Haryana

Yamunanagar

CC/525/12/2014

Shiv Garments through pro. Sonu Sharma s/o Sh.Baldev Raj Sharma - Complainant(s)

Versus

New India Assurance Ltd. - Opp.Party(s)

None for complainant.

23 Nov 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA   NAGAR

                                                                                     Complaint No. 525  of  2012.

                                                                                     RBR No.14 dated 24.12.2014.

                                                                                     Date of institution: 29.05.2012

                                                                                     Date of decision: 23.11.2016.

M/s Shiv Garments, through its Prop.Sonu Sharma aged about 30 years son of ShriBaldev Raj Sharma, resident of Now 1633/D, Tilak Nagar, Sasauli Road, Yamuna Nagar.                                                                                                                                                                                                                

                                                                                                                              …Complainant.

                                    Versus

1. The New India Assurance Company Limited, Branch Office, Opp. Madhu Palace, Jagadhri Road, Yamuna Nagar, through its Branch Manager.
2. The New India Assurance Company Limited, The New India Assurance Building, 87, Mahatma Gandhi Marg, Fort, Mumbai through its Managing Director.

                                                                                                                              … Respondents.

                       

BEFORE:         SH. ASHOK KUMAR GARG, PRESIDENT

                          SH. S.C.SHARMA, MEMBER.

 

Present: None for complainant.   

              Smt. Aruna Sharma, Advocate, counsel for respondents.  

 

ORDER

 

1.                     Complainant firm has filed this complaint under section 12 of the Consumer Protection Act 1986.   

2.                     Brief facts of the present complaint, as alleged by complainant, are that complainant M/s Shiv Garments situated at Kansapur Road, Yamuna Nagar is a sole proprietorship firm and Shri Sonu Sharma is its sole proprietor. Complainant purchased a policy bearing No. 353503/48/09/34/00000949 covering the stock of all kind of readymade garments in the shop to the tune of Rs. 4,50,000/- against fire and allied perils and Rs. 4,50,000/- against Burglary and House Breaking and money insurance etc. w.e.f. 21.12.2009 to 20.12.2010 from the respondent No.1 (hereinafter referred as OP No.1) and paid a premium of Rs. 2229/-. In the night of 18.12.2010 at about 9.30 PM after locking the shop, the complainant went to his house and thereafter in the morning of 20.12.2010 he got information through phone that the shutter of his shop M/s Shiv Garments is lying opened and when he came to his shop he found that theft of all items of readymade garments was committed in his shop after breaking the lock and shutter by someone. The complainant reported the matter to the police and FIR No. 333 dated 30.12.2010 under section 457/380 IPC was registered in the P.S. Farakpur and OP No.1 was also informed about the abovesaid incident. The complainant completed all the formalities and submitted all the relevant documents of insurance policy and the surveyor of OPs has done the survey of the shop but till date, the Op has not adhered to sanction the claim of the complainant. The complainant visited so many times to the Ops Insurance Company to settle the claim of the complainant but they postponed the matter on one pretext or the other. As such, the complainant has suffered great monetary loss and facing hard mental and physical pain and torture at the hands of the OPs. Lastly, prayed for directing the Ops to make the payment of Rs. 4,50,000/- i.e. the sum assured covered under the insurance policy and further to pay compensation as well as litigation expenses. Hence, this complaint.

