OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C. 119/14
Present:-
1)Md. Sahadat Hussain, A.J.S. - President
2)Smti Archana Deka Lahkar - Member
3)Md. Jamatul Islam - Member
M/S Popular Photostats & Fax - Complainant
A.T.Road ,Paltan Bazar,
A.G.P.City Office Complex.
P.O.Guwahati,
Pin-781008 (Assam)
(Through Proprietor)
Tapan Kalita,S/O Abhay Kalita
C/O M/S Popular Photostats & Fax
A.T.Road ,Paltan Bazar, Guwahati-01
-vs-
1) Bharati AXA General Insurance Company Ltd. - Opp. parties
510, Amaze Shopping Mall, 5th Floor
A.T.Road (Near Panbazar Fly over)
Guwahati- 01 (Assam).
(Insurance Policy No. 1331668)
Bharati Airtel Ltd.
Bharati House, G.S.Road, Six Mile
Khanapara ,Guwahati-781022 (Assam) - Proforma O.P.
Appearance-
Learned advocates Mr.A.R.Agarwala for the complainant and Learned advocates Mr.Utpal Kr.Dutta and Mr.Bicharjya Kashyap for the opp.party.
Date of argument- 6.9.18
Date of judgment- 21.9.18
JUDGMENT
This is a complaint u/s 12 of the Consumer Protection Act, 1986.
1) The complaint filed by M/S Popular Photostat and Fax, Paltan Bazar, Guwahati through its proprietor Mr.Tapan Kalita against Bharati AXA General Insurance Company Ltd., Guwahati and Bharati Airtel Ltd, Khanapara, Guwahati, was admitted on 28.11.14 and notices were served upon them, and Opp.Party No. 1 filed written statement. The complaint was once dismissed on default on 12.11.15 but the dismissal order was set aside by Hon’ble State Commission vide its judgment dated 5.8.06 passed in FA 7/16, and the case was again restored to file for contest. The complainant filed his evidence on affidavit and he was cross-examined by Opp.Party No.1. The Opp.Party No.1 side filed evidence of one Sri Satyajit Maite and he was cross examined by the complainant side. Thereafter, Ld.advocate Mr.A.R.Agarwalla filed written argument for the complainant on 28.3.18 and Ld.advocate Mr.Bicharjya Kashyap for the Opp.Party No.1 on 24.5.18. Finally, on 6.9.18, the complainant sides’ Ld. Advocate Mr.A.R.AGarwalla, on the day of oral argument (6.9.18) informed this forum that he would not forward oral argument , but his written argument filed be accepted and the said prayer is allowed, but on that day we heard oral argument from Ld.advocate Mr.U.K.Dutta for Opp.Party No.1 and today, we deliver the judgment, which is as below-
2) The case of the complainant is that on 10.4.14, at night some unknown culprit entered into his shop- M/S Popular Photostat and Fax situated at A.T.Road,Guwahati, which deals in various recharge cards of AIRTEL, AIRCEL and other companies, which was insured with M/S Bharti AXA General Insurance Co.Ltd. Guwahati vide policy No. 1331668 which was automatically done through Proforma opp.party, and committed theft/burglary in the said shop and stole away Recharge Cards of value of Rs.40,000/- from that shop as well as Rs.3,000/- , in cash, he lodged FIR at Paltan Bazar P.S. , which was registered as a case – Paltan Bazar P.S. case No. 336/2014 u/s 457/380 I.P.C. and also registered the Opp.Party No.1 the matter and also filed claim with Opp.Party No.1 but Opp.Party No.1 repudiated his claim vide their letter dated 28.8.14 without consulting pre-defendent Bharti Airtel from where he purchase the recharge card and without making the surveyor report available to him and without seeking further documents from him. The police sent final report to the court and Ld.CJM, Kamrup accepted the final report, No stolen items were recovered . The grounds of repudiation of the claim is not solid ground . As repudiation was done before acceptance of final report by the court. It is illegal order. Hence, Opp.Party No.1 is liable to reimburse him the loss of Rs.40,000/- and also to pay him Rs.25,000/- as compensation and Rs.50,000/- towards loss of business along with cost of the proceeding as well as interest at the rate of 12% p.a. on the value of stolen items.
3) The pleading of the Opp.party No.1 namely, M/S Bharati AXA General Insurance Co.Ltd. is that they had issued a burglary and house breaking Insurance policy vide No. 13000059 for the period 8.8.2013 to 7.8.2014 covering any kinds of stocks of the said insured company in the shops of its retailers for a sum insured Rs.4,00,000/- per retailer. The insurance policy is subject to an excess clause of 5% of the claim amount subject to minimum of Rs.5,000/- loss of cash is not covered by insurance. The loss of recharge cards has been exaggerated by the complainant . Their surveyor surveyed the loss and submitted the report on 16.1.14 where in he states that the shop was use to solely in retail rate of recharge vouchers of all major service providers and there was no record of sales and daily stock or cash balance; Daily sales were Rs.30,000/-; The stocks were replenished everyday; The value of stock was Rs.38,200/- on the day of survey; it is probably that stocks worth 1 days sales use to be maintained; The entire stocks were stolen and the amount of loss is assessed to be Rs.30,000/-. The assessment of loss is not in accordance with the scope of the insurance policy issued by them as the complainant shops had stock of recharge vouchers of all service providers and hence they are not bound to accept the assessment made by the surveyor under the provision of subsection -2 of section 64 of Insurance Act,1938. They are willing to consider, the claim of the complainant if he provides evidence of No. and value of the recharge vouchers of Bharti Airtel Ltd. which had been stolen away by thieves. The recharge vouchers of other service providers are not insured by them and hence they are not responsible for the loss of recharge vouchers of other service providers. The complainant in their documents annexure are clearly states that out of stocks of Rs.38,200/- the recharge vouchers worth of Rs.16,500/- are of BSNL and IDEA which are not insured by them and in such situation his claim can not be more than Rs.21,500/- and after deducting the excess clause of Rs.5,000/-. The maximum amount that would be admissible Rs.16,500/- only. As the complainant fails to submit purchase bills the account books and other record to the surveyor, they had no option except to repudiate the claim by letter dtd. 28.8.14 and as such there is no deficiency of service on their part and the complainant has no entitlement to the amount as prayed.
