STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH

(IN APPEAL NO.223 OF 2010)

                                                          Date of Institution: 15.06.2010

                                                          Date of Decision:   25.02.2011

The New India Assurance Company Limited, Chandigarh through Sh. K. B. Bindal, Manager, Regional Office, S.C.O No.36-37, Sector 17-A, Chandigarh duly constituted attorney.

……Appellant

Versus

Sh. Harinder Pal Singh, Proprietor Laxmi Engineering Works, 452-A, Industrial Area, Phase II, Chandigarh.

              ....Respondent

BEFORE:            MRS.  NEENA  SANDHU,  PRESIDING MEMBER.

                        S.  JAGROOP  SINGH   MAHAL,  MEMBER.

Argued by:   Sh. R. K. Bashamboo, Advocate for the appellant.

                        Sh. Parminder Singh, Advocate for the respondent.

(APPEAL NO.224 OF 2010)

                                                          Date of Institution:22.06.2010

                                                          Date of Decision:  25.02.2011

Sh. Harinder Pal Singh, Proprietor Laxmi Engineering Works, 452-A, Industrial Area, Phase II, Chandigarh.

……Appellant

Versus

New India Assurance Company Ltd., Office S.C.O No.37-38, Sector 17-C, Chandigarh.

              ....Respondent.

Argued by:   Sh. Parminder Singh, Advocate for the appellant.

                        Sh. R. K. Bashamboo, Advocate for the respondent.

PER  JAGROOP  SINGH  MAHAL,  MEMBER.

1.                     This order will dispose of two appeals under Section 15 of Consumer Protection Act, 1986 one bearing F.A. No.224 of 2010 filed by the complainant Sh. Harinder Pal Singh for enhancement of compensation and the other F.A. No.223 of 2010 filed by OP - New India Assurance Company Limited for setting aside the impugned order dated 27.4.2010 passed by learned District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter referred to as the District Forum) vide which the OP was directed to pay a sum of Rs.1,74,709/- for loss of batteries, Rs.10,000/- as compensation for physical harassment, mental pain and agony besides Rs.5,000 as litigation costs. The order was to be complied within  a period of six weeks from the date of receipt of its certified copy failing with  the OP was to pay the said amount of Rs.1,84,709/- along with interest @12% per annum from the date of rejection of the claim i.e. 21.7.2009 till actual realization.

2.                     The case of the complainant is that he is a business man engaged in the manufacturing, sale and purchase of batteries and various batteries and stocks purchased by him vide bills [Annexure C-1 (Colly.)] and lying in his factory were hypothecated with the OP vide policy dated 11.4.2008 (Annexure C-2). It was averred that on 1.12.2008, a theft took place in the factory premises of the complainant and most of the stock was stolen. F.I.R was lodged with the police, who gave its untraced report vide Annexure C-3. The complainant lodged the claim with the OP for making payment of the loss suffered by him but the same was rejected by the OP resulting in filing of the present complaint.

3.                     The OP in their reply admitted the fact of theft taking place on the night intervening 01-02/12/2008 and lodging claim by the complainant with it. It is pleaded that a surveyor – M/s Consolidated Surveyor’s (P) Ltd. was appointed to assess the claim and the complainant was asked to supply the documents to prove his loss but the same were not supplied despite various letters and reminders. Since, there was no compliance from the side of the complainant, a final registered letter was also sent by the OP to the complainant vide Annexure R-12 for submitting the requisite documents. As per the OP, the surveyor ultimately assessed the loss to the tune of Rs.32,175/- vide his report (Annexure R-5), which was based on the contents of the F.I.R lodged by the complainant with the police. It is pleaded that the OP was ready to make this payment to the complainant subject to the formalities desired as per Annexure R-11 but since, the complainant never furnished any documents, his file was closed and he was duly informed. Pleading no deficiency in service on its part, OP prayed for dismissal of the complaint.

4.                     Both the parties were given opportunity to lead evidence in support of their contentions.

5.                     After hearing arguments of learned counsel for the parties and perusing the record, the learned District Forum allowed the complaint as already mentioned in the opening para of this order. Both the parties have challenged the impugned order through these two separate appeals.

6.                     We have heard the arguments of learned counsel for the parties and have perused the record.

7.                     The contention of the complainant is that he had mentioned a loss of Rs.1,50,000/- in the F.I.R. (Annexure C-4) and had also submitted the documents in support of his contention but even then the surveyor in the report (Annexure R-5) assessed the loss to the tune of Rs.32,175/-, which is on the lower side. He has prayed for enhancement of the amount of compensation to Rs.3,50,000/- as mentioned in concluding line of Para No.2 of the grounds of appeal. On the other hand, the learned counsel for the OP argued that the conduct of the complainant is very material in this respect because in the F.I.R (Annexure C-4), the loss was mentioned to be Rs.1,50,000/- whereas he submitted the loss of stolen goods vide Annexure C-3 to the extent of Rs.1,80,800/-. In the complaint filed before the learned District Forum, the complaint prayed for a compensation of Rs.2 Lacs for the loss and Rs.1.5 Lacs as compensation for mental harassment. However, now in the grounds of appeal, the loss was mentioned to be Rs.3.5 Lacs.  IN this manner, the loss suffered and the amount claimed as compensation had been increasing from time to time.

