BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.244 of 2015

Date of Instt.04.06.2015

Date of Decision: 07.06.2017

Vinod Kapoor, Proprietor M/s Kapsons International (India), Sodal Road, 2, Lakshmi Vihar, Industrial Area, Jalandhar. ..........Complainant

Versus

1. Canara Bank, SME Branch, Industrial Area, Jalandhar through its Branch Manager.

2. United India Insurance Co. Ltd., Division Office No.2, Syal House, Lajpat Nagar Market, Jalandhar.

.........Opposite parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Sh. Parminder Sharma (Member)

Present: Sh. SC Sood, Adv Counsel for the complainant.

Mrs. Alka Marwaha, Adv Counsel for OP No.1.

Sh. KL Dua, Adv Counsel for OP No.2.

Order

Karnail Singh (President)

1. This complaint filed by complainant, wherein stated that he is running the business under the name and style of M/s Kapsons International (India) and is proprietor of the said firm. The said firm is engaged in manufacturing of gun metal, valves and cocks and is operating from its business address i.e. Sodal Road, 2 Lakshmi Vihar, Industrial Area, Jalandhar where the final product is being manufactured. For the manufacturing of the product, the complainant is purchasing raw material and other allied products from various buyers. The complainant had been availing bank services from the OP No.1 and it was through the OP No.1 that the general insurance with regard to burglary was taken on 09.04.2013 bearing No.20130046130190000004 under cover note No.686464, which had been issued to the complainant. The said policy was to subsist from 09.04.2013 to 08.04.2014 and the sum assured for the policy was Rs.20 Lacs and the policy had been issued after receiving the premium from the complainant. That during the subsistence of the above mentioned insurance policy, on the midnight of 01.06.2013, theft took place in the premises of the complainant and the locks of the shutter of the workshop were broke opened and other abnormalities were also found pointing towards an illegal entry and trespass. The said premises contained the casting material and other goods, which upon inspection by the complainant, were found missing and immediately the mater was intimated to OP No.1, while letter dated 02.06.2013. That, thereafter, the matter had been investigated vide FIR bearing No.140 dated 10.06.2013, registered at P.S. Division No.8, Jalandhar under Section 457/380 of IPC and copy of the said FIR is attached. As the insurance had been got done from OP No.2 through OP No.1, the complainant lodged a claim to the extent of Rs.6,40,362/- on the basis of the loss of the material, as huge amount of stock had been taken away by the burglars from the premises. The claim was thereafter got investigated by OPs through M/s Royal Associates, who investigated the matter and eventually concurred that burglary had taken place in the premises of the complainant. The claim was surveyed through Shri Rajesh Gupta, who was appointed by the OPs and there had been inordinate delay on the part of OPs to settle the claim. Initially, time and again various documents were sought from the complainant, which were supplied but the OPs failed to progress with the same. The surveyor took nearly six months to settle the claim and it was informed to the complainant that the surveyor had approved claim of Rs.4,83,330/-. It is pertinent to mention that the said assessment is on the lower side and the complainant is liable to be indemnified with the total claim of Rs.6,40,362/- as lodged by the complainant.

2. That however, it subsequently, transpired to the complainant that the OPs had no intention to pay the claim and in particular, OP No.2 avoided the payment on one pretext or the other. Various quarries were sought and even OP No.1 on 11.06.2014, wrote to OP No.2 that there has been undue delay in settlement of the claim. That various documents like cancellation report, statement of trading account, statement of account of parties and bills/invoices were sought from the complainant and the same were provided. Inspite of receiving these documents, the OPs did not effectively settle the claim. The complainant was shocked to receive the letter dated 11.07.2014 issued by OP No.2, wherein the entire claim had been repudiated by the OP No.2 on an entirely flimsy and unilateral ground. The claim was repudiated primarily on two grounds, as under:

a) Delay in lodging FIR;

b) Invoice of RKT Impex dated 01.05.2013 and 05.05.2013 were disputed.

