BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri K.V.H.Prasad, B.A., LL.B., President
Sri R.Ramachandra Reddy B.Com., LL.B., Member
Friday the 19th day of May, 2006
C.D No.77/2005
M/s Sri. Lakshmi Venkateswara-
Padmavathi Traders,
R/o. D.No. 28/6-1, by the side of
K.C. Road, Noonepally,
Rep by its Partner T. Siva Reddy,
S/o. T. Venkata Reddy,
Aged 33 years R/o. Noonepally,
Nandyal, Kurnool Dist. . . . Complainant
-Vs-
The Branch Manager,
M/s United India Insurance Co, Ltd.,
Nandyal. . . . Opposite party
This complaint coming on this day for Order in the presence of Sri M. L. Srinivasa Reddy, Advocate, Kurnool for complainant and M/s C.M.K. Ranjani, Advocate, Kurnool for opposite party, and stood over for consideration till this day, the Forum made the following:-
O R D E R
(As per Sri.K.V.H.Prasad, Hon’ble President)
1. This case of the complainant is filed under section 12 of C.P. Act, seeking direction on the opposite party to pay to the complainant Rs.3,58,286/- with 18% interest, Rs.20,000/- as damages for inconveniences of the mental agony suffered by the complainant and costs alleging the M/s Lakshmi Venkateswara Padmavathi Traders (Complainant’s firm) dealing in wholesale and retail business of fertilizers and pesticides locating in door No.28/6-1, Kurnool Road, Nunipalli, Nandyal, a shop in its front portion and in back portion a closed godown and the stocks in said shop and burial godown which were hypothecated to Karur Vysya Bank Ltd., Nandyal was insured by the complainant with the opposite party each for Rs.10,00,000/- vide policy No.051102/46/03/00039 and 051102/46/03/00038 with effect from 27-8-2003 to 26-8-2004 respectively, and occurrence of theft of pesticides worth Rs.3,58,286.70ps on 7-12-2003 night from the shop and preferring of insurance claim besides reporting to the Three Town Policy Station, Nandyal and the surveyor of the opposite party assessing to loss due to burglary at Rs.3,58,286.70ps on due verification with the stock register and submitting a report accordingly and the police referring the case “as undetectable” issuing a non traceable certificate and the opposite party not settling the claim on pretest of difference of value of lost property in between the non traceable certificate and final report submitted by the police to the court – the copy of which was not served on the complainant – and the said dodging on conduct of the opposite party without settlement of claim amounting to deficiency of service on the part of the later.
2. In pursuance of the receipt of the notice of this Forum as to this case of the complainant, the opposite party has caused its appearance through its counsel and contested the case filing its written version denying its liability to the complainant’s claim on account of non explanation on the part of the complainant as to the variance in value of lost property in between the claim of the complainant and the certificate issued by Judicial First Class Magistrate, Nandyal as Rs.45,000/- even though it doesn’t deny the alleged burglary and intimation of the same and its surveyor assessing the loss. It alleges further that the complainant has either mentioned the value of the stolen property in the first information report are placed any certificate from the investigating authority to the value of the property stolen was Rs.3,45,000/- . Inspite of its letter dated 22-2-2005 for the same or for the claimed amount of Rs.3,58,216/- it could not settle the claim for want of bonafidies in claim in either way and hence there is any deficiency of service on its part and the claim of the complainant being in suppression of the real value creating suspicion on bonafidies of the claim and so seeks the dismissal of the complaint with costs.
3. In substantiation of the contentions while the complainant side has relied upon documentary record in Ex.A1 to A14 and its sworn affidavit and replies to the interrogatories besides to the evidence of the PW1 Y.Mallikarjun, Branch Manager, Karur Vysya Bank, Nandyal, the opposite party side has taken reliance on documentary record in Ex.B1 to B12 besides to its sworn affidavit and replies to the interrogatories.
4. Hence the point for consideration is whether the complainant has made out the alleged deficiency of service with the conduct of the opposite party and there by the liability of the later to make good of the complainant’s claim.
5. The Ex.A1 is the certified copy of the FIR - pertaining to crime No.151/2003 of P.S Three Town, Nandyal under section 457 and 380 IPC and the report of the complainant on which the said case was registered. The issual of said FIR has arisen on the complaint dated 9-12-2003 of complainant as to the burglary occurred on 7-12-2003 in complainant’s insured shop. Even though it does not mention the value of the goods stolen but says of its quantity as 80 boxes of liquid pesticides and the details of said goods stolen.
