DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.
Complaint Case No : 38/2015
Date of Institution : 16.02.2015
Date of Decision : 03.09.2015
Jagdish Kumar S/o Bhagwan Dass Prop. Satyam Suit and Sarees, Shashtri Market, Opposite Kumar Optical, Sadar Bazar, Barnala.
…Complainant
Versus
Bajaj Allianz General Insurance Company Ltd. GE Plaza, Airport Road, Yerawada, Pune-411006 through its D.M/Area Manager/Manager.
Bajaj Allianz General Insurance Company Ltd. S.C.O. No. 101,102,103, 2nd Floor, Batra Building Sector 17-D, Chandigarh-160017 through its D.M/Area Manager/Manager.
Bajaj Allianz General Insurance Company Ltd. S.C.O. 147 Feroz Gandhi Market, Ludhiana, 141001 through its D.M/Area Manager/Manager.
Ravinder Gupta Authorized Agent Bajaj Allianz General Insurance Company Ltd. Near Ludhiana Cloth House, Sadar Bazar, Dr. Hem Raj Wala Morcha, Barnala-148101.
…Opposite Parties
Complaint Under Section 12 of Consumer Protection Act, 1986.
Present: Sh. R.S. Sekhu counsel for the complainants.
Sh. N.K. Garg counsel for the opposite parties No. 1 to 3.
Sh. R.K. Jain counsel for the opposite party No. 4.
Quorum.-
1. Shri S.K. Goel : President.
2. Sh. Karnail Singh : Member
3. Ms. Vandna Sidhu : Member
ORDER
(SHRI S.K. GOEL PRESIDENT):
The complainant namely Jagdish Kumar has filed the present complaint under Consumer Protection Act, 1986 (hereinafter called as Act) against Bajaj Allianz General Insurance Company Ltd., and others (hereinafter called as the opposite parties).
2. The facts emerging from the present complaint are that the complainant is a businessman and is running the business in the name of Satyam Suit and Sarees, Shashtri Market, Opposite Kumar Optical, Sadar Bazar, Barnala. He is running his business for his and family livelihood. The complainant further averred that in oder to secure and cover the risk of his large and heavy stock in his shop he used to insure the shop and stock every year from the opposite parties and he never claimed any insurance of any kind.
3. It is alleged that on 17.2.2014 the complainant and servants closed the shop at 9.00 PM. On the next morning at 7.00 AM the complainant received a telephonic message from the neighbourer that the locks of his shop were opened. Then he reached the spot and checked the locks which were opened and he immediately checked the stock of his shop and cash. After checking the stock and cash drawer, the stock of about Rs. 15,37,500/- (Suit and Saree) and Rs. 70,000/- cash was missing from the shop. It was thus a theft by unknown persons/thieves at midnight 17/18.2.2014. Then he approached the local Police Station and informed about the incident and after investigation, Police lodged FIR No. 34 dated 18.2.2014 U/s 457, 380 IPC PS City Barnala against unknown persons. It is further alleged that after the incident he approached the opposite parties immediately through local agent (the opposite party No. 4) and informed about above said incident. The opposite parties appointed a surveyor to visit the spot and assured the complainant that his case was fit and genuine. After receiving the report of the surveyor the opposite parties assured the complainant to clear his loss after completion of some formalities. After some time the surveyor demanded some documents from the complainant and the complainant provided the same and the opposite parties assured the complainant that his insurance claim would be paid at the earliest, however the opposite parties did not pay even a single penny.
4. On 30.1.2015 the complainant sent a legal notice to the opposite parties to make the payment of Rs. 16,07,500/- with interest, but no reply was received. Even the opposite parties have not cleared the claim of the complainant. Hence, it is a deficiency in service and unfair trade practice on the part of opposite parties. Therefore, the present complaint is filed seeking the following reliefs:-
To pay Rs. 16,07,500/- with interest.
To pay Rs. 3,00,000/- on account of mental agony and harassment.
To pay Rs. 20,000/- as litigation expenses.
5. Upon notice of this complaint, the opposite parties No. 1 to 3 appeared and filed a joint written version taking legal objections interalia on the grounds of premature, maintainability, jurisdiction, suppressing of material facts, complaint false and frivolous etc. On merits, it is averred that complainant had obtained Burglary Insurance Policy from the opposite party No. 2 by paying premium of Rs. 1,405/- for the period from 20.9.2013 to 19.9.2014, whereby complainant got insured stock of all types of Cloth Items, Suitings, Dress Materials, Sarees and other related items pertaining to the insured trade and sum insured was Rs. 22,00,000/- and also got insured Furniture, Fixtures, Chairs, Invertor, Plate Glass, Electric Equipments, Miscellaneous & other related items and sum insured was Rs. 3,00,000/- and the said insurance was subject to terms, conditions, exclusions and limitations. It is further averred that Burglary is defined as, the unforeseen and unauthorized entry to or exit from the insured premises by aggressive and detectable means with the intent to steal contents therefrom.
