BEFORE THE MANDYA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANDYA PRESENT: 1. SIDDEGOWDA, B.Sc., LLB., President, 2. M.N.MANOHARA, B.A., LLB., Member, 3. A.P.MAHADEVAMMA, B.Sc., LLB., Member, ORDER Complaint No.MDF/C.C.No.36/2009 Order dated this the 22nd day of September 2009 COMPLAINANT/S Sri.Jayanthilal M. Lapasia S/o Mothilal Lapasia, Partner, M/s Ganesh Trading Corporation Branch Office Cum Godown, D-2/1125/1774/ 4406/10-C, 1st Cross, Bandigowda Layout, Mandya 571 401. (By Sri.B.A.Vijay., Advocate) -Vs- OPPOSITE PARTY/S 1. The Manager IC & LM, ICICI Lombard General Insurance Co., Ltd., SVR Complex 2nd Floor, 89, Hosur Road, Bangalore 68. 2. Sri.Shashikumar S/o Late Siddaramaiah, R/o Kempegowda Beedi, Old Town, Mandya. (By Sri.M.E.Madhusudhan., Advocate) Date of complaint 03.04.2009 Date of service of notice to Opposite parties 20.04.2009 Date of order 22.09.2009 Total Period 5 Months 2 Days Result The complaint is allowed partly, directing the 1st Opposite party to pay sum of Rs.16,23,008/- with interest at 9% p.a. from the date of complaint with cost of Rs.5,000/- to the Complainant within two months from the date of order. Sri.Siddegowda, President 1. This complaint is filed under section 12 of the Consumer Protection Act, 1986 against the 1st Opposite party claiming insurance amount of Rs.16,23,008/- with interest at 18% p.a. and compensation of Rs.2,00,000/- lakhs with costs. 2. The brief facts of the complaint are as follows:- The Complainant is one of the partners of M/s Ganesh Trading Corporation having its office at Belgaum and it deals with purchase and selling of chemical commodities which is being mainly used for the purpose of manufacturing of jaggery, having its branch office cum godown at D 2, 1st Cross, Bandigowda Layout, Mandya to sell the chemical commodities in and around Mandya and Bangalore Districts. One Sri.B.N.Balaji, has been appointed as Manager to look after the entire affairs of the Branch at Mandya. The chemical commodities being kept in the designated godown premises at Mandya branch office are worth of lakhs of rupees. The 1st Opposite party Insurance Company has issued insurance policy covering the risk up to Rs.30,00,000/- for theft burglary and fire for the chemical commodities kept in the godown premises Mandya for a period from 21.06.2007 up to 20.06.2008 vide policy No.4002/0024220 at the instance of its agent 2nd Opposite party. The Manager of GTC Mandya, has verified the stock of chemical goods as usual on 06.09.2007 in the evening and the godown was properly locked and again verified the stock on 07.09.2007, but no business transaction was carried out from 06.09.2007 to 10.09.2007 as there was no order or demand from any customers and Manager had locked all the locks of the godown premises properly on 07.09.2007 and he went home. Only on 10.09.2007 at about 6.45 p.m. the Manager went to the godown after receiving the orders from the customers for giving delivery of the chemical goods and at that time the Manager noticed with surprise that the lock of the godown door were broken and scattered and door lock was also opened by damaging and door also opened partly. Immediately the Manager has witnessed that some of the chemical goods were not found and some of the chemical goods were scattered here and there inside the godown premises. The Manager, immediately contacted the Complainant who was at Bombay through telephone and appraised regarding burglary and theft of chemical goods. The Manager has immediately intimated the 2nd Opposite party over phone on 10.09.2007 itself regarding the theft of chemical goods and 2nd Opposite party immediately visited the premises and intimated the same to the 1st Opposite party Office at Mysore and Opposite party has registered the complaint on 10.09.2007 as per vide no.BA 0001097. The Manager has deputed a special watch and ward in the presence of 2nd Opposite party, in addition to the Gurka who was regularly making night gasth in that extension. The Manager has verified the chemical goods and listed the goods that were stolen and goods remaining in the godown and the 2nd Opposite party also prepared the list on 10.09.2007. Hence, from 10.09.2007, the business completely stopped till the police complaint is lodged. The Complainant due to his busy schedule had rushed to Mandya from Mumbai on 14.09.2007 and witnessed the scene of the occurrence and later the Complainant and the Manager went to the police station at Mandya and lodged the complaint on 14.09.2007 and the west police Mandya had registered Crime No.155/07 and police visited the godown premises on the same day and drew spot mahazar and seized some articles and after further investigation they have submitted C report before the concerned Court, Mandya. In the meantime, the Opposite parties visited the godown premises and taken the copies of all the documents and instructed the Complainant to obtain claim form and accordingly, the Complainant