6. The Ex.A3 is the stock statement of the complainant’s firm running in 7 pages as to closing stock of pesticides as on 6-12-2003 showing its value to Rs.7,57,663.83ps. The Ex.A3 reflects the value of the stock of pesticides of complainant’s firm on 6-12-2003 i.e. a day prior to the said burglary occurred on 7-12-2003.
7. The Ex.A4 is the stock statement of the complainant’s firm running in 5 pages as to the stock of pesticides found on 8-12-2003 i.e. after the burglary. It shows the value of said stock at Rs.4,05,878.53ps and the Ex.A5 is the details of pesticide stock stolen running in 2 pages showing its value to Rs.3,58,286.70ps.
8. The evidence of PW1 Y.Muralikrishna, Branch Manager, Karur Vysya Bank, Nandyal to which bank the stocks of the complainant’s firm for pledged under hypothecation and to whom the periodical statement of stocks position as to be submitted by complainant’s firm, lends corroboration to the stocks statements of complainant’s firm in Ex.A6 to A13 covering the period from April 2003 to November 2003. The Ex.A6 shows a stock position of pesticides worth Rs.5,12,425/- in complainant’s firm on 30-11-2003. The bill dated 6-12-2003 in among the bunch of 30 bills in Ex.A14 indicates the purchase of pesticides worth Rs.24,145/- by the complainant’s firm and the bill dated 4-12-2003 among the Ex.A14 bunch of bills indicates purchase of pesticides worth Rs.43,835.70ps by complainant’s firm and while the other bills of Ex.A14 indicates the purchases up to 30-11-2003. The statement of goods stolen appearing in Ex.A5 is consistent to the entries in stock book of complainant’s firm appearing in Ex.A2 which were alleged by complainant as were duly verified by the surveyor of the opposite party who in token of said verification appended his initial signature at relevant entries.
9. While the above material clearly establishing the worth of goods stolen from the complainant’s shop as Rs. 3,58,286.70 ps, the opposite party side takes reference to the material in Ex.B3 and B6 in Visa – Vis to the Ex.B2 – claim form of the complainant, to doubt the bonafidies of the value of the stolen goods and the claim of the complainant’s firm.
10. While the Ex.A1- the FIR and its enclosures and the Ex.B3 – Non traceable certificate issued by the police doesn’t bear the value of the goods stolen the Ex.B6 to referred charge sheet in crime No.151/2003 of Three Town Police Nandyal alleges the value of the property stolen as Rs.45,000/-. Except mentioning as such it doesn’t provide the source on which the value of stolen goods was ascertained by the investigating agency. Hence the said mention in Ex.B6 as to the value of stolen goods being without any justify material of the investigating agency it is not remaining sufficient to over board the cogent material appearing in Ex.A2 to A5 and the value of stolen goods claimed in Ex.B2 – claim form, which is in conformity to the Ex.A5. Hence the conduct of the opposite party in not settling the claim paying no attention to the said cogent material in Ex.A3 to A5 in reference to Ex.A2 and Ex.A6 to A14 and giving undue importance to the flimsy and unreasoned material in Ex.B6, amounts to a clear deficiency of service on the part of the opposite party towards the complainant’s justifiable claim liable to reimburse under the policy in Ex.B1 and B1A covering the said risk of the complainant’s firm.
11. The decision of A.P. Consumer Dispute Redressal Commission, Hyderabad in Nalluri Nageswari V/s Branch Manger, National Insurance Company Ltd., reported in 2003 Consumer Law Decisions Reporter page 761, wherein the non production of mortality register by complainant therein to the opposite party for taking decision as to the member of dead birds and other circumstances, held as no deficiency of service attributable to the opposite party in settling the claim. But the said decision doesn’t appears to be relevant to the facts and circumstances of this case, as the complainant cannot explain the reason for under valuation of goods mentioned in Ex.B6 being he is not author of it and it is for the concerned investigating agency allown to place such cogent material which may justify the said mentioned under valuation in Ex.B6 and so the opposite party cannot take excuse there under ignoring the other way supra stated relevant material appearing on the complainant’s side is justifying the claim.
12. Another decision taken reference by the learned counsel for the opposite party is of the Hon’ble A.P. High Court rendered in a motor accidents claim case in Smt. K.Lingavva and others V/s The Managing Director, APSRTC, Hyderabad and another reported in 1997 (I) ALT 75, holding the contents of postmortem examination report as a public document for looking it to know the cause of the death without any further proof. It was placed to look in to Ex.B6 as a public document and thereby to doubt the bonafidies of the complainant’s claim as the Ex.B6 is showing the value of stolen goods as Rs.45,000/- as against the claimed of Rs.3,58,286/- under Ex.B2. It would have been so as submitted by the learned counsel for the opposite party if there was any cogent material as to the value of stolen goods other than the Ex.B6 itself lending corroboration to the value mentioned in Ex.B6, to feel the information in Ex.B6 is a reasoned one with justified material on which it was placed. Hence the above said decision is not remaining relevant for consideration to the facts and circumstances of this case of the complainant.
