STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 10.06.2015/13.12.2017
Date of hearing after remand: 12.12.2023
Date of pronouncement: 07.02.2024
CONSUMER COMPLAINT NO. 822 of 2017 in CC No. 101 of 2015
IN THE MATTER OF: -
M/s Vijendra Stores, 118-120, New Grain Market, Jagadhri, District Yamuna Nagar, Haryana through its proprietor Shri Vijender Gupta.
.....Complainant
Versus
- The New India Assurance Company Limited having its Branch Office at 5406, Cross Road No.3, Punjabi Mohalla, Ambala Cantt, Haryana-133001.
- Universal Sompo General Insurance Company Limited having its office at Soulstice Building, Plot No.52, Ground Floor, Block B, Sector 44, Gurgaon, Haryana-122003.
…..Opposite Parties
CORAM: Sh. Naresh Katyal, Judicial Member
Argued by:- Sh. Vishal Gupta-complainant in person along with Sh. Rohan Mittal, counsel for complainant.
Sh. Nitin Gupta, counsel for opposite party No.1.
Sh.Pradeep Kumar, counsel for opposite party No.2.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
Complainant instituted complaint (Complaint No. 101 of 2015) before this Commission on 10.06.2015. It was allowed on 19.05.2017. OPs-two insurance companies were directed to pay Rs.21,34,450/-, in equal shares, to complainant with interest @9% p.a. from date of filing of complaint, till realization. Complainant was granted compensation of Rs.25,000/- on account of harassment and mental agony and Rs.10,000/- towards litigation expenses.
2. Legality of order dated 19.05.2017 was questioned by New India Assurance Company Ltd. by way of Appeal No. 2280 of 2017 filed before Hon’ble National Consumer Disputes Redressal Commission, New Delhi. Against order dated 19.05.2017 of this Commission; Universal Sompo General Insurance Company Ltd. also filed its separate Appeal No. 1622 of 2017 before Hon’ble National Consumer Disputes Redressal Commission, New Delhi. Both these appeals were allowed vide order dated 20.11.2017. Impugned order dated 19.05.2017 of this Commission was set aside. Matter was remanded back to this Commission to decide complaint afresh, within six months of parties appearing before this Commission, after taking evidence in terms of order dated 20.11.2017.
3. On receipt of matter to this State Commission for its fresh decision; complaint has been registered as CC No. 822 of 2017 and it was put before this Commission on 03.08.2018, after remand.
4. Significantly, Hon’ble National Consumer Commission has observed as under in paras No. 2 to 5 of its order dated 20.11.2017:-
“2. It transpired during the course of hearing that though the theft allegedly took place in the night intervening 16th/17th February 2014, the balance sheet for the financial year 2012-13 was not produced, before the State Commission. The closing stock at the end of the financial year 2012-13 becomes the opening stock for the financial year 2013-14. In order to find out the value of the stolen stock, firstly the purchases made between 01.04.2013 to 16.02.2014 have to be added to the opening stock as on 01.04.2013 and the sale made during the aforesaid period has to be deducted therefrom. The value of the stock available in the shops of the complainant after the theft would then have to be deducted out of the amount arrived at in the aforesaid manner. The balance amount would represent the value of the stolen goods. It is an admitted position that neither the invoices of purchases made from 01.04.2013 to 16.02.2014 nor the copies of the sale invoices in respect of the sale made during 01.04.2013 to 16.02.2014 were produced before the State Commission. The complainant agrees to produce the aforesaid record before the State Commission, though his case is that the said record was duly handed over to the surveyors of the insurers. The appellants shall also produce the whole of the record delivered by the complainant to their respective surveyors before the State Commission.
3. Since there is no evidence of Shop No.11 being in the use of the complainants on the date of the theft, the State Commission need not go into the question as to whether any such shop was in the occupation and use of the complainant or not, and if so, during which period.
