Order dictated by:

Sh.S.S. Panesar, President.

1. M/s.Indo Fastners & Chemicals through its proprietor has brought the instant complaint under section 11 & 12 of the Consumer Protection Act, 1986 on the allegations that Sachin Gupta is running his business of Hardware and Chemicals under the name and style as Indo Fasteners & Chemicals, Kot Mangal Singh, Tarn Taran Road, Amritsar and he is an exclusive proprietor of the said firm, therefore, the present complaint is properly signed, verified and instituted by a proper and competent person as envisaged under law. The complainant has obtained insurance policy from Opposite Party No.2 for valuable consideration vide insurance policy cover note No. 644613 covering risk from 7.5.2011 to 6.5.2012 of Rs.9 lacs on stock of all kinds of paint and / or Varnish and/ or Premier and /or chemical and / or Hardware stock and/ or stock as purchase or other similar kinds of stocks pertaining to the trade of insured’s and/ or AC & stabilizer or furniture and/ or fixture and/ or electrical installation and/ or similar kinds of goods and/ or as per inventory whilst lying or stored and/ or installed in the insured factory building premises built of ‘A’ class const. situated at above said address. Thus, the complainant is a consumer of the Opposite Parties as defined under the Consumer Protection Act. On 3.9.2011 in the morning hours when the complainant went to open his godown, he received great shock to see that a theft has been committed in his godown during the intervening night of 2-3/9/2011 and various valuable goods have been stolen by somebody from the business premises of the complainant having value of Rs.1,33,159/-. The complainant immediately reported the matter to the concerned police station on the same day and the police has lodged a report dated 4.9.2011 regarding the above said theft. The matter was also reported to the Opposite Party and all the requisite documents including the copy of said report dated 4.9.2011 as well as copy of bill of the goods which have been stolen from the business premises of complainant have been supplied by the complainant to the Opposite Party. As the above said incident/ occurrence had been taken place during the insured period and as such, the complainant is entitled to compensation from the Opposite Parties. On 15.3.2012 the police has also issued untraceable report regarding the said matter of theft in the business premises of the complainant. The copy of untraceable report is also attached. The Opposite Party appointed one investigator and he was extended full cooperation and all the requirements asked by him were supplied. The complainant made several visits to the office of Opposite Party No.2 in order to know the status of claim, but received no satisfactory report. It is pertinent to mention that untraceable report dated 15.3.2012 was also supplied to Opposite Party No.2, but to the utter surprise of the complainant after a gap of one year and 4 months of theft i.e. 2-3/9/2011 the Opposite Parties have failed to pay the entire claim to the complainant. Keeping in view the aforesaid facts and circumstances of the case, it becomes quite evident that there is gross negligence, carelessness, deficiency in service and unfair trade practice on the part of Opposite Parties on account of which the complainant has suffered great mental pain, agony, harassment inconvenience besides monetary as well as business losses and as such the complainant is also entitled for compensation as well. The complainant has prayed for grant of insurance claim to the tune of Rs.1,33,159/- alongwith interest @ 24% per annum besides compensation to the tune of Rs.50,000/- and litigation expenses to be assessed by this Forum. Hence, this complaint.

2. During the course of proceedings, Sachin Gupta complainant died and Smt.Samita Gupta being widow of Sachin Gupta, proprietor of Indo Fasteners & Chemicals through, Kot Mangal Singh, Tarn Taran Road, Amritsar was brought on record as complaint to proceed with the instant complaint.

3. Upon notice, Opposite Parties appeared and contested the complaint by filing joint written statement taking preliminary objections therein inter alia that the present complaint is not legally maintainable being pre-mature because the complainant has not submitted non traceable report issued by the competent authority duly accepted by the court as the claim preferred by the complainant pertains to the alleged burglary and with respect to said type of losses, the said untraced report is the basic and material document to process the claim on merits. In this regard, it is submitted that the Opposite Party has written numerous letters followed by reminders and final reminder dated 15.3.2013 was also written to the complainant concern, but instead of making compliance of the same, the complainant concern has preferred to file the present complaint which is not legally maintainable; that the complainant has claimed a sum of Rs.1,33,159/- being the basic loss which is totally wrong and incorrect as per loss assessed by the independent surveyor. Said surveyor has assessed the loss to the tune of Rs.31,463/- only for which even the complainant concern has given consent letter to accept the said claim being the liability of the insurance company to the tune of Rs.31,463/-. However, this amount could not be released to the complainant for want of non submission of untraced report; that in the light of aforesaid preliminary objections, it is apparent that there is no question of any deficiency in service on the part of the Opposite Parties. Hence the claim of interest @ 24% per annum as well as compensation demanded by the complainant to the tune of Rs.50,000/- on this ground is not at all payable. In fact, neither there is any such provision to pay such relief under the Consumer Protection Act nor there is any agreed clause accepting any liability by the Opposite Parties to pay any such relief. Moreover, as per judgement delivered by Hon’ble National Commission, even in the case of proved deficiency, the relief of interest and compensation can not be allowed simultaneously. In the present case as there is no question of any deficiency, therefore, the complainant is not entitled to get any relief of compensation, interest or costs; rather, the complaint is liable to be dismissed being pre mature. On merits, the facts narrated in the complaint have been specifically denied and pleas taken in the preliminary objections have been reiterated.

4. In his bid to prove the case, complainant tendered into evidence affidavit Ex.C1, copy of report Ex.C2, copy of FIR Ex.C3, copy of untraceable report Ex.C4, copy of letter dated 15.9.2011 Ex.C5, cover note Ex.C6, copies of bills Ex.C7 to Ex.C9, additional affidavit of Sachin Gupta Ex.C1/A, copy of survey report Ex.C10, investigation report Ex.C11 and closed his evidence.

5. On the other hand, to rebut the evidence of the complainant, Opposite Parties tendered into evidence the affidavit of Sh.A.S.Dhingra Ex.OP1, affidavit of Sh.Sumant Sud, Surveyor and Loss Assessor Ex.OP2, survey report Ex.OP3, consent letter Ex.OP4, letters Ex.OP5 to Ex.OP9, standard policy schedule Ex.OP10, affidavit of Sh.Sumant Sud, Surveyor and Loss Assessor Ex.OP1,2/11 and closed the evidence on behalf of the Opposite Parties.

6. We have heard the ld.counsel for the parties and have carefully gone through the evidence on record.

7. From the appreciation of the facts and circumstances of the case, it becomes evident that the complaint filed by the complainant is pre-mature. Insurance claim of the complainant could not be settled by Opposite Party on account of the fact that the complainant did not supply the copy of untraced report as well as order passed thereon by Ilaqa Magistrate, despite issuing number of letters in that regard. Objection to that effect was also taken in the written version filed on behalf of the Opposite Parties in response to the complaint. But even then, the needful was not done. In our considered opinion, instant complaint is pre-mature. As such, the complaint is directed to comply with the supply of above noted documents to the Opposite Parties within 15 days of the supply of the copy of the order and the Opposite Parties shall dispose of the insurance claim of the complainant within further period of 15 days therefrom. The complaint stands disposed of accordingly. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

Announced in Open Forum

Dated: 17.08.2016.