JUDGMENT

                                                              13.1.2010

Justice Pritam Pal, President

1.         This appeal by opposite party i.e. Oriental Insurance Company Ltd.     is directed  against the order dated 8.8.2001  passed by District Consumer Forum-Narnaul    whereby    complaint  case No.102 of 1997  filed by  respondent (complainant)  was   allowed  in the following terms ;

 “In view of the foregoing discussion the complaint succeeds and it is accepted and the opposite parties are directed to pay jointly and severally a total sum of Rs.1,47,600/-  to the complainant alongwith interest at the rate of 9% per annum  from the date of filing of  complaint till the date of realization. ”   

2.           The parties in this judgment hereinafter shall be referred to as per their ranking before the District Forum.

3.             In nutshell, the facts culminating to the commencement of this appeal may be recapitulated thus;

  The complainant M/s Krishna Gas Agency  was a proprietorship firm running a gas agency in Narnaul and its godown was situated in Mohalla Salampura, Narnaul where the empty and filled gas cylinders were stored.  The stock of gas cylinders lying at its godown was got insured by the complainant for the period from 7.7.1996 to 6.7.1997 for a sum of Rs.75,000/- against the risk of burglary and other types of risks.    The cover note was issued on 6.7.96 after the payment of requisite premium.  As per the stock of complainant, OP advised on 10.8.96 for enhancement of the amount of sum assured from Rs.75000/- to Rs.4,11,000/- for which additional premium vide cheque dated 10.8.96 was paid  and cover note was issued on 12.8.96. During the night of 12/13.8.96 a burglary took place during which 82 empty gas cylinders  lying in the godown were stolen.  The matter was reported to the police and FIR No.348 dated 13.8.96 was registered in the police Station, Narnaul.  The incident was also reported to the insurance company upon which Sh.Anil Juneja, surveyor was appointed on 19.8.96  to assess the loss who inspected the godown and asked for the list of cylinders and final report from the police. The complainant was gas dealer of Bharat Petroleum Corporation which assessed the loss at Rs.1,47,600/- and the said amount had to be paid by the complainant as  price of the stolen cylinders to the company. The complainant after completing all the formalities and supplying the requisite documents requested the insurance company to indemnify the loss amounting to   Rs.1,47,600/- but OP sanctioned the claim  only for Rs.6519/-.  Hence, alleging deficiency in service on the part of OP, complainant filed complaint before the District Consumer Forum seeking the claim of Rs.1,47,600/- alongwith interest and compensation etc.  

4.         On the other hand, the case of OP before the District Consumer Forum was that   upon receiving information from the complainant about the theft of cylinders, Sh.Anil Juneja  surveyor was appointed  who assessed the loss at Rs.6519/-  which was sanctioned. It was denied that the complainant got enhanced the insurance cover from Rs.75,000/- to Rs.4,11,000/- and infact the insurance cover was never increased. The complaint of the complainant was stated to be false and frivolous as the requisite documents were not produced. It was pleaded that complainant was not entitled to any relief and a prayer was made for dismissal of the complaint. 

5.         Parties adduced their  respective evidence before the District Forum wherein complainant relied upon the copy of cover note PW1/A, affidavit of Satish Kumar Ex.P-2, Copy of FIR Ex.P-3, letter from Bharat Petroleum Corporation Limited Ex.P-4, final report from the police  Ex.P-5 and copy of cover note Ex.P-6. Some more documents which were allowed to be produced in additional evidence were statement of account Ex.Px, certificate from State Bank of Patiala Ex.PY, report from SHO, P.S.Sadar Narnaul Ex.Pz and another certificate from Punjab National Bank, Narnaul Ex.Py/1. On behalf of OP copy of letter ex.R-1, report of surveyor Ex.R-2, copy of intimation letter Ex.R-3, copy of cover note Ex.R-4 and copies of cover notes Ex.R-5 & R-6 were tendered  into evidence.

