IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Preethakumari: Member Smt.M.D.Jessy : Member Dated this, the 22nd day of December 2009 CC.202/2005 Kizhakkumpaden Kavungal Saseendran, Janaki Nivas, South Bazar, Kannur 2 (Rep. by Adv.T.V.Haridasan) Complainant. Divisional Manger, New India Assurance Company Ltd., 2nd floor, Century Plaza, Near Railway Muthappan Temple, Opposite party P.B.No.106,Thavakkara, Kannur 1. (Rep. by Adv.Pramod Krishnan) O R D E R Sri.K.Gopalan, President This is a complaint filed under sectin12 of consumer protection Act for an order directing the opposite party to pay Rs.29, 000/- as compensation with cost and interest. The facts of the case in brief are as follows: The complainant insured household articles including Jewels with opposite party since 1994 and renewed timely. On 31.3.04 at about 3 am the following items of articles insured were lost in a theft that had been taken place at his residence. The lost articles are the following. 1.Necklace chain 20 gms. Rs.10, 500/- 2. Broad Bankle 12 gms. Rs.10, 500/- 3. Rings 4 Nos. 16 gms. Rs.8000/- The theft was reported to Kannur Town Police. Police came and recorded the statement of the complainant and a crime was registered as crime No.221/2004. The claim Form was submitted on 12.4.04 along with necessary documents. The opposite party did not settled the claim so far as value of a gold chain is concerned. The lost chain is weighing 20 grams. But when police recorded it, it was erroneously recorded as 12 grams. The complainant never had a chain of 12 grams to be insured. The complainant was directed to produce as Addendum report from the police as to the correct weight of the chain. But before that as part of investigation the complainant was once again interrogated by the police and recordedthe statement of the complainant. Complainant submitted statement under sectin161 of Cr.P.C to opposite party as per letter dt.13.10.04. Even after getting this letter opposite party refused to settle the claim regarding the chain. At the same time opposite party expressed its readiness to pay value of 12 grams gold and also the value of other items. Complainant sent letter again stating all the facts to settle the claim. But opposite party insisted the Addendum Report. The addendum report from police was not possible. The error in FIR was corrected by 161 statements. Complaint has also submitted that he had been working in the opposite party’s insurance company for the last 29 years. The opposite party is liable to settle the claim. Hence this complaint. Pursuant to the notice the opposite party entered appearance and filed version. The brief contents of the version are as follows: Opposite party denied the main allegation but admitted that the complainant had insured his household articles including gold ornaments listed in the policy schedule which covers a period from 31.12.2003 to 30.12.2004. The following are the insured ornaments. a. Chain with dollar locket (84 gram) b.Ring (16 grams) c.5 Broad Bangles (60 grams) d.4 Rings (4 gram each total 16 grams) e.1 chain necklace (20 Grams) f. 6 Narrow bangles (52 grams) Police registered crime No.221/2004 with respect to the theft in the house of complainant. As per the FIR the following three items of gold ornaments were stolen. a.1 ½ sovereign (12 grams) necklace – one b. Four Rings of ½ Sovereign (4 grams) each c. Broad Bangle of 1 ½ Sovereign (12 grams) one The Insurance surveyor visited the complainant’s house on 31.3.04 and he also noted in his report that the above mentioned ornaments were missing to the complainant. The opposite party did not insure a gold chain weighing 12 grams as per the policy. As per FIR and the surveyors report the stolen gold chain weighing 12 grams. This item does not tally with the article insured as per the policy. The other two items stolen tally as per the policy. The contention of the compliant that the police had erroneously recorded the lost chain as 12 grams instead of 20 grams in the FIR is false. If it is erroneously recorded it is the duty of the complainant to get it corrected or get a report from the police that the lost article is 20 grams and not 12 grams. But the complaint did not take any steps in this regard. This opposite party had directed the complainant to produce addendum report from the police, but the complaint did not comply the said direction. Now it is seen from the complaint’s list of documents that the complainant has produced a 161 statement alleged to be recorded by the police after 6 months of the incident. No claim could be granted on the basis of such statement. The complainant is not sure about the articles lost in the theft, or its value and weight. In the