6. It is further averred that the insured has failed to produce account books to the surveyor at the time of inspection of shop. The insured has said that the same were lying with the part time accountant. The complainant further took considerable time in submitting required documents and submitted documents in phased manner. The surveyor appointed by the company also asked the complainant to submit copy of stock statements submitted to the Bank from where complainant obtained financial facilities. But complainant has not provided the same and vide letter dated 28.6.2014 the complainant has stated that they are not submitting stock statements to the bankers. Even the complainant has stated that he is not maintaining any stock record and he is not sale tax assessee as sale tax is not applicable on trading of cloths. The opposite parties have further denied that stock of Rs. 15,37,500/- of Suit & Sarees or Rs. 70,000/- were missing from the shop. The surveyor appointed by the opposite parties visited the shop of complainant where he observed that as per FIR the total estimate value of loss was Rs. 1,27,000/-. It is further averred that none of the high rate bills were shown to the surveyor at the time of visit, most of bills pertains to parties from which no other purchases were done and maximum average rate was observed. It is further averred that high rates bills submitted by the complainant after considerable delay cannot be relied upon and these bills were somehow arranged just to support high claim. The surveyor in his report has also mentioned that loss has been caused due to theft, but as per policy loss of theft is not covered and has opined that claim of the complainant may be repudiated subject to policy terms and conditions. They have denied other allegations of the complainant and finally prayed for the dismissal of complaint.
7. The opposite party No. 4 has also filed separate written version taking legal objections interalia grounds of cause of action or locus-standi, concealment of material facts and maintainability etc. On merits, he has not specifically taken his stand, but most of the Paras were admitted by him and finally prayed for the dismissal of complaint against him.
8. In order to prove his case, the complainant tendered in evidence policy Ex.C-1, receipt for Rs. 7303/- Ex.C-2, copy of FIR Ex.C-3, copy of statement dated 19.2.2014 Ex.C-4, copy of notice Ex.C-5, postal receipt Ex.C-6 to Ex.C-9, acknowledgment Ex.C-10 to Ex.C-12, copy of bills Ex.C-13 to Ex.C-38, copy of Income Tax return Ex.C-39 to Ex.C-41, copy of surveyor report Ex.C-42 to Ex.C-44, copy of monthly summary Ex.C-45 to Ex.C-54, copy of estimate list of misplace stock Ex.C-55 to Ex.C-58, copy of newspaper Ex.C-59, copy of statement of account Ex.C-61 to Ex.C-63, courier receipts Ex.C-64 to Ex.C-66, affidavit of Rakesh Kumar Ex.C-67, affidavit of Varun Kumar Ex.C-68, affidavit of Gurdeep Singh Ex.C-69 and closed the evidence.
9. To rebut the case of the complainant, the opposite parties No. 1 to 3 tendered in evidence affidavit of Navjeet Singh Ex.O.P1.2.3/1, affidavit of Balwinder Singh Ex.O.P1.2.3/2, copy of policy Ex.O.P1.2.3/3, copy of terms and conditions Ex.O.P1.2.3/4, copy of status report Ex.O.P1.2.3/5, copy of surveyor report Ex.O.P1.2.3/6, copy of photographs Ex.O.P1.2.3/7, copy of list of stock Ex.O.P1.2.3/8, copy of statement of Jagdish Kumar Ex.O.P1.2.3/9, copy of letter dated 20.2.2014 Ex.O.P1.2.3/10, copy of postal receipt Ex.O.P1.2.3/11, copy of letter dated 1.3.2014 Ex.O.P1.2.3/12, copy of postal receipt Ex.O.P1.2.3/13, copy of letter dated 5.3.2014 Ex.O.P1.2.3/14, copy of postal receipt Ex.O.P1.2.3/15, copy of letter dated 21.3.2014 Ex.O.P1.2.3/16, copy of postal receipt Ex.O.P1.2.3/17, copy of letter dated 21.4.2014 Ex.O.P1.2.3/18, copy of postal receipt Ex.O.P1.2.3/19, copy of letter dated 24.4.2014 Ex.O.P1.2.3/20, copy of letter dated 7.5.2014 Ex.O.P1.2.3/21, copy of postal receipt Ex.O.P1.2.3/22, copy of letter dated 12.6.2014 Ex.O.P1.2.3/23, copy of postal receipt Ex.O.P1.2.3/24, copy of letter dated 28.6.2014 Ex.O.P1.2.3/25, copy of Emails Ex.O.P1.2.3/26 to Ex.O.P1.2.3/30, copy of ledger account Ex.O.P1.2.3/31, copy of balance sheet Ex.O.P1.2.3/32, copy of trading account Ex.O.P1.2.3/33, copy of balance sheet Ex.O.P1.2.3/34, copy of trading account Ex.O.P1.2.3/35, copy of bills Ex.O.P1.2.3/36 to Ex.O.P1.2.3/39, copy of claim form Ex.O.P1.2.3/40, copy of list of theft stock Ex.O.P1.2.3/41, copy of details of bills Ex.O.P1.2.3/42 and closed the evidence.