4. It also transpired during the course of hearing that though the case of the complainant is that the CCTV footage was handed over by him to a police officer namely Prithvi Singh who was investigating a case registered vide FIR No.88 of Police Station Jagadhri dated 17.02.2014, neither the affidavit of the aforesaid police officer was filed nor he was produced as a witness. The CCTV footage admittedly, was not made available to the surveyors. The State Commission therefore, needs to summon the aforesaid police officer in order to verify whether the CCTV footage of the night intervening 16th/17th February 2014 was made available to him by the complainant or not. If the CCTV footage was made available to the above referred police officer, he will be asked to deposit it with the State Commission and the copy of the CCTV footage shall be made available to the parties to make their submissions in the light of the CCTV footage. If the police officer denies having received the CCTV footage from the complainant, it will be open to the State Commission to draw an adverse inference against the complainant on account of his having made a false statement before this Commission.
5. For the reasons stated hereinabove, the impugned order is set aside and the matter is remitted back to the State Commission to decide the complaint afresh after taking evidence in terms of this order. The State Commission shall decide the complaint afresh within six months of the parties appearing before it. The parties shall appear before the concerned State Commission on 03.01.2018. The appeals stand disposed of.”
5. Before adverting to the proceedings of complaint No. 822 of 2017 conducted before this Commission, hence after remand of matter, it would be apt to state following facts of complaint:-
(a) Complainant M/s Vijendra Stores, a partnership firm, deals in different products of ITC Limited and Reckkit Benckiser India Limited and running its business in New Grain Market, Jagadhri, District Yamuna Nagar, for last more than seven years. Since 2007, complainant-firm used to purchase insurance policies every year from The New India Assurance Company Limited and was provided insurance policy bearing No.35350146130100000103 from July 13th, 2013 to July 12th, 2014 (Exhibit C-1 of original complaint No. 101 of 2015) covering theft and burglary mentioning sum assured as Rs.42.00 lacs by opposite party No.1 – The New India Assurance Company Limited. Similarly, considering increase in valuation of stock; complainant obtained second insurance policy bearing No.35350146130100000284 (Exhibit OP-14 of original complaint No. 101 of 2015) from same Insurance Company-Opposite Party No.1 of period from December 31st, 2013 to December 30th, 2014 covering burglary mentioning the sum assured as Rs.30.00 lacs. Thereafter, complainant-firm got enhanced its working capital limit from Allahabad Bank; got major portion of its stock insured with Universal Sompo General Insurance Company Limited-Opposite Party No.2, vide insurance policy No.2913/52132723/01/000 dated March 18th, 2013, (Exhibit C-2 of original complaint No. 101 of 2015) of period from March 20th, 2013 to March 19th, 2014 mentioning total sum assured as Rs.1,35,00,000/-. This insurance policy also covered theft and burglary of existing stock.
(b) Business premises of complainant firm/shop No.118 to 120 remained closed on February 16th, 2014 being Sunday. On February 17th, 2014 it came to notice of Vajender Gupta-Proprietor of firm that theft has been committed in business premises of complainant-firm by breaking locks and shutter. Information was sent to Police, as well as, to opposite parties No.1 and 2-both Insurance Companies on same day. Criminal case was registered under F.I.R. No.88 (Exhibit C-3 of original complaint No. 101 of 2015) on February 17th, 2014 at Police Station City Jagadhri, under Sections 457, 380 of Indian Penal Code. Complainant after checking, found monetary loss suffered of Rs.21,34,450.35 due to this theft incident. Information was given to Police in this regard vide letter dated February 19th, 2014 (Exhibit C-5 of original complaint No. 101 of 2015) with detail of stocks stolen (Exhibit C-6 of original complaint No. 101 of 2015). Theft could not be detected and Police submitted ‘untraced report’ on June 20th, 2014, (Exhibit C-7 of original complaint No. 101 of 2015), so accepted by learned Additional Chief Judicial Magistrate, Jagadhri.
(c) Regarding commission of theft in premises of complainant firm; opposite party No.1 appointed Shri M.L. Garg, as surveyor who visited spot on same date, verified insurance policy, stock statement and other concerned documents. After going through CCTV footage available in shop; CCTV footage was handed over to Police for further investigation. Similarly, opposite party No.2 appointed M/s Duggal Gupta Surveyors Private Limited, Chandigarh as surveyor, who also inspected spot on same date i.e. February 17th, 2014; verified documents concerning insurance policy, stock statement, CCTV footage etc. List of stolen articles was prepared by surveyors of both insurance companies separately, in their own handwriting on same date. Letter dated September 25th, 2014 (Exhibit C-8 of original complaint No. 101 of 2015) was written to opposite parties No.1 and 2 with request to complete process of settlement of complainant’s claim. Letter dated March 7th, 2015 (Exhibit C-9 of original complaint No. 101 of 2015) was received from Shri M.L. Garg-Surveyor mentioning that valuation of stock as on April 01st, 2014 was Rs.52,50,000/-. Ultimately, vide letter dated March 31st, 2015 (Annexure C-10 of original complaint No. 101 of 2015), claim of complainant was repudiated by opposite party No.1.