letter dt.31.3.04 issued by the complaint to this opposite party it is stated that the broad bangle which was lost Weights 20 grams where as in the FIR it is 1 ½ sovereigns. In the claim Form submitted by the complainant to this opposite party the value of 20 grams Necklace chain is shown as Rs.10.,500/- where as the value of 12 grams broad bangle is shown as Rs.10,500/- and the value of 126 grams of ring is shown as Rs.8000/- Opposite party has send intimation letter dt.8.12.04 to the complainant informing that this opposite party is ready to settle the claim for Rs.,12,300/- which is based on the items of the insured, survey report, policy conditions and the FIR. There is no bonafides in filing the above complaint. There is no deficiency of service. Hence to dismiss the complaint. On the above pleadings the following issues have been taken for consideration. 1. Whether there is any deficiency in survive on the part of opposite party? 2. Whether the complaint is entitled to the relief’s as prayed in the complaint. 3. Relief and cost. The evidence consists of the oral testimony of PW1, DWs 1 and 2 and exts.A1 to A7, B1 to B9. Issue Nos. 1 to 3 Admittedly complainant insured his house hold articles including gold ornaments with the opposite party. Ext.B 2 is the attested copy of the list of articles. An incident of theft took place in the house of complaint on 31.10.04 and the police registered a crime as No.221/2004. Ext.A1 is the FIR. The case of the complainant is that the items lost by the theft were (a) necklace chain – 20 grams (b) Broad Bangle – 12 grams(c) Rings 4 in number weighing 16 grams. The claim form Ext.A2 submitted on 12.4.04. But opposite party failed to settle the claim. Complainant also alleges that the police erroneously recorded 20 gram weighed chain as only 12 grams in the Ext.A1-FIR. The case of the opposite party on the other hand is that there are three items of gold stolen from the house of the complainant as per the FIR Ext.A1 which is given below. a.1 ½ sovereign (12 grams) necklace – one b. Four Rings of ½ Sovereign (4 grams) each c. Broad Bangle of 1 ½ Sovereign (12 grams) one Opposite party contended that the insurance surveyor visited the house of complaint on 31.3.2004 and also noted in his report Ext.B6 that the above mentioned articles were missing according to the complainant. The specific case of the opposite party is that they did not insure a gold chain weighing 12 gram as per the above policy. The gold chain stolen was weighing only 12 grams as per the FIR and the report of the surveyor. This item of gold weighing 12 grams does not tally with the item insured as per the policy. The opposite party further contended that they have send intimation letter informing the readiness to settle the claim for Rs.12, 300/- based on the items insured, survey report, policy condition and the FIR. Complainant adduced evidence as PW1.He has stated in his complaint that the police wrongly recorded the weight of the gold ornament 1 ½ sovereign instead of 2 ½ sovereign Et.A1 recorded thus: Hm^nkv tS_nfn kq£n¨ncp¶1 1 1/2 ]hsâ s\IvsfkpT hoXapff 4 tamXnc§fpT 1 1/2 ]hsâ Hcp hoXnbpff hfbpT A\pPsâ apdnbnÂ\n¶p jÀv«nsâ t]m¡än Dmbncp¶ 140 cq]bpT Fsâ jÀ«nsâ t]m¡änÂ\n¶pT 200cq]bpT IfhpsNbvXXmbn Ip.. FIR lodged on the same day of theft by the complainant, who had been working in the opposite party’s company for the last 29 years. He has submitted that the error while submitting the complaint was rectified in additional statement given to S.H.O Kannur Town. Ext.A3 is the true copy of the petition filed by the complainant Sri.K.K.saseendran on 12.10.04 after more than 7 months of the alleged theft. He has stated in his petition that “A¶pIfhpt]mb s\t¢knsâicnbmb Xq¡TRm³tÌj\n dnt¸mÀ«v sN¿pTt]mÄ 2 1/2 ]h³ F¶Xn\p]IcT 1 1/2 ]h³F¶pamdn ]dªpt]mbncp¶p. . . . . . . BbXn\m Hcp certificate A\phZn¨pXcphm³ hn\oXambn At]£n¡p¶p. The above petition Ext.A3makes it clear that the weight of the ornament was not erroneously written by police but police records as per the statement of the complainant. Hence the pleading of the complainant that “when police recorded, it was erroneously recorded as 12 Grams” cannot be believed. Moreover, the surveyor visited the house on 31.3.2004 the same day of lodging the FIR. The report of the surveyor also shows the weight of the alleged necklace is 12 grams. Surveyor is examined as DW2 and he has deposed in his chief examination that “ Ifhp \S¶ ZnhkT loss assess sN¿m\mWv kÀth \S¯nbXp.kzÀ®¯nsâ 12 {KmT sNbn³ 12 {Kmansâ Hcp hf ]ns¶ 4 tamXnchpT ss]kbpT \jvSs¸«psh¶mWv A\ymb¡mc³ Ft¶mSp ]dªXp. There is no need to disbelieve the surveyor. He has also deposed in his cross examination that “31.3.04 \p inspect sNbvXt¸mÄ 1 ½ ]hsâbà 2 ½ ]hsâ necklace BsW¶p iin[c³ ]dªncp¶nÃ.. 1 ½ ]hsâbà F¶p police dnt¸mÀ«vsImSph¯Xns\]än F\n¡dnbnÃ. There is nothing special even if it is true. It is clear that if it is mistake that is done by no one else other than the complainant himself However, it has to be taken in to account that the day of theft was a monstrous day as far as the complainant and his family was concerned. In the ordinary course such a day might have been totally a confused one with full of tension and embarrassment which naturally reflect in all the dealings. The possibility of committing certain mistakes and happening of errors under such situation cannot be ruled out. This aspect should have been taken into consideration positively by an attempt to find out the truth so as to protect the genuine interest of the insured as a part of discharging the moral obligation which the opposite party failed to do. The law does injury to no one – Lex nemini facet injuries. It can be seen that the complainant submitted his claim before the opposite party within 12 days. There is no dispute or suspicion with respect to the incident of theft. As per the FIR and that of the report of the surveyor the gold ornaments stolen is of 5 sovereign, whereas, the complainant’s claim is for the loss of 6 sovereign. This has happened due to the difference recorded with respect to the weight of one of the items of gold ornaments stolen. It is pertinent to note here that the list attached to the policy Ext.B1 shows only gold ornaments insured for a sum of Rs.1,09,000/-. The gold ornaments are not shown individually in the policy. Item wise sum assured details will got to show – item jewelers (other items) Description (if any) Gold ornaments, sum assured (in Rs) 1, 09,000/-. Gold items are not shown individually. Though the surveyor’s inspection was over on the same day of lodging FIR he took five months to submit his report when practically the police closed the case as one “Not detected”. He submited the final report on 31.6.04. The statement of complainant rectifying the defect could only be submitted thereafter, which legally binds no effect. Insurance company, opposite party has taken the entire affairs of this case purely mechanical merely depending upon the workings of the FIR in respect of the weight of Necklace without a genuine attempt of finding of the truth. This of course is a denial of natural justice and a deficiency in service which imposes liability on the shoulders of opposite party to make good of the loss sustained by the complainant. In the light of the above discussion taking into account the entire aspect of the case in the interest of justice we are of opinion that the opposite party is liable to pay an amount of Rs.29, 000/- as the value of the insured article together with Rs.1000/- as cost of these proceedings. In the result, the complaint is allowed partly directing the opposite party to pay an amount of Rs.29,000/-(Rupees Twenty Nine thousand only) as the value of the insured article together with a sum of Rs.1000/-(Rupees One thousand only) as cost of this proceedings to the complainant within one month from the date of receipt of this order, failing which the due amount shall be attracted interest at the rate of 10% from the date of filing of this complaint till realisation of the amount and the complainant will be at liberty to execute the order as per the provisions of consumer protection Act after the expiry of one month. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1.Copy of the FIR A2.Copy of the claim form submitted by the complainant dt.12.4.04 A3.Copy of the petition submitted before Town police Kannur A4.Copy f the letter dt.13.10.04 sent to OP A5.Copy of the letter dt.3.1`2.04 sent to OP A6.Letter dt.5.10.04 sent by OP A7.Letter dt.8.12.04 sent by OP Exhibits for the opposite party B1.Copy of the policy issued to complainant. B2.Copy of the list of articles insured by the complainant B3. copy of the letter sent by complainant dt.31.3.04 B4.Burglary claim form submitted by the complainant dt.12.4.04. B5.Copy of the final report in crime No.221/04 submitted by SI of police, Kannur. B6.Insurance survey report prepared by A.Raghunathan B7. Copy of the letter sent by the Deputy Manger, New India Assurance co. B8.Copyof the letter sent by the RM, New India Assurance co. B9.Final assessment sanctioned by the Asst. Administrative officer of OP Witness examined for the complainant PW1.Complainant Witness examined for the opposite party DW1.R.Suresh Babu DW2.Raghunth.P.P. /forwarded by order/ Senior Superintendent Consumer Disputers Redresssal Forum, Kannur
......................GOPALAN.K
......................JESSY.M.D
......................PREETHAKUMARI.K.P | | 
