Karnataka

Bidar

CC/65/2016

Laxmikanth S/o Ramchancdra Patil Bhalki - Complainant(s)

Versus

The Branch Manager Unite India Insurance Co.Ltd Basawa kalyan - Opp.Party(s)

Kishanrao Saigaonkar

19 Aug 2017

ORDER

::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT BIDAR::

                                                               C.C. No.65/2016

                                                                          Date of filing: 01.09.2016

                                                                   Date of disposal:19.08.2017

 

P R E S E N T:-    

                              (1) Shri. Jagannath Prasad Udgata,                                                                                                                                  B.A., LL.B.,

                                                                                                President

 

                             (2) Shri. Shankrappa (Halipurgi),

                                                                                 B.A.LL.B.,

                                                                                           Member.

 

COMPLAINANT/S:               Laxmikant S/o Ramchander Patil,

                                                Age :55 years, Occ:Business,

                                                Proprietor, Sainath Radio and Watch Centre

                                                At Bhalki, Tq. Bhalki, Dist. Bidar. 

 

                                    (By Sri. Kishanrao Saigaonkar, Adv.)

 

                                                           VERSUS

 

OPPONENT/S:          1)        The Branch Manager,

                                                United India Insurance Co. Ltd.,

                                                Basavakalyan, Tq. B’Kalyan,

                                                Dist. Bidar.

 

                                    2)        The Divisional Manager,

                                                United India Insurance Co. Ltd.,

                                                Divisional Office, P.B. No.47, Super Market,

                                                Gulbarga-585101.

 

                                   (By Sri. Mansoor Ahmed Khan, Adv.)

 

 

 

 

 

 

 

::   J UD G M E N T  ::

 

By Shri. Jagannath Prasad Udgata, President.

 

1. The complainant is before this Forum alleging deficiency of service in the part of the O.Ps.1 and 2 by filing a complaint U/s.12 of the C.P. Act., 1986.

 

2. The sum total of the case of the complainant is as hereunder:

                        The complainant was running the business under the name and style as “Sri Sainath Radio and Watch Centre” and it was one of the most reputed and highly marketed one among all the shops at Bhalki city in regard to wrist watches, wall clocks etc.   The complainant obtained insurance in respect of the said shop vide policy No.240601/48/03/00325 and paid premiums.   On 5.1.2004 at midnight, the complainant’s shop was broken by the thieves and items  looted from the shop of the complainant, for which the complainant sustained loss of Rs.1,80,000/- due to burglary.   On 6.1.2004, the complainant filed the complaint before concerned police, who registered a case in Crime No.2/2004 U/Sec.457, 380 of IPC and had drawn panchanama.   Because of quarrel between the complainant and the police in regard to money matter, the police did not investigate the case properly and filed ‘B’ report before the JMFC Court at Bhalki in Cr.No.2/2004.  The same was objected by the complainant and he filed a Revision Petition in CRP No.31/2004, which was allowed by the Sessions Court on 3.5.2005 setting aside the ‘B’ report and matter was remitted back to the JMFC Court Bhalki.   Again the JMFC Court Bhalki has wrongly accepted ‘B’ report.  Once again, the complainant filed another
Cr. Devision Petition No.72/2009 before the Sessions Judge, Bidar, which was allowed on 25.9.2009 setting aside the ‘B’ report accepted by the JMFC Court Bhalki and direction was issued to JMFC Court Bhalki to start the enquiry afresh by giving an opportunity to the complainant to establish his case of theft etc.    It is submitted that, the complainant has approached the O.P and filed burglary claim to O.P and submitted relevant documents, but O.P did not paid the insurance amount.  The O.P surveyor by name Birajdar was appointed to assess the loss but the said surveyor without visiting the spot, wrongly assessed the loss at Rs.35,000/-. The complainant had filed a complaint earlier before the Forum in Complaint No.76/2005 claiming compensation and the Forum had passed order on 10.4.2006 directing the complainant to file fresh complaint after disposal of Cr.No.2/2004.    The JMFC Court after considering the protest petition filed by the complainant, and evidences led by the complainant in Cr.No.2/2004, passed an order dated 3.2.2016, setting aside the ‘B’ report filed by the police and directed the police authorities to investigate the matter and report within two months from the date of order.  As per the order of JMFC Court, the police authorities re-investigated the case and submitted ‘C’ Report on 29.6.2016 with the opinion that, the culprit could not be traced.  The complainant due to burglary suffered loss of Rs.1,80,000/-.  Though the complainant submitted claim, the O.P has not paid so far.  The complainant issued legal notice to O.Ps by way of courier on 10.08.2016 claiming insurance, but O.P has not replied to the said notice.  The assessment of O.P’s surveyor of the loss at Rs.35,000/- is wrong and improper.   Hence, the complaint for claiming insurance amount etc.

 

3. The Opponent entering into defense on receipt of Court notice, filed versions denying the contents of complaint, contending that, the complainant is running the business of sale of watches in the name and style as Sri Sainath Radio and Watch Centre at Bhalki and the said shop was insured with O.P company against the damage due to fire and theft.   There was no such theft or burglary in his shop.  However, as the complainant filed false complaint, the police registered case in Crime No.2/2014 U/Sec.457 and 380 of IPC and conducted spot panchanama on the very next day i.e., on 6.1.2004.   It is revealed from the spot panchanama conducted by the police in presence of panchas that, it was highly impossible for anybody to enter into the shop and commit theft.  This spot panchanama is not challenged by the complainant.  Accordingly, the Police had filed B-final report before the court.  However, against the order of acceptance of B-final report, the complainant preferred revision in Crl.R.P. 31/2014 before the Sessions Court, which was allowed and the matter was remitted back.  