(d) As per version of complainant; letter dated April 8th, 2015 (Exhibit C-11 of original complaint No. 101 of 2015) was received from opposite party No.2 mentioning that required documents have not been provided by complainant. In that letter, number of insurance policy was wrongly mentioned. Although, all relevant documents and information had already been provided to surveyors of both Insurance Companies on 17th February, 2014, despite that: vide letter dated May 8th, 2015 (Exhibit C-12 of original complaint No. 101 of 2015) claim case of complainant was closed.
(e) As pre plea; repudiation of complainant’s claim by opposite parties is not justified. Firstly, copy of surveyor’s report dated 24th March, 2015 was not provided to complainant-firm. Secondly, allegations of opposite parties are wrong that: complainant tried to manage by manipulating all documents and record just to inflate loss. Complainant, on very first day had provided complete list of stocks and other documents to surveyor of opposite parties. Complainant-firm could not provide footage of CCTV camera to Insurance Company as same was handed over to Police for investigation and hard disk of CCTV camera footage got crashed. Opposite parties were informed that they can obtain CCTV footage from Police. As per plea; it is another fake excuse to deny lawful claim of complainant. Moreover, there is no controversy of any type that it was a case of theft from premises of complainant-firm who time and again requested opposite parties to settle claim. Legal notice was also served upon opposite parties on 4th May, 2015.
(f) Complaint was filed with prayer to direct opposite parties: to pay an amount of Rs.21,34,450/- on account of total monetary loss suffered by complainant-firm, due to theft of goods, with interest @18% p.a. from date of theft and pay Rs.10.00 lacs as compensation due to un-necessary harassment and mental agony suffered by it.
6. Both insurers raised contest to complaint by submitting their separate defence. As per written version of opposite party No.1, complaint is not maintainable; it has repudiated claim of complainant as per terms and conditions of insurance policy and this Commission has no pecuniary jurisdiction to decide complaint. On merits, it is admitted that complainant-firm was provided insurance policy bearing No.35350146130100000103 for period from July 13th, 2013 to July 12th, 2014 and insurance policy bearing No.35350146130100000284 of period from December 31st, 2013 to December 30th, 2014 by OP No.1. As and when, information was received; Shri M.L. Garg was appointed as surveyor, who visited premises of complainant on same date. Surveyor was told that insured came to know regarding theft on February 17th, 2014 when complainant came to his shop. Surveyor mentioned value of stock as April 01st, 2013 as Rs.52,50,000/- but as per audited trading account; value of stock as on 01st April, 2013 was Rs.37,32,110/-. In this way, in stock value; there was difference of about Rs.15,18,000/-. However, as per trading account, value of opening stocks on that date was less than Rs.15,18,000/-. Complainant did not supply information for verification, despite registered letters sent to it and thus concealed material facts. As per version of complainant; value of stolen articles was Rs.21,34,450/- but in balance-sheet for year ending on 31st March, 2014, signed by complainant and his chartered accountant; stock value is mentioned as Rs.18,23,785/-. Surveyor of Insurance Company assessed total loss of Rs.3,05,785/-. OP No. 1-insurer has pleaded that claim of complainant was repudiated on basis of report of surveyor considering it was a case of violation of terms of insurance policy. As per its version, complainant had not adopted effective safety measures and also did not provide CCTV footage and recording, although CCTV Camera was installed in premises. Moreover, complainant manipulated documents and concealed material facts from Insurer regarding occurrence of theft. As per plea; claim of insured cannot be accepted, if it is based on ‘fraud’. Considering these reasons; claim of complainant was repudiated, validly.
7. Opposite Party No.2 - Universal Sompo General Insurance Company Limited, filed its separate written version with plea that: complaint is not maintainable, as policy was obtained for commercial purpose and that it is not a case of deficiency in service on its part. It is admitted that complainant was provided insurance policy bearing No.2913/52132723/01/000 dated March 18th, 2013, for period from March 20th, 2013 to March 19th, 2014 by OP No.2. As and when, information was received regarding theft occurred on 17th February, 2014; M/s Duggal Gupta Surveyors Private Limited was appointed as surveyor for assessment of loss caused to complainant. ‘M/s The Shield’ was appointed as investigator for investigation regarding incident. Surveyor inspected premises of complainant on same date. M/s The Shield conducted investigation and prepared final investigation report on 10th January, 2015 making observations that: insured did not provide information that he was using Shop No.11, New Grain Market, Jagadhri also to store stock in year 2011-2012. Proper safety measures were not taken to safeguard the property by insured and it violated terms and conditions of insurance policy. Name of Sukhdev S/o Bhagwana was mentioned in Police Report as first person to notice loss, but insured did not arrange his (Sukhdev’s) meeting with its investigator. On these grounds, investigator recommended for repudiation of complainant’s claim. M/s Duggal Gupta Surveyors Private Limited submitted final survey report dated 24th February, 2015. Observations, have been made that in First Information Report (FIR); it is mentioned that: worker of insured namely Sukhdev, first of all, noticed loss caused, whereas as per Police version, for the first time, information was given by a person who was passing from that area. In FIR; insured has mentioned approximate loss of stock as Rs.10,00,000/- to Rs.15,00,000/- but later on, vide letter dated 19th February, 2014, insured claimed loss of goods valuing Rs.21,34,450/-. Insured did not provide CCTV footage to surveyor and told that CCTV footage was handed over to Police but CCTV footage was not attached with untraced report. Despite repeated requests, insured did not provide required documents and clarification of queries. In trading account; value of stock taken by insured as on 01st April, 2013 is mentioned as Rs.37,32,110/-, whereas value of stock as calculated in audited trading account is mentioned as Rs.52,50,000/-. In this way, insured has added an amount of Rs.15,18,000/- to sales as per report. Surveyor has also mentioned in report that value of stock lying in premises on relevant date as Rs.41,68,608/- and assessed total loss suffered by complainant as Rs.1,68,078/-, including VAT charges etc. Surveyor, in his report, assessed and apportioned liability of OP No.2-insurer at Rs.1,10,686/-. Complainant submitted declared value of stocks to its bankers as on 31st March, 2013 as Rs.1,16,12,879/-, whereas as per audited balance sheet of same date, closing stock is mentioned as Rs.37,32,110/-. Insured did not make clarification despite requests by surveyor in this regard. On the basis of report of surveyor, as well as investigator and since complainant could not submit required information and documents; claim of complainant was repudiated vide letter dated 08th May, 2015. As per plea; Complainant did not provide stock register, ledger, cash books and other books of accounts to surveyor and investigator and told that stock information could not be provided as ‘hard disk’ of computer had crashed. Chartered accountant of complainant, in audit report dated 16th September, 2014 mentioned that no stock record has been maintained.
8. In earlier round of litigation; complainant-Virender Gupta tendered in duly sworn affidavit and relied upon documents Ex.C-1 to Ex.C-14 in its evidence. OP No.1 examined Sh. M.L. Garg, Surveyor and Loss Assessor as OPW/1, tendered affidavits Ex.OP/1 of Balwinder Singh-surveyor, Ex.OP/4 of M.L. Garg-surveyor and Ex.OP/12 of Tersam Chand (Manager, New India Assurance Co. Ltd.). Documents viz: Ex.OP-2 (Claim investigation report dated 10.01.2015 of investigator of ‘The Shield’), Ex.OP-3 (Final Survey report dated 24.01.2015 of Duggal Gupta Surveyor & Pvt. Ltd.), Ex.OP-5 to Ex.OP-11, Ex.OP-13 and Ex.OP-14 (Policy Schedule of New India Assurance Co. Ltd.-OP No.1) were also pressed. On analysing documents; this Commission earlier, through its order dated 19.05.2017 allowed the complaint as observed above and this order of Commission dated 19.05.2017 has been eventually set aside in two appeals filed separately by both insurers.
