STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. | : | 347 of 2011 | Date of Institution | : | 15.12.2011 | Date of Decision | : | 27.01.2012 |
United India Insurance Company Limited, Chandigarh through Sh. Anil Kakkar, Deputy Manager, Regional Office, SCO No.123-124, Sector 17-B, Chandigarh duly constituted attorney. ……Appellant/OP-1 V e r s u s M/s Sehar Castings, Plot No.373, Industrial Area, Phase-1, Chandigarh through its Proprietor Sh. Sameer Gupta, resident of House No.610, Sector 18-B, Chandigarh. …Respondent/Complainant Punjab National Bank, Branch Office, Sector 26, Chandigarh through its Manager. … Proforma Respondent/OP-2 Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: MRS. NEENA SANDHU, PRESIDING MEMBER. S. JAGROOP SINGH MAHAL, MEMBER. Argued by: Sh. R.K. Bashamboo, Adv. for the appellant. Sh. Rajesh Sood, Adv. for respondent No.1 Service of respondent No.2 dispensed with vide order dated 23.12.2011. PER JAGROOP SINGH MAHAL, MEMBER This appeal is directed against the order dated 18.11.2011, rendered by the ld. District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter referred to as the District Forum) vide which it allowed the complaint, filed by the complainant/respondent No.1, and directed OP-1/appellant as under :- “19. As a result of the above discussion, this complaint is accepted and the Insurance Company is directed to pay Rs.12,29,794/- to the complainant alongwith Rs.1,00,000/- as compensation and Rs.25,000/- as costs of litigation. 20. This order be complied with by the Insurance Company (OP No.1) within one month from the date of receipt of the certified copy, failing which, the Insurance Company shall be liable to pay the amount of Rs.13,29,794/- (Rs.12,29,794/- + Rs.1,00,000 as compensation) to the complainant along with interest @ 12% p.a. from the date of filing of the complaint till realization besides costs of litigation.” 2. The facts, in brief, are that the complainant firm obtained a burglary BP Policy for the sum assured of Rs.60 lacs, valid from 31.3.2009 to 30.3.2010, covering the risk of stock, raw material, semi finished and finished goods and also the machinery and the plant. On 23.3.2010 at 9.00 a.m., the proprietor of the complainant firm, Sh. Sameer Gupta received a telephonic call from one Sh. Ramesh, Die Casting Machine Operator, that gates of factory were open, locks were broken and security guard was not responding whereafter he immediately rushed to the insured premises and found the security guard lying in a pool of blood. An FIR No.51 dated 23.3.2010 was lodged with P.S. Industrial Area, Chandigarh in this regard and OP No.1 was also informed vide letter dated 23.3.2010. On checking the premises, it was found that stock of zinc raw material worth Rs.13-14 lacs approximately was stolen. The Insurance Company was informed that the exact details of the loss would be given on verification of stock and records etc. The OPs deputed M/s N.Kumar Surveyors Pvt. Ltd. as Surveyor to assess the loss and the complainant supplied all the requisite documents to the surveyor, who assured expeditious settlement of the claim. Even the untraced report was also submitted to the Insurance Company. However, OP No.1 vide letter dated 10.2.2011 repudiated the claim on illegal grounds. Thereafter, the complainant wrote various letters dated 17.2.2011, 8.3.2011 and 5.4.2011 seeking information and documents on the basis of which the repudiation was done. In response to the letters, OP No.1 vide their letter dated 8.4.2011 sent the investigation report dated 10.9.2010 without any documents. 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. OP No.1 in its reply raised various preliminary objections. On merits, the allegations and averments made in the complaint were denied. However, it was admitted that the complainant took the insurance policy in question, which was valid from 31.3.2009 to 30.3.2010. It was denied that the locks were broken or that the complainant-company was doing the business of purchase of zinc ingots or casting of zinc. It was pleaded that on receipt of the claim, M/s N.Kumar, Surveyor’s Pvt. Ltd. was appointed as Surveyor to assess the loss, who, after verifying the records, FIR and other relevant records, submitted his report in which he opined that the complainant had manipulated the record and that it was an afterthought action of the complainant-company in order to bring the loss within the scope of policy. It was further submitted that Capt. A.N.Chopra, Investigator also observed in his investigation report dated 10.9.2010 that there was no application of force in breaking open the main gate of the factory and that the same was opened by security guard. According to OP No.1, the claim was rightly repudiated vide repudiation letter dated 10.2.2011. 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. 