STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

(First Appeal No.61 of 2011)

National Insurance Company Ltd., Branch Office III, SCO No.305-306, Sector 35-B, Chandigarh.

……Appellant

V e r s u s

Haryana Warehousing Corporation through its Manager (Legal), Head Office, Bay No.15-18, Sector 2, Panchkula-134112

              ....Respondent

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:  S.  JAGROOP  SINGH   MAHAL, PRESIDING MEMBER.

MRS. NEENA SANDHU, MEMBER.

Argued by:          Brig. B.S. Taunque, Adv. for the appellant

                   Sh. Mrigank Sharma, Adv. for the respondent.

PER  JAGROOP  SINGH   MAHAL, PRESIDING MEMBER

                    This appeal is directed against the order dated 16.2.2011 rendered by the ld. District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter referred to as the District Forum) vide which it allowed the complaint filed by the complainant/respondent and the appellant/OP was directed to pay a sum of Rs.41,180/- alongwith interest @ 9%  and Rs.7,000/- as litigation expenses. 

2.                      The facts, in brief, are that the complainant got insured the food grains stock stored on the open plinth at State Warehouse, Palwal-II vide Insurance Policy No.46/03/7500043 with OP which was valid from 15.07.2003 to 14.07.2004. On the intervening night of 22/23.11.2003, a theft took place at the insured premises and 116 bags of wheat were found stolen from open plinth. The OP-Company was informed vide letter dated 25.11.2003.  The complainant also lodged an F.I.R.No.1392 dated 23.11.2003 to this effect. According to the complainant, all the requisite documents for settlement of the claim of Rs.41,180/- were submitted with OP but the claim was filed on the ground that the untraceable report was not submitted.  It was averred by the complainant that as the matter was still under investigation, therefore, the question of submitting the untraceable report did not arise.  It was stated that the claim was filed by OP for want of untraceable report, which amounted to deficiency in service.  When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act) was filed.

3.                The OP in their reply admitted the facts with regard to the insurance of the premises in question and the theft of 116 Bags of food grains. The main defence of the OP was that the claim of the complainant could not be settled for want of untraceable report which was not submitted by the complainant despite repeated letters. According to the OP, due to non-submission of the untraceable report, the claim of the complainant was closed as No claim. Remaining averments were denied, being wrong.  Pleading that there was no deficiency in service or unfair trade practice on their part, prayer for dismissal of the complaint was made.

3.                      After hearing the ld. Counsel for the parties and on going through the evidence on record, the ld. District Forum allowed the complaint as mentioned in the opening para of this order.

4.                      Feeling aggrieved, the instant appeal has been filed by the appellant/OP.

5.                      We have heard the ld. Counsel for the parties and have gone through the evidence on record of the case carefully. 

6.                      The ld. Counsel for the appellant has argued that there was delay of about six months in lodging the claim with the appellant which has not been explained and, therefore, due to this reason, the complaint was liable to be dismissed.  He referred to Annexure A-3-A which was the Burglary Claim Form lodged with the appellant on 26.5.2004 whereas the theft had taken place on 23.11.2003. We do not find any merit in this argument.  Annexure C-3 is the FIR showing that the theft had taken place on 23.11.2003.  Annexure C-1 is the intimation given by the complainant to the OP on 24.11.2003 intimating the theft of 116 bags of wheat from the spot.  In this manner the FIR as well as the intimation to the OP had been promptly given by the complainant.  The claim was lodged with the OP in due course and the ld. Counsel for the appellant could not point out any such provision in the insurance policy in view of which the claim was barred by time.

7.                      The ld. Counsel for the appellant has also argued that the complainant was directed in the year 2005 and 2006 to submit the untraced report duly counter signed by the SP/SSP and accepted by the Court.  He referred to various letters (Annexure R-1 to R-9) in this respect.  According to him, the case was closed as per letter dated 23.3.2006 for want of untraced report and, therefore, the present complaint filed in 2010 was barred by time.  This argument also is devoid of merit firstly because the OP could not have asked the complainant to submit any such untraced report and secondly the complainant could file the complaint within two years from the date the claim was repudiated whereas in the present case the claim, having not so far been repudiated, the payment of compensation having not been made or rejected, the complainant would be having a subsisting cause of action to file the complaint.

8.                      We have gone through the insurance policy (Annexure    R-10 and do not find any such provision therein which required the complainant to submit any untraced report with respect to the theft of the foodgrains from the godown,  rightly so because the untraced report is to be prepared and given by the police over which the complainant has no control.  The police has its own ways of investigation  and they do not complete the investigation within a particular period, nor are they bound to give the untraced report within a specific period.  It appears that due to this reason no provision has been made in Annexure R-10 for submission of the untraced report as a step necessary for allowing the claim of the complainant.  This matter came up before this Commission in an earlier case bearing F.A. No.63 of 2011 decided on 20.4.2011 in which it was observed as follows :-

