DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
PATIALA.
Consumer Complaint No. 198 of 11.5.2016
Decided on: 15.6.2017
M/s B.K.Medical Agency, Opposite Kaintal Petrol Pump, Bhupindra Road, Patiala, through its Proprietor Sh.Sanjeev Kumar Singla.
…………...Complainant
Versus
1. New India Assurance Co.Ltd.Divisional Office :7, Chhoti Baradari, Patiala through its Divisional Manager.
2. New India Assurance Co.Ltd.Regd.& Head Office:New India Assurance Building,87, M.G.Road, Fort Mumbai-400001 through its Managing Director.
…………Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
QUORUM
Smt. Neena Sandhu, President
Smt. Neelam Gupta, Member
ARGUED BY:
Sh.J.D.Bansal,Advocate,counsel for complainant.
Sh.D.P.S.Anand,Advocate,counsel for opposite parties.
ORDER
SMT.NEENA SANDHU, PRESIDENT
Complainant M/s B.K.Medical Agency through its Proprietor Sh.Sanjeev Kumar Singla, has filed this complaint under Section 12 of the Consumer Protection Act,1986 ( hereinafter referred to as the Act) against the Opposite Parties (hereinafter referred to as the O.Ps.) praying for the following reliefs:-
- To pay the stolen cash amount of Rs.40,000/- and costs of damaged furniture to the tune of Rs.50,000/- alongwith interest from the date of theft till realization.
- To pay Rs.2,00,000/- as compensation for causing mental agony and physical harassment
- To pay Rs.25,000/- as litigation expenses or
- To grant any other relief,which this Forum may deem fit.
2. In brief the facts of the complaint are that the Prop. of the complainant for earning his livelihood is running the business of medicines under the name and style of M /s B.K.Medical Agency. Sh.Sanjeev Kumar Singla, Prop. of the agency got insured his medical agency alongwith furniture, fixtures, stock in trade including goods held in trust, money in transit, money in till or counter during business hours and money in locked safe in office after business hours etc. vide policy No.36140048130600000398 and 36140048140600000414 for the period from 3.3.2014 to 2.3.2015 and 7.3.2015 to 6.3.2016 respectively with the OPs. In routine the complainant opens his shop at 9Am and closed at 9.15PM. On 19.11.20145, in routine manner, he closed his shop at 9PM. On 20.11.2014, when he opened the shop, he found that the safe (which were locked) of counter of shop were broken and other articles were shattered. When he opened door of rear office, the A.C. of rear window and grills were found broken. On checking the safe counter, cash amount of Rs.35/40 thousand alongwith some coins was found missing. He lodged FIR No.9 dated 1.2.2015 under Section 457/380 IPC, P.S.Civil Lines, Patiala. Intimation of theft was also given to the OPs. A surveyor was appointed by the OPs. Spot inspection was done by the surveyor and the complainant was assured that the amount of claim i.e. stolen cash amount and cost of the damaged furniture would be paid to him by the company very soon. The police of P.S.Civil Lines, Patiala filed untraceable report dated 9.5.2015, which was accepted on 29.10.2015 by the court of Sh.Sukhwinder Singh, Ld.JMIC, Patiala. As per demand of the OPs, all the required documents have also been submitted by the complainant to the OPs. Thereafter, he approached and requested the OPs so many times for the payment of the amount but the OPs put off the matter on one pretext or the other. Ultimately the OPs repudiated the claim of the complainant vide letter dated 3.6.2015 on the ground that “as per policy clause, the cash should be in locked safe of showroom after business hours” He got served a legal notice dated 18.3.2016 upon the OPs for the payment of the loss suffered by him but the OPs failed to pay any heed to his request. Thus, there is deficiency in service on the part of the OPs for which he is suffering from mental agony and physical harassment. Hence this complaint.
3. On being put to notice, the OPs appeared and filed the written version stating therein that the complaint is not maintainable because the shop of the complainant is being run for commercial purposes. It is stated that the OPs have issued a shopkeeper insurance policy in favor of M/s B.K.Medical Agency, Bhupindra Road, Patiala for the period from 3.3.2014 to 2.3.2015, covering the risk of burglary and house breaking, money in transit, for a sum of Rs.25000/-, money in counter during business hours for a sum of Rs.25,000/-, money in locked safe in office after business hours for a sum of Rs.25000/-, plate and glass for Rs.20,000/-, baggage insurance for Rs.2000/- and public liability insurance Rs.10,000/-. On receipt of intimation of loss, Sh.Deepak Malhotra, Charted Accounts, approved IRDA surveyor and loss assessor was deputed to assess the loss, who in his report dated 20.3.2015, assessed the loss to the tune of Rs.32,370/-. It is averred that the claim was repudiated on the plea that the insured cash was lying in counter drawer during the night while it should have been kept in a locked safe or in a strong room, which amounts to violation of terms and conditions of the policy. The OPs after denying all other averments made in the complaint have prayed to dismiss the complaint.