4. OP No.2 filed its separate written statement and at the outset took preliminary objections that the complaint was not maintainable qua it and that it was unnecessarily put to litigation. On merits it was submitted that the stock, plant, machinery and accessories of the complainant were hypothecated and that loan of Rs.36 lacs and Rs.24 lacs was granted in the shape of CC. It was admitted that the complainant took the Burglary BP policy in question and that the loan account of the complainant stood adjusted as on date. All other averments made in the complaint were denied for want of knowledge. Pleading that there was no deficiency in service on its part, prayer for dismissal of the complaint was made. 5. Parties led evidence in support of their contentions. 6. After hearing the ld. Counsel for the parties and on going through the evidence on record, the ld. District Forum allowed the complaint, as stated above. 7. Feeling aggrieved, the instant appeal has been filed by the appellant/OP-1. 8. We have heard the ld. Counsel for the parties and have gone through the evidence on record of the case carefully. 9. The contention of the ld. Counsel for the OP/appellant is that it was liable to pay compensation only in case of burglary where theft is coupled with the use of force but, in the present case, no force was used and, therefore, the impugned order is wrong and liable to be set aside. According to him, the chowkidar of the complainant was mixed up with the assailants who allowed them entry into the premises and thereafter there was some altercation between them on sharing of the stolen property. This contention was not accepted by the ld. District Forum and we also are not inclined to accept the same. There is no evidence produced by the OP/appellant to prove that the chowkidar of the complainant/respondent was mixed up with the assailants or voluntarily opened the main gate. There is also no evidence if the dispute arose with respect to sharing of the stolen property and not regarding the protection of the premises by the chowkidar. When the police reached the spot, it noticed that the locks of the zinc store and office had been broken. As per the recovery memo dated 26.3.2010, the police took three broken locks in their custody. What the facts emerge are that during the course of committing this burglary, the miscreants committed the murder of the chowkidar regarding which a murder case was registered. It is, therefore, proved that the chowkidar was murdered and the locks of the store and office were broken in committing the theft of the property which falsifies the contention of the ld. Counsel for the appellant/OP that no force was used to commit the theft. It was a clear cut case of burglary in which the OP/appellant cannot escape its liability on any such technical grounds. 10. The ld. Counsel for the appellant/OP has then contended that as per the evidence, only a small vehicle was used which could not carry away 10 tonnes of zinc from the factory premises. According to him, the estimate of loss given by the complainant is highly exaggerated and, therefore, the same cannot be allowed. Again we do not find any merit in this argument. One thing is clear that there was no eye witness to this occurrence, except the chowkidar who has already been murdered. It is, therefore, only a guess work of the ld. Counsel that a small vehicle was used to carry away the stolen property. Nobody knows as to how many rounds the said vehicle had made and how many vehicles had been used to take away the said property from the insured premises. It, therefore, cannot be decided on surmises and conjectures that only one small vehicle was used or that the same would have carried away a very small weight or quantity and not the one as alleged by the complainant 11. The OPs appointed a surveyor to assess the loss. The surveyor examined the record maintained by the complainant and as per his report (Annexure R-2) dated 8.11.2010, came to the conclusion that the damages were quantified at Rs.12,29,794/-. There is no evidence, produced by the OP, to prove if the loss was of lesser amount. We, therefore, cannot say, without any basis, that the damage to the extent of Rs.12,29,794/- was not caused in the said burglary. 12. The ld. District Forum has dealt with all the aspects of the case in detail. We do not find any material from the side of the OP to assail any of the findings recorded by the ld. District Forum. We are, therefore, of the opinion that there is no merit in this appeal and the same is accordingly dismissed with litigation costs of Rs.10,000/-. 13. A sum of Rs.25,000/- was deposited by the OP at the time of filing this appeal and a sum of Rs.6,60,988/- was deposited on 6.1.2012 in the District Forum-I in pursuance of the order dated 23.12.2011 passed by this Commission. The aforesaid amount was ordered to be deposited in the shape of FDR carrying interest. After the expiry of the period for filing the revision, the aforesaid amount of Rs.25,000/- and Rs.6,60,988/- alongwith interest, if any accrued thereon, shall be paid to the complainant/respondent No.1 in partial satisfaction of their claim, in case no stay order is received. Copies of this order be sent to the parties free of charge. Pronounced. 27th January, 2012 Sd/- [NEENA SANDHU] PRESIDING MEMBER Sd/- [JAGROOP SINGH MAHAL] MEMBER
| | HON'BLE MR. JAGROOP SINGH MAHAL, MEMBER | HON'BLE MRS. NEENA SANDHU, PRESIDING MEMBER | , | |
