By Sri. P. Raveendran, Member.<br /> <br /> <br /> Complaint filed Under Section 12 of the Consumer Protection Act.<br /> <br /> <br /> Brief of the complaint is as follows:<br /> <br /> The complainant was the owner of St. George Opticals Door No. SBP-V/399, Rahim Memmorial Road, S. Bathery. He insured his optical shop with the opposite party as per the policy No.570309/48/02/9801192 from 19.3.2003 to 18.3.2004 the shop was broken away during the midnight of 22.1.2004. He filed a complaint before S. Bathery Police and police has registered a case as Cr. No. 23/04 and investigated the same. The accused had influenced the police and the police started to do some foul play. So the case was transfered to CB CID Kozhikode for further investigation. CBCID re registered the crime as CBCID Crime No. 368/CR/04 and investigated the matter and found that one Joy, Sabu, Sleeba, Vijayan, Sureshkumar, Rijo, Devedas and CC Kurian were committed theft from the shop of the complainant. They filed charge sheet before JFCM Court, S. Bathery under section 457, 380, 461,201,414,427, r/w 34 IPC on 30.7.05 against above mentioned accused. Several times the petitioner approached the opposite party and asked for insured amount as compensation guaranteed in the policy. But the opposite party not paid the amount. The petitioner sent a lawyer notice to the opposite party on 18.5.06 and asked them to pay the insured amount and the compensation, the opposite party received the notice on 19.5.2006 and sent a reply notice stating false allegation. The above act of the opposite party amount to deficiency in service and the opposite party is liable to pay compensation. Hence it is prayed to direct the opposite party to pay the insured amount in the policy No.570309/48/02/<br /> 9801192 and compensation to the petitioner. Also prayed to direct the opposite party to pay cost of this petition.<br /> <br /> 2. The opposite party entered in appearance and filed version. In the version it is stated that there is no deficiency of service on the part of opposite party. The complainant has not sustained any loss as claimed in the complaint. He is fraudulently trying to make unlawful gains from the opposite party. The opposite party admitted that the complainant has insured his stock in trade, furniture, fixtures and fittings etc. with the opposite party from 19.3.03 to 18.3.04. The opposite party has repudiated the claim of the complainant on 17.8.05. The opposite party denied the allegation that the shop room of the petitioner was broken away during the night of 2.1.2004. To the knowledge of the opposite party there was no theft occurred. There was dispute between the land lord Mr. Sabu and the tenant petitioner regarding the tenanted premises. The opposite party on receipt of the intimation of theft, has appointed M/s Crime Cure to investigate the matter and they have submitted a report date 5.5.2004. Subsequently an independent surveyor and loss assessor Mr. M. G. Prince to conduct the survey. The opposite party verified the reports, there was no reason to differ with the findings of the investigator hence the complaint was repudiated. Hence it is prayed to dismiss the complaint with cost of the opposite party. 3. After perusing the complaints version the following points are to be considered.<br /> 1) Whether there is any deficiency of service on the part of the opposite party?<br /> 2) Relief and cost<br /> <br /> 4. Point No.1: The complainant has filed proof affidavit Ext.A1 to A5 are marked to prove his complaint. The complainant was cross examined by the counsel of the opposite party. In the proof affidavit he stated as in the complaint. Ext. A1 is the copy of the Burglry claim form. It is seen that the complainant submitted the claim form to opposite party on 4.2.2004. Ext. A2 is the copy of lawyer notice sent by counsel of the complainant to the opposite party . Ext. A3 is the reply notice sent by the counsel of the opposite party to the counsel of the complainant. Ext. A4 is the certified copy of charge sheet filed Under Section 457, 380, 461, 201,414,427, r/w 341 IPC by the Deputy Superintendent of Police, CBCID, Kozhikode before the Judicial First Class Magistrate Court, S. Bathery. On perusing the charge sheet it is found that the petitioner in this case Mr. P.S. Paul is the complainant in the charge sheet. It is further clear that on 2.1.2004 at 00.30 hrs. One Joy, Sabu Sleeba, Vijayan, Sureshkumar, Rijo, Devedas and C.C . Kurian broke open the shop of the complainant (SBP V/399) by using force and committed theft of the valuables worth Rs.3 lakhs in the shop. They also brake open the table and committed theft of Rs.44,000/- kept in the table. They have concealed the evidence also. Ext. A5 is the copy of letter dated 24.1.2004 sent by the Manager, S. Bathery Co-Operative Urban Bank, S. Bathery to the opposite party. In the letter the Manager stated that the shop in which the complainant was conducting business was broken in the night and stocks etc were stolen away during the midnight of 2.1.2004. He further wrote that the Bank is having the original records of deed of Mr. Paul as collateral security etc.