THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR

Consumer Complaint No. 420-13

Date of Institution : 7.06.2013

Date of Decision : 20.05.2015

M/s. Shri Sai Industries, Plot No. 153/2, Near Swadeshi Koriatex, Vallah Bye Pass, P.O. Khanna Nagar, Kashmir Road, Amritsar through Sh.Pawan Mehra one of its partner

...Complainant

Vs.

National Insurance Co.Ltd., Branch Office at 20 Batala Road, Amritsar through its Branch Manager

....Opp.party

Complaint under section 12/13 of the Consumer Protection Act, 1986

Present : For the complainant : Sh.S.K.Sharma,Advocate

For the opposite party : Sh.P.N.Khanna,Adv.

Quorum : Sh. Bhupinder Singh, President ,Ms. Kulwant Bajwa,Member &

Sh.Anoop Sharma,Member

Order dictated by :-

Bhupinder Singh, President

1 Present complaint has been filed by M/s. Shri Sai Industries through one of its partners Sh. Pawan Mehra under the provisions of the Consumer Protection Act alleging therein that he has been obtaining insurance policies regarding stock in trade, funds held in trust, commission furniture, fixture, fitting, etc. in its factory premises for the last 4/5 years and the current policy commencing from 18.4.2012 to 17.4.2013 with the sum insured Rs. 50 lacs by paying premium of Rs. 5618/-. According to he complainant in the midnight of 27/28.8.2012 theft took place in the factory premises of the complainant and the thieves had stolen 4000 pieces of small shawls packed in the polythene envelops and the loss of Rs. 6,20,000/- approximately was caused . Immediately in the morning of 28.8.2012 mails were sent to the police authorities as well as to the opposite party regarding theft committed in the factory preemises of the complainant and written intimation was also given to the opposite party vide letter dated 28.8.2012. FIR No. 233 dated 6.9.2012 u/s 457/380- IPC was registered at P.S. A Division, Amritsar . Opposite party appointed surveyor Ashwani Gupta & Company, C.A , who conducted the complete survey and asked the complainant to submit certain documents which the complainant submitted vide letter dated 22.10.2012. The surveyor again issued a letter dated 1.11.2012 for further information which the complainant had again furnished . The police could not trace out the thieves and submitted untraced report u/s 173 Cr.P.C. On 27.1.2013 which the complainant also supplied to the opposite party. Thereafter complainant visited the opposite party many times to settle the claim. But opposite party issued a letter dated 18.3.2013 to the complainant stating that their investigating agency had submitted their report dated 25.2.2013 in which they have mentioned that at the time of theft forceful entry is not proved by the complainant and as such they filed the claim of the complainant as “No Claim”. Alleging the same to be deficiency in service complaint was filed seeking directions to the opposite party to pay insurance claim of Rs. 6,20,000/- alongwith interest @ 18% p.a. Compensation of Rs. 50000/- alongwith litigation expenses were also demanded.

2. On notice, opposite party appeared and filed written version in which it was submitted that in this case M/s. Ashwani Gupta & Company,CA was deputed to assess the loss and besides that M/s. S.A. Investigating & Consultating Agency was deputed to investigate the loss. As per investigation report submitted by the independent agency, it has been clearly concluded by them that at the time of alleged theft, forcible entry is not proved by the complainant, as such claim is not maintainable. As such the claim has been filed as “No Claim”. It was submitted that opposite party did appoint M/s. Ashwani Gupta & Co. CA to carry out the extent of loss and the said agency assessed the loss to the tune of Rs. 3,85,000/-. However, in the present case the said assessed amount of R s. 3,85,000/- is also not payable because the basic condition of forcible entry of the thieves has not been satisfied by the insured before the surveyor as well as before the Investigating agency. As such the claim has rightly been treated as No Claim. While denying and controverting other allegations, dismissal of complaint was prayed.

3. Complainant tendered into evidence his affidavit Ex.C-1 alongwith documents Ex.C-2 to C-10.

4. Opposite party tendered affidavit of Sh.A.S.Bhatia, Divisional Manager Ex.OP/1,affidavit of Sh. Ashwani Kumar Gupta,CA Ex.OP/2, survey report Ex.OP/3, affidavit of Mr. Sarv Dhaman Bhalla, Investigator Ex.OP/4, report of investigator Ex.OP/5, copy of FIR Ex.OP/6, certified copy of Insurance Policy with terms and conditions Ex.OP/7, repudiation letter dated 3.5.2013 Ex.OP.8.

