STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                                    UNION TERRITORY, CHANDIGARH

M/s Fastrack Computing Ltd. , SCO No.63(First Floor), Sector 20-D, Chandigarh through Mr.Iqbal Singh its Managing Director.

                                                … Complainant.

                                                Vs.

1.         National Insurance Company Ltd. , Branch Office III, First Floor, SCO No.305-306, Sector 35-B, Chandigarh through its Branch Manager.

2.         The Regional Manager, National Insurance Company Ltd. , Regional Office-II, SCO No.334-336, Sector 34-A, Chandigarh.

3.         The Divisional Manager, National Insurance Company Ltd. , Divisional Office, 813, NAC Manimajra, Chandigarh.

4.         M/s Consolidated Surveyors Pvt. Ltd., # 171, Sector 36-A, Chandigarh through its Incharge.

5.         Sh.J.P.Kochhar, Investigator, National Insurance Co. Ltd., # 3298, Sector 46-C, Chandigarh.

(OPs No.4 and 5 deleted vide order dated 16.12.2009 passed by District Forum-I, UT, Chandigarh).

                        …. Opposite Parties

BEFORE:      JUSTICE SHAM SUNDER,  PRESIDENT

                        MRS. NEENA SANDHU,   MEMBER

PRESENT:   Sh. R.K.Bashamboo, Advocate for the complainant.

Sh.Nitin Gupta, Advocate, Proxy for Sh.R.C.Gupta, Advocate for OPs No.1 to 3.

OPs No.4 & 5 (deleted vide order dated 16.12.2009 of District Forum).

MRS. NEENA SANDHU, MEMBER

1.                                          In brief, the facts of the case, are that the complainant was running the business of computer laptops. It got the laptops insured from Opposite Party No.1, vide Insurance Policy No.428101/46/06/750000271 for the period from 28.02.2007 to 27.02.2008. It was stated that during the night intervening 12/13.12.2007, burglary took place, in the insured premises, and a number of laptops were stolen.  The matter was reported to Police Station, Sector 19, Chandigarh as a result whereof FIR No. 198 dated 13.12.2007 was registered. The list of the stolen laptops was also handed over to the Police. It was stated that the complainant informed Opposite Party No.1 regarding the burglary, upon which, M/s Consolidated Surveyors Pvt. Ltd. were deputed for the assessment of loss. It was further stated that all the relevant records required by the Opposite Parties, were supplied to them, whereafter, the insurance claim was lodged with them. The police filed untraced report before the Court of Judicial Magistrate 1st Class, Chandigarh and the same was accepted by it vide order dated 4.10.2008. The intimation, in this regard, was also sent to the SSP, Chandigarh. It was further stated that the complainant attended all the queries raised by Opposite Party No.1  & the  surveyor and supplied all the necessary documents, but it (Opposite Party No.1) failed to settle the claim, despite the fact, that the claim was lodged in January 2008.  It was further stated that, in the month of April 2009, after more than one and a half years Opposite Party No.1, again appointed Sh.J.P.Kochhar as investigator to further investigate the case.  It was further stated that the entire process was carried out again, and every kind of cooperation was extended to him, but despite written as well as telephonic requests to the Opposite Parties, still the claim remained unsettled.  The request of the complainant  for the settlement of claim, was postponed on one pretext or the other.  It was further stated that a legal notice was sent to the Opposite Parties on 03.11.2009, but to no effect. It was further stated that due to the non-settlement of claim, the complainant suffered a huge loss.  It was further stated that the act of the Opposite Parties in not settling the claim amounted to deficiency in service. When the  grievance of the complainant, was not redressed, left with no alternative, the complainant filed the present complaint seeking refund of Rs.19,81,563/- towards the claim amount, Rs.5 lacs on account of compensation, for mental agony,  harassment etc.  and Rs.25,000/- as costs of litigation.

2.                                          In their written version, filed by the Opposite Parties, it was stated that being a commercial entity, the complaint was specifically barred under the provisions of Consumer Protection Act., 1986. The complainant was not the owner of the firm at the time of alleged loss and, therefore he was not competent to file the present complaint.  It was stated that the policy in question was obtained by M/s Fast Track Computing, SCO No.63, First Floor, Sector 20, Chandigarh, whereas, in June  a Limited Company in the name of M/s Fast Track Computing Ltd., was incorporated with the Registrar of Companies. It was further stated that  no insurable interest, whatsoever, in favour of M/s Fast Tract Computing was found existing, at the time of loss and, as such , the claim was repudiated because it had not been found payable in view of the terms and conditions of the policy of insurance.  It was further stated that during investigation, it was found that the insured was running another establishment for which the stocks must not have been insured and in order to derive the benefit of those uninsured items, the complainant had inflated the present claim to manifold without any basis and substance. It was further stated that  the complainant had deliberately not impleaded the other insurer with respect to the same premises as OP, to  the present complaint, and, therefore, this complaint was liable to be dismissed for non-joinder of necessary parties.  It was further stated that  the Insurance Policy, in question, was issued to M/s Fast Track Computing and not to the complainant and the same was valid from 28.02.2007 to 27.02.2008. It was admitted that the complainant lodged the claim with the Opposite Parties regarding the burglary of laptops at its business premises.  It was further stated that on intimation of the loss, M/s Consolidated Surveyors Pvt. Ltd. were appointed as Surveyor and Loss Assessor which gave its report 24.12.2008 (Annexure R-2).  It was further stated that since the complainant failed to clarify certain aspects, despite repeated requests, therefore, the claim was repudiated vide letter dated 13.01.2010, Annexure R-3. It was further stated that thereafter with the consent of the complainant, Mr.J.P.Kochhar, Investigator was appointed who submitted independent report dated 30.04.2009, Annexure R-5.  It was further stated that no loss was suffered by the complainant either on account of alleged burglary or in the shape of interest. It was further stated that the claim of the complainant was rightly repudiated.  It was denied that the Opposite Parties were deficient in rendering service or indulged in unfair trade practice. The remaining averments, were denied, being wrong. 