                   “11.    The Learned Counsel for the appellant has then referred to para no. 3, 4 and 5 of their reply and argued that the settlement of the claim was delayed due to the fault of the complainant because he did not submit the untraced report alongwith the Court Orders.  The Learned Counsel argued that it is the responsibility of the insured to obtain the untraced report from the Police authorities or the Court and thereafter bring it to their office.  When asked, the Learned Counsel did not find any such condition in the Insurance Policy Annexure C-1. There is no other agreement between the parties to this effect nor the Law or Rules requiring the complainant/ insured to perform this job have been produced.  We are of the opinion that it is not the job of the complainant to run after the Police authorities in persuading them to submit the untraced report and thereafter to persuade the Court to accept the same and to issue a certificate to him or to produce any such certificate before the insurance company. If the OPs need any such report, they may procure it through the investigator or surveyor appointed by them, who contacts the complainant/insured and inquires about the theft.  He also approaches the Police about the registration of the FIR and may therefore obtain the untraced report of their liking. We are of the opinion that though there is no such requirement of submitting untraced report to the OPs by the complainant, yet if the OPs require any such untraced report, they shall procure the same from the concerned Police station or the Court, themselves through their investigator or surveyor and cannot ask the complainant to produce the same. Asking the complainant to produce the untraced report as mentioned by the OPs is, therefore, an unfair trade practice and a cause of harassment to the complainant.  This argument of the Learned Counsel therefore cannot be accepted as correct.

12.     Otherwise also the Police authorities are not under the control of the complainant/insured. The Police have its own ways of investigation and take their own time in coming to the conclusion that the vehicle is not likely to be recovered.  It depends on the IO concerned, as to how much time he would take in submitting such a report.  If for instance, an investigating Officer takes 5 years to submit this report, we cannot hold that compensation should not be paid for 5 years.  The delay on the part of the OPs in making the payment of the claim to the complainant on the ground of untraced report cannot be justified. We are, therefore, of the opinion that the OPs should only wait for a reasonable period of say about 3 or 4 months for the recovery of the vehicle and if it is not recovered during the said period, they should promptly make the payment of compensation to the complainant, whether untraced report has been received or not.”

The OP, therefore, could not have varied the terms and conditions of Annexure R-10 subsequently, without there being a written contract between the parties asking the complainant to submit untraced report.

9.                      The OP had appointed Lalit Gupta & Associates as the surveyor/investigator in the present case.  He had visited the police station City Palwal and in his report (Annexure R-11) he specifically mentioned as follows :

“There we also visited Police station City Palwal & there also enquire about said theft.  Police authorities also acknowledged about said theft & told us that they have already issued Untrace Report regarding same on 24.02.2004 according to which these bags are till date untraceable.”

It shows that the police had already issued the untraced report on 24.2.2004 and it did not lie in the mouth of the OP to ask the complainant for the same when they could have asked their own investigator, who visited the police station, to collect it from the police.

10.                   Even in spite of the fact that the complainant was not required to file any such untraced report to get the claim, the complainant wrote to the police vide Annexure C-9 and procured the untraced report (Annexure C-10). The OP, however, did not accept the same and continued denying the claim to the complainant, even in spite of the fact that the authenticity of the untraced report had been confirmed by their own investigator through Annexure R-11.  It is an unfair trade practice adopted by the OP in harassing their customers.  We are, therefore, of the opinion that the OPs could not keep the claim pending for an unlimited period for want of untraced report and they should have allowed the claim after a period of 3-4 months, if the goods were not recovered, as held in the earlier case referred to above. 

11.                   The ld. Counsel for the appellant has also argued that the complainant had concealed the true facts from the District Forum in so far as 20 bags of wheat had already been recovered by the police and given to the complainant on spurdari which were not mentioned by them in the complaint.  As against it, the ld. Counsel for the complainant/respondent argued that the said bags were held by the complainant on spurdari; wheat being a perishable quantity, it perished and the appellant/OP was liable to make good the loss with respect to those 20 bags also due to which the claim was lodged for the entire 116 bags.  He also referred to Annexure C-10 which is report dated 23.12.2005 submitted by the police in which the recovery of 20 bags was mentioned.  He also referred to the letter dated 28.12.2005 in which also the recovery of 20 bags was mentioned.  According to the ld. Counsel, Annexure C-10 has been produced alongwith the complaint and there is no concealment of any fact made by it.  In view of these facts, we find that there was no concealment of any fact by the complainant.

12.                   We are, however, of the opinion that when 20 bags had already been recovered, the complainant is not entitled to the compensation therefor.  The said 20 bags had been given to the complainant on spurdari.  There is no proof if the wheat in those 20 bags was damaged and, therefore, the appellant/OP was not liable to compensate the complainant for the said loss.

13.                   As per Annexure R-11, the surveyor assessed the loss of 116 bags to Rs.41,180/- by taking the total weight of the bags as 58 quintals and the rate of wheat as Rs.710/- per quintal.  After the recovery of 20 bags i.e. 10 quintals of wheat, the amount of Rs.7,100/- is to be deducted from the total amount of Rs.41,180/-.  We are, therefore, of the opinion that the order passed by the ld. District Forum requires modification.

14.                   In view of the above discussion, we modify the impugned order dated 16.2.2011 and order that instead of Rs.41,180/-, the OP would be liable to pay Rs.34,080/- i.e. the price of 96 bags of wheat. The remaining directions as given by the ld. District Forum in the impugned order shall remain intact. 

15.                   In view of the above discussion, the present appeal is allowed in terms of the observations made above.  The parties shall bear their own costs. 

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

Pronounced.

14^th July, 2011

Sd/-

[JAGROOP SINGH MAHAL]

PRESIDING MEMBER

Sd/-

 [NEENA SANDHU]

MEMBER

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