13. Another decision cited by the learned counsel for the opposite party is of the Hon’ble State Consumer Disputes Redressal Commission, Orrissa in Basudev Panda V/s P.Shankar Rao reported in 2003 Consumer Law Decision Reported page 853, wherein the complainant has not reported the serious accident met to his car to any police and merely setup his insurance claim leaving the insurance company with no other contemporaneous document or record by which the insurance company could reasonably ascertain as to the alleged accident, held the insurance company could not be attributed it any deficiency of service in not acceding the claim of the complainant. But in the present case of the complainant not only intimated the insurance company with burglary occurred in his shop but also gave a complaint to the concerned police with details of property lost which enabled the concerned police to issue FIR in Ex.A1 and investigate the matter, and the said information as to details of property lost is consistent to with the material in Ex.A5 and claim of the complainant made in Ex.B2 and the insurance agency ought to have looked into the said cogent material of the complainant’s side instead of insisting for clarifying the under valuation mentioned in Ex.B6 to which the complainant is having any privy being it is one which the investigating agency to explain, there appears any applicability of the above decision to the facts and circumstances of this complainant’s case.
14. The other decision reported in written arguments in opposite party side were not provided except merely taking of their reference for their going through and appreciation.
15. The material in Ex.B4, Ex.B5, Ex.B9 to Ex.B12 is the mere correspondence in between the complainant and opposite party and it doesn’t require any further appreciation than what they envisage.
16. The Ex.B8 investigation report dated 31-1-2005 submitted to the Divisional manager of United India Insurance Company by E.Nagendraiah a retired SI and investigator. It’s perusal indicates the reiteration of police investigation more than what he has done in said case. He mentions that the value of lost property was not mentioned in FIR but mentions the value of lost property as Rs.45000/- without disclosing where from he could assess the said value. Hence the Ex.B8 doesn’t carry any weight for reliance.
17. There appears a xerox of statement of one Narayana Sridhar said to have been recorded by A.S.I of Three Town Police Nandyal on 9-12-2003 which says to have heard the complainant saying the value of stolen goods as Rs.45,000/-. The said statement of the replies recorded by the investigating agency under section 161 (3) Cr.P.C even though being not eligible for reliance on its own accord on account of statutory prohibition on it for availing it for corroboration, the opposite party side did not made any endeavour to get stated before the Forum of the statement of said person by any sworn affidavit of said person for its appreciation independent of said statement recorded under section 161 (3) Cr.P.C. Therefore, there is absolutely any material to believe the value of the stolen goods as Rs.45,000/- and any malafidies in the claim of the complainant made under Ex.B2 to the tune of Rs.3,58,286/- .
18. The learned counsel for the complainant takes the attention of this Forum to the decision of Hon’ble National Consumer Disputes Redressal Commission, New Delhi delivered in National Insurance Company Ltd., V/s Shop Cloth house reported in 2004 CCJ 155, wherein the deficiency of insurance company was held when the later did not produce the surveyor report and there was concurrent finding of ryot and consequent loss by both lower Forums. In the present case the complainant allege the verification of the alleged claim by the surveyor appointed by the opposite party and takes the attention of this Forum to the initial signed at relevant entries of Ex.A2 stock register. The opposite party did neither produced any report of said surveyor nor rebutted the said fact alleged by the complainant by placing any affidavit of its surveyor. Hence the opposite party is remaining faulty in not placing the said cogent report of the surveyor perhaps with a fear of adverse inference and there by in said suppression of cogent relevant material faulty of deficiency of service.
19. The learned counsel for the complainant draws the attention of this Forum the decision of Hon’ble National Consumer Disputes Redressal Commission, New Delhi delivered in Rana Water Agarwal V/s New India Assurance Company Ltd., reported in 2005 (II) CPR page 16 (NC) wherein the insurance company was held deficiency in service in not paying even the amount recommended by surveyor and there by the liability of the insurance company to pay not only the amount so recommend by surveyor but also interest at 12% per annum from the date of filing the complaint till the date of payment. But in this case as the complainant could not place such a material as to what amount was recommended by the surveyor, the said decision is not remaining applicable for its adaptability in this case of the complainant.
