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

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Haryana Warehousing Corporation, 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 Nagura, District Jind vide policy No.2002/75000147.  However, an incident of theft took place at the aforesaid site of the complainant on the intervening night of 10.9.2002 in which 130 bags of wheat were stolen regarding which OP was informed vide letter dated 11.9.2002.  The complainant even got FIR No.127 registered on 11.10.20002 under Section 380 and 457 IPC copy of which was also forwarded to the OP vide letter dated 11.11.2002.  The complainant lodged a claim of Rs.45,500 with the OP and also supplied whatever documents sought by them.  Thereafter, after being informed by the police, the complainant corporation took 43 bags on superdari from the court which were recovered by the police.  However, the OP did not settle the matter and asked for the untraceable report despite being informed that the police authorities had already submitted the challan in the court of ld. Judicial Magistrate 1^st Class, Alewa who was seized of the matter after the arrest of the accused and submission of challan.  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 inter alia that the complaint is hopelessly time barred; complainant has got no cause of action; complainant is not consumer; complaint is bad for mis-joinder and non-joinder of necessary parties; complaint is misconceived and untenable etc. On merits it has been admitted that the relevant stocks were insured vide insurance policy valid from 1.4.2002 to midnight of 31.3.2003. It has also been stated that after the recovery of 43 bags, the claim of the complainant was left for 87 bags only.  It has been submitted that the claim could not be settled as the complainant did not submit the complete documents/clarifications for processing of its claim in spite of repeated letters/reminders and also failed to give any clarification to the query raised by them. Denying all the material allegations of the complainant and pleading that there has been no deficiency in service or unfair trade practice on their part prayer for dismissal of the complaint has been made. 

3.             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 complaint is barred by time because the complainant was asked vide letter dated 11.09.2006 to submit the documents which they failed to produce and therefore the complaint filed on 25.09.2009 is therefore barred by time.  We do not find any merit in this argument.  The OP has not produced any document to suggest if the claim of the complainant was ever repudiated.  Needless to mention that the cause of action to file the complainant would start from the date on which the claim was repudiated.  Annexure R-6 is the letter dated 14.08.2006 asking the complainant to submit non-traceable report duly issued by competent Court.  Thereafter the letter Annexure R-7 was issued on 11.09.2006 repeating the same request.  The complainant sent the said documents vide Annexure R-8 dated 30.11.2006. However, thereafter neither the compensation was paid by the OP nor the repudiation letter has been sent.  Obviously the complainant can presume that the matter is under consideration and therefore the complaint filed on 29.09.2009 cannot be said to be barred by time.

7.             The only document which the OP is now asking for is untraceable report with respect to 87 bags of wheat which have not been recovered by the Police.  It may be mentioned that a total of 130 bags were stolen in this case regarding which the theft case was registered and during investigation the police recovered 43 bags of wheat. The complainant has submitted report Annexure C-8/A showing that the accused were arrested for the theft of the wheat bags from whom recovery of 43 bags was affected and the case was under trial in the criminal Court.  The OP now wants that untraced report with respect to 87 bags of wheat should also be submitted.  It may be mentioned that when 43 bags of wheat have been recovered and no other recovery could be affected; the police concluded its investigation; prepared the report under section 173 Cr.P.C. and submitted the same before the Court, where a trial is pending, it by itself amounts to untraced report with respect to the remaining 87 bags of wheat.  No separate untraced report can be given with respect to each bag of wheat.   If the police has been able to recover only 43 bags of wheat out of 130, the remaining 87 bags would be deemed not to have been recovered nor is there any investigation pending with respect there to. The OP is therefore unnecessarily dragging the matter for this purpose.

8.             The OP has not been able to prove any term of the insurance policy under which the untraced report was necessary for finalizing the claim of theft.  The OP is therefore asking for untraced report beyond the terms of insurance agreement which is rather an unfair trade practice on their part.

9.             Needless to mention that the OP has appointed a surveyor and an investigator who would have submitted their reports.  If any untraced report was needed that could be procured by the OP at their own level through their investigator or surveyor.  It was no where the liability of the complainant to procure untraced report.  Moreover the police do not work under the control of the complainant and if they did not give untraced report, the claim cannot be with held for this reason.  That is why in the contract of agreement there is no mention if any such untraced report is to be procured by the complainant.  This demand made by the OP is therefore misuse of authority by the OP and amounts to unfair trade practice.

10.           Annexure R-2 is the report of the surveyor showing that the complainant is entitled to a sum of Rs.39,650/- as compensation.  The claim was not finalized by the OP due to unjustifiable reasons causing wrongful loss to the complainant and getting wrongful gain to itself by retaining the said amount.

11.           In view of the above discussion, we are of the opinion that the present complaint must succeed.  The same is accordingly allowed. The OP is directed to pay to the complainant Rs.39,650/- alongwith Rs.5,000/- as costs of litigation  alongwith interest @9% p.a. from 13.07.2004(one month after the report Annexure R-2 of the surveyor) 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. with effect from 29.09.2009 i.e. the date of filing of the present 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.