SRI JIBAN KRUSHNA BEHERA, MEMBER (I/C)

            The Complainant has filed this complaint petition, U/s-12 of C.P.A.-1986, (here-in- after called as the “Act”) alleging a “deficiency-in-service” against the Opp. Parties, who are the United India Insurance Corporation Limited located at different places.

2.         The factual matrix of this case is that the alleged shop of the above named proprietor was duly insured with the Ops vide policy No.034006/46/06/04/00000332 for a period from 1.3.2007 to 29.2.2008. It is averred that on 3/4.8.2007 night theft is alleged to have been committed in the shop in question and articles to the tune of Rs.3,40,145/- has been stolen. On 4.8.2007, the proprietor of the shop lodged FIR before Sahadevkhunta PS and the fact of theft has also been intimated to the OP No.2. OP No.2 deputed one surveyor to the shop in question to assess the loss. On 20.8.2007, the proprietor submitted claim form along with required documents. But the Ops did not take any step to settle the claim, rather, assuring him to settle the matter shortly which clearly indicated deficiency in service. The family of the proprietor were depending on the income of the above store and due to the above acts of the Ops, the proprietor was constrained to close the business. Therefore, the proprietor has preferred this complaint with the claims as mentioned therein. Hence, this case.

            To substantiate his case, the complainant has relied on the following documents, which are placed in the record, as mentioned hereunder-

1. Photocopy of claim form.
2. Photocopy of FIR along with other police papers.
3. Photocopy of insurance certificate.

3.         In the present case, Ops were made their appearance and filed their joint written version. In their written version, the Ops have not only challenged the cause of action to file the present case but also emphatically stated that the case is not maintainable. They have denied the allegations made in the complaint petition. The Ops have stated, inter alia, that on 4.8.2007, OP No.2 received telephone call from the complainant that stock of his shop in question was stolen on the last night and soon after receipt of the above information, OP No.2 deputed Surveyor to inspect and survey the stock of the aforesaid store caused due to alleged theft. Accordingly, Surveyor visited the premises of the complainant-store on the same day and after observing all formalities prepared report and obtained the signature of the proprietor. On 6.8.2007, complainant submitted written intimation before OP No.2, who provided claim form with a request to submit the same with all required documents, but the complainant did not submit the same. The surveyor further found that there is difference in opening stock so also closing stock and on a thorough verification of the documents of the alleged store, he came to an end that there is no loss due to the alleged theft. Thus, the surveyor submitted his report on 2.6.2009 assessing the loss as NIL. It is further stated that on verification of the police papers in C.T. No.1217 of 2007 corresponding to Balasore Town PS Case No.309 dated 6.8.2007, it was ascertained that police has submitted final form assessing the cost of the stolen articles amounting to Rs.62,000/- in absence of any seizure and recovery of stolen articles. Thereafter, OP No.1 repudiated the claim of the complainant on 4.1.2010 on the basis of survey report and as per terms and conditions of policy which does not constitute deficiency of service on the part of the Ops. Hence, it is prayed to dismiss the case with cost.

            To substantiate their case, the Ops have relied on the following documents, which are placed in the record, as mentioned hereunder-

1. Photocopy of intimation letter dated 4.8.2007.
2. Photocopy of letter dated 7.8.2007 addressed to the complainant.
3. Photocopy of letter dated 18.9.2007 of the complainant.
4. Photocopy of claim form.
5. Photocopy of FIR along with police papers.
6. Photocopy of estimate of loss.
7. Photocopy of preliminary survey report.
8. Photocopy of inventory of stocks.
9. Photocopy of letter dated 24.8.2007 to Surveyor.
10. Photocopy of letter addressed to Adv. M.K.Satpathy.
11. Certified copy of FIR and other police papers.
12. Photocopy of final survey report.
13. Photocopy of letter dated 16.10.2007 addressed to the complainant.
14. Photocopy of letter dated 23.10.2007 of the complainant.
15. Photocopy of purchase and sale statement of the complainant.
16. Photocopy of audit reports.
17. Photocopy of ITR.
18. Photocopy of VAT statements.
19. Photocopy of VAT registers.
20. Photocopy of Insurance policy.
21. Photocopy of letter dated 26.10.2009 addressed to the complainant.
22. Photocopy of letter dated 4.1.2010 addressed to the complainant.

4.         In view of the above averments of parties, the points for determination in this case are as follows:-

(i)         Whether the complainant is a consumer or not?

(ii)         Whether the complainant has cause of action to file this case?

(iii)        Whether this consumer case is maintainable?

(iv)        Whether there is any deficiency in service on the part of the OPs?

(v)        Whether the complainant is entitled to get the relief, as sought for?

(vi)        To what other relief(s), the Complainant is entitled to? 

F  I  N  D  I  N  G  S

5.         First of all it is to be determined as to whether the complainant is a consumer or not. From the averments made in the pleadings of both the parties so also from the documents produced by the parties, it is clear that the complainant is the proprietor of M/s Arati Store situated at Nuasahi, Balasore from which theft as alleged to have been committed. From the above, it is clear that the complainant is covered under the definition of a consumer as defined under the provisions of the Consumer Protection Act, 1986.   