4) We have perused pleading of the complainant and Opp.Party No.1 and found that both sides admit that a theft had been committed in the shop of the complainant M/S Popular Photostats & Fax which is a proprietorial Firm belong to Shri Tapan Kalita, S/O Abhoy Kalita, resident of A.T.Road, Guwahati-8, through which Shri Tapan Kalita deals in business of selling recharge vouchers of different service providers in Assam including recharge vouchers of M/S Bharti Airtel, on 10.4.14 and the thieves stolen away entire stock as well as a cash amount from the said shop. Both sides also admits that the opp.party Bharti AXA General Insurance Co.Ltd. vide policy No. PBI/11331668/13/08/51221 insured stock of recharge vouchers of Bharti Airtel Ltd. in the shop of complainant with effect from 8.8.13 to 7.8.14 and this admission makes it clear that the opp.party insured the stock of recharge vouchers of Bharti Airtel Ltd. in the shop of the complainant and within effectiveness of said policy the thieves stolen away all the recharge vouchers of different service providiers including Bharti Airtel Ltd. from the shop of the complainant . Thus, it is crystal clear that , the opp.party insurance company is responsible to compensate the loss suffered by the complainant in respect of loss of recharge vouchers of Bharti Airtel Ltd. due to said theft. This fact is also admitted by the Opp.Party No.1 in their written statement .
5) Now the moot question is what was the value of the recharge vouchers of Bharti Airtel Ltd. which were stolen away by the thieves . In this respect the complainant states that , the thieves had stolen away recharge cards worth of Rs.40,000/- and a cash amount of Rs.33,000/- from his shop but to prove this fact that he has not submitted any cash memo of purchasing said recharge vouchers. He says that the thieves also take away all the cash memo of purchasing the recharge vouchers. In the cross-examination, the complainant states that he lost recharge cards of value of Rs.40,000/- in total, in which the highest number of Airtel, but he has not filed statement of loss of Airtel recharge cards. Thus, it is seen that, the complainant has failed to give the value of recharge vouchers of Bharti Airtel stolen away by the thieves. It is found that the surveyor in his survey report states the entire stocks were stolen and the amount of loss is Rs.30,000/-. If we assumes that the loss assess by the surveyor is a correct assessment then we must hold that the loss assessed is of recharge vouchers of different service providers in Assam including Bharti Airtel Ltd. and hence Rs.30,000/- as assessed by the surveyor cannot be assumed to be the value of recharge vouchers of Bharti Airtel stolen by the thieves. After perusing the written statement of Opp.Party No.1 it is found that they says that the claim of complainant can not be more than Rs.21,500/- and after deducting the excess clause of Rs.5,000/- the maximum amount would be Rs.16,500/-only. So, in the event of failure of the complainant to prove the value of lost Airtel Recharge vouchers. We must hold that the calculation given by Opp.Party No.1 is acceptable one. Therefore, we are of opinion that the complainant last recharge vouchers of Bharti Airtel Ltd. of worth of Rs.21,500/- only and the Opp.Party No.1 is entitled to deduct Rs.5,000/- from it as per excess clause; hence the opp.party is liable to pay Rs.16,500/- only. In such situation, we hold that, it was the duty of the Opp.Party No.1 to offer the said amount to the complainant as damages for loss of Bharti Airtel recharge vouchers in the said theft, but they are found to have totally repudiated the claim of the complainant . So, the repudiation order is illegal and that amounts to deficiency of service towards the complainant. In such premise we hold that, Opp.Party No.1 is liable to pay Rs.16,500/- as damages to the complainant for loss of Bharti Airtel Recharge vouchers in the said theft along with interest @ 6% per annum from the date of filing of this complaint (28.11.14). Secondly, by repudiating the lawful claim of the complainant, the Opp.Party No.1 caused harassment to the complainant and for such reason Opp.party No.1 is liable to pay compensation of Rs.5,000/- to the complainant. Thirdly, for the adamant attitude of the Opp.Party No.1, the complainant became bound to prosecute the opp.parties before this forum by incurring a handsome expenditure, and as such opp.party No. 1 is liable to pay another amount of Rs.5,000/- as cost of proceeding.
6) Because of what has been discussed as above, the complaint against Opp.Party No.1 M/S Bharti AXA General Insurance Co.Ltd., A.T.Road, Guwahati-1 is allowed on contest , but against Opp.Party No.2- Bharti Airtel Ltd. is dismissed and OPp.Party No.1 is directed to pay Rs.16,500/- to the complainant as compensation for loss of recharge vouchers of Bharti Airtel Ltd. as a result of commission of theft in the complainant’s shop M/S Popular Photostat and Fax, A.T.Road, Guwahati-1 on 10.4.14, with interest @ 6% per annum from 28.11.14, and also to pay them Rs.5,000/- as compensation, for causing harassment and another amount of Rs.5,000/- as cost of proceeding. Opp.Party No.1 is directed to pay the awarded amount to the complainant within 45 days , in default, other two amounts shall also carry interest at the same rate.
Given under our hands and seals on this day of 21th September ,2018.
(Smt. Archana Deka Lahkar) (Md.Jamatul Islam) (Md.Sahadat Hussain)
Member Member President
