: J U D G E M E N T :
Sri N.k.Pattanaik, President.
The complainants have alleged deficiency in service and unfair trade practice by the opp.parties in the instant case.
2. Shortly, the case of the complainants is that they are the legal heirs/representatives of late Jagdish prasad Mundra being the wife and children of late Mundra. During the life time of late Mundra, he was having cloth business at Laxmi Bazar,Angul town in the year 1993 in the name and style of M/S.Kalamandir and was earning his livelihood by way of self-employment and in the stock of the shop was insured with the opp.parties vide policy No. 153204.9800125/93. That, a theft was committed in the said shop room of late Jagdish Prasad Mundra causing loss of Rs. 3,30,000.00 in the night of dt.26/27.12.1993.This matter was reported at the local police and intimated to the opp.parties as well. The case of the said theft was enquired into by the local police vide Angul police station case No. 206, dt.27.12.1993 U/s.457 & 380 cr.p.c corresponding to G.R.Case No. 659/1993 of the S.D.J.M.Court ,Angul. The police submitted final report No. 04, dt.20.01.1995 in the said learned S.D.J.M,Angul stating therein that he allegation of commission of theft was false. The late Mundra appeared before the learned court and filed a protest petition alleging that there was no proper enquiry into the matter and the police investigation was thoroughly perfunctory in nature and the report of the investigation agency as unusual, unfortunate and whimsical and had re-asserted in his protest petition that a theft did occur in his shop room in the night of dt.26.12. 1993 causing loss to an extent of Rs.3,30,000.00 . In consideration of the submission made by the late Mundra in his protest petition, the learned S.D.J.M,Angul passed an order dt.03.02.1998 found and concluded that a theft did occur in the shop room of the complainant in the night of dt.26.12.1993as alleged but close the case as the police failed to detect the culprits for want of clue. The Divisional Manager, Cuttack Division on behalf of National Insurance Company ltd. filed a criminal Misc Case No. 1186/2002 to set-aside the order dt.03.02.1998 of the learned S.D.J.M,Angul. But the Hon’ble High Court dismissed the misc case on dt. 02.04.2008 (Xerox copy of the order is enclosed which forms part of the record as annexure-1 of the petition now before us. The value of the properties stolen was fully covered under the policy and that the complainants are entitled to the said amount in as much as the loss was assessed by an independent surveyor of the opp.parties. That after death of Mundra, his widow Kamala Devi had been approaching the opp.parties to pay the claim amount and lastly severed a pleader notice on the opp.party No.1 & 2 on dt.04.11.2010, which was redirected by the opp.partyNo.2 to opp.party No.3 vide his letter dt.16.11.2010 but no effect. They tried for early settlement of their claim No.153204/98/93-93/06 through their advocate with the opp.parties but still it remains unheeded and the claim is not settled. Claiming to be consumer, applicants/complainants alleges that the opp.parties have caused inordinate delay which amounts to deficiency in service and unfair trade practice and they are being harassed for year together by the opp.parties causing severe mental agony demanding compensation and therefore have approached the forum for redressal of their grievance and to award the claims made by them in the complaint petition.