3. That the entire claim has been repudiated by the OP No.2 against the principles of Insurance Law and the same is liable to be set aside. For that purpose, the complainant has requested the OP number of times but all in vain and as such necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OP may be directed to pay the claim of the complainant amounting to Rs.6,40,362/- and further directed to pay damages for causing mental tension, agony and harassment to the tune of Rs.80,000/- and also pay litigation expenses of Rs.30,000/-, with interest @ 18% per annum from 03.06.2013 till realization.

4. Notice of the complaint was given to the OPs and accordingly OP No.1 filed its separate reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable against the answering OP as the answering OP No.1 has advanced the loan to the complainant and in order to secure its loan, the answering OP has got the stock of the complainant insured from OP No.2. The settlement of the claim is to be done by the OP No.2 and the answering OP has got no role in releasing/settlement of the claim and further alleged that no cause of action accrued to the complainant against the answering OP to file the present complaint. On merits, purchasing of insurance policy from OP No.2 is admitted and further prayed that the complaint of the complainant against OP No.1 is without merit and the same may be dismissed.

5. OP No.2 filed its separate reply and contested the complaint by taking preliminary objections that no cause of action arose to the complainant to file the present complaint and further averred that the complainant has filed this false and frivolous complaint just to claim the compensation. The complainant has procured the false bills just to lodge the exaggerated claim. The vehicle Nos. given on the Bills are of the Motor Cycle/Bikes which cannot be used for bringing the Goods from Mandi Gobindgarh and further alleged that the claim has rightly been repudiated and the same is likely to be upheld by the Forum and the complaint is likely to be dismissed with compensatory costs and further submitted that the complainant is barred by his act and conduct from filling this false complaint and even the complainant was not vigilant. The alleged theft if any took place due to the negligence of the complainant. The complainant should have appointed the Chowkidar at the Factory Premises in order to avoid any such theft. If he would have been vigilant then the theft was not possible and further submitted that the complainant is not a Consumer as defined in the Consumer Protection Act, as the manufacturing process is commercial activity, and as such this Forum has no jurisdiction to entertain and decide the present complaint and even the complainant was not vigilant and was negligent as he did not lodge the FIR with the Police, immediately, when he came to know about the commission of theft. He lodged the FIR after ten days of the commission of the alleged Theft in the premises of the complainant and further alleged that the false and frivolous complaint is liable to be dismissed with compensatory costs to the tune of Rs.20,000/-. On merits, it is admitted that the complainant is running a Factory and he got insured the material lying therein from OP No.2 but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merit and the same may be dismissed.
6. In order to prove the case of the complainant, Counsel for the complainant tendered into evidence affidavit of the complainant Ex.CW1/A alongwith documents Ex. C1 to Ex.C12 and further tendered into evidence additional affidavit Ex.CW1/B alongwith some document C13 to C40 and closed the evidence.

7. Similarly, counsel for OP No.1 tendered into evidence affidavit Ex.OP1/A alongwith some documents Ex.OP1/1 to Ex.OP1/5 and closed the evidence and then counsel for the OP No.2 tendered into evidence affidavit Ex.OW2/A alongwith some documents Ex.OP1 to Ex.OP19 and closed the evidence.

8. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.

9. First of all, we like to make it clear that the OP No.1 Canara Bank is virtually a proforma party in this case because the role of OP No.1 is only as a Agent for procuring the insurance policy from OP No.2 and similar factum has been incorporated by OP No.1, in its written statement by stating that the settlement of the claim is to be done by the OP No.2 and OP No.1 has got no role in the settlement of the claim. So, we agree with this submission of the OP No.1 and therefore, complaint of the complainant against OP No.1 is dismissed.

10. Now coming to the relief of the complainant in regard to OP No.2, admittedly complainant has procured insurance policy from OP No.2, after making a payment of the premium, though it was obtained through OP No.1 being an Agent of Insurance Company and the said insurance policy was of Rs.20Lacs. The said policy was to subsist from 09.04.2013 to 08.04.2014 and further the factum in regard to theft took place in the Factory premises of the complainant on the mid night of 01.06.2013, is also not in dispute because the OP No.2 has itself got investigated the matter from M/s Royal Associates and further appointed a Surveyor Mr. Rajesh Gupta. Apart from that a FIR was also lodged in regard to Burglary/Theft in the factory premises of the complainant and copy of the FIR is available on file.