20. The conduct of the opposite party in not settling the claim giving undue importance to unimportant and non vital matter ignoring the relevant and cogent material of complainant’s side as not only amounting to deficiency of service but also leaving mental agony and inconvenience to complainant on account of deprival of legitimate asset to the complainant, the opposite party is remaining liable to make good of the value of stolen goods i.e. Rs.3,58,286/- claimed under insurance covered under Ex.B1 and B1A but also an amount of Rs.20,000/- as compensation and Rs.10,000/- as costs of this litigation.
21. Consequently in the result of the above discussion the complaint is allowed directing the opposite party to pay the supra stated award amount to the complainant within a month of receipt of this order – In default the opposite party shall be liable to pay the supra stated award amount with 12% interest from the date of complaint till the date of actual payment.
Dictated to the Stenographer, transcribed by him, corrected and pronounced by us in the Open Forum this the 19th day of May, 2006.
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the Complainant For the opposite party: Nil
PW1- Y. Muralikrishna, Branch Manager,
Karur- Vysys Bank, Nandyal.
List of Exhibits marked for the complainant:
Ex A.1 Certified copy of First Information Report.]
Ex A.2 Retail Pesticides Stock Book Register for Year 2003-2004.
Ex A.3 Sri Lakshmi Venkateswara Padmavathi Traders, Nandyal, Pesticides
Closing Stock as on 6.12.2003.
Ex A.4 Sri Lakshmi Venkateswara Padmavathi Traders, Nandyal, Pesticides
Closing Stock as on 8.12.2003.
Ex A.5 Sri Lakshmi Venkateswara Padmavathi Traders, Nandyal, Theft Stock
Details as on 7.12.2003.
Ex A.6 Statement of Sri Lakshmi Venkateswara Padmavathi Traders,
Noonepally Nandyal, A/c No. CC No. 43, total stock Rs. 26,45,619/-.
Ex A.7 Statement of Sri Lakshmi Venkateswara Padmavathi Traders,
Noonepally Nandyal, A/c No. CC No. 43, total stock Rs. 29,80,847/-
Ex A.8 Statement of Sri Lakshmi Venkateswara Padmavathi Traders,
Noonepally Nandyal, A/c No. CC No. 43, total stock Rs. 28,72,041/-.
Ex A.9 Statement of Sri Lakshmi Venkateswara Padmavathi Traders,
Noonepally Nandyal, A/c No. CC No. 43, total stock Rs. 27,83,372/-
Ex A.10 Statement of Sri Lakshmi Venkateswara Padmavathi Traders,
Noonepally Nandyal, A/c No. CC No. 43, total stock Rs. 27,95,703/-
Ex A.11 Statement of Sri Lakshmi Venkateswara Padmavathi Traders,
Noonepally Nandyal, A/c No. CC No. 43, total stock Rs. 28,87,863/-.
Ex A.12 Statement of Sri Lakshmi Venkateswara Padmavathi Traders,
Noonepally Nandyal, A/c No. CC No. 43, total stock Rs. 27,56,926/-
Ex A.13 Statement of Sri Lakshmi Venkateswara Padmavathi Traders,
Noonepally Nandyal, A/c No. CC No. 43, total stock Rs. 27,15,316/-.
Ex A.14 Original Purchase bills (1 to 30).
List of Exhibits Marked for the opposite party:-
Ex B.1 Policy of United India Insurance Co, Ltd., No. 051102/46/03/00038.
Ex B.1A Policy No. 051102/46/03/00039 along with terms and conditions
(two policies).
Ex B.2 Burglary Claim Form.
Ex B.3 Non-Traceable Certificate issued by Sub Inspector of Police III Town
Police Station, Nandyal.
Ex B.4 Telegram, dt 8.12.2003.
Ex B.5 Letter, dt 9.12.2003 of complainant to opposite party.
Ex B.6 Referred Charge Sheet (Un-detectable Certificate).
Ex B.7 Certificate copy of Final Report.
Ex B.8 Investigation Report.
Ex B.9 Telegram given to complainant, dt 11.12.2003.
Ex B.10 Letter, dt 22.2.2005 addressed to complainant.
Ex B.11 Reply of complainant to Ex B.10 dt 15.3.2005.
Ex B.12 letter, dt 15.4.2005 of opposite party to complainant
MEMBER PRESIDENT
Copy to:
1.Sri M.L. Srinivasa Reddy, Advocate, Kurnool.
2.M/s C.M.K. Ranjani, Advocate, Kurnool.
Copy was made ready on:
Copy was dispatched on:
Copy was delivered to parties:
