, the appeal was ordered to be admitted and to be fixed for arguments at a subsequent stage.
3. Briefly stated the facts of the case are that the respondent / complainant is a Tobacco dealer and they had stored tobacco in a hired godown situated in Tungutur belonging to Mr. K. Venkaiah. It has been stated that on that date, there was a total stock of 1,26,035 kg. of tobacco in the godown, whose value has been stated to be Rs.49,53,700/-. The said stock was insured by the complainant / respondent with the opposite party / appellant Insurance Company under Policy No. 4390/20/161/F/11071/02 valid from 27.06.2002 to 26.09.2002. It has been stated that on the intervening night of 14th and 15th September 2002, the entire stock in the godown belonging to the complainant was destroyed in fire and according to the complainant, he suffered a total loss of Rs.50 lakh. A police complaint was also lodged and an FIR was registered as crime 68/02 u/s 177/424 of the Indian Penal Code, 1860 at Tangutu Police Station.
4. From the material available on the file, it transpires that there were many tobacco traders operating in the area and it has been stated that in the present case, the business rivals of the complainant made complaints to the Police that the complainant had removed the stocks of tobacco from the godown before the fire incident and the Police recovered 243 bales of tobacco alleged to be belonging to the complainant from the godown of Avinash Tobacco, Singarayakonda and Parameswari Tobacco at Thumadu. The Police recovered 785 bales of tobacco from the aforementioned godowns belonging to Chidipothu Laksmaiah also, who is hirer of a portion of the ill-fated godown. The Police carried out a detailed investigation into the complaints and a detailed report to this effect (being discussed later in this order) was submitted to the Additional Munsif Magistrate, Ongole.
5. It is also stated that another insurance company, the United India Insurance Co. received a letter dated 09.09.02 stating that the respondent / complainant along with several other traders were conspiring to burn the godowns, either, without storing any tobacco therein or by removing the tobacco stock to other godowns in other areas; thereby, extracting money from the insurance company by lodging false claims. The said complaint is stated to have been forwarded to the local Police for investigation immediately. However, the fire incident did take place on 14th / 15th September 2002. The appellant insurance company repudiated the claim on various grounds saying that complainant had violated the terms and conditions of the policy and had not submitted the claim within a period of 15 days and also failed to furnish the necessary documents to the surveyor etc. The State Commission after taking into account the evidence before them, directed to pay a sum of Rs.7,85,000/- along with interest @9% p.a. from the date of repudiation till the date of realization together with cost of Rs.5,000/-.
6. At the time of arguments before us, the learned counsel for the appellant was asked to explain the reasons for the delay of 31 days in filing the present appeal. He has drawn our attention to the application for condonation of delay in which it has been stated that the appellant tried to seek legal opinion in this matter from their Advocate who took time and later on, time was spent in drafting the appeal and filing before the National Commission. There was no intentional or deliberate delay on their part. Although, the reasons given for condonation of delay by the appellant do not seem to be convincing, yet in the interest of justice, the delay in filing the appeal is ordered to be condoned.
7. Learned counsel for the petitioner further stated that the letter dated 9.09.2002, as mentioned above, was received by the United India Insurance Co and not by the complainant. The said letter is stated to have been forwarded to the local Police for necessary action. The learned counsel, however, invited our attention to Annexure A-5 of his appeal which is report of the local police, filed before the Additional Munsif Magistrate Ongole in the instant case cr. No. 68/02 u/s 177 (424) IPC of Tangutu Police Station. He stated that after obtaining the legal opinion, the Police had referred the case as non-cognizable since the offence committed by the accused T. Venkata Krishna Rao who is complainant / respondent and Chidipothu Laksmaiah are punishable u/s 177 and 424 I.P.C. It is stated in this report that these two persons shifted their tobacco bales to other godowns and did not claim any insurance claim or furnish information to the insurance company or to the bank.
8. Learned counsel for the appellant also invited our attention to Annexure A-3 of his appeal which is a copy of the bail application filed under section 437 of Cr.P.C. by six persons, including the complainant T. Venkata Krishna Rao. In this application, these six persons have stated that they have not made any claim with the Insurance Company and hence had not receive any compensation. They have also stated that they were innocent persons and had not cheated anybody.
