Haryana

StateCommission

A/941/2017

THE ORIENTAL INSURANCE COMPANY LTD. - Complainant(s)

Versus

AMIT MAKKAR - Opp.Party(s)

SWATANTAR KAPOOR

07 Dec 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

 

                                                      First Appeal No.941 of 2017

                                                 Date of Institution: 07.08.2017

                                                               Date of Decision: 07.12.2022

Date of pronouncement : 17.02.2023

 

The Oriental Insurance Company Ltd., Regional office, LIC Building, 2^nd Floor, Jagadhari Road, Ambala Cantt.

…..Appellant

Versus

Sh. Amit Makkar S/o Sh. Dharamver Makkar, Prop. M/s Hari Om Tyres, 252-253, Indira Market, Ambala Cantt.

…..Respondent

CORAM:    S.P.Sood, Judicial  Member

                    Suresh Chander Kaushik, Member

 

Present:-    Ms. Swatantar Kapoor, Advocate for the appellant.

                   Mr. S.K. Verma, Advocate for respondent.

 

                                                 ORDER

S P SOOD, JUDICIAL MEMBER:

          Delay of 8 days in filing the present appeal has been condoned for the reasons stated in the application for condonation of delay.

2.      The present appeal No.941 of 2017 has been filed against the order dated 27.06.2017of the District Consumer Disputes Redressal Forum, Ambala (In short Now “District Commission”) in complaint case No.44 of 2004/2013, which was allowed.

3.       The brief facts of the case are that complainant got insured his shop against theft or burglary from opposite party vide cover note No. 545249 dated 02.05.2001 valid from 04.05.2001 to 03.05.2002 for sum insured of Rs.15 lacs and another cover note No. 026989 dated 23.04.2001 valid from 23.07.2001 to 22.07.2002 for sum insured of Rs.3 lacs. On 15.03.2001, he received a call from nearby shopkeeper that locks of his tyres showroom affixed by him outside his shop were lying broken. Alarmed with this he immediately reached at spot and actually found that the locks of his shop were lying broken and thereafter on opening of the shutter he was shocked to find that some unknown person had burgled the shop and had decamped with the new tyres stocked therein. FIR No.129 dated 15.03.2001 was registered and intimation was also given to OP which inturn deputed surveyor. Thereafter he lodged claim of stolen tyres worth Rs.7,08,712/- alongwith all documents. The OP in spite of his several visits and requests did not settle the claim and ultimately rejected the same.  Thus there being deficiency in service on the part of the O.P, hence the complaint.

4.      In its written version, OP raised preliminary objections with regard to maintainability, locus standi, concealment of material facts and complainant being not the consumer. On merits, OP submitted that claim lodged by the complainant after due process, scrutiny and investigation was not found to be genuine. Infact complainant has failed to prove that any theft had taken place and the stock alleged to have been available in the premises in question was actually available there which could have been stolen. Therefore, OP has rightly repudiated the claim of the complainant being not genuine and requested to dismiss the complaint. Thus there being no deficiency in service on the part of the OP and prayed for dismissal of the complaint.

5.      After hearing both the parties, the learned District Commission, Ambala had allowed the complaint vide order dated 27.06.2017, which is as under:-

“In view of the above discussion, we allow the present complaint with costs and the OPs are directed to comply with following directions within a period of thirty days from receipt of copy of order:-

1. To pay a sum of pay Rs.7,08,712/- along with interest @ 9% per annum from the date of filing of complaint i.e. 09.02.2004 till its realization within stipulated period. Failing which, opposite party are liable to pay further interest @ 12% for the default period.
2. Also to pay a sum of Rs.10,000/- as costs on account of litigation and harassment.”

6.      Feeling aggrieved therefrom, O.P. -appellant has preferred this appeal.

7.      This argument has been advanced by Ms. Swatantar Kapoor, learned counsel for the appellant and Sh. S.K. Verma, learned counsel for respondent. With their kind assistance entire record of appeal as well as that of the original record of the District Commission including whatever evidence has been led on behalf of  both the parties has also been properly perused and examined.