6.         In the present case, the complainant, as it appears from the case record, remained absent since 2018 nor taken any steps on his behalf. Therefore, on hearing from the side of the Ops, this Commission is constrained to pass the order.

7.         Before delve into the merits of the case, it is required to be decided how far the complainant is able to prove his case with regard to the cause of action and maintainability of the case. It is the case of the complainant that on 3/4.8.2007 night theft is alleged to have been committed in his shop in question and articles to the tune of Rs.3,40,145/- has been stolen. On 4.8.2007, he lodged FIR before Sahadevkhunta police Out Post and the fact of theft has also been intimated to the OP No.2. OP No.2 deputed one surveyor to the shop in question to assess the loss. On 20.8.2007, the proprietor submitted claim form along with required documents. But the Ops did not take any step to settle the claim, rather, assuring him to settle the matter shortly which clearly indicated deficiency in service.

8.         On the other hand, learned counsel for the Ops submitted that on 4.8.2007, OP No.2 received telephone call from the complainant that stock of his shop in question was stolen on the last night and soon after receipt of the above information, OP No.2 deputed Surveyor to inspect and survey the stock of the aforesaid store caused due to alleged theft and accordingly, Surveyor visited the premises of the complainant-store on the same day and after observing all formalities prepared report and obtained the signature of the proprietor. On 6.8.2007, complainant submitted written intimation before OP No.2, who provided claim form with a request to submit the same with all required documents, but the complainant did not submit the same. The surveyor further found that there is difference in opening stock so also closing stock and on a thorough verification of the documents of the alleged store, he came to an end that there is no loss due to the alleged theft. Thus, the surveyor submitted his report on 2.6.2009 assessing the loss as NIL. It is further stated that on verification of the police papers in C.T. No.1217 of 2007 corresponding to Balasore Town PS Case No.309 dated 6.8.2007, it was ascertained that police has submitted final form assessing the cost of the stolen articles amounting to Rs.62,000/- in absence of any seizure and recovery of stolen articles. Thereafter, OP No.1 repudiated the claim of the complainant on 4.1.2010 on the basis of survey report and as per terms and conditions of policy which does not constitute deficiency of service on the part of the Ops.

9.         From the above submissions made on behalf of the Ops and the facts as narrated by the complainant and on perusal of the case record, it is admitted that the complainant had purchased Insurance policy from the Ops in respect of his store in question and on 3/4.8.2007 night some miscreants committed theft in the said store. The complainant lodged FIR before Sahadevkhunta Police on the same day and intimated the said fact to the OP No.2 on 6.8.2007. It is claimed by the complainant that the cost of the stolen property is Rs.3,40,145/-. In this connection, as it appears, the complainant has mentioned the list of stolen articles in his complaint petition, but failed to mention the quantity, weight & cost of each stolen items. Apart from it, it is also mentioned therein that cash of Rs.15,000/- was stolen away, but the complainant has failed to furnish the denominations of the currency notes. On the other hand, on a bare scrutiny of the FIR and other police papers, it is found that police has not apprehend the culprits who have committed theft in the alleged store of the complainant. Police has not seized any stolen articles from the culprits. Moreover, it is seen from the reverse side of the Final Form that two items have been seized by the police and handed over the same in zima. But interestingly, the properties which were seized by the police are not found place in the list of articles stolen as mentioned in the complaint petition. That apart, police, during course of investigation, has ascertained the cost of the stolen articles would be Rs.62,000/-. From the above analysis, doubt casts in the mind of this Commission as to what amount of property has actually been stolen from the aforesaid store of the complainant. On the other hand, the Ops have claimed that the opening balance of the store is not tally with the closing balance in the audit statement of account for the year 2008. It is further noticed that maintenance of books of account by the complainant is highly defective and is not at per with VAT return and Tax audit return and there are different figures for tax audit purpose under IT Act and VAT purpose. Further, it is detected in the report of the Surveyor vide Annexure-L that the insured complainant maintained books of account to his sweet will after the end of the year and for sales tax purpose and considering all the factual aspects, Surveyor has finally reported that there was no loss of stock due to burglary since the same has not been shown in the audit report for the year ending 31.3.2008. Taking into account all these materials placed before the Ops, they have repudiated the claim of the complainant. From the above discussions, this Commission is of the considered opinion that there is no deficiency of service on the part of the Ops. Consequently, the complainant has no cause of action to file the case and the case is not maintainable. Therefore, the complainant is not entitled to any reliefs what-so-ever as sought for in this case.

            Hence, it is ordered –

O   R   D   E   R

            The case of the complainant be and the same is dismissed on contest against the OPs. But in the peculiar facts & circumstances, no order as to costs.

            Pronounced in the open Court of this Commission on this day i.e. the 16^th day of January, 2024 given under my Signature & Seal of the commission.