The present complaint has been preferred by the titled Petroleum Products (Petrol Pump) Vendor through its proprietor Darshan Singh against the titled opposite parties (for short, jointly the OP and the OP1 insurers & the OP2 Bank, singularly) at the alleged arbitrary repudiation of its otherwise a valid burglary-claim succeeding the theft -detection of Petrol and Diesel from the underground storage tanks by some unknown persons with connivance of its employees. Somehow, the OP have considered the said 'theft' as an act of 'misappropriation' by the employees and thus not a claimable loss.
2. The complainant complains having purchased the Burglary Insurance Cover from the OP1 insurers vide policy # 401502591910000388 (Ex.C1) at the active instance and recommendations of the OP2 Bank in order to cover all its stocks of petroleum products stocked/stacked in the complainant firms' business premises.
3. Further, upon intimation by its two employees Ashok & Daljit about non-functioning of the petrol/diesel vending machines the Storage Tanks were checked and levels of Petrol at dip 80 and Diesel at dip 30 were recorded and further Sales were stopped w.e. from 10.02.2020 and after wards on 12.03.2020 these tanks were again checked at the IOC (Indian Oil corporation) Sales Officer/
Engineer's instance and found to be at dip level 13 i.e., 533 Liters of Petrol and dip level 9.5 i.e., 309 Liters of Diesel & further accounts/calculations determined that 2808 Liters of Petrol and 8145 Liters of Diesel have been stolen from the underground-storage tanks and thus the requisite FIR # 91 (Ex.C2) U/s 379 of the IPC (Indian Penal Code) was duly registered on 07.05.2020 with the P.S. Dinanagar Police authorities and the requisite theft-claim was duly filed on 09.06.2020 with the OP1 insurers.
4. However, the OP1 insurers rejected/repudiated (Ex.C3) the said theft-claim on 13.08.2020 addressing/treating it as a case of dishonesty by the complainant firm's employees. The complainant contested/objected at this unceremonious repudiation vide the protest letters (Ex.C4 to Ex.C8) but those failed to move the herein OP parties and thus the present complaint seeking directives to the OP1 insurers to set aside the repudiation and pay the theft-claim amounting to Rs.7,47,757/- besides to pay him an amount of Rs.50,000/- each in lieu of cost and compensation, in the interest of justice.
The Opposite Parties’ Version & prosecution in Defense:
5. The OP1 Insurers, in compliance to the Commission’s Summons, appeared through its counsel and filed its written-reply preliminary objecting therein its maintainability in the absence of cause of action favoring the complainant and deficiency in service on their part. The complainant has filed a false and frivolous complaint and has not been entitled to any relief. On merits, the OP have denied/side- tracked most of the contents of the complaint addressing these as wrong/incorrect and have been repeatedly putting emphasis/alleging that loss has been incurred on account of misappropriation by the employees and not as a result of theft/ burglary by the out-side persons forcing their entry into the complainant's business premises.
6. Lastly, the OP1 have prayed for dismissal of the present complaint with costs and have produced the Affidavit Ex.OP1/A of Janak Raj Asst. Manager along with evidentiary documents Ex.OP1 to Ex.OP8 in support of its defense.
7. Opposite party No.2 also appeared though their counsel and filed written reply alongwith affidavit of Rakesh Kumar Manager Ex.OPW-2/A by taking the preliminary objections that complaint is not maintainable, complainant never made any complaint to the other party, Indian Oil Company is a necessary party and thus the complaint is bad for non joinder of necessary party and another complaint has also been filed by the complainant on 18.11.2020 in which no fact of any FIR got registered by the complainant has been mentioned and in that complaint it has been pleaded that the pipes of petrol connecting to the tanks of filling machines got broken and loss has been occurred and a claim regarding loss of petrol has been made out in that complaint and no such fact has been pleaded in this complaint. On merits, all averments made in the complaint have been denied for want of knowledge and lastly prayed for dismissal of the complaint with costs.
Consideration and Findings:
8. We have examined the available documents/evidence as available on the records so as to statutorily interpret the meaning and purpose of each document and also the scope of adverse inference on account of some documents ignored to be produced by the contesting litigants against the back-drop of the arguments as put forth by the learned counsels for their respective litigants. We observe that the present dispute has arisen on account of rejection/repudiation of the theft-claim filed by the complainant on account of de-facto/actual physical removal/ taking away of Petrol & Diesel from underground storage tanks of the complaining Vendor by the burglars/some unknown persons as reported in the related FIR. It shall be pertinent here to mention/clarify here for the purpose of removal of all ambiguity that the offense of 'misappropriation' gets committed in accounting/books by way of false & fictitious/inappropriate entries etc and not through physical removal of goods/ valuables sans owner/possessor's consent that amounts to theft qua the criminal statutes. It is clarified that offense of theft can be committed by the employee and also by the custodian of goods/valuables. Thus, we set-aside the OP1 insurers' arbitrary rejection/repudiation of the theft-claim by simple addressing it as misappropriation since that amounts to employ of unfair practices and also leads to affirm deficiency in service on their part and that surely attracts an adverse statutory award.
9. In the light of the all above, we partly allow this complaint and ORDER the OP1 insurers to withdraw the impugned repudiation of the theft claim and pay the same in terms of the policy qua the theft-claim, in full, besides to pay him Rs.20,000/- in lump sum as compensation and cost of litigation within 45 days of receipt of the certified copy of these orders otherwise the awarded amount shall attract interest @ 6% PA from the date of the complaint till paid, in full.
10. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
11. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Naveen Puri)
President.
ANNOUNCED: (B.S.Matharu)
JULY 27, 2022. Member.
YP.