<br /> <br /> 5. Opposite party filed chief affidavit. In the chief affidavit he stated as in the version.<br /> Ext. B1 to B5 were also marked. Ext. B1 is the policy No. 570309/48/02/9801192 which shows that the complainant has insured his shop from 19.3.2003 to 18.3.2004 for fire, Burglary etc. Ext. B2 is the survey Report of M.G. Prince Chartered Engineer. In the report he remarked that as insured property was not identified and the cause of loss could not ascertained, the consideration of <br /> the claim left to the discretion of the insurers. Ext. B3 is the report of Crime cure Private Detectives Tali, Calicut-2. The report filed on 5.5.04. In the report he has briefed the incident. He stated that the complainant preferred a complaint before the Sulthan Bathery Police for ransacking the shop and valuables. Police did not register a case. Aggrieved by this he approached the Superintendent of Police, Wayanad and on his orders registered a case as Cr. No. 23/04 on 12.1.2004. Police prepared a scene Mahasar on 16.1.2004. The case is under investigation. Police is not likely to charge sheet the case. They are hostile to the complainant. <br /> It is true that the materials inside the shop was removed by Joy, Eldho, Devedas and others on the night of 1.1.2004. After removing the materials, structures inside the shop on 1.1.2004 the room was handed over to Devadasan. He further stated in the report that it is established in the enquiry that the shop which was in the custody and Business of Paul was broke open by Joy, Sleeba, Devadas and their men in 1.1.2004. They removed all the valuables, demolished the structures inside the shop and most of the materials from the shop were burned from the house of Vettukattil Sabu. More over they have done all these things when the injunction order of Hon. District court is in existence. It is clear that the accused in the, above case have taken the law in their hands with the help of S. Bathery Police. They have brake open the shop in the possession of the complainant by using force and removed the valuables without the knowledge of the complainant. Hence the burglary will attract in the crime. Ext. A4 is the charge sheet, filed by Dy. Superintendent of Police CBCID Kozhikode, which clearly shows that the theft is committed by the accused in the above crime. So there is no justification in the part of the opposite party in repudiating the claim form submitted by the complainant. The reason stated in the B4 that there were no signs of forcible entry/ exit into/from the premises and hence the cause would not come under the definition of Burglary/theft as defined u/s 379 IPC. The police have also rightly registered a case only under Section 427, 448, IPC and not under Section 379. We do not understand how they come to the conclusion that action of local police is in right manner. From the beginning itself the complainant <br /> has an allegation that the accused in the above case influenced the local police and the police is against the complainant. The investigation agency appointed by opposite party is also have the very same opinion. That is mentioned in their report also. The opposite party has neglected the investigation and charge sheet, filed by the Dy. Superintendent of Police, CBCID Kozhikode, which clearly shows that theft is committed by the accused in the above crime from the shop of the complainant.<br /> <br /> 6. In the above mentioned circumstances we found that there is deficiency in service on the part of the opposite party. Point No.1 decided accordingly.<br /> <br /> 7. Point No.2: For the above reasons the complainant is entitled to get Rs.1,00,000/- under Head Burglary and House breaking-stock in trade at Rs.1,000/-under head money insurance cash in counted and Rs.1,000/- under head Baggage Insurance. He is also entitled to get Rs.1,000/-as cost. <br /> In the result, the complaint is partly allowed and the opposite party is directed to pay Rs.1,02,000/-(Rupees One lakh two thousand only) in total to the complainant and cost of<br /> Rs. 1,000/- (Rupees thousand only) within one month from the date of this order.