Presented by Sri G.S.Pradhan, President. <br /> The subject matter of this dispute, pertains to deficiency in service as envisaged under the Provision of Consumer Protection Act-1986 and its brief fact is as follows:-<br /> <br /> The Complainant is the proprietress of M/s Tripathy Times, having its place of business at shop No. A-5 and B-3 of S.B. Market Complex and its additional place of business at N.H.6(six) near Private Bus Stand at Bargarh where in she deals in Titan, Sonata, Timex, Maxima, Rochees, Classis, Doller watches and its spare parts. The Complainant has insured her shops through the Oriental Insurance Company ltd., Bargrh vide Shop Keeper Policy No. 546/2006, 547/2006 and 1113/2006. Due to burglary in the shop at N.H.6(six) near Private Bus Stand, Bargarh on Dt. 04/05/2006 at night, she suffered a loss of stocks of Rs. 7,46,832/-(Rupees seven lac forty six thousand eight hundred thirty two)only and two door glass of racks worth Rs.5,000/-(Rupees five thousand)only. Immediately after the occurrence, the Complainant lodged a F.I.R. at Bargarh Police Station and informed the Opposite Party regarding the incidence on Dt. 05/05/2006. The Complainant duly submitted claim form on Dt. 05/06/2006 along with copies of entire books of accounts such as purchase register, sales registers, purchase bills, sales bills, stock transfer journal voucher, stock transfer register and detail description of stolen articles.<br /> <br /> As per the letters of Opposite Party Dt.19/03/2007, the Complainant was asked to submit the copy of final report, letter of subrogation and letter of under taking to settle the claim with out mentioning the claim amount and also directed the Complainant to submit the post occurrence accounts from Dt. 01/05/2006 to Dt. 30/09/2006 to the Surveyor Er. S.C. Senapati. Believing the Opposite Party, the Complainant sent the signed blank letter of subrogation and letter of under taking-through the power of attorney of the Complainant. The Complainant had also sent the final report to the Opposite Party on Dt. 20/03/2008 through registered post with acknowledgment which was received by the Opposite Party on Dt. 24/03/2008. The Complainant has taken all steps according to the terms and condition of the policy after the occurrence of the aforesaid incident and had provided all the required documents as required by the Opposite Party to grant the claim of the Complainant. But all the effort of the Complainant became fruit-less. In spite of repeated request to the Opposite Party over telephone, personal meeting and letters, to settle the claim but the Opposite Party failed to respond. Due to such negligence and deficiency in service of the Opposite Party, the Complainant has suffered heavy financial loss, mental agony and physical harassment and lastly finding no alternative the Complainant was forced to close his additional place of business of Goshala Road N.H.6(six), Bargarh.<br /> <br /> The Complainant claims Rs.7,46,832/-(Rupees seven lac forty six thousand eight hundred thirty two)only towards the burglary of stock amount, Rs.5,000/-(Rupees five thousand)only cost of two door glass of racks along with its profit and 18%(eighteen percent) interest from the date of claim i.e. Dt.05/06/2006 to the date of order, Rs.4,40,000/-(Rupees four lac forty thousand)only towards the financial loss, Rs.4,25,000/-(Rupees four lac twenty five thousand)only towards frustration, physical and mental harassment and Rs. 40,000/-(Rupees forty thousand)only towards the litigation expenses.<br /> <br /> The Opposite Party contends that, the Complainant runs a business which she insured and had availed the services of the Opposite Parties for commercial purpose hence the Complainant can not be termed as a consumer as per amended provisions of Sec.2(d)(ii) of the Consumer Protection Act-1986 and as such the case is not maintainable. The claim of the Complainant is under active consideration of the Opposite Party and pending for settlement and as such the same is premature and there exist no cause of action for the present case. Further the Opposite Party contends that, after getting information of burglary the Opposite Party supplied claim form and deputed surveyor cum loss assessor to assess the actual loss of the insured. The insured was also asked to submit all relevant papers i.e. copy of F.I.R., Final Police Report, letter of subrogation and undertaking in specific format for settlement of the claim. The Surveyor conducted survey in detail and after considering all aspects of loss, he assessed the loss at Rs. 2,19,068/-(Rupees two lac nineteen thousand sixty eight)only and submitted the report to the Opposite Party. The Complainant was also supplied a surveyor report. But the Complainant did not submit the letter of subrogation and under taking the specific format disputing the amount assessed by the final surveyor in his survey report.<br /> <br /> Further the Opposite Party contends that, the final report is not yet accepted by the Court of S.D.J.M., Bargarh, hence the investigation can not be supposed to be completed as the final report has not been accepted by the Court. The non settlement of the claim was due to non-submission of papers as asked by the Opposite Party and non acceptance of the Police report by the Court of S.D.J.M., Bargarh and not due to deficiency in service of the Opposite Party. The Complainant has not sustained the loss to the extent claimed by her.<br /> <br /> Further the Opposite Party contends that, as because the Complainant is not satisfied with the Surveyor report of final Surveyor and the assessment made by him, the Complainant's claim will require further survey and reassessment, opinions and evidences of experts therein depth scrutiny and elaborate discussion which can only be done in a regular Civil Suit and not in a summary proceeding.<br /> <br /> The Opposite Party prays for dismissal of the complaint with cost.