BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

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Haryana Warehousing Corporation, Hisar, through its Manager (Legal) Head Office, Bay No.15-18, Sector 2, Panchkula, 134112

…..Complainant

                           V E R S U S

National Insurance Company Limited, SCO No.305-306, Sector 35-B, Chandigarh

                                  ……Opposite Party

CORAM:  SH.JAGROOP SINGH MAHAL PRESIDENT

              DR.(MRS) MADHU BEHL       MEMBER

              SH.RAJINDER SINGH GILL    MEMBER

Argued by: Sh. Mrigank Sharma, Adv. for complainant.

Sh. Sandeep Suri, Adv. for OP.

PER SHRI JAGROOP SINGH MAHAL, PRESIDENT

             Succinctly put, the complainant entered into a contract with the OP for insuring their stocks stored at the State Warehouse at Rattia, District Hisar vide policy no. 2002/7500703. However, two incidents of theft took place at the aforesaid site of the complainant one on 10.02.2003 in which 167 wheat bags were stolen regarding which OP was informed vide letter dated 14.02.2003 and second theft took place on  18/19.02.2003 in which 7 wheat bags were stolen regarding which OP was informed vide letter dated 3.03.2003.  The complainant got registered FIR No. 167 on 1.4.2003 under Section 380, IPC copy of which was also forwarded to the OP vide letter dated 28.04.2003.  The complainant lodged a claim of Rs.1,09,734.59/- with the OP and also supplied whatever documents were sought by them.  However the OP did not settle the matter and asked the complainant for providing the documents related to the department inquiry and untraceable report. The information related to departmental inquiry was given to the OP and regarding the non-traceable report, it was informed to the OP that the police authorities had already submitted the challan in the Court of Judicial Magistrate, 1^st Class, Fatehabad but till date the claim has not been settled by the OP. Hence this complaint alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice.

2.             In their written reply the OPs took preliminary objections interalia that the complainant had failed to supply the requisite documents despite  repeated reminder requesting the complainant to submit claim wise required documents/information specifically mentioned including the present claim, at the earliest so that their claim could be promptly attended to by the OP.  In these letters the complainant was also requested to give the non-traceable report in original duly countersigned by the S.P/SSP. As the complainant had not supplied the required documents it was not possible for the OP to keep it pending for an indefinite period and the claim was closed as no claim. Denying all the material allegations of the complainant, the OP pleaded that there has been no deficiency in service or unfair trade practice on their part and prayed for dismissal of the complaint. 

3.             The Parties led evidence in support of their contentions.

4.             We have heard the parties and have also perused the record. 

5.           The Learned Counsel for the OP has argued that the complainant is running the warehousing business to generate profit and therefore the stock which was insured with the OP was for a commercial purpose which excludes the complainant from the definition of a consumer as defined under the Consumer Protection Act and the present complaint is not maintainable.  We do not find any merit in this argument.  In order to ascertain whether the complainant is a consumer or not we have to examine the same in the light of the transaction between the parties.  The stock was insured with the OP not for earning any profit but to safeguard the same from theft etc.  By insuring the stock the complainant did not get any benefit and rather had spent the money in the shape of premium which was paid to the OP.  The complainant therefore cannot be excluded from the definition of the consumer as held in the case “Harsolia Motors Vs New India Assurance Co. Ltd., I (2005) CPJ 27 (NC)” which was followed in case “Ritu Gram Udyog Samiti Vs. New India Assurance Company Ltd., III (2008) CPJ 180 (NC)”. 

6.             It is also argued by the Learned Counsel for the OP that the claim filed by the complainant is barred by time because the theft took place on 10.02.2003 and the papers were filed by the OP on 6.06.2005 as no claim vide Annexure C-10.  It is contended that certain documents were required from the complainant which they did not submit and therefore now the complainant is not entitled to any compensation.  We do not find any merit in this argument.  Admittedly no compensation has so far been allowed or paid to the complainant nor has their claim been repudiated.  It was treated as no claim and the file was closed because the OP was demanding certain documents which the complainant could not produce. The file could be reopened, the moment the documents were submitted.  In this respect the Learned Counsel for the complainant argued that the OP was asking for untraced report in the matter which it had not till then been finalized.  The same was however finalized on 15.12.2007 and it was forwarded to the OP on 30.01.2008 vide Annexure C-13.  On receipt of this untraced report the claim was reopened and the OP vide their letter Annexure C-14 dated 23.04.2008 asked for the final investigation report of police under Section 173 Cr.P.C. and the original non-traceable report duly attested by Court.  These documents were submitted on 28.05.2008 vide Annexure C-15 but then the OP vide Annexure C-16 dated 3.10.2008 demanded the copy of department inquiry regarding the loss.  This letter was replied by the complainant vide Annexure C-17 intimating to the OP that no departmental inquiry was ever conducted nor any chowkidar or home guard employees were involved in the theft case.  Thereafter the OP kept mum.  In this manner till 5.12.2008 the claim submitted by the complainant had not been repudiated.  The complainant could file the complaint within 2 years from the date on which cause of action accrued.  Demanding department inquiry papers which was never held is by itself deficiency in service and therefore the complaint filed on 25.09.2009 would be within limitation.

7.             It is a case like so many others in which the OP has not made the payment of compensation though there were no justifiable reasons to deny the same.  The OP has not been able to prove if any departmental inquiry was ever conducted by the complainant.  There is no proof if any chowkidar or home guard employees were involved in the theft.  The matter has been investigated by the police but they did not find any involvement of the chowkidar or home guard employees.  The OP must also have conducted investigation at its own level but did not produce any evidence to suggest if the chowkidar or home guard employees were involved in the theft.  It is true that chowkidar and home guards employees may be negligent and for this purpose their pay may have been withheld till the amount of compensation was paid but that by itself does not prove either that the claim has been satisfied or that the chowkidar and home guard employees were involved in this theft.  The OP therefore did not have any justification to with hold the amount for such a long period.

8.             The Learned Counsel for the OP has referred to Annexure R-2 which is the report of the surveyor vide which it was opined that the complainant is entitled to Rs.67,655/- as compensation.  The report has been produced by the OP itself and therefore they cannot say anything contrary to the same.  We are therefore of the opinion that the present complaint should succeed and the same is accordingly allowed.  The OP is directed to pay Rs.67,655/- alongwith interest @9% p.a. since 7.10.2003 (one month after the report Annexure R-2 dated 7.09.2003) alongwith litigation costs of Rs.5,000/- within 30 days from the date of receipt of the copy of this order failing which the OP would be liable to pay the same alongwith penal interest @12% p.a. since the date of institution of the present complaint i.e. 25.09.2009, till the payment is actually made to the complainant.

              Certified copies of this order be sent to the parties free of charge.  The file be consigned.