5. We have carefully gone through the pleadings of the parties, arguments advanced by the ld.counsel for the parties and have appreciated the evidence produced on record by both the parties with the valuable assistance of the ld.counsel for the parties.

6. From the record i.e.pleadings of the parties and the evidence produced on record by both the parties, it is clear that complainant got cashless policy from the opposite party regarding stock in trade, funds held in trust, commission furniture, fixture, fitting etc in its factory premises vide policy Ex.C-2 for the period from 18.4.2012 to 17.4.2013 in continuation of the earlier policy with sum assured Rs. 50 lacs. The complainant further submitted that this policy is continuing for the last four five years with the opposite party. On the intervening night of 27/28.8.2012 theft took place in the factory premises of the complainant and the unknown persons had stolen 4000 pieces of small shawls packed in the polythene envelops ; thereby causing loss of Rs. 6,20,000/- approximately to the complainant. In the morning of 28.8.2012 when the complainant came to know about the theft, mails were sent to the police authorities as well as to the opposite party regarding the theft committed in its factory premises. Even written intimation was also given to the police as well as to the opposite party vide letter dated 28.8.2012 Ex.C-3. FIR in this regard bearing No. 233 dated 6.9.2012 was registered at P.S. “A' Division,Amritsar. However, the matter was reported to the police on the same day i.e. 28.8.2012 vide letter Ex.C-5, copy of said FIR is Ex.C-6. Opposite party appointed surveyor Ashwani Gupta & Company C.A., who conducted the complete survey with photographs . He issued letter dated 5.9.2012 to the complainant Ex.C-8 asking the complainant to submit certain documents mentioned in the letter. The entire requisite forms were sent to the surveyor by the complainant vide letter dated 22.10.2012 Ex.C-9 . All other relevant documents which were demanded by the surveyor were handed over by the complainant to the surveyor. The police could not trace out the thieves nor the stolen goods could be recovered and the police submitted untraced report u/s 173 Cr.P.C on 27.1.2013 which was duly accepted by Ilaqa Magistrate vide order dated 1.2.2012 Ex.C-11. Opposite party also appointed Investigator S.A. Investigating and Consulting Agency Pathankot, who also investigated the matter thoroughly and submitted his report Ex.OP5. Report of surveyor is Ex.OP3. Both these surveyor and Investigator have admitted that even in the secret investigation , it has come to light that the cause and nature of loss reproted by the insured has genuinely taken place on the reported date, time and place of loss. Even the surveyor vide his survey report Ex.OP3 admitted that weaving factory premises building of first class construction. They have also admitted that the thieves committed theft after scaling wall. The surveyor had assessed the loss to the tune of Rs. 3,85,000/-. But inspite of that the opposite party repudiated the claim of the complainant vide letter Ex.OP8 that there was no forcible entry of the thieves in the premises of the complainant. Ld.counsel for the complainant submitted that the thieves committed theft by scaling the wall. The gate of the premises of the factory was locked. As such it cannot be said that there was no forcible entry of thieves in the factory premises of the complainant and he ,therefore, submitted that all this amounts to deficiency of service on the part of the opposite party.

7. Whereas the case of the opposite party is that on receipt of intimation from the complainant, opposite party appointed surveyor M/s. Ashwani Gupta and Company to assess the loss. The opposite party appointed Investigator M/s. S.A. Investigating and Consultating Agency to investigate the loss. From their reports, the opposite party concluded that at the time of alleged theft forcible entry is not proved by the complainant. So the claim case of the complainant was closed as “No Claim” and the complainant was informed accordingly. Even otherwise the surveyor assessed the loss to the tune of Rs. 3,85,000/- vide survey report Ex.OP3 dated 5.2.2013. Similarly the Investigating agency also gave findings that no doubt the theft has genuinely taken place and the complainant has suffered loss, but the complainant has failed to prove on record the forcible entry of the thieves into the factory premises of the complainant. Ld.counsel for the opposite party submitted that opposite party has rightly repudiated the claim of the complainant vide letter dated 3.5.2013 Ex.OP8. He,therefore, submitted that there is no deficiency of service on the part of the opposite party qua the complainant.

