Heard Shri V.K.Jindal, learned counsel for the Appellant and Shri P.Das, learned counsel for the Respondent.

 

 

 

According to the Appellant, the Insurance Company did not appoint any Surveyor to survey the loss and on 14.7.94 the Respondent wrote to the Superintendent of Police requesting for the Police Report to enable the Insured to substantiate the loss. Eighteen months after the incident, on 19.9.95, the Insurance Company sent a claim form to the Appellant asking him to fill up the same and return to them for doing the needful. Eight months thereafter, the Claim form was filled up and sent to the Insurance Company by the Appellant along with his letter dated 27.5.96 explaining that the delay in submission was due to the fact that the shop of the Appellant had been illegally locked by the Landlord.

 

The Appellant also submitted Cash Memos, Vouchers etc. in support of the list of the stolen articles to the Insurance Company to substantiate the value of stocks as on the date of occurrence, i.e. night of 28.3.94. It was only on 30.6.96 that the Police submitted the final police report stating inter alia that the case is true U/S 457/380 I.P.C. but no clue.

 

As the Insurance Company neither intimated its status nor settled the claim, on 4.3.97 the Appellant issued a notice to the Insurance company to settle the claim within a period of one month. The Insurance Co. neither replied to the said Notice nor settled the claim and thus on 4.7.97 the Appellant filed a Complaint petition (C.P. Case No.12(S) 97) against the Respondent- Insurance Company before the District Forum, Shillong (hereinafter the ‘Forum’) for deficiency in service by not settling the Appellant’s claim for Rs.75,533.40 and for causing him mental agony, harassment and financial loss.

 

 

a)      There was no sign of applying force on the lock of the door.

 

b)      The complainant had dull business for some time, hence he could not have had huge stocks as claimed by him.

 

c)      The Insurance Co. is not liable to pay compensation for loss of customer’s watches which is not covered by the policy.

 

d)      Stock in the shop after theft would hardly value Rs.2000/-, hence it does not imply that the loss was heavy.

 

e)      The complainant was in the habit of removing all articles of value from the shop at the close of business every day and depositing them in some other place for the night and bringing them back to the shop the following morning.

 

Thus relying on the report dated 19.6.95 of Shri T.Bardhan, Surveyor the                 Respondent resisted the Complaint before the learned Forum and prayed for its dismissal in limine. As mentioned earlier, the complainant denied the factum of any such survey which, even if held, was behind his back.

 

 

During the course of hearing before the learned Forum, the Complainant filed a petition stating that it was revealed that the Insurance Co. had appointed Shri M.L. Purkayastha, Investigator and he had submitted the report which was essential for the purpose of the case and that the Insurance co. had not filed this report before the learned Forum nor mentioned anything about the same in their show cause. Upon the complainant’s prayer the learned Forum directed the Insurance Co. to produce the said Investigator’s report which was duly filed by the Respondent.

 

It transpires from the Investigator’s Report dated 4.5.1994 that the Respondent appointed Shri M.L. Purkayastha, Investigator of GICI to investigate the matter and the investigator submitted his Report dated 4.5.94 to the Respondent, after visiting the place of occurrence and examining the Appellant/Insured as well as other persons. The findings of the Investigator as contained in the Report are as follows:

 

“(a) The case is genuine.

 

(b) From the evidence recorded and confidential enquiry it has been proved that there had been a burglary in the shop of the insured in the intervening night of 28/29-3-94 and the culprits stole many Wrist watch, Wall Clocks, Chains etc. and the watches etc given by people for repairing. However, the value of the stolen articles may perhaps be determined on the basis of Survey report.

 

(c) The case (Case No.64(4) 94 U/S 457/380 I.P.C.) is going to be closed in final report U/S 457/380 I.P.C. as case true but no clue as reported by the I/O.”

 

 

Being unsatisfied with the order of the learned Forum directing payment of only Rs.20,000/- to the Complainant against his claim of Rs.75,533.40 and non-awarding of interest on the claim amount w.e.f. 29.3.94 i.e. the date of burglary, the complainant has come before this Commission in Appeal. The contention of the Appellant is that the finding as well as the grounds on which the learned Forum came to the conclusion that the complainant’s claim of Rs.75,533.40 appears to be excessive and imaginary are themselves unfounded and that he is entitled to his claim of Rs.75,533.40 in full together with interest @ 18% thereon from the date of burglary till the date of payment. The Respondent on the other hand, supports the order of the learned Forum and says that it does not call for any interference.

