O R D E R ; ( Per Shri B.R. Chandel, President).
There is no dispute that the complainant Shri Pankaj Rattan is the proprietor of ‘M/s Rudra Traders, Village and Post Office Amb’ and carrying on the retail and whole sale business of Vodaphone, Recharge Coupons, Voda Mobile Phone, Max and Micro Max Mobiles, Zen Mobiles, e-touch Mobiles in District Una to earn his livelihood by way of self employment and is the holder of CST and VAT numbers. He is also the holder of Cash Credit Limit of Rupees 10 Lac from the State Bank of India branch Amb vide A/c No. 30506053002 having drawing power of Rupees 9,37,500/-. The complainant was the holder of insurance policy Annexure R-1 w.e.f. 18-12-2009 to 17-12-2010 vide which stock of all kinds of mobiles and such other goods as per bank record were insured against the burglary and house breaking in sum of Rupees 13 Lac subject to the terms and conditions Annexure R-2. During night intervening of 1st -2nd April of 2010 a burglary and theft took place of Zen, Micromax , Max, e-touch and Vodaphone handsets along with recharge coupon, stock-in-bag kept in Alhmira and cash in counter of Rupees 85,000/- by committing house breaking and the documents including bill books , stock register and other files were set on fire. The complainant reported the matter to the police vide First Information Report Annexure R-7 dated 02-04-2010 and the opposite party was intimated. The opposite party appointed Shri Amar Pal Singh Johar, Surveyor and Loss Assessor, to conduct spot survey who accordingly conducted preliminary survey and submitted his report Annexure R-6 dated 11-06-2010. Having been satisfied with the factum of theft and burglary in the shop of the complainant, the opposite party appointed ‘Consolidated surveyor Pvt. Ltd.’ Chandigarh, to conduct the survey and assess the loss. The said company conducted the survey and submitted its report Annexure R-5 dated 31-03-2011 vide which assessed the loss at Rupees 1,37,749/- minus Rupees 1000/- on account of less excess clause = Rupees 1,36,749/- against the claimed amount of Rupees 12,81,870/- on the strength of bills Annexure C-72 to Annexure C-78 issued by ‘Rudra Traders’ authorized distributor Micromax Mobile Phones, Gagret Road , Mubarakpur, Annexure C-91 to Annexure C-93 issued by Sharma Enterprises and Annexure C-94 to Annexure C-162 issued by Nitin Telecom, Nangal. The Consolidated Surveyor Pvt. Ltd. vide letter dated March 7, 2011, Annexure R-12 requested the complainant to supply the documents mentioned therein within 7 days of the receipt of the said letter, but the complainant did not respond. The Consolidated Surveyors Pvt. Ltd. issued letter dated June 6, 2011, Annexure R-11 to the opposite party reporting therein that the complainant did not supply the IMEI numbers of the stolen phone handset and the purchase of the insured was also not authenticated and proved bogus during the survey and the insured had misrepresented and fraudulently increased the stock level and therefore, he advised the opposite party to repudiate the claim by invoking condition No.7 of the policy and accordingly the opposite party vide letter dated 02-07-2011 Annexure R-3 repudiated the claim of the complainant.
2. In view of the above stated undisputed facts the complainant on the strength of this complaint has claimed that the opposite party be directed to indemnify him by making payment of Rupees 12,81,870/- along with interest and a compensation of Rupees one Lac on the grounds that the mobile handsets of Zen, Micromax, Max- e-touch and Voda along with recharge coupons and cash in counter of Rupees 85,000/- of the value of Rupees 12,81,870/- has been stolen and the surveyor appointed by the opposite party after assessment had assured the payment of Rupees 12,81,870/- but the opposite party failed to pay the same in spite of several requests made by the complainant which amounts to deficiency in service due to which the complainant has suffered harassment, monetary loss and mental tension.
3. The opposite party disputed the said claim and has set up the defense that the Surveyor and Loss Assessor Shri N.S.Sandhu visited the shop of the complainant and examined stock in his premises, collected books of accounts and other documents from the complainant and his suppliers, core representatives, bank and inquired from the insured and assessed the loss of Rupees 1,37,749/- vide report dated 28-03-2011, but the said loss was not made to the complainant because he has misrepresented and fraudulently increased the stock level on the date of loss to avail undue benefits under the policy and made false statement hence the opposite party has rightly repudiated the claim of the complainant on 02-07-2011 vide letter Annexure R-13 and as such the opposite party has not committed any deficiency in service.
4. The first question which arises for determination is, whether the complainant has been able to prove that he has suffered a loss of Rupees 12,81,870/- and the Surveyor and Loss Assessor vide report Annexure R-5 has wrongly assessed the loss of Rupees 1,36,749/-.