submitted claim form on 24.09.2007 with police papers and other necessary records and requested the 1st Opposite party several times for settlement of claim, but in vain. At last the 1st Opposite party sent a letter dated 09.06.2008 to the Complainant raising certain untenable clarifications. The Complainant submitted suitable reply with clarification dated 19.06.2008 to the Opposite party, but still the 1st Opposite party has not settled the claim. Therefore, he got issued legal notice dated 09.07.2008 for which 1st Opposite party has not sent any reply. The 2nd Opposite party is a formal party. The act of the 1st Opposite party in not settling the claim amounts to deficiency in service. The Complainant has sustained not only pecuniary loss, but also put to mental agony and strain as he has to ransack all the way from Mumbai to Bangalore and Mandya several times due to the negligent act of the 1st Opposite party. The value of the stolen chemical commodities is Rs.16,23,008/- as per the details in the complaint. Therefore, the present complaint is filed for the above reliefs. 3. The 1st Opposite party has appeared after service of the notice and has filed version. The Opposite party has denied all the allegations made in the complaint as absolutely false and created story to make claim against the Opposite party. It is contended that as a common prudent man, if really the theft was occurred, definitely the said fact would have been intimated to the nearest police station at the first instance and then to this Opposite party, the attitude of the Complainant in intimating the Opposite party instead of police clearly goes to show the intention of the Complainant to claim against the Opposite party by creating the documents. There is no documentary evidence to show that the goods were lost and the so called list prepared is according to their will and wish. In the complaint before the police, the loss of goods is shown as Rs.13,00,000/-, but in the present complaint, the loss of goods is at Rs.16,23,008/- and hence it is created. Further, the claim is made within 3 months from the date of issue of the policy. The intention of obtaining the policy is only to make false claim. No precautionary measure were taken by the Complainant by way of hiring the security to safeguard the goods alleged to have been stored in the godown, this is clear violation of the policy condition. The stock loss listed before the police is around about 20 tones. It is highly impossible even to imagine that such a huge quantity of stock was removed by the thieves that to in a residential area. Without the help of 10 to 20 labours and atleast two Lorries it is not possible to remove such a huge quantity of stock. The concerned police also at the instance of the Complainant and high influence registered the F.I.R. and done the formalities and the Complainant caused to file C-report in collusion with the police. It is reliably come to knowledge of the Opposite party that no such theft was caused, the adjacent owners, residents have clearly stated to that effect. According to the stock register maintained by the Complainant trading corporation, there is no sign of theft or loss of stock and hence, the question of claim against the Opposite party does not arise. The claim made by the Complainant is fraud and illegal, based upon the concocted documents only and the claim of the Complainant is not genuine one and the question of deficiency in service or mental agony, stress does not arise at all. Therefore, the complaint is liable to be dismissed with costs. 4. During trial, the Complainant and the Manager are examined as C.W.1 & 2 and the Complainant has produced the documents Ex.C.1 to C.30. The Opposite party examined three witnesses and produced the documents Ex.R.1 to R.7. 5. We have heard both the sides. 6. Now the points that arise for our considerations are:- 1. Whether the Complainant proves that the burglary, theft of chemical commodities worth of Rs.16,23,008/-? 2. Whether the Opposite party has committed deficiency in service? 3. Whether the Complainant is entitled to the relief sought for? 7. Our findings and reasons are as here under:- 8. POINTS NO. 1 TO 3:- The undisputed facts borne out from the materials on record are that the Complainant is dealing with chemical commodities used for the purpose of manufacturing of jaggery at Belgaum and also branch office cum godown at Mandya, in view of Ex.C.2 and the Complainant is a partner of the firm as per Ex.C.3, C.4, C.5 and further, the Complainant has taken the insurance policy from 1st Opposite party for Rs.30,00,000/- valid from 21.06.2007 to 20.06.2008 for the branch office godown at Mandya as per Ex.C.9 and C.10 and this policy is subject to the terms and conditions of the Burglary Insurance Policy. 