<br /> <br /> Perused the complaint petition, Opposite Party's version as well as the copies of documents filed by the parties in respective of their case and find as follows:-<br /> <br /> It is not disputed by the Parties that the Complainant has taken the insurance policy of the shop situated at N.H. 6(six) near Private Bus stand, Bargarh of Rs. 10,00,000/-(Rupees ten lac)only and the burglary took place with in the validity period of the policy. After the incident the Complainant made claim of Rs. 7,46,832/-(Rupees seven lac forty six thousand eight hundred thirty two)only, is covered under the said policy.<br /> <br /> The explanation to the amendment Under Section 2 (1)(d)(ii) provides that commercial purpose doe not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self employment. The Complainant has not availed the services of the Opposite Party for any commercial purpose or to generate profit. Reliance may be placed in the case of “Horsolia Motor Vs National Insurance Company ltd. 2005(1) C.P.J. 27 where in Hon'ble National Commission held that for any commercial purpose it would mean that goods purchased or services hired should be used in any activity directly intended to generate profit. Profit is the main aim of commercial purpose. But in a case where goods purchased or services hired in activity is not directly intended to generate profit, it would not be commercial purposes. In this view of matter, a person who takes insurance policy to cover the envisaged risk does not take the policy for commercial purpose. Policy is only for indemnification of actual loss. It is not intended to generate profit and hence the Complainant is a consumer of Opposite party and the case is maintainable.<br /> <br /> Next, the burglary took place on Dt. 04/05/2006 night. Immediately there after the Complainant lodged a F.I.R. at Bargarh Police Station and also informed the Opposite Party about the incident on Dt. 05/05/2006. The Complainant made claim for indemnification of loss of Rs. 7,46,832/-(Rupees seven lac forty six thousand eight hundred thirty two)only and breakage of two door glass of racks worth Rs. 5.000/-(Rupees five thousand)only before the Opposite Party. All the required papers as asked by the Opposite Party were submitted by the Complainant for settlement of the claim. After getting information, the Opposite Party deputed one registered Surveyor Sri Sudam Panda to conduct preliminary survey and also deputed final surveyor cum loss assessor namely Sri S.K. Mohanty to assess the actual loss of the insured. On verification of the purchase bills and sale bills the loss assessor has assessed the loss to be Rs.5,84,179/-(Rupees five lac eighty four thousand one hundred seventy nine)only for all the three shop and Rs.2,19,068/-(Rupees two lac nineteen thousand sixty eight)only as non standard basis for the shop situated at N.H.6(six), Main Road, near Private Bus Stand, Bargarh. Though the Complainant has submitted all the relevant documents required by the Opposite Parties or its Surveyor/Loss assessor for settlement of the claim, the Surveyor has denied the production of stock register, sales register and inter transfer of stock from main location to any other location.<br /> <br /> After receipt of the Surveyor's report and being dis-satisfied, the Complainant on Dt.19/01/2007 protested the genuineness of the report of the surveyor and requested the Opposite Party for reconsideration of the claim. The Surveyor/Loss Assessor has also not assessed the loss sustained by the Complainant due to breakage of two rack of glass worth Rs.5,000/-(Rupees five thousand)only which covers under the policy. Several letter of request and correspondence were made by the Complainant to reconsider the matter and settle the claim of the Complainant but the Opposite Party remain silent about the matter. The burglary in the shop at N.H.6(six) near Private Bus stand was happened on Dt.04/05/2006 and claim form was duly submitted claiming the loss to be Rs.7,46,832/-(Rupees seven lac forty six thousand eight hundred thirty two)only on Dt. 05/05/2006. It is admitted fact by the Opposite Parties that the shop at N.H.6(six) near Private Bus stand, Bargarh was insured vide burglary Policy No. 1113/2006 which was valid from Dt. 16/03/2006 to Dt. 15/03/2007. But the Opposite Party have not applied their mind to reconsider the claim assessed by the Loss assessor and demanded some more documents for settlement of the claim. Though the Complainant has submitted all the documents as asked by the Opposite Party, the Opposite Party has not settled the genuine claim of the Complainant for about three years is amounts to deficiency in service on the part of the Opposite Party towards the Complainant.<br /> <br /> To sum up, the Complainant has insured the shop in question where admittedly burglary took place and the same was insured vide shop keepers Insurance Policy for Rs.10,00,000/-(Rupees ten lac)only and the policy was inforce at the time of incidence. The Opposite Party has delayed settlement of the claim as submitted by the Complainant for about three years without assigning any strong and convincing ground. The report of Loss Assessor/Surveyor does not seem to be reasonable. When the Complainant has insured the shop for a risk factor of Rs.10,00,000/-(Rupees ten lac)only and his claim is substantially below the insured amount such in consequential technicalities should not stand in the way of the Complainant getting his legitimate claim and the delay in settling the same for a long period of three years amounts to deficiency in service on the part of the Opposite Party towards the Complainant. Besides the blocking of an amount of Rs. 7,46,832/-(Rupees seven lac forty six thousand eight hundred thirty two)only for about three years in an unproductive way, resulted in a great financial loss for the Complainant.<br /> <br /> In view of the above finding, the Opposite Party is directed to pay to the Complainant the claim amount of Rs. Rs. 7,46,832/-(Rupees seven lac forty six thousand eight hundred thirty two)only with 9%(nine percent) interest over the amount chargeable with effect from Dt.05/09/2006 up to the date of this Order i.e. Dt.22/09/2009 and a compensation/cost of Rs.50,000/-(Rupees fifty thousand)only with in 30(thirty) days hence, failing which the entire amount shall carry 18%(eighteen percent) interest per annum till payment.<br /> Complaint allowed accordingly.<br />