3.                     Upon notice, OPs appeared and filed its written statement by taking some preliminary objections such as complaint is not maintainable; the documents filed by the complainant with the complaint are not genuine and are forged. The bills filed by the complainant in this Hon’ble Forum are also fake and are not issued by the respective firms. The complainant has filed bills of four companies i.e. (i)M/s Parveen Sharma Hoisary, Ludhiana, the complainant has filed the bills for about Rs.1,90,000/- of this firm and the surveyor of the respondent company enquired and received a letter from the firm stating that the bills are fake and the said sales are not made by the said firm, Copy of letter of the firm is Annexure R-12. On perusal of Annexure C-7 and C-15 it becomes clear that the bills are forged as serial number mentioned in Annexure C-7 is 2134 dated 27.11.2010 and Sr. No. in Annexure C-15 is 2124 dated 17.12.2010. Similarly, Annexure C-5 and C-12 are also forged. (ii) M/s Rubbani Garments, Ludhiana, on perusal of Annexure C-6 and C-11, it is clear that the bills are forged as Annexure C-6 is regarding bill No. 901 dated 15.11.2010 and Annexure C-11 is Bill No. 847 dated 16.12.2010. Besides this, the surveyor of the OPs Company also received telephonic intimation that the said bills were not issued by the said firm and are fake and forged. The survey report of the surveyor dated 10.01.2012 is Annexure R-13. (iii) M/s Gagan International, Ludhiana, (iv) M/s Bothra Knitwear Works,Ludhiana, the Bills of the abovesaid firms were also got verified by the surveyor and the surveyor was intimated telephonically that the said bills were fake and were not issued by the firms. (v) M/s Reet Garments, Ludhiana, a letter was sent by the surveyor to the said firm which was returned undelivered with the remarks that address of the said firm is incomplete.

4.                     From all the abovesaid facts, it is clear that the bills produced by the complainant are forged, fake and not issued by the said firms, as such, the OPs Insurance Company is not liable to pay any claim and prayed for dismissal of complaint. Besides this, there is un-explained delay in lodging the FIR and intimating the OPs Insurance Company as the alleged occurrence took place on 18.12.2010 and the FIR was lodged on 20.12.2010 and the information was given to the OPs Insurance Company vide letter dated 10.01.2011 (Annexure R-1). As such, the OPs Insurance Company is not liable to pay any claim amount as per condition No.7 of the Insurance policy which is reproduced here as under:

“If the claim be in any respect fraudulent or if any false declaration be made or used in support thereof or, if any, fraudulent means or devices are used by the insured or anyone acting on his behalf to obtain any benefit under the policy or if the loss or damage be occasioned by the willful act or with the connivance of the insured, all benefits under this policy shall be forfeited.”

As such, there is no deficiency in service on the part of OPs Insurance Company and on merit controverted the plea taken in the complaint and reiterated the stand taken in the preliminary objections and lastly prayed for dismissal of complaint.

5.                     The complainant failed to adduce any evidence and ultimately the evidence of the complainant was closed by Court order on 24^th February, 2016. However, at the time of filing the complaint, complainant filed his short affidavit along with his complaint and also filed some photocopies of bills issued by (i) M/s Parveen Sharma Hosiery, Ludhiana.(ii)    M/s Rabbani Garments, Ludhiana. (iii) M/s Gagan International, Ludhiana.(iv) M/s Bothra Knitwear Work, Ludhiana. (v) M/s Reeta Garment, Ludhiana as Annexure 1 to 15 and also filed photocopy of Insurance policy as Annexure-16 and photocopy of FIR as Annexure-17 and photocopy of untrace report as Annexure-18 and 19 in support of his complaint.