9. According to the Complainant, P.W.2 is the Manager who is looking after the business in the Office cum godown at Mandya as per letter Ex.C.22. According to the Complainant, in the evening of 06.09.2007, P.W.1 locked the godown and again on 07.09.2007 he verified the stock and locked went home and he did not visit the godown from 07.09.2007 to 10.09.2007, since there was no order from the customers and only on 10.09.2007 at about 6.45 p.m. received the call of orders and therefore, he went near the godown and found the lock was damaged and the door was opened partly and the chemical commodities was found scattering and some chemical commodities were missing. Immediately he informed the same to the Complainant over phone and 2nd Opposite party and the burglary theft was intimated to 1st Opposite party and as per the advise of the Complainant, P.W.2 Manager waited and the Complainant came on 14.09.2007 to Mandya and inspected the premises and lodged a complaint to the police about the theft of chemical commodities and according to the Complainant, there was theft of chemical commodities and the police registered the complaint and drew a mahazar and after inspection they could not trace the stolen articles and later they submitted C report and the Complainant has produced the list of commodities stolen with value. 10. The Opposite party Insurance Company has denied the burglary theft of chemical commodities as stated by the Complainant and according to the Opposite party, it is a false claim by creating documents in collusion with the police with high influence and it is further contended that the godown is in the residential area and the persons residing adjacent to the building and infront of the building have stated that no such incident took place and there is a delay of four days in lodging a complaint and there is difference of value of the stolen materials wherein in the stolen commodities worth of Rs.13,00,000/- were stolen as per police complaint, but in the complaint, the value of the stolen commodities is worth of Rs.16,23,008/-. 11. Admittedly, the Complainant is residing at Bombay and the evidence clearly proves that the P.W.2 is the Manager of the Branch at Mandya and looking after the affairs of the Branch Office cum godown at Mandya. The evidence clearly proves that on 10.09.2007, the fact of theft was intimated to the Opposite party and Ex.R.6, the letter of Opposite party to the Complainant proves that the claim was registered on 10.09.2007, claim bearing No.BA 0001097 relating to burglary. In this letter, the Opposite party has sought for two clarifications. To prove the theft of commodities, the Complainant has relied upon the police complaint Ex.C.6 and the mahazar Ex.C.7, C report Ex.C.8 and Ex.C.17 to C.19 the stock before theft and after theft and the details of the stolen stock. 12. According to the Opposite party, after information furnished about the theft, they deputed a surveyor i.e., Cunningham Lindsey International Pvt. Ltd., Bangalore and the General Manager visited the spot on 17.09.2007 and made enquires and submitted report Ex.R.7. To prove the same, the Opposite party has examined R.W.3 Sathindar Kumar, he has produced this report Ex.R.7, but the author of this report is not examined. He recommended that it is doubt to believe that two metric tones were stolen in one incident and recommended to appoint an independent investigator. The Complainant has disputed this report. Thereafter, according to the Opposite party, they appointed a investigator and the investigator has submitted report Ex.R.1. to prove the same, R.W.2 Mr.Prasanna, Investigator is examined by the Opposite party. According to him, through E-mail, he was directed to investigate the claim of the Complainant about theft. In the cross-examination has admitted that the Opposite party did not furnish any documents to him for investigation. Further, he deposed that the date of inspection by him, is not mentioned in the report Ex.R.1. He further deposed that he has drawn the mahazar, but he has not furnished the mahazar to the Complainant nor annexed with the report Ex.R.1. In what manner he conducted investigation, he has not deposed by him, except stating that the godown is a residential outhouse and there is a residential house adjacent to the alleged godown, the vehicles cannot come near the godown to remove the huge stock from the godown. According to him, he enquired the adjacent residents including one Sri.Dinesh, who is resident of main house and one Dr.Sayeed Anwar Ulla, who is residing on the top of the godown and they stated that theft no incident took place and they are not aware of any theft. According to him, he has obtained the certified copy of the stock register. Admittedly, this investigator has not recorded the statements of Dinesh or Sayeed Anwar Ulla who are residents of the adjacent houses. The Opposite party has not examined them before this Forum, to prove that they have stated that no theft took place in the godown. According to him, he has not seen the police records and nor attempted to obtain the police documents. The surveyor or investigator have not verified the purchase invoices made by the Complainant and the sales invoices and verified with the stock register, to actual assess whether there was chemical commodities as complained by the Complainant. The main grounds is that there was no signs of theft in the premises by force and without assistance of 10 to 20 labours and vehicle to transport nearly two tones of commodities, without notice of other neighbours is impossible and there is a delay of lodging the complaint and there is difference of value of the stolen commodities in the complaint before the police to that of amount claimed in this complaint and further, the defence is that the stock register does not prove the theft. 