8. From the entire above discussion, we have come to the conclusion that the complainant got Insurance policy from the opposite party Ex.C-2/Ex.OP7 for the period from 18.4.2012 to 17.4.2013 covering the risk of stock in trade, funds held in trust, commission, furniture, fixture, fitting, etc. in the factory premises. Not only this the complainant has also submitted that this policy has been continuing for the last four five years with the opposite party and the opposite party did not deny this fact. On the intervening night of 27/28.8.2012 theft took place in the factory premises of the complainant. The thieves entered into the factory premises of the complainant by scaling wall as the outer gate of the factory premises was duly locked and they had stolen 4000 pieces of small shawls packed in polythene envelops. The complainant alleges that he has suffered loss to the tune of Rs. 6,20,000/- approximately. In the morning of 28.8.2012 when the complainant came to know about the fact of theft he immediately informed the police as well as the opposite party vide letter Ex.C-5 dated 28.8.2012 and letter Ex.C-3 dated 28.8.2012 respectively. The police registered FIR 233 dated 6.9.2012 u/s 457, 380 IPC at P.S. “A” Division, Amritsar. Opposite party appointed surveyor M/s. Ashwani Gupta & Company, C.A., who demanded certain documents from the complainant vide letter dated 5.9.2012 Ex.C-8 which were provided by the complainant to the surveyor vide letter dated 22.10.2012 Ex.C-9. Not only this the complainant provided all the requisite documents to the surveyor which were demanded by the surveyor. The surveyor submitted his report Ex.OP3 dated 5.2.2013 in which he has categorically admitted that the factory premises of the complainant built of first class construction. The thieves entered into the factory premises of the complainant by scaling wall . He assessed the loss to the tune of Rs. 3,85,000/-. Not only this the opposite party also appointed Investigator M/s. S.A. Investigating and Consultating Agency, Pathankot to investigate the matter , who thoroughly investigated the matter . The Investigator in their report Ex.OP5 dated 25.2.2013 has categorically mentioned that in the secret investigation conducted by the Investigator from other quarters it has come to light that cause and nature of loss reported by the insured has genuinely taken place on the reported date, time and place of loss. They have also admitted that the complainant reported the matter immediately to the police on 28.8.2012. The police could not trace out the thieves as well as the stolen articles and they submitted untraced report to the Ilaqa Magistrate which was duly accepted by the Ilaqa Magistrate i.e. JMIC,Amritsar vide his report Ex.C-11 dated 1.2.2014. The opposite party repudiated the claim of the complainant vide letter dated 3.5.2013 Ex.OP8 on the ground that the complainant has failed to prove on record the forcible and violent entry of the thieves into the factory premises of the complainant. The entire record produced by the complainant even the police report fully proves that the thieves entered into the factory premises of the complainant by scaling wall which fully proves that the outer gate of the factory premises of the complainant was duly locked that is why the thieves scaled the wall and they committed theft at the factory premises of the complainant. It has been held by the Hon'ble National Commission in case Paresh Mohanlal Parmar Vs. New India Assurance Co.Ltd & Ors 2011(2) CPC 584 that where the godown was opened by the thieves by opening the lock with original keys, it amounts to forcible entry of the thieves even though no force has been used by the thieves. Same view has been taken by the Hon'ble Supreme Court of India in case United India Insurance Co.Ltd. Vs. Harchand Rai Chandan Lal 2004(2) CPC 686 (SC). Here we do not agree with the contention of the opposite party that there was no forcible entry of the thieves in the factory premises of the complainant because complainant has fully proved that the thieves entered into the factory premises of the complainant by scaling wall which amounts to forcible entry. Further this fact has been duly admitted by the surveyor in his report Ex.OP3 as well as by the Investigator appointed by the opposite party in their report Ex.OP5 that even in their secret investigation , it has come to light that the cause and nature of loss reported by the insured has genuinely taken place on the reported date, time and place of loss.

9. Consequently we hold that opposite party has wrongly repudiated the claim of the complainant. As such the complainant is entitled to claim under the terms and conditions of the policy.

10. As regards quantum of claim the surveyor appointed by the opposite party M/s. Ashwani Gupta & Co., C.A. Amritsar submitted his report Ex.OP3 after thorough survey and assessed the loss to the tune of Rs. 3,85,000/-. The complainant could not rebut this report nor could point out any deficiency in this report to the effect that the surveyor has not included certain items or any other defect in the survey report. As such we hold that complainant is entitled to claim of Rs. 3,85,000/- as assessed by the surveyor appointed by the opposite party (Insurance company).

11. Resultantly we allow the complaint partly with costs and the opposite party is directed to pay Rs. 3,85,000/- alongwith interest @ 9% p.a from the date of filing of the complaint till payment is made to the complainant. Opposite party is also directed to pay litigation expenses Rs. 2000/- to the complainant. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.

12. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

20.05.2015 ( Bhupinder Singh )

President

( Kulwant Kaur Bajwa) (Anoop Sharma)

/R/ Member Member