4. On being called to do so, the ld. counsel for the complainant has tendered in evidence affidavit of Sanjeev Kumar Singla, Ex.CA alongwith documents Exs.C1 to C10 and closed the evidence.
The ld. counsel for the OPs has tendered in evidence affidavit of Sh.Ramesh Kumar Pandita, Ex.OPA, affidavit of Sh.Deepak Malhotra, Ex.OPB alongwith documents Exs.OP1 to OP6 and closed the evidence.
5. We have heard the ld. counsel for the parties, gone through the written arguments filed by the ld. counsel for the complainant and have also gone through the record of the case, carefully.
6. From the copy of policy schedule for the shopkeepers insurance,Ex.C1, it is evident that M/s B.K. Medical Agency was duly insured with the Ops for the period from 3.3.2014 to 2.3.2015.There is no dispute regarding theft. From the perusal of repudiation letter dated 3.6.2015,Ex.OP2, it is evident that Ops have repudiated the claim on the ground that, ‘as per the policy clause the cash should be in locks and safe or strong room after business hours’. As per Term No.(b) of Section III Money Insurance, of the terms and conditions of insurance policy,Ex.OP1, the insurance company would indemnify the insured in respect of “loss of or damaged to money and / or valuables by the burglary and/ or housebreaking, whilst contained in the safe, burglar resisting or otherwise steel cupboard/cashbox and/or such other places under lock and key”. We have perused the surveyor report, Ex.OP3, wherein the surveyor has stated that on investigation he found that cash was lost after breaking the window and the cash was taken after breaking the counter/drawer which is used as safe for keeping cash. Had the drawer/counter was not locked, then the thieves could have taken the money without breaking the drawer/counter . Taking this fact into consideration, we are of the view that the cash counter/drawer was properly locked. Even otherwise, no evidence has been adduced by the Ops that the drawer/cash counter, where the complainant used to keep cash was not locked. In this view of the matter, we are of the considered opinion that as per Term No.(b) of Section III Money Insurance, of the terms and conditions of insurance policy,Ex.OP1, the insurance company is liable to indemnify the complainant.
Now the question which falls for consideration is that what should be the quantum of indemnification ?
7. From the perusal of copy of surveyor report,Ex.OP3, it is evident the surveyor has assessed the total loss to the tune of Rs.32,370/- ( i.e.
Rs.25000/- in respect of cash loss + Rs.7370/- in respect of furniture and fixture). It may be stated that the surveyor’s report has significant evidentiary value and cannot be displaced unless it is contradicted by credible evidence to the contrary. In the case of United India Insurance Co. Ltd. Vs. Deen Dayal II(2009)CPJ 45(NC), the Hon’ble National Commission has held that “surveyor report being an important document cannot be brushed aside lightly without any material to contrary on record and nothing produced on record to contrary to rebut the loss assessed by the surveyor”. In this view of the matter, we hold that the Ops are liable to indemnify the complainant to the tune of Rs.32,370/-alongwith interest. Since the complaint has been filed by M/s B.K.Medical Agency, therefore, it being a juristic person is not entitled for compensation on account mental agony and physical harassment as prayed for. Our view is supported by the order passed in the case Oriental Insurance Company Limited. Vs. M/s Sawan Jewellers 2014(1) CLT 121 by Hon’ble Chandigarh State Consumer Disputes Redressal Commission, U.T.Chandigarh.
8. In view of the aforesaid discussions, we partly allow the complaint direct the Ops in the follow manner:
- To pay Rs.32,370/-alongwith interest @7% from the date of repudiation i.e.3.6.2015 till realization.
ii. To pay Rs.10,000/- as cost of litigation expenses.
The Ops are further directed to comply the order within a period of 30 days from the date of the receipt of the certified copy of this order, failing which they shall pay the interest @9% per annum on the amount of Rs.32,370/- from the date of order till realization. Certified copies of this order be sent to the parties free of cost under the rules. Thereafter, file be indexed and consigned to the Record Room.
ANNOUNCED
DATED:15.6. 2017
NEENA SANDHU
PRESIDENT
NEELAM GUPTA
MEMBER