8.                     The learned counsel for the OP has argued that whatever documents were supplied by the complainant, the same were examined by the surveyor and investigator and on its basis, the loss was assessed. The complainant, however, submitted some new documents [Annexure C-1 (Colly.)], which according to him, were fabricated after the report of the surveyor and were never submitted before him. The learned counsel for the complainant could not produce any receipt to suggest if these bills were ever produced before the surveyor. Moreover, if some goods were purchased between 29.6.2008 to 30.11.3008, it cannot be said that the same remained lying in the shop of the complainant and were not sold further. The complainant himself has produced a bill dated 27.11.2008 vide which batteries worth Rs.28,000/- were sold to Gift Auto Batteries Plates from whom most of the bills have been procured by the complainant and produced before the learned District Forum. The learned counsel for the OP has also argued that the genuineness of these documents and whether the goods purchased vide these bills remained lying with the complainant till the night of theft is to be examined by the investigator and if the complainant did not produce these documents before him, the same should not have been entertained by the learned District Forum. According to him, then a trend would start that instead of producing documents before the surveyor or the investigator, the parties would instead start producing the same before the Consumer Fora where neither the genuineness of the documents would be examined nor the same can be compared with the stock. The very purpose of appointment of the surveyor/investigator and conducting enquiry about the genuineness of the claim would be defeated. We find merit in the contention of learned counsel for the OP that the documents, if any, should be produced by a party before the surveyor/ investigator in support of his claim.

9.                     The learned counsel for the OP referred to the letter dated 20.12.2008 and 12.1.2009 written to the complainant asking him to submit certain documents. When the same were not produced, another letter dated 6.2.2009 was written to the complainant by the OP. When the complainant did not produce any document, thereafter the claim was finalized by the surveyor. Though it is the duty of the complainant to submit all the documents in support of his claim to the OP, yet in this case, the surveyor and the OP had even been asking him to produce the documents but he did not produce any.

10.                   The learned District Forum through the impugned order allowed a compensation of Rs.1,74,709/-, though the loss as per the F.I.R was Rs.1,50,000/- and as per Annexure C-3 was Rs.1,80,800/-. The learned District Forum has taken into consideration all the bills [Annexure C-1 (Colly.)] vide which the goods were purchased and did not consider this aspect as to whether there was any sale of the said goods till the theft took place. The stock register was not produced by the complainant The assessment of compensation of Rs.1,74,709/- as against the claim made by the complainant in the F.I.R Rs.1,50,000/-, therefore, cannot sustain as it is not supported by any cogent evidence.

11.                   In view of the above discussion, we are of the opinion that the impugned order cannot sustain and is, therefore, set aside. The complainant is directed to submit all the documents before the OP and the OP would assess the claim afresh on its basis. The OP would thereafter pass a fresh order within three months from the date of receipt of documents by the complainant as to what compensation is payable to the complainant. Needless to mention that if the complainant is not satisfied with the said assessment, he would have the liberty to agitate the matter again through a separate complaint. With these observations, both the appeals are disposed of.

12.                   Copies of this order be sent to the parties free of charge. Files be consigned to the record room.

Pronounced.

25^th February 2011.

Sd/-

[NEENA SANDHU]

PRESIDING MEMBER

Sd/-

 [JAGROOP  SINGH  MAHAL]

MEMBER

Ad/-

STATE COMMISSION

(APPEAL NO.223 OF 2010)

Argued by:   Sh. R. K. Bashamboo, Advocate for the appellant.

                        Sh. Parminder Singh, Advocate for the respondent.

Dated the 25^th day of February 2011.

ORDER

                        Vide our detailed order of even date recorded separately, this appeal along with the cross appeal bearing F.A. No.224 of 2010 have been disposed of.

            (JAGROOP SINGH MAHAL)                          (NEENA SAHDHU)

                          MEMBER                                                       PRESIDING MEMBER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH

(APPEAL NO.224 OF 2010)

                                                          Date of Institution: 22.06.2010

          Date of Decision:   25.02.2011

Sh. Harinder Pal Singh, Proprietor Laxmi Engineering Works, 452-A, Industrial Area, Phase II, Chandigarh.

……Appellant

Versus

New India Assurance Company Ltd., Office S.C.O No.37-38, Sector 17-C, Chandigarh.

              ....Respondent.

BEFORE:            MRS.  NEENA  SANDHU,  PRESIDING MEMBER.

                        S.  JAGROOP  SINGH   MAHAL,  MEMBER.

Argued by:   Sh. Parminder Singh, Advocate for the appellant.

                        Sh. R. K. Bashamboo, Advocate for the respondent.

PER  JAGROOP  SINGH  MAHAL,  MEMBER.

                        For orders, see the orders passed in Appeal No.223 of 2010 titled  ‘Sh. Harinder Pal Singh Vs. New India Assurance Co. Ltd.’ vide which this appeal has been disposed of.

                        Copies of this order be sent to the parties free of charge.

Pronounced.

25^th February 2011.

Sd/-

[NEENA SANDHU]

PRESIDING MEMBER

Sd/-

 [JAGROOP  SINGH  MAHAL]

MEMBER

Ad/-