Haryana

Ambala

CC/44/04/2013

AMIT MAKKAR - Complainant(s)

Versus

OIC CO. - Opp.Party(s)

Ashutosh Aggarwal

27 Jun 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

Complaint Case No.      : 44 of 2004/2013

Date of Institution         : 09-02-2004/        31.01.2013

Date of Decision            : 27.06.2017

 

Sh. Amit Makkar son of Shri Dharamveer Makkar, Prop: M/s Hari Om Tyres, 252-253, Indira Market, Ambala Cantt.

 

……Complainant.

Versus

 

Oriental Insurance Co. Ltd. Branch Office, LIC Building, Ambala City.

 

                                                                   ……Opposite Party.

 

Complaint Under Section 12 of the Consumer Protection Act.

 

BEFORE:   SH. D.N. ARORA,  PRESIDENT.

                   SH. PUSHPENDER KUMAR, MEMBER.

                   MS. ANAMIKA GUPTA, MEMBER.

                  

Present:       Sh. P.K. Goel, counsel for complainant.

                   Sh. R.K. Vig, Counsel, counsel for OPs.

 

ORDER.

 

                    Initially the present case was allowed by the District Forum Ambala vide order dated 28-03-2007. The opposite parties filed an appeal before Hon’ble State Disputes Redressal Commission, Haryana (Panchkula) on which Hon’ble State Commission has remanded the present complaint to the District Forum, Ambala vide order dated 23-11-2012 for the fresh disposal of the complaint in accordance with law after providing two opportunities to each of the parties to conclude their respective evidence.  Accordingly both parties have led the evidence.

          In nutshell, brief facts of the complaint are that the complainant got the goods lying in his shop insured for theft or burglary from OP vide cover note No. 545249 dated 02-05-2001 valid from 04-05-2001 to 03-5-2002 fro a sum of Rs. 15 lacs and cover note No. 026989 dated 23-07-2001 vaid from 23-07-2001 to 22-07-2002 for a sum of Rs. 3 lacs totaling Rs. 18 lacs. The average turn over of complainant was about 22 lacs per month. The complainant as usual closed his shop at about 8:15 PM for going to his house at Ambala Cantt. The shop was properly locked. On 15-03-2001 at about 9:15 AM, the complainant received a message on telephone from a nearby shopkeeper Mr. Johar that the locks of the show-room outside the shop of the complainant are found broken. He immediately reached at his shop and found all the locks broken. On opening the shutter, it was revealed that the some unknown persons had burgled the shop by breaking the locks and have removed the tyres etc. from the shop. The case of theft was lodged with the police through FIR No. 129 dated 15-03-2001 under Section 457/380 IPC. The intimation of the incident was also given to the OP, who deputed the surveyor. Later visited the spot and perused the record of stock and inspected the remaining stock of goods lying in the shop, which was in the same position as was left by the miscreants. The complainant lodged the claim of stolen articles amounting to Rs. 7,08,712/- with the OP. The complainant supplied all the relevant documents as required by the surveyor including detail of sale and purchase of goods and all other documents and information as required by me from time to time. The OP Inspite of several visits and requests did not settle the claim and ultimately repudiated the claim. Hence, It is prayed that OP may kindly be directed to pay an amount of Rs. 7,08,712/- along with interest @ 18 % p.a., Rs. 50,000/- as compensation on account of harassment, mental agony etc. and Rs. 5,000/- as cost of proceedings.

2.                Upon notice, OPs appeared through counsel and filed written statement raising preliminary objections qua maintainability of complaint.  On merits, it has been submitted that after due process, scrutiny and investigation found that the claim was not genuine and was legally repudiated the claim. The complainant had failed to prove that any theft had taken place and that the stock alleged to have been available in premises in question was actually available in the premises or was stolen. Rest of the averments made by the complainant are wrong and denied. Thus prayed that there is no deficiency in service on the part of OP and prayed for dismissal of complaint with costs.

3.                Before remanding back the present case, to prove his version, counsel for complainant tendered affidavits as Annexure CA and CB alongwith documents as Annexures C-1 to C-35 and closed the evidence.  On the other hand, counsel for OP tendered affidavit as Annexure RX alongwith document as Annexure R-1 to R34 and closed the evidence of OPs.

                   After remand back of the case, complainant has tendered his affidavit Annexure CX along with documents Annexure C36 to Annexure C39 and closed his evidence. On the other counsel for the opposite party has tendered affidavits RX, RY and RZ along with documents annexure R1 to annexure R34, which were already tendered by OP before remanding the case.

 4.               We have heard learned counsel for the parties and gone through the case file very carefully. Counsel for the complainant has tendered in evidence copy of balance sheet as on 14-03-2002 duly audited by Chartered Accountant before the theft, vide which it clearly shows that stock in trade as on 14-03-2002 before the theft was worthy Rs. 10,47,583/- as Annexure C3. Annexure C4 is the list of stock prepared after the theft in the presence of the surveyor and the value of which is worth Rs. 3,33,583/-. Annexure C5 which is the trading account for the year ending 31-03-2002, according to which the theft to the tune of Rs. 7,08,712 has been shown. Annexure C7 is the sale control account for the year 2001-02 of the complainant, according to which sale of Rs. 2,52,55432/- took place.  Annexure C8 is the copy of sales tax returns. Annexure C9 is the stock statements.  The matter of theft was reported to the Police Station Ambala Cantt. who registered case FIR No. 129 dated 15-03-2002 under Section 457/380 IPC, which is annexure C10. Copy of information about theft given to OP was given through Annex. C11. Annexure C12 and C13 are the copies of claim and detail of stolen items respectively.   