9. Learned counsel argued that the report of the surveyor was very clear in which he had assessed the loss as Rs.63,600/-.
10. Learned counsel for the respondent, while arguing the case has also drawn our attention to the report lodged by the local Police in the Court of Additional Munsif Magistrate Ongole and subsequently pointed out our attention to the following paragraph:-
I submit that there is no evidence to connect any one with setting fire. Thus Section 435 IPC against the accused A-1 and A-2 is ruled out. The accused A1 and A2 who shifted their stocks of tobacco bales to other godowns, did not claim any insurance and furnish any information either to the insurance company or to the Nationalised Banks with whom they are financed and hence the accused did not induce anybody to any act for their benefit and hence the offence committed by the accused A-1 and A-2 does not falls under Sec. 420 IPC, but with the available evidence it is well established beyond all reasonable doubts that the accused A-1 and A-2 have shifted the tobacco bales from their godowns and from the tobacco godown of Bikki Srinivasa Rao fraudulently and might have burnt the tobacco bales intentionally and furnished false information to the police and to their co-traders, whose stocks of tobacco bales were gutted in fire, which are the offences punishable U/Sec. 177 and 424 IPC only, which are Non-Cognizable in nature.
11. Learned counsel for the respondent took the plea that the complainant / respondent had not played any fraud with the insurance company and they deserved to be compensated for the loss suffered due to the fire incident. The Police had very clearly reported that the offence committed by the accused including the complainant does not fall u/s 420 I.P.C. Since the Police had closed the case against the respondent, the insurance company should compensate them for the loss suffered. When the attention of the learned counsel was drawn to the repudiation letter dated 29.11.2002 issued by the insurance company in which they have mentioned various points based on which the claim was repudiated, the learned counsel could not give any satisfactory explanation as to why the claim was not furnished in time and why the complainant failed to provide the requisite documents to the surveyors appointed by the insurance company despite repeated reminders.
12. We have examined the entire material on record and given thoughtful consideration to the arguments advanced before us. A perusal of the impugned order made by the State Commission indicates that they have not based their findings on any cogent or convincing reason, rather the State Commission has miserably failed to appreciate the facts on record. It has been observed by the State Commission that the stock taken by the surveyor is not supported by any documentary evidence. According to the State Commission, the only documentary evidence is the invoice filed by the complainant, according to which the stock was worth Rs.7,70,800/-. The State Commission relied only on this document and passed the impugned order. It is not understood how the State Commission failed to take note of other aspects of the case, like the investigation made by the local Police and the conduct of the other persons in shifting the stock of tobacco to other places. The report submitted by the Police, (extracts reproduced above), state very clearly that it is well established beyond all reasonable doubts that the accused A-1 and A-2 have shifted the tobacco bales from their godowns and from the tobacco godown of Bikki Srinivasa Rao fraudulently and might have burnt the tobacco bales intentionally and furnished false information to the police and to their co-traders.
13. it is clearly established from this report that the complainant had shifted the stocks of tobacco from the godown, in question, to other places and in order to escape action u/s 420 I.P.C., he made a categorical statement before the Police that he did not claim any insurance and furnish any information either to the insurance company or the bank. In the application for anticipatory bail also, filed by the complainant and others u/s 437 of the Cr.P.C., they have stated the same facts. It is clear, therefore, that the complainant and its associates have adopted dubious methods to hoodwink the whole establishment by taking one particular stand before the Police and then also lodging claims for getting compensation from the insurance company. On one hand, they clearly stated before the Police and in the application for anticipatory bail made before the judicial Court that they had not lodged any claim for compensation before the insurance company, but on the other hand they are trying to claim compensation from the insurance company by filing complaints under the Consumer Protection Act, 1986. This conduct of the complainant is evidently deplorable and should not have escaped the attention of the State Commission.
14. Based on the above discussion, it is very clear that the complainant is not entitled to get any compensation from the insurance company. Even if he has suffered loss to some extent in the fire incident, the material on record makes it very clear that there was every intention on the part of the complainant to mislead the entire establishment. This appeal is, therefore, accepted and the order of the State Commission set aside with no order as to costs.
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(J.M. MALIK, J.) PRESIDING MEMBER (DR. B.C. GUPTA) MEMBER RS/