8.      Learned counsel for the appellant vehemently argued that after alleged burglary due intimation was received by the OP following which  the matter was investigated by investigator, who assessed the net adjusted stock for Rs.2,42,401/- subject to terms and conditions of the policy. Further argued that complainant failed to prove on record that from where and from whom he had purchased tyres/tubes for Rs.7,08,712/-. Due to inability in this regard on the part of respondent, appellant has rightly repudiated the claim of the complainant being found to be not genuine. Thus, the complainant was not entitled for the claim amount as prayed for. She placed reliance upon the observation by Hon’ble Supreme Court in a case titled M/s Suraj Mal Ram Niwas Oil Mills (P) Ltd. Vs. United India Insurance Co. in Civil Appeal No.1375 of 2003 decided on  08.10.2010  and also of the opinion of Hon’ble National Commission in Dipali Das Vs United India Insurance Co. Ltd. & Anr. 2013 (4) CPJ 233.

9.      Learned counsel for the respondent vehemently argued that  after theft, prompt intimation was sent to the OP and complainant has actually suffered loss to the tune of Rs.7,08,712/-. Further argued that FIR No.129 dated 15.03.2001 was also got registered.  Learned counsel for the respondent has supplied all the relevant documents including detail of sale and purchase of goods and all other connected documents.  Despite all this the opposite party has wrongly repudiated the claim of the complainant.

10.    Before deciding the appeal on merits, it would be relevant to mention here that initially the complaint was filed by the complainant  in the year 2004 which was  allowed by the District Forum on 28.03.2007. Against that said impugned order, an appeal filed by the appellant was allowed and order under assail was set aside and complaint was remanded back vide order dated 23.11.2012  and parties were directed to appear before the District Forum on 14.12.2012. Thereafter the complaint was decided afresh by learned District Forum, Ambala  on 27.06.2017 against which the present appeal has been filed. The complainant has also filed the revision Petition No.231 of 2019 titled Amit Makkar Vs. The Oriental Insurance Co. Ltd against the order dated 05.12.2017 (ex parte order),  which also stood disposed of on 06.02.2019.

11.    It is not disputed that during the subsistence of the policy, goods belonging to complainant stored in his ensured shop were stolen. It is also not disputed that on the same day FIR for this theft was lodged.  It is also not disputed that afterwards all the relevant papers were submitted to the appellant insurance company by claimant.   The balance sheet dated 14.03.2002 was duly audited by the Chartered Accountant and before the theft, the pending stock in trade was of Rs.10,47,583/- and after the theft, the stock inventory prepared in the presence of surveyor was worth Rs.3,33,583/-. The contents of FIR reveals that the theft took place at the shop of the complainant and some kinds of tyres i.e. truck tyres, bags of tubes, harbestes combine tyres and ADV tyres, car tyres maruti, ZEN, and all the bills and other record were stolen by unknown person. The complainant has immediately informed the insurance company as well as local police about the loss of the stolen articles. The plea of the appellant that no theft took place at the shop of the complainant is not tenable  in the eyes of law because FIR was registered on the same day. It means that theft had actually taken place at the shop of the complainant.  Since, the complainant has not violated the terms and conditions of the insurance policy, so insurance company was liable to pay the claim amount of the complainant.  No doubt some directions were imparted by this commission while remanding back the complaint and even sincere efforts were also made by the learned District Commission also to procure attendance of investigating officer of the criminal case so as to rove some o the recovery memos which were got appended on the record. It was only after putting in sincere efforts by the DCDRF that this complaint was decided again almost reiterating the conclusion arrived at by its predecessor earlier in the year of 2007.  The case laws cited by the counsel for the appellants are not relevant because the facts and circumstances of the case are different from that of the present case.  The learned District Commission has rightly allowed the claim of the complainant. The learned District Commission had committed no illegality while passing the order dated 27.06.2017.  The appeal is also devoid of merits and stands dismissed.

12.    The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the complainant-respondent against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

13.              Applications pending, if any stand disposed of in terms of the aforesaid judgment.

14.              A copy of this judgement be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgement be uploaded forthwith on the website of the commission for the perusal of the parties.

15.              File be consigned to record room.

 

17^th February, 2023            Suresh Chander Kaushik            S. P. Sood                                                                Member                                             Judicial Member    

S.K

(Pvt. Secy.)