6.                     On the other hand, ld. counsel for the OPs Insurance Company tendered into evidence affidavit of Shri B.L.Jagwan, Divisional Manager, New India Insurance Company as Annexure RW/A and affidavit of N.S. Sidhu,CA, Director Consolidated Surveyor Private Limited as Annexure RW/B and photo copies of documents such as intimation letter dated 10-01-2011 as Annexure R-1, copy of letter dated 07.03.2011 issued to the complainant by the Surveyor demanding documents as Annexure R-2, photocopy of postal receipt as Annexure R-3,copy of letter dated 16.11.2011 with its postal receipt issued to M/s Parveen Sharma Hosiery, Ludhiana by the Surveyor as Annexure R-4 and R-5, copy of letter dated 16.11.2011 issued to M/s Rabbani Garments, Ludhiana as Annexure R-6, copy of letter dated 16.11.2011 issued to M/s Gagan International, Ludhiana as Annexure R-7, copy of letter dated 16.12.2011 issued to M/s Bothra Knitwear Work, Ludhiana as Annexure R-8, copy of letter dated 16.12.2011 issued to M/s Reeta Garment, Ludhiana along with postal receipt as Annexure R-9 and R-10, Surveyor Report dated 01.08.2011 as Annexure R-11, Reply of letter sent by M/s Parveen Sharma Hosiery, Ludhiana dated 24.12.2011 as Annexure R-12,Photo copy of claim repudiation letter dated 10.01.2012 as Annexure R-13,Copy of claim of processing sheet as Annexure R-14 Subsequent report dated 30.03.2012 issued by the Surveyor M/s Consolidated Private Limited as Annexure R-15, Copy of Insurance policy as Annexure R-16, terms and conditions of Insurance policy as Annexure R-17 and copy of FIR as Annexure R-18 and closed the evidence on behalf of OPs. 

7.                     We have heard the counsel for OPs and have gone through the pleadings as well as documents placed on the file by the complainant as well as Ops very carefully and minutely.

8                      It is not disputed that Insurance policy bearing No. 353503/48/09/34/00000949  was issued in the name of M/s  Shiv Garments valid from midnight of 21.12.2009 to midnight of 20.12.2010 on account of fire and allied of articles excluding money and valuable and burglary and house breaking for a sum insured Rs.4,50,000/-, which is duly evident from the Insurance Policy (Annexure C16/R17). It is also not disputed that a theft took place on 18.12.2010 in the shop of the complainant which is duly evident from the copy of FIR bearing No. 333 dated 20.12.2010 registered in Police Station Farakpur, Yamuna Nagar Annexure (C17/R18). It is also not disputed that Police Station Farakpur could not recover any articles and trace out the culprits/thieves and submitted untrace report which is duly evident from the copy of untrace report issued by S.P. Yamuna Nagar (Anexure-18)  and court of Judicial Magistrate Annexure- 19.

9.                     The only contention of the complainant as per complaint is that the OPs Insurance Company  has not settled his claim despite so many requests, whereas he submitted all the documents  as well as original bills to the OPs Insurance Company.

10.                   Whereas, on the other hand learned counsel for the OPs argued at length that the complainant has filed false complaint just to extract the money from the OPs Insurance Company. Learned counsel for the OPs Insurance Company draw our attention towards the report of Surveyor and referred the last para of the report mentioned at Sr. No.10 and argued that despite so many intimations/ reminders telephonically as well as vide registered letter, the complainant failed to submitt the requisite documents to the surveyor. Learned counsel for the OPs further argued that as the complainant intimated the Insurance Company on 10.01.2011 i.e. after a period of 22-23 days and by that time the shutter was got repaired by the insured. Ld. counsel for the OPs also draw our attention towards the letter issued by M/s Parveen Sharma Hosiery dated 24.12.2011 (Annexure R12) and subsequent reports of the Surveyor dated 10.01.2012 (Annexure R-13) and report dated 30^th March, 2012 (Annexure R15) and argued that the complainant has submitted fake purchased bills to avail undue benefit under the policy, hence the claim of the complainant was rightly recommended  by the Surveyor  as “No Claim” as per condition No.7 of the Insurance policy  in question and lastly prayed for dismissal of the complaint. 