3. Whereas the version of the opp.parties is that the insured was a business man and is not a consumer and the complaint is not maintainable in fact or in law and is barred by limitation under relevant provisions of C.P.Act, 1986. In their averments, they have not admitted that there was a loss of Rs.3,30,000.00 in the theft committed on the night of 26/27.12.1993. The insured Mundra was informed on dt.27.12.1993 to keep ready the stock register, purchase receipts and same memos, sales tax and income tax return for the last three years and a list of purchases and sales during the said financial year. The insured had submitted the claim form on dt.30.12.1993 along with a list signed by him on dt.29.12.1993 from which it revealed that the total loss of stock was Rs.2,26,779.79.They engaged one Mr. R.C.pattnayak, surveyor to survey the shop who visited the complainants shop and required documents to produce before the surveyor but without informing the surveyor, the complainants close his business and left Angul. The surveyor Sri Pattanayak had submitted his report with his opinion wherein the net loss is reported to be Rs.1,47,128.00. They also pointed out according to the insured, the property value of his shop before burglary was Rs. 4,02,831.25 .Whereas the insured Mundra had insured the shop for Rs.3,30,000.00 with fixture and fittings. The assessor calculated in his report is that “ Assessed loss X (sum insured / value at risk) =Rs. 1,79,598.86 X(Rs. 3,30,000.00/Rs. 4,02,831.25)= Rs.1,47,128.00 as per annexure-B“, which forms part of the written statement of the opp.parties. Shorn of details, the opp.parties have made repeatation of the investigating report in G.R.Case No. 659/93 and pointed out how the complainants could be able to say about the details of the theft without entering into the shop and how the insured could able to say that 900 pieces of sarees and 60 rolls of shirting amounting of Rs.2,50,000.00 was stolen. They also pointed out that as per terms and conditions of the insurance policy reasonable care was not taken by the insured to safeguard the property against accident, loss and damage as no watchman was engaged by the insured. While again re-irritating that the police had submitted final report as false. They further pointed out that the Hon’ble high court, Odisha in the order dt.02.04.2008 in Cr.M.C.No. 1186/2002 held that “ It is open to insurance company to take a decision in accordance with law” and therefore they have repudiated the claim of the insured and informed the representative on dt.03.07.2008. The opp.parties again pointed out that though the above writ petition was disposed of on dt.02.04.2008 and they have repudiated the claim on dt.31.07.2008, the complainants/ legal heirs have filed their complaint petition after passing of more than two years which barred under limitation. They have said further that they have acted properly by application of mind and as the insured had violated the conditions of the policy to the effect that the insured had not engaged any watchman and the shop remained unattended and hence the complainants are not entitled to get any compensation as claimed by them and therefore the petition be dismissed.
4. Taking into the consideration the facts and circumstances averred by both the parties and the records and documents submitted by them, the following issues emerges for our consideration to dispense justice as per C.p.Act, 1986.
Issues:-
- Whether the insured was a consumer with the opp.parties and the legal heirs/representatives are entitled to pursue the case under C.P.Act, 1986 and the case is maintainable ?
- Whether cause of action arose against the opp.parties to bring them under the ambit of C.P.Act,1986 ?
- Whether the opp.parties have committed deficiency of service and unfair trade practice causing financial loss, mental agony and harassment to the complainant punishable under the provisions of C.P.Act,1986 ?
- Whether the case is barred by limitation as alleged by the opp.parties ?
- What relief the complainants are entitled to ?
: F I ND I N G S :
Issue No.(i):- From the averments both the parties and the records/documents submitted by them that the insured was a consumer with the opp.parties vide insurance policy No.153204/9800125/93 and the case is maintainable under the provisions of C.P.Act. The present complainants being wife and children of late Mundra (insured) are coming under the purview of C.P.Act and can claim as consumer and they are entitled to pursue the matter as per law and get relief as per C.P.Act,1986.
Issue No.(ii):- Cause of action arose when the reported theft of the shop was communicated to the opp.parties and when the opp.parties sent letter to the insured to fill up the claim form and to submit relevant documents thereto and when the opp.parties sent their surveyor who inspected the shop and made a report assessing the damage/loss at Rs.1,47,128.00 and when the matter was disposed of by the Hon’ble High Court,Odisha and decided on dt.02.04.2008 and the claim was repudiated by the opp.parties on dt.03/31.07.2008 and the cause of action also continued as on dt.16.11.2010, on which date the pleader notice of the complainants was replied to.