13. Now, with regard to the delay in lodging the complaint, the Complainant has given proper answer. The evidence proves that P.W.2 is the Manager looking after of the affairs of the office cum godown at Mandya and the Complainant is residing at Bombay. The evidence also proves that the P.W.2, the Manager on 10.09.2007 in the evening noticed the breaking of the locks of the door and partly opened door and scattering of materials and missing of materials and immediately informed the Complainant and also 2nd Opposite party and in the presence of the Manager, 2nd Opposite party informed the Insurance Company and it is proved by the letter of the Opposite party that on 10.09.2007 itself the intimation of theft was registered as per Ex.R.6 and the evidence of P.W.2 that 2nd Opposite party was present and in his presence they prepared the list of stolen articles is not disputed by examining 2nd Opposite party, the Agent of the Opposite party Insurance Company. P.W.2 has immediately intimated the Complainant through phone and Manager waited as per the instructions of the Complainant from Bombay and locked the door and kept watch and ward and from Bombay the Complainant came on 14.09.2007 and the Manager lodged the complaint to the police as per Ex.c.6 and police registered Crime No.155/07 for the offence of 454, 457 & 380 of IPC and drawn a mahazar Ex.C.7 and the details of the stolen articles were given. Though in the complaint, the value is mentioned as Rs.13,00,000/-, but on calculation, the Complainant is filed for actual cost of the stolen commodities. Admittedly, the police have submitted C report. Merely, because within 3 months C report is filed by police, it cannot be doubted, accepting the contention that the police in collusion with the Complainant have filed the C report by registering a false complaint. When the Opposite party got conducted investigation by appointing a survey of the insurance and investigation report through investigator, nothing prevented the Opposite party to file a petition to the concerned police station that their investigation revealed false complaint of theft and to initiate action against the Complainant for lodging a false complaint. Even they have not filed any private complaint against the Complainant before the Court complaining the lodging of a false complaint before the police. Further, the Opposite party did not reply to the Complainant about his claim and at a later stage sought for some clarification, in spite of clarification given by the Complainant as per Ex.C.15 in response to the letter of Opposite party as per Ex.R.7, the Opposite party did not either rejected the claim nor intimated any action taken after investigation and further in spite of the legal notice Ex.C.16, the Opposite party kept quiet without replying this claim of the Complainant. There is no explanation as to why the Opposite party did not consider the claim of the Complainant and did not repudiate the claim. If actually their investigation revealed that theft claim is bogus one, nothing prevented the Opposite party to repudiate the claim on the basis of materials collected by them. Further, inspection by surveyor and investigation by an Investigator their report is not whispered by Opposite party in its version at all. For the first time only in Opposite party evidence, Opposite party produced those reports and examined them, there is no explanation for not pleading the same in version and so it is a after thought theory of Opposite party. Under these circumstances, there is no reason to disbelieve the version of the Complainant and police records about the burglary and theft of commodities as stated by the Complainant. 