3.                                          The parties led evidence in support of their case.

4.                                          We have heard the counsel for the parties, and have gone through the evidence and record of the case, carefully. 

5.                                           The first question, which, requires determination, in the instant case, is, as to whether, there was any privity of contract between the complainant- M/s Fastrack Computing Ltd. and the Insurance Company on the date of burglary/theft and it (complainant) had any insurable interest in the policy.  It is evident from Annexure C-1 that the cover note/insurance policy, in question, was obtained by M/s Fast Track Computing, SCO 63, F.F., Sector 20, Chandigarh, which was dealing with its business of computer laptops of different brands, The same was valid for the period from 28.2.2007 to 27.2.2008. In the month of June 2007, the Fast Track Computing, proprietorship concern, was converted into M/s Fast Track Computing Ltd.   It is further evident from the document at page 398 of the District Forum file that on the request of the complainant, the Opposite Parties changed the name of M/s Fast Track Computing to M/s Fastrac Computing Ltd. in the Policy, which was effective from 18.12.2007, whereas, the theft took place on the night intervening 12/13.12.2007 when the Policy was in the name of proprietorship concern i.e. M/s Fast Track Computing.  In our considered opinion, as the insurance was obtained in the name of the proprietorship concern, thus, M/s Fastrack Computing Ltd. had legally no insurable interest on the night intervening 12/13.12.2007 when the theft took place. Thus, there was no privity of contract, between the parties. The Opposite Parties are, thus, not liable to indemnify the complainant for the loss suffered by it.

6.                                          The surveyor categorically mentioned, in his report (Annexure R-2) that during investigation, it was found that the insured was maintaining common set of books of account for the three showrooms as it was operating from 3 different locations in Sector 20. It was further found that it was maintaining common account books for all the 3 premises and there was a total mix up of stocks of three locations for the same type of goods. The complainant did not disclose these facts to the Opposite Parties, whereas, as per the Annexure R-1, a duty of disclosure was cast upon the insured.  In the absence of such disclosure, the Opposite Parties, were within their rights, to declare the policy as void and forfeit the premium.

7.                                          Not only this, the number of laptops alleged to have been stolen from the premises also differs.  In the FIR (Annexure C-16),  it was mentioned that the list of stolen laptops would be provided after checking the stock kept in the store.   Thereafter, a list was submitted to the police, in which, 55 lap tops were shown to have been stolen.  However, after verifying the record, the surveyor found that the loss could be only of 40 laptops against 54 laptops, claimed by the insured. Similarly, the surveyor assessed the loss of the laptops at Rs.13,27,950/- , whereas, the insured claimed the loss for Rs.19,81,563/-. In this view of matter, the complainant was not even sure that what loss he had suffered and what amount he was claiming from the Opposite Parties for the alleged loss occurred under this policy.   In this situation, it was difficult for the Opposite Parties to assess the alleged loss suffered by the complainant.

8.                                          The contention raised by the Counsel for the Opposite Parties, that the complainant, is a commercial entity, and, as such, it is not a consumer, as defined under the Consumer Protection Act, has no force because the complainant-firm took the policy for indemnification only and not for gaining any profit.   In Harsolia Motors Vs. National Insurance Company Ltd. I (2005) CPJ 27 (NCDRC), it was held by the Hon’ble National Commission, that taking of insurance policy, is for the protection of interest of the assured, in the articles, or goods, and not for making any profit or trading for carrying on commercial purpose. Hence the complainant is a consumer, as defined under section 2(1)(d)  of the Consumer Protection Act, 1986.  The submission of the Counsel for the Opposite Parties, thus, being devoid of merit is rejected.

9.                                          For the reasons recorded above, the complaint is dismissed with no order as to costs. The parties are left to bear their own costs.

10.                                     Certified Copies of this order be sent to the parties, free of charge.

11.                                     The file be consigned to Record Room, after completion.

Pronounced.                                                                                                  Sd/-

02 .02.2012                                                              [JUSTICE SHAM SUNDER]

                                                                                                        PRESIDENT         

                                                                                                Sd/-                                  [NEENA SANDHU]

                                                                                                MEMBER

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