5. In order to prove his claim the complainant has produced in evidence tax invoices Annexure C-94 to Annexure C-162 issued by Nitin Telecom, Nangal, of Rupees 2,15, 962/- of the period 01-04-2009 to 31-03-2010, Rudra Traders, Mubarakpur Annexure C-72 to Annexure C-78 of the period 11-01-2010 to 17-03-2010 and of Sharma Enterprises Annexure C-91 to Annexure C-93 of the period 16-02-2010 to 08-03-2010 amounting to Rupees 16,75,845/-. There is no dispute that the firm M/s Rudra Traders, Mubarakpur, is owned by the father of the complainant and none-else. During the period 11-01-2010 to 17-03-2010 the complainant allegedly purchased the mobile phone handset etc. from the said firm owned by his father of the price of Rupees 9,98,777.62. It is revealed from the tax invoice Annexure C-73 to Annexure C-78 that no IMEI number of the mobile handsets have been mentioned nor the fact of non mentioning of IMEI number has been explained. It is not disputed that the Surveyor and Loss Assessor had asked the complaint to supply the IMEI numbers, but he failed to supply the said numbers not only to the Surveyor and Loss Assessor, but has failed to prove the IMEI numbers of the telephone handsets before this Forum. Not to say only this, the affidavit of the proprietor of Rudra Traders, authorized distributor of Micromax Mobile phone who issued tax invoice Annexure C-72 to Annexure C-78 has been produced in evidence. The said tax invoices have also not been proved from its original nor the affidavit of the person who issued the said invoice has been produced in evidence, hence the said tax invoice are rendered inadmissible.
6. The complainant has also relied upon the tax invoices Annexure C-92 and Annexure C-93 issued by Sharma Enterprise and Annexure C-93 to Annexure C-162 issued by Nitin Telecom, but neither the said documents have been proved from the original nor the affidavit of the person who issued the said tax invoice has been produced in evidence, hence the said documents are also rendered inadmissible in evidence.
7. The report of the Surveyor and Loss Assessor Annexure R-5 is detailed one. He has duly considered the statement of accounts produced by the complainant. The tax free goods i.e. recharge voucher and SIM Card, have been excluded from the assessment of loss as such items does not have any market value. A report Annexure R-5 is duly supported and corroborated by the deposition of Shri N.S. Sandhu, the Surveyor and Loss Assessor, made in affidavit Annexure R-4. The complainant has not been able to show and prove that the report of the Surveyor and Loss Assessor Annexure R-5 is wrong, incorrect or improper, hence this Forum is bound to conclude that the surveyor has correctly assessed the net amount of loss at Rupees 1,36,749/-.
8. Now the sole question which survives for determination is, whether the opposite party has wrongly repudiated the claim of the complainant on the grounds that the complainant has misrepresented and fraudulently increased the stock level on the date of the loss to avail undue benefit and thereby is not entitled to get the claim as per condition No.7 of the policy.
Condition No. 7 of the policy reads as under :
“ 7. Fraud :- If any claim under this policy shall be in any respect fraudulent or if any fraudulent means or device are used by the insured or anyone acting on the insured’s behalf of to obtain any benefit under this policy, all benefits under the policy shall be forfeited.”
9. In order to defeat the claim of the complainant to get the amount of net loss so assessed by the Surveyor and Loss Assessor, the opposite party was legally bound to prove that the complainant misrepresented and fraudulently increased the stock level on the date of loss to avail undue benefits under the policy, but the opposite party has failed to prove any misrepresentation or fraud. The opposite party has simply relied upon the affidavit of Surveyor and Loss Assessor Shri N.S. Sandhu Annexure R-4. He has deposed that he tried to verify the books of accounts of M/s Rudra Traders, Mubarakpur, in presence of the complainant, but on reaching there the complainant disclosed that his father had closed the business about six months back and thus the purchasing shown to the M/s Rudra Mobile were adjustment entries made to inflate the stock level. On the basis of said deposition it cannot be concluded at all that the complainant has misrepresented the opposite party or committed any fraud. There is no evidence on record produced by the opposite party to prove the said fact, as a result of which the claim of the complainant has been wrongly and illegally repudiated by the opposite party.
10. In view of the evidence discussed and findings recorded above, this Forum is left with no alternative except to conclude that the complainant has failed to prove that the opposite party was liable to indemnify him qua the loss to the tune of Rupees 12,81,870/-, but has been able to prove that his claim to get the loss assessed by the Surveyor and Loss Assessor has been illegally repudiated by the opposite party which amounts to deficiency in service due to which the complainant has suffered harassment, monetary loss and mental tension.
RELIEF:
In view of the findings recorded above, the complaint is partly allowed. The opposite party is directed to pay Rupees 1,36,749/- to the complainant along with interest at the rate of 9% per annum from the date of filing of the complaint i.e. 12-08-2011 till the said amount is paid or realized. The opposite party is also directed to pay cost of the complaint which we assess at Rupees 5,000/-. Let certified copy of this order be sent to the parties free of cost. The file be consigned to the records after its needful.
Announced and signed in open Forum
on this the 05th day of February, 2015.