11. Now dispute remains only whether the claim filed by the complainant to the tune of Rs.6,40,362/- is repudiated by the OP No.2 on the grounds of delay in lodging FIR and invoice of RKT Impex dated 01.05.2013 and 05.05.2013 is genuine or not. For that purpose, we are of the considered opinion that simply lodging an FIR after few days from the incident is not sufficient for repudiation of the insurance claim, because in-usually, we reported the matter to the police and police sit on the matter for few days and did not registered a case that it is not fault on the part of the opposite party. Similar happened in this case, the complainant if immediately reported the matter to OP No.1 bank being an Agent of the Insurance Company then why the complainant will lodged FIR after 10 days whereas the matter was reported to the OP No.2 through OP No.1 on 02.06.2013, copy of the letter send by complainant firm to OP No.1 regarding intimation of the Burglary is available on the file dated 02.06.2013 as Ex.OP1/3 and further OP No.1 gave information of the theft to the OP No.2 on 03.06.2013 vide letter Ex.OP1/4. So, it means that if there is any delay of lodging FIR then in alternative, the matter was immediately brought to the notice of the Insurance Company and therefore this is not a solid ground of OP No.2 to repudiate the claim of the complainant on the ground of lodging of FIR delay.

12. So for the concern of two disputed bills dated 01.05.2013 and 05.05.2013 are concerned, regarding that bill, there is a solid evidence available on the file, report of the Surveyor Ex.C5, wherein he categorically mentioned that he thoroughly checked a book of account, cash memo, statement of trading account, statement of account of parties and bills/invoices but did not raise any finger upon these two bills which are brought by the OP No.2 in dispute. So, it shows that the intention of the OP No.2 is malafide and he is seeking one ground or the other to discard the claim of the complainant.

13. Apart from this the Surveyor Mr. Rajesh Gupta in his report Ex.C5 categorically mentioned that the Insured Firm is maintaining Computerize Books of account, the firm not maintaining any stock register. So, the plea taken by the OP No.2 in written statement that the complainant has not intentionally produce the stock register before the Surveyor whereas the Surveyor himself stated that the insured firm is not maintaining stock register and moreover, we think that the stock register is not necessary for analyzing the stock material which can be assessed otherwise from the bills/invoices and statement of the trading account. Apart from that, the report of the Surveyor Ex.C-5 is very in detail, who has touch the all aspects but we failed to understand why and under what circumstances the said report of the Surveyor has been discarded by the OP No.2 and got its own assessment from legal side. If there was any irregularity in the report of the Surveyor Mr. Rajesh Gupta then the Insurance Company has to pass a speaking order by giving a reason why they are discarding the said report of the Surveyor. Even the Surveyor has taken into account the books of account Ex.C14 and Ex.C15, Cash Book Ex.21. So, under these circumstances, we reached to conclusion that the material was lying in the Factory premises of the complainant which is like casting material and other goods which were stolen by unknown person and whereby a loss was caused to the complainant for which he is entitled for indemnify. The complainant got insurance policy for 20 Lakhs for its own benefit that whenever any loss is caused to his premises, he will entitle to get the said loss from the insurance company. For that purpose he is paying a premium and accordingly, we reached to the conclusion that the complainant himself could not able to bring on the file any cogent and convincing evidence that how the loss to the tune of Rs.6,40,362/- is caused. So, in the absence of this, we think that the complainant is entitled for the loss assessed by the Surveyor Rajesh Gupta to the tune of Rs.4,81,330/- with interest, compensation and litigation expenses and accordingly, we hold that the complainant is entitled for the relief.

14. In view of above detailed discussion, the complaint of the complainant is partly accepted and OP No.2 is directed to pay the loss amount of Rs.4,81,330/- with interest @ 9% per annum from date of repudiation letter i.e. 11.07.2014 till realization and further OP No.2 is directed to pay compensation for causing mental tension agony and harassment to the complainant to the tune of Rs.15,000/- and further directed to pay litigation expenses to the tune of Rs.5000/-. The entire compliance of the order be made within 30 days from the date of receiving copy of order. Complaint could not be decided within stipulated time frame due to rush of work.

15. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Parminder Sharma Karnail Singh

07.06.2017 Member President