                    After remand back of the case, counsel for the complainant has further tendered documents annexure C36 i.e. copy of joint statement of accused in aforesaid case FIR No. 129/02, vide which two accused out of six accused made a joint statement and confessed their guilt of theft. Annexure C37 is the certified copy of statement of PW1 Harish Sharma, who also corroborated the facts of theft in the show-room of the complainant on 15-03-2002. Counsel for the complainant has further tendered documents Annexure C39, vide which it reveals that remaining four accused have declared proclaimed person and Annexure C38 is the certified copy of judgment in aforesaid case FIR No. 129/02, vide which the case has been decided and Court hold accused on guilt under Section 411 IPC. So we have no hesitation to hold that the theft has been occurred in the insured’s premises.

                    Now we are coming on the point that what loss has been occurred by the complainant due to aforesaid theft.  Counsel for the OPs has argued that on receiving the information the claim was processed, got surveyed and investigated as per the terms and conditions of the policy and found that the claim is not payable for the reasons contained in the repudiation letter legally and validly in view of the reports of surveyors and investigators. No sale register has been maintained willfully. The tyres were sent to Punjab by fake names, but all the tyres purchased in the name of insured. Due to this reason, stock increased whereas actually stock was minor at the time of alleged theft. It was also argued that the shop does not have adequate space within its covered area to keep the stock of such amount.  He further relied upon the surveyor report, vide which assessment is as under :-

Particular                                         Qty./No.                         Amount

To claimed cost of;

Truck tyres                                                 45                                   4,27,500/-

Tubes (bags)                                     110                                1,10,000/-

Harvest combine tyre                        04                                  61,212/-

ADV tyre                                          50                                  70,000/-

Car tyre (Maruti & Zen)                    40                                  40,000/-

Gross loss claimed                                                                  7,08,712/-

Less: Disallowance for possible

          Quantity variance @

          60% of Truck Tyres       2,56,500/-

          75% Tubes  (Assorted)  82,500/-

          50% Harvest combine

          Tyres                             30,606/-

          75% ADV Tyres            52,500/-

          75% Car Tyres              30,000/-                                   4,52,106/-

                                                                                      2,56,606/-

Sub-Total

Less:  Disallowance for possible

          Cost and Quality/Size variance @

          5% on Assorted Tyres (on Rs. 2,29,106) i.e. Rs. 11,455/-

          10% on Assorted Tyres (on Rs. 27,500/-) i.e. Rs. 2,750/-

                                                                                                14,205/-

Net Stock loss recommended/assessed (Rs.)                                     2,42,401/-

 

5.                 Main argument basis upon report of surveyor of the OP is that there is no sufficient space in the insured premises where such a huge stock may be placed as allegedly stolen. The contents of OP seems itself to be an unfair trade practice when OP issued the policy stock was very well in the knowledge of OP the quantum of space where the insured goods were to be stored. Had the said space is not sufficient for storage of goods worth Rs. 18,00,000/- then why the OP had issued the policy and had received the insured premium for insured amount. Now, when the OP had received the premium of stock worth Rs. 18,00,000/- then they cannot be allowed to wriggle out their liabilities to compensate insured on the ground that there was no sufficient space with the insured for storing the goods worth Rs. 10,47,583/-. Another ground raised by OP to repudiate the claim is also not sustainable based on imagination that there is a possibility of selling the goods by the complainant without bill before the theft. There is no such action had taken by Taxation Department against the complainant. The opposite party cannot be allowed to take such a plea which is only based on possibility. The Act of OP is repudiated the claim is malafied with ulterior motive to avoid the liability undertaken by it on payment of huge insured premium so this Forum found that Action of OP repudiation the claim of complainant is amount to deficiency in service and is also an act of unfair trade practice. Hence, we are of the considered view that the surveyor report is not justifiable and the OP has wrongly repudiated the genuine claim of the complainant, for which he was legally entitled. As such, the complainant is entitled to the amount of Rs. 7,08,712/- along with interest and costs and costs is assessed to the tune of Rs. 10,000/-.   

6.                 In view of the above said discussion, we allow the present complaint with costs and the OPs are directed to comply the following directions within a period of thirty days from receipt of copy of the order:-

1. To pay a sum of Rs. 7,08,712/- along with interest @ 9 % per annum from the date of filing of the complaint i.e. 09-02-2004 till its realization within stipulated period. Failing which, opposite party are liable to pay further interest @ 12 % for the default period.
2. Also to pay a sum of Rs. 10,000/- as costs on account of litigation and harassment.  

                   Copies of the order be sent to the parties, free of costs, as per rules.  File be consigned to the record room after due compliance.

 

ANNOUNCED ON:  27.06.2017.                                             (D.N. ARORA)

                                    PRESIDENT             

                                                                                               

                                                           

                                                                                                (PUSHPENDER KUMAR)

                                                                                                            MEMBER

 

 

                                                                                                (ANAMIKA GUPTA)

                                                                                                            MEMBER