11                    After hearing, we are of the considered view that there is a deficiency in service and unfair trade practice on the part of the Ops as the claim of the complainant has not been settled by the Ops Insurance Company within a stipulated period. As per version of the Ops, the alleged theft took place on 18.12.2010 and FIR was lodged on 20.12.2010 and the intimation was given to the Ops Insurance Company on 10.01.2011 but the claim of the complainant was not settled by the Ops Insurance Company till the filing of the present complaint i.e. 29.05.2012. Even, the surveyor submitted his report (Annexure R-11) on 01.08.2011 i.e. after a period of near about 8 months from the date of intimation. Although the complainant could not produce the books i.e. account statement and stock register, audit balance sheet, trading account etc. as demanded by the Ops vide their letter dated 07.03.2011 (Annexure R-2) and further also could not produce any stock statement submitted with the bank, if any, and further the bills (Annexure-1 to Annexure-15) submitted by the complainant were not confirmed by the respective firms as a genuine, but even then the plea of the Ops Insurance Company that the complainant has not suffered any loss on account of theft in his shop is not tenable. As it is not an easy job to register an FIR with the police in respect of false claim regarding any theft. From the perusal of copy of FIR bearing No. 333 dated 20.12.2010, it is duly evident that complainant immediately informed the police of P.S. Farakpur when he received the intimation from his neighbourer in regard to the theft which had taken place in his shop. Further, it is also not disputed that police of P.S. Farakpur, after registering the case under section 457/380 IPC investigated the case of the complainant and submitted his untrace report which was accepted by the Judicial Magistrate 1^st Class, Yamuna Nagar on 07.09.2011, which is duly evident from the copy of untraced report submitted by the Superintendent of Police, Yamuna Nagar (Annexure-18) and accepted by the court of Sh. Rajinder Singh Dhanda, JMIC, Yamuna Nagar (Ann-19). The arguments advanced by the learned counsel for the Ops that Surveyor and Loss Assessor has recommended in his report dated 01.08.2011 (Annexure R-11) for closing the file of the complainant as “No Claim” on the ground that complainant has failed to submit the trading accounts, books etc. despite so many reminders and further bills were not confirmed by the respective firms, so, the complaint is liable to be dismissed is also not tenable because not a single word has been mentioned in the report of the Surveyor and Loss Assessor that a false case of alleged theft was lodged by the complainant. Further, it is also nowhere mentioned in the report that complainant has not suffered any financial loss on account of theft, the surveyor and loss assessor has only mentioned that the bills submitted by the complainant were got verified and out of all the bills some were found fake and submitted his subsequent report dated 30.03.2012 (Annexure R-15). As per this subsequent report dated 30.03.2012 (Annexure R-15), the Surveyor and Loss Assessor taking into all the facts and circumstances of the case, assessed a loss of Rs. 71,622/- without any documentary evidence on the verbal discussion with the complainant but the Insurance Company has denied to pay the same on the ground that the Surveyor and Loss Assessor has assessed this amount just as per his own opinion but not based on any documentary evidence. No doubt subsequent report submitted by the Surveyor and Loss Assessor (Annexure R-15) on dated 30.03.2012 has been prepared by the Surveyor and Loss Assessor as per his own opinion after verbal discussion with the complainant, so, the Ops Insurance Company has rightly declined to pay the amount assessed in this report. However, taking into consideration all facts of the case more particularly copy of FIR in which the complainant at the time of lodging the FIR stated before the police that he has suffered a loss to the tune of Rs. 35,000/- cannot be overlooked. This amount was disclosed by the complainant at initial stage at the time of lodging of FIR. It is settled law that normally, documents do not speak lie but men may do so. Further it is duly evident from the copy of FIR (Annexure-17/R-18) that a theft had taken place in the shop of complainant and police could not recover anything and submitted untraced report (Annexure-18), so we are of the considered view that the complainant is entitled to get some relief.

12                    In the circumstances noted above and in the interest of justice and to avoid further litigation, we partly allow the complaint of complainant and direct the Ops Insurance Company to pay a sum of Rs. 35,000/- to the complainant alongwith interest at the rate of 7% per annum from the date of filing of complaint till its realization and further to pay a sum of Rs. 2000/- as litigation expenses. Order be complied within a period of 30 days after preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court.23.11.2016.

                                                                                          ( ASHOK KUMAR GARG)

                                                                                           PRESIDENT

 

                                                                                          (S.C.SHARMA)

                                                                                           MEMBER