Issue No.(iii):- A close look at the order dt.02.04.2008 of the Hon’ble High Court which forms part of the record, it stated that “ It is open to the insurance company to take a decision in accordance with law. It appears that the order dt.03.02.1998 was passed accepting the final report and this case was filed on dt.04.02.2002 after a lapse of 4 years. In view of the above, I am not inclined to entertain this application. Accordingly, the Cr.Misc Case is dismissed”. But, curiously the opp.parties had choose to take note of one sentence i.e “It is open to the insurance company to take a decision in accordance with law”. According that due application of mind has been made by them and the case is repudiated .To us, the opp.parties had tried to evade the findings of the learned S.D.J.M,Angul dt.03.02.1998 who concluded that “ a theft did occur in the shop room of the complaints, informant Jagdish Prasad Mundra in the night of dt.26/27.12.1993”.Against this findings dt.03.02.1998 of the learned S.D.J.M,Angul, the opp.parties filed the Cr.Misc Case no.1186/2002 on dt.04.02.2002 before the Hon’ble High Court i.e after lapse of 4 years. This is the important and vital observation of the Hon’ble High Court against the opp.parties. In our considered opinion, when the learned S.D.J.M,Angul vide his order dt.03.02.1998 against G.R.Case No. 659/1993 concluded that there had been a theft caused in the shop of the insured and when as per written version of the opp.parties vide para-8 of their show cause had categorically mentioned the loss of theft was to the tune of Rs.1,47,128.00 as per the assessment and report of their surveyor, the insurance company being a service provider should have accepted the assessment of loss of their own surveyor in spite of having not seen many documents required by him from the insured assessed the loss of Rs.1,47,128.00 ,the opp.parties should have applied their mind properly and should have disposed of the claim accordingly. But without doing so, they have dragged the case for a much longer time i.e, about 4 years is indicative of their arrogance and were pursuit of some alibi or other to deprive the insured from payment of his dues and now to his legal heirs/representatives. This act of the opp.parties, in our considered opinion tantamount to deficiency of service causing mental agony, harassment and financial loss to the complainants/legal heirs. This issue is disposed of accordingly.
Issue No.(iv):- From the facts and circumstances as narrated in the previous issues and when the opp.parties in order to achieve their objectives of depriving the claim of the complainants/legal heirs of the insured took 4 years or so to file the writ petition in question before the Hon’ble High Court, Odisha to which the said Hon’ble High Court took exception and dismissed their petition, it is idle to raise on their part that the present petition filed by the complainants have been time barred under limitation act as they claimed that the same has been filed after two years and prayed for invoking the provision of limitation prescribed under C.P.Act,1986. Although, the complainants have not specifically prayed for condonation of delay in the present case. We feel it prudent to observe that when the opp.parties having fully equipped with all kind of resources who took four years to file the writ petition as stated above and stating that the complainant’s case be dismissed under limitation is nothing but a sign of negative attitude unbecoming of the position they hold. Had it had hit their conscience that a widow embroiled with liabilities of maintaining of her children after having lost the properties of her late husband, the source of their livelihood, it could not be possible on her part to take timely recourse of legal remedy, when she has to fight as a mouse against the mountain as are the opp.parties. Therefore, we feel it wise not to buy the objective of the opp.parties and their prayer for dismissal of the petition of the complainants under limitation as per C.P.Act is out rightly to reject their prayer in order to dispense justice not only to be seen but in deeds. Thus, the prayer of the opp.parties for dismissal of the complaint on the plea of limitation is rejected for sake of justice.
- Hence we therefore order that :-
: O R D E R :
- The opp.parties are directed to pay a sum of Rs. 1,47,128.00 (Rupees One Lakh Forty-Seven Thousand One Hundred Twenty-Eight ) as assessed by their own surveyor along with interest @9% per annum from the date of report of the surveyor till the date of actual payment to the complainants within four weeks from the date of this order.
- The opp.parties are further directed to pay a sum of Rs.25,000.00 (Rupees twenty-Five Thousand) towards compensation for causing mental agony, harassment and financial loss to the complainants along with a sum of Rs.2,000.00 (Rupees Two Thousand) towards cost of litigation to be paid within four weeks from the date of this order, failing which law shall take its own course.
The consumer case is allowed on contest and on merit, substance and disposed of accordingly.