9. On remand of matter, Sh. Prithvi Singh, Sub Inspector Incharge Police Post, Arjun Nagar, Jagadhari, District: Yamuna Nagar appeared on 21.05.2018 and suffered following statement on oath:-
“I remained posted as Incharge, Police Post Sector 17, HUDA, Jagadhari approximately for the period of one year. Exact date I did not remember. During this period, I did not remain investigating officer of criminal case registered under FIR No. 88 on 17.02.2014, Police Station City Jagadhari. Infact, Head Constable Hari Ram was investigating officer of this case, who is under suspension in these days. I cannot tell his address and the police station where his presence is marked during suspension period. In this case, I did not receive CCTV footage in connection with case from the complaint.”
10. Hari Ram-Head Constable appeared as CW2 on 29.10.2018 and deposed as under, on oath in his chief examination:-
“I investigated the case bearing FIR No. 88 dated 17th February, 2014, Police Post Sector 17, HUDA, Jagadhari City registered by Vijender Gupta-complainant. I had seen the footage of the occurrence recorded in the CCTV cameras, installed in the premises of the complainant. It was not clear, so, I had not taken the footage in possession during investigation. Prithvi Singh, Incharge, Police Post, Sector 17, HUDA, Jagadhari City was not posted in the said police post at the time of occurrence. He joined lateron. However, when the cancellation report was submitted in the court, it was duly forwarded by him.”
This witness has not been cross examined by learned counsel for OPs on that day i.e. 29.10.2018, despite given opportunity.
11. Vide order dated 05.09.2019 Misc. Application No. 180 of 2019 and documents as per this application were taken on record.
12. Affidavit of Balwinder Singh-Surveryor, as well as, his report Annexure OP-2/4 was taken on record as evidence of OP No. 2 in terms of order dated 24.03.2023 of this Commission.
13. Learned counsel for complainant has contended that post remand of matter; case of complainant stood proved on basis of evidence so led. Burglary at premises of complainant had happened on intervening night of 16/17.02.2014, so committed by unknown persons. Promptly, police was intimated on 17.02.2014 and FIR No. 88 u/ss 380/457 IPC-Ex.C-3 was got recorded. Police did not disbelieve his version. As incident took place during currency of insurance policies Ex.C-1 & Ex.C-2 obtained by complainant from both OPs, so both insurers were intimated in no loss of time and their respective surveyors’ had visited at premises of complainant on same day (17.02.2014). Though, Surveyors of both insurers had endorsed about happening of burglary, yet OPs have wrongly repudiated complainant’s claim. CCTV cameras were installed at premises of complainant firm and its proprietor had provided CCTV camera footage to police on same day (17.02.2014), when police visited at site of occurrence, consequent to filing of FIR. Original of CCTV footage was not available as Hard Disk of CCTV camera stood crashed. It is urged that evidence, as admissible in law, has been led by complainant which suffered huge monetary loss worth Rs.21,34,450.35 on account of incident of burglary/theft so took place at its business premises on 16/17.02.2014 and thus firm is entitled to relief of compensation as claimed. Value of stock in store of complainant, on intervening night of 16/17.02.2014, when theft had resulted, was Rs.62,67,087.88. Value of stock calculated after its inspection by surveyors of both OPs, after theft was Rs.41,32,637.53, thereby causing net loss in stock of Rs.21,34,450.35.
14. Refuting above contentions; learned counsel for OPs in one voice have contended that complainant-firm has not been able to prove theft with quality of evidence so led. CCTV footage was not provided to surveyors of both insurers. Nowhere, insurers have ever admitted factum of alleged burglary through their written version and evidence. It is urged that complainant has declared value of stock of Rs.1,16,12,879/- as on 31.03.2013 to its bankers, whereas as per audited balance sheet; value of stock as on 31.03.2013 is of Rs.37,32,110/- and complainant has failed to explain this huge difference. Instead it was disclosed to surveyors by complainant that stock reported to bankers were inflated to work out drawing power. Thus, it is urged that loss of stock allegedly suffered by complainant to the tune of Rs.21,34,450/- vide Ex.C-6 cannot be taken as gospel truth on its face value. There is gross variation in value of stock taken by insurers, viz-a-viz, value of stock calculated in audited trading account report. As per surveyor report dated 24.02.2015 of OP No. 2; liability of said insurer (OP No.2) is to the extent of Rs.1,10,688/-. As per surveyor report of OP No. 1; loss suffered by complainant firm is of Rs.3,05,750/-. In this regard, it is urged that: value of stock, taken as opening stock, as on 01.04.2013 was Rs.52.50 lacs. However, as per audited trading account; value of stock as on 01.04.2013 was about Rs.37.32 lacs. Thus, there was difference of Rs.15.18 lacs. It is urged that: complainant claimed that stock worth Rs.21,34,450/- has been stolen, while, balance sheet signed by complainant and by Chartered Accountant reflects that stock worth Rs.18,32,785/- has been stolen. Accordingly, as per contention, surveyor of OP No.1 assessed loss of Rs.3,05,785/-. It is urged that despite loss assessed by both surveyors’ of both insurers; complainant’s claim was rightly repudiated due to his noncooperation in providing CCTV footage in order to substantiate the factum of alleged burglary/theft.