14. The contention that the stock register entries do not show the fact of theft of the commodities mentioned in the complaint. Of course, the Opposite party has collected the copies of the stock register as per Ex.R.2 and the original stock book as also produced as per Ex.C.25. The Complainant has admitted that after 10.09.2007, the transaction is shown and they have not mentioned the stock of the stolen property in the stock register Ex.R.2. The explanation of the Complainant is that after 30.09.2009 they entered the quantity of stolen articles in stock register Ex.C.25, because they were waiting that police would trace the articles and the entry was made in the stock register about the theft in order to submit the sales to the Commercial Department. In fact, the Complainant as per Ex.C.21 has informed the Local Vat Officer, Belgaum about the theft of commodities and this Ex.C.21 letter was submitted to the Vat Office on 19.10.2007 and further while submitting the returns to the Income Tax Authority, in Ex.C.20 the cost of stocks stolen is also mentioned. When the Opposite party Investigator or Surveyor have not verified the purchases made by the Complainant and sales made to verify whether the stock mentioned in the stock register is correct or not, there is no reason to suspect the stock mentioned in the stock register, in order to contend that the Complainant has obtained the policy only in order to make a false claim reporting false theft. In the stock register Ex.C.25, the Complainant has put signature after the theft incident and a line is left blank without making entries of the transaction and after 24.09.2007 transaction has been done after the police mahazar and only after 30.09.2007 the theft stock is mentioned in Ex.c.25 in order to submit the same to the Commercial Tax Office and Income Tax Office. It cannot be accepted that all the documents are created just to put-forward a false claim. The contention that the Complainant and the Manager have given the statement as per Ex.R.4 & 5 is disputed, but these documents did not find a place in the version of the Opposite party at all and these two documents are not confronted to the witnesses at all. Only at the time of evidence of the Opposite party, these documents are produced without confronting to the author of the documents. In the cross-examination of the witnesses, these documents are denied and even perusal of the signatures are doubtful to believe. Even conducting survey by a Surveyor or the investigation by Investigator is not pleaded in the version at all and it is not mentioned in the version on what basis Opposite party has contended that the theft pleaded is false. The contention that it is not possible to accept that at a time nearly two tones of chemical commodities by employing 10 to 20 labours and a lorry took place without coming to notice of the neighbours is not acceptable, because even present days theft takes place in so many ways without coming to the knowledge of the neighbours even in huge quantity, we have heard the instance of theft about steel, cement, grains bags in large quantity. It is proved by the police report and the evidence of P.W.2 Manager that the door was opened by breaking the lock and also opening door lock by same means and police have seized the broker lock. Under these circumstances, the Complainant has proved the theft of chemical commodities worth of Rs.16,23,008/-. 15. Admittedly, the fact of burglary was intimated to the Opposite party Insurance Company on 10.09.2007 itself and claim petition was submitted along with police reports and documents on 24.09.2007 and only on 09.06.2008 after lapse of 9 months, the Opposite party sought clarification as per Ex.C.14 and the Complainant has sent clarification admittedly as per Ex.C.15 on 19.06.2008. In spite of it, the Opposite party has not at all considered the claim of the Complainant and did not take any decision to settle the claim at all. What made the Insurance Company to keep quiet without deciding the claim of the Complainant is best known to the Opposite party. In spite of legal notice Ex.C.16 dated 09.07.2008, the Opposite party did not care to consider the claim of the Complainant and did not intimate anything about the result of his claim. Therefore, the Opposite party has committed deficiency in service without settling the claim in spite of the proof of theft of the commodities covered by the insurance policy admittedly. On perusal of the stock register by comparing with the purchase vouchers and the police complaint and mahazar and list of stock before theft and after theft clearly established that chemical commodities worth of Rs.16,23,008/- were stolen and the Opposite party is bound to reimburse the same in view of the policy. 16. The Complainant has sought for interest at 18% p.a. and also compensation of Rs.2,00,000/- by way of damages. When the Complainant has sought for interest he is not entitled to compensation by way of damages. It is reasonable to award interest at 9% p.a. from the date of complaint only and not the compensation. 17. In the result, we proceed to pass the following order; ORDER The complaint is allowed partly, directing the 1st Opposite party to pay sum of Rs.16,23,008/- with interest at 9% p.a. from the date of complaint with cost of Rs.5,000/- to the Complainant within two months from the date of order. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 22nd day of September 2009). (PRESIDENT) (MEMBER) (MEMBER)