10. We have heard the Ld. Counsels for the parties and have gone through the documents.
11. Following controversies are required to be determined to arrive at a decision :-
(i) Firstly, there is a controversy whether the loss was due to the theft or Burglary. Perusal of the complaint in Para 3 (c) it is mentioned that there was a theft of stock worth Rs. 15,37,500/- and a cash of Rs. 70,000/- from the shop at midnight dated 17/18.2.2014. It is also mentioned that after investigation Police lodged FIR No. 34 dated 18.2.2014 U/s 457, 380 IPC.
On the other hand it is the case of the opposite parties that the complainant has obtained Burglary Insurance Policy by paying premium of Rs. 1,405/- for the period from 20.9.2013 to 19.9.2014 for insuring the stocks of Rs. 22,00,000/- etc. It is contended by the Ld. Counsel for the opposite parties that the theft is not covered under the policy terms and conditions. Thus, in this case it is relevant to prove whether theft is robbery and if so then the complainant has to prove the various circumstances when theft amounts to Burglary, therefore this controversy can only be proved by adducing evidence by both the parties and cannot be disposed of in a summary manner.
(ii) Secondly, the complainant has alleged that the stocks comprising Suit & Sarees worth Rs. 15,37,500/- and Rs. 70,000/- in cash were missing. However, the complainant has not submitted the stock statements to the banker and not maintained any stock record, therefore the question whether stock to the above mentioned value are missing from the shop is again required to be proved by leading evidence by both the parties by collecting evidence from different sources.
(iii) Thirdly, earlier the FIR Ex.C-3 was registered for the loss of Rs. 1,27,000/-, which includes the cash of Rs. 70,000/- and some cloths and this is of dated 18.2.2014. However, the complainant in his amended statement recorded on 19.2.2014 has stated that the loss was to the tune of Rs. 14/15 lacs. Thus, the question whether the loss was to the tune of Rs. 1,27,000/- or 14/15 lacs can only be proved by producing evidence by both the parties.
(iv) Fourthly, it is the case of the opposite parties that the complainant has raised inflated bills from the dealers in order to get compensation and these bills are required to be proved by calling the dealers, who have issued the bills. Again in the absence of any stock register or in the absence of stock statements to the banker, it cannot be ascertained the value of stock on the basis of bills/invoices placed on record by the complainant and evidence is required to be produced to prove the genuineness of the bills.
12. Following observations were made by the Hon’ble Supreme Court of India in “SYNCO Industries Vs State Bank of Bikaner & Jaipur & Ors.” 2002(2) Supreme Court cases 1.
“it is obvious that very detailed evidence would have to be led both to prove the claim and thereafter to prove the damages and expenses. It is,
therefore, in any event, not an appropriate case to be heard and disposed of in a summary fashion. The National Commission was right in giving to the appellant liberty to move the Civil Court. This is an appropriate claim for a Civil Court to decide and obviously was not filed before a Civil Court to start with because, before the Consumer Forum, any figure in damages can be claimed without having to pay the court fees. This is that sense is an abuse of the process of the Consumer Forum.”
In the case of “R.D. Papers Ltd. Vs New India Assurance Co. Ltd. & Ors.” 1(2004) CPJ 101(N.C) it was observed as:-
“After going through the complaint and the written version, it appears to us that the complaint raised complicated questions of facts, which cannot be decided by us in our summary jurisdiction. It may be though the amount in this case is in few lakhs and when we are receiving complaints involving crores of rupees, but then enormous evidence would be required in the present case especially in respect of allegation of forgery made by the complainant and denied by Insurance Company.”
13. In this case, there are disputed questions of facts pertaining to the various matters as referred to above and these go to the root of the case, therefore it is desirable that this case is not to be dealt by this Forum and could be delegated to the Civil Court.
14. In view of above discussion, the present complaint is dismissed. However, the complainant is at liberty to approach the Civil Court as per Law. The parties are left to bear their own costs. Copy of this order be supplied to the parties free of costs. The file after its due completion be consigned to the records.
ANNOUNCED IN THE OPEN FORUM:
3rd Day of September, 2015.
(S.K. Goel)
President.
I do agree.
(Karnail Singh)
Member.
(Vandna Sidhu)
Member.