15. Theft at the premises of complainant (118-120, New Grain Market, Jagadhari, Yamuna Nagar) allegedly resulted in February, 2014 has been made basis of claiming compensation of Rs.21,34,450/- by complainant firm. Significantly, no date of theft has been mentioned anywhere in body of complaint. However, in duly sworn affidavit dated 02.05.2016 of Vijender Gupta-proprietor of complainant firm through his affirmative statement on oath, it is testified by him in para-xi at page 26 thereof that alleged burglary took place in intervening night of 16/17.02.2014. FIR Ex.C-3 bearing No. 88 under Sections 457, 380 IPC was got recorded by Vijender Gupta on 17.02.2014 with police station City Jagadhari against unknown persons stating therein that: theft of articles worth Rs.10-15 lacs has resulted.
16. Burden to prove the incident of theft in intervening night of 16/17.02.2014 lay heavily on complainant alone. This is because, present complaint for claiming compensation from OPs, on the basis of insurance policies Ex.C-1 and Ex.C-2, entails civil consequences against OPs. Question about quantum of compensation admissible to complainant (whatever it may be) would only arise, if complainant successfully proves about incident of theft allegedly took place at its premises in intervening night of 16/17.02.2014. Admittedly, police in furtherance to FIR No. 88 dated 17.02.2014 Ex.C-3 could not achieve any break through about unknown thieves and stolen articles. It eventually submitted ‘untraced report’ dated 20.06.2014-Ex.C-7. English translation of this ‘untraced report’, so far as, its police investigation part is concerned, reads as follows:-
“During investigation, place of theft was inspected. Statements of witnesses were recorded. Rough site plan was prepared. Earnest efforts were made to trace stolen articles and accused. Culprits of committing such like crimes were joined in investigation and interrogated. No clue of accused and stolen articles could be traced. This FIR is under investigation since long and it is not appropriate to keep it pending for long time. Hence untraced report is being filed. In case, in future time any clue of stolen articles and accused is traced and then further proceedings would take as per law.”
17. On filing of ‘untraced report’ in criminal court; proprietor of complainant namely Vijender Gupta did appeared before criminal court on 15.09.2014. He suffered separate statement that he is satisfied with police investigation. Court of learned Additional Chief Judicial Magistrate-Yamuna Nagar at Jagadhari passed following order which is part of Ex.C-7:-
“Complainant Vijender Gupta appeared before the Court and made a statement that he is satisfied with the police investigation. His statement to this effect recorded separately. He is duly identified by ASI Prithvi Singh. Heard. In view of the statement made by complainant Vijender Gupta, untraced report submitted by the police is accepted. File be sent to the quarter concerned. The proceedings in this case would be restored as and when any clue regarding the wrong doer is received to the investigating agency.”
Proprietor of complainant firm should not have expressed his satisfaction by making statement on 15.09.2014, to filing of ‘untraced report’ by police. He should have lodged protest against untraced report, as wounds of alleged burglary/theft were still afresh in his realm even on 15.09.2014. Instead, in his wisdom, he endorsed his satisfaction with police investigation. This circumstance, of course has wide adverse implications on credibility of integral part of this complaint, qua alleged happening of burglary/theft at premises of complainant in intervening night of 16/17.02.2014.