6.         The  District Consumer Forum after going through the  evidence   and  material brought on record and hearing counsel for the parties, allowed the complaint as indicated in the opening part of this judgment.  This is how feeling  aggrieved against the said order,  opposite party- Oriental Insurance Company      had filed   appeal before  the Haryana State Consumer Commission which has   been transferred to this Commission under  the directions of Hon’ble National Commission.

7.         In this case today i.e. 12.1.2010  was the last opportunity  for hearing arguments.  However, despite taking up the case twice none appeared on behalf of the parties, so, the case was kept for 13.1.2010  for pronouncement of the order after going through the file on merits. Sh.D.C.Kumar, advocate had appeared after the case was reserved for orders. We have now gone through the file carefully and have also perused the entire material placed on file of the District Forum. There are only two crucial points to be gone into.  The first point is as to whether the cover note for increasing the sum insured to cover the burglary and other types of risks is of dated 12.8.96 or  13.8.96 ? The second crucial point is as to whether the amount of Rs.1,47,600/- on account of theft of 82 empty gas cylinders is on the higher side ?

8.         We have given our thoughtful consideration to the aforesaid two clinching points which go to the root of this case. No doubt the original cover note was not produced by the complainant before the District Forum or before this Commission but at the same time it was also incumbent upon OP to plead in its written statement that there was interpolation or cutting in regard to the date which was shown to be 12.8.96 on the cover note or that the date was 13.8.96 instead of 12.8.96. Instead of raising any such kind of plea in the written statement  regarding the exact date  of enhancement of insured sum of cover note, OP in  para-3 of its written statement  simply denied the fact that the insurance cover was ever raised. Moreover, it never came up with the plea before the District Forum that the premium was paid afterwards or that the cover note was manipulated.  Now all these pleas regarding interpolation of date appear to have been taken afterthought.

9.         Here it would also be pertinent to reproduce the observations of learned District Forum contained in paras 7 & 8 of its impugned order which read as under ;

“(7)One witness namely Ranjit Singh Assistant of the opposite party     No.2 was produced in evidence and he stated that the cheque for    the increased premium bore the date 10.8.1996. It was received in      the office on 13.8.1996 and was deposited in the bank on    14.8.1996. The cover note was issued by the Development             officer, Sh.Subhash Chaudhary.

(8) Said Subhash Chaudhary being the author of cover note in question was the person who could depose whether there was any cutting or not but he has rather been withheld and not produced by the other parties which inevitably leads to an inference adverse against the said party withholding the evidence. It also calls for pointed notice that cheque bore the date 10.8.1996. It means that the complainant had already made up his mind to get the insurance cover increased and it had already issued the cheque which was eventually handed over to the office of the opposite parties on 12.8.1996. As regards the theft, the matter was reported to the police and FIR copy of which is Ex.P-3 was registered. The case however went untraced as evidenced by reports Ex.p-5 and Ex.PZ.”

10.       Now adverting to the second clinching point of this case pertaining to the assessment of loss on account of theft committed in the godown of the complainant. In this regard the cost of 82 empty gas cylinders of Bharat Petroleum Corporation is proved to have been duly assessed at Rs.1,47,600/-. In that behalf, there is  a certificate from the  State Bank of Patiala regarding payment of remaining amount of Rs.47,600/-  besides the amount of Rs.one lac which was also paid through ten cheques as mentioned in the statement of account Ex.Px.  This evidence adduced by the complainant before the District Forum for assessing the exact loss has gone unrebutted  on the file.

11.       In this view of our foregoing discussion, we find nothing wrong with the impugned order dated 8.8.2001 so far as  indemnifying the complainant for the loss sustained on account of theft of 82 empty gas cylinders to the tune of Rs.1,47,600/- is concerned.  However, rate of interest @ 9% p.a. from the date of filing of the complaint till the date of realization appears to be on the higher side. We feel that rate of interest should be reduced from 9% to 7% p.a. We order accordingly. But for this modification qua the rate of interest, this appeal is hereby dismissed, leaving the parties to bear their own costs. 

             Certified copies of this order be communicated to the parties, free of charge. The file be consigned to records.