 

 

“save and except the solitary evidence to support his claim that the alleged loss to the tune of Rs.75,533.40p and there is no evidence to show that the complainant’s shop was having a goods sale and repairs of watches, clocks, etc. The very fact that the list of the alleged stolen articles was furnished at a belated time to the police and undated to the Insurance Company appears to be an inflated one. Unless the complainants with conclusive evidence satisfy us, his claim to the extent of Rs.75,533.40p for compensation appears to be excessive and imaginary.

 

From the above discussion we therefore, determine and decide that since the Insurance Policy is not disputed which appears that the complainant is the insured under the OP Insurance of his shop premises, the claimant’s claim be settle at Rs.20,000/- within two months from the date of the Judgment and Order, failing with an interest at the rate of 12% p.a. shall accrue till final payment of the same.”

 

 

a)      Whether, when on the one hand the complainant examined himself but no other witness and on the other hand the Insurance Co. examined none, the complainant’s solitary evidence is inconclusive and/or inadequate to establish the facts of the case?

 

b)      Whether from the delay in submission of the list of alleged stolen articles the inference can be drawn that the claim is an inflated one?

 

Now, Section 13(2) of the Consumer Protection Act, 1986 provides as follows:

 

“The District Forum shall, if the complaint received by it under section 12 relates to goods in respect of which the procedure specified in sub-section (1) cannot be followed, or if the complaint relates to any services:-

 

a)      refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum;

 

b)      Where the Opposite party, on receipt of a copy of the complaint, referred to him under clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District Forum, the District Forum shall proceed to settle the consumer dispute,-

 

i)                    on the basis of evidence brought to its notice by the complainant and the opposite party, where the opposite party denies or disputes the allegations contained in the complaint, or

 

ii)                   on the basis of evidence brought to its notice by the complainant where the opposite party omits or fails to take any action to represent his case within the time given by the Forum”.

 

It is thus clear that wherever the opposite party denies or disputes the allegations contained in the complain, all disputes before the Forum are to be settled on the basis of evidence brought to its notice by the Complainant and the Opposite Party.

 

 

On the other hand, no evidence was adduced and brought to the notice of the learned Forum by the Opposite Party/respondent. Even the Show Cause filed by the Respondent in answer to the complaint was not under any Affidavit. The Surveyor’s Report dated 19.6.95 which is so heavily relied upon by the Respondents was not adduced in evidence by them.

 

The Evidence Act mandates that the original document must itself be first produced for the inspection of the court. If the original is not available, secondary evidence may be given in specified circumstances. This is to prove what the documents states. Upon this, although the document becomes admissible, if it is signed or handwritten then the signature or handwriting must be proved. Thereafter, if the party tendering the document considers it necessary to prove the truth of its contents he must do so as he would prove a relevant fact and this is generally done by calling the author of the document.

 

As the Respondent did not produce the original copy of the Surveyor’s Report and prove it by its author or any other competent witness before the learned Forum as required under law, no reliance can be placed on the same. Even otherwise the Surveyor’s Report is, in our opinion, difficult to accept at face value. The Survey was apparently conducted on 19.6.95, fifteen months after the burglary. (The Appellant has maintained that in fact no survey was conducted at all). The Surveyor states in the report that the “Stock in the shop after theft would hardly value Rs.2000/-. It does not imply that loss was heavy”. One would logically presume the converse to be true if goods worth only Rs.2000/- are left in a shop after burglary. It is stated that “watches on repair were not covered under the Policy” whereas the Insurance Policy clearly covers “repairing watches”. The “revelation” in the Survey report that the Complaint was in the habit of removing all articles of value from his shop at close of business only to bring them back the next morning would  aptly describe the activities of a hawker than a shopkeeper.

 

 

Section 120 of the Indian Evidence Act 1872 makes it clear that in all Civil Proceedings the parties to the Suit shall be competent witnesses and it is well settled that the evidence given by witnesses cannot be discarded only on the ground that it is evidence of an interested witness.

 

 

As regards the delay in submission of the list of stolen articles, the theft was    known on 29.3.94 and the list was submitted on 6.4.94, i.e. after eight days. The delay cannot, by itself, lead to the inference that the claim is an inflated one. Moreover, the explanation given by the Appellant for the delay that he is a small shop-keeper and cannot be expected to maintain the stock register etc. and since the stolen articles were small pieces the preparation of the inventory took a weeks time, is not unreasonable and no adverse inference can be drawn on this ground alone.

 

 

“….. the Government, being the defendant in this case, should have produced the documents relevant to the question raised. While it is the duty of a private party to a litigation to place all the relevant matters before the Court, a higher responsibility rests upon the government not to withhold such documents from the Court.”

 

The Respondents in this Appeal too, being instrumentalities of the State, should have fulfilled this higher responsibility.

 

 

Ordered accordingly.

 

Appeal allowed.

 

No Costs.