18. Earlier, Complaint was filed on 10.06.2015 bearing No. 101 of 2015. After obtaining evidence of both parties; complaint was allowed by this Commission on 19.05.2017. Said order dated 19.05.2017 has admittedly been set aside by Hon’ble National Consumer Commission, New Delhi on 20.11.2017 by accepting two separate appeals filed by insurers. Genesis of matter has been remanded back for fresh decision of complaint after taking evidence. Fresh evidence of parties to this lis, was taken on record by this Commission. Arguments in complaint, post remand of matter, were heard on 12.12.2023. From 15.09.2014 (date of filing of untraced report in court), till 12.12.2023 (when arguments in complaint were heard after remand) i.e. despite passing of over nine years; nothing has been brought on record by complainant that: police, with regard to FIR Ex.C-3 has subsequently nabbed the culprits of alleged incident of 16/17.02.2014; again investigated said incident and put culprits on criminal trial by submitting supplementary final report under Section 173 Cr.PC. Hence, it is unerringly proved on record that alleged incident of theft of dated 16/17.02.2014 could not been detected and thrashed through police investigation.
19. In wake of above situation, burden to prove incident of theft/burglary become more onerous and heavy on complainant. As per para 6 of complaint; complainant has proceeded on foundation that: “police and surveyors of OPs had verified occurrence of theft from CCTV camera footage which police took with it for further investigation. In fact, text of complaint hinges of this plea. In same analogy; Vijender Gupta-proprietor of complainant firm has testified through his duly sworn affidavit dated 02.05.2016 towards his affirmative statement on oath.”
20. As per complainant; goods worth Rs.21,34,450/- were stolen in alleged theft incident/occurrence. Ex.C6 is details of stock stolen during intervening night of 16/17.02.2014. On perusal of this detail, it transpires that all articles allegedly stolen (in huge volumes) were meant for regular home use. Accordingly, this Commission has arrived at firm opinion, on critical analysis of details of stolen stock Ex.C-6 that: committing burglary of this level, worth Rs.21,34,450.35 is bound to consume significant time. With this level of burglary and with alleged quality of voluminous stocks so stolen; it cannot be taken in common parlance that: culprits came, entered the premises of complainant firm by broke opening the locks on intervening night of 16/17.02.2014, committed burglary, pocketed the stolen articles and fled away. Obviously, on perusal of list/details of stolen stock-Ex.C-6 it is deciphered that burglars might had been possessing some comfortable means of transport in order to carry away the stolen articles and this process might had been significant time consuming. Premises of complainant-firm is not located at an isolated or abundant place. It is in new grain market. Generally, at any time/hour of clock, there must always, remain some activity somewhere, in and around the vicinity of premises of complainant. On given day (intervening night of 16/17.02.2014), as well, there might had been some activity going around the vicinity of premises of complainant. Considering the time consuming nature of incident of alleged theft/burglary, attention of some passerby, in and around vicinity of complainant firm might had been got attracted. Curiously enough, there is no such circumstance so pleaded, and very surprisingly, no one had majestically noticed about commission of incident of theft/burglary. As per specific case of complainant; CCTV camera are installed at its premises. Entire long time consuming process and sequence of committing burglary might had been stored in CCTV cameras, which, in opinion of this Commission (in absence of direct evidence of burglary), was the only source of evidence, which could have provided significant lead, in order to establish in reality, about incident of alleged theft/burglary occurred on intervening night of 16/17.02.2014 and to nab the culprits with stolen articles.
21. As per stance of complainant, in para 19 (ii) of complaint; OPs have admitted burglary/theft. This version of complainant is equally testified through duly sworn affidavit of its proprietor. This Commission holds that above stance, which is self serving in nature for complainant, is bereft of credence. On perusal of case of OPs it is visible that both insurers have based their respective case on express averments that complainant/insured has not provided CCTV recording from very first date. Identical fact has been stated in para 4 of order dated 20.11.2017 passed by Hon’ble National Consumer Commission which reads: the CCTV footage was not made available to the surveyors.
22. Phraseology of final police report (untraced report Ex.C-7) does not state anywhere, even a word that: CCTV footage was handed over to police for investigation on same day when police visited at spot i.e. 17.02.2014. Had, CCTV footage been given to police, then, recital to that effect along with police analysis of CCTV footage, must had been incorporated in the text of final report/untraced report.
23. Name of police officer Prithvi Singh has appeared in order dated 20.11.2017 of Hon’ble National Consumer Commission. Police officer-Prithvi Singh has stated on oath before this Commission on 21.05.2018 that: he was not Investigating Officer on this case. Head Constable-Hari Ram was investigating officer. Said Head Constable-Hari Ram has deposed before this Commission on 29.10.2018 that: he had, seen CCTV footage but it was not clear, so he had taken it in possession. Prithvi Singh, Incharge Police Post Sector-17, HUDA, Jagadhari City was not posted in said police post at the time of occurrence. He joined later on. In view of conjoint reading of testimony of Sub-Inspector-Prithvi Singh and Head Constable-Hari Ram; this Commission holds that: complainant firm has falsely stated before Hon’ble National Consumer Commission during hearing of two appeals of insurers that CCTV footage was handed over by him to police officer namely Prithvi Singh. Complainant’s stance to this effect stood falsified and belied. Consequently, enormous legal ramifications would flow against complainant on account of stating wrong fact before Hon’ble National Consumer Commission.
24. For some ill-motivated reason, proprietor of complainant firm (Vijender Gupta) has tried to absolve himself from burden to prove the incident of theft/burglary, by stating in forum of Hon’ble National Consumer Commission that CCTV footage was handed over to police officer, whereas in reality, it is proved through evidence that no such CCTV footage was ever given to police (Sub-Inspector-Prithvi Singh) and taken by police in its possession. Had, CCTV footage been given to police, then there was absolutely no chance of police to submit untraced report. Police could have easily nabbed the culprits through the source of CCTV footage recording. Even if, investigating officer namely Head Constable-Hari Ram had seen unclear image in CCTV footage, yet it would mean and imply the same thing, as if there is no CCTV footage. Hence, it stood proved that proprietor of firm did not handover any CCTV footage to police (Sub-Inspector-Prithvi Singh) which further prove that Hon’ble National Consumer Commission was wrongly apprised to that effect. This would warrant drawing of adverse inference against complainant, in terms of para 4 of order dated 20.11.2017 passed by Hon’ble National Consumer Commission. No recording of CCTV footage has got the light of its day, so far till date.
25. Saying by proprietor of complainant’s firm that ‘hard disk’ has been crashed would, in fact, accentuate and perpetuate the fact that no original CCTV footage could ever be created, to be produced again for investigation purpose in order to prove alleged theft/burglary incident occurred on intervening night of 16/17.02.2014 at the premises of complainant’s firm. Consequently, alleged incident of burglary would remain a mystery, for all times.
26. Palpably, complainant had created some hypothetical scene of burglary/theft to secure fortune and enrichment from both insurers (OPs), by alleging misfortune. Element of reasonable level of certainty with regard of happening of alleged theft/burglary, at the premises of complainant’s firm, on intervening night of 16/17.02.2014 is grossly missing. Complainant has miserably failed to prove happening of said burglary, with quality of evidence so led on that score, on the touch stone of preponderance of probability. Hence, adverse inference is drawn against complainant firm, in spirit of para 4 of order dated 20.11.2017 passed by Hon’ble National Consumer Commission and as a consequence so flowing; complainant is hereby non-suited.
27. Just because of Ex.C-6 (details of stock stolen valuing Rs.21,34,450.35), submitted to police and to surveyors of both OPs, no inference of theft/burglary can be drawn, particularly when, magnitude of alleged quantum of loss of stock has been seriously disputed by both insurers. In this scenario, text of document Ex.C-6 cannot be legally accepted as gospel truth, on its face value.
28. Sequel to above findings and consequence so flowing as a corollary thereto it is held that since proof of incident of theft/burglary at premises of complainant on intervening night of 16/17.02.2014 was a condition precedent to grant of any compensation to complainant and because complainant’s case stood traumatised due to incident of burglary/theft not being proved at all, so analysis of evidence brought on record on aspect of grant of compensation to complainant has become redundant.
29. Resultantly, it is held that this complaint does not carry any substance/merit and same stands dismissed.
30. Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.
31. Copy of this judgment be provided to parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
32. File be consigned to record room.
Date of pronouncement: 7th February, 2024.
Naresh Katyal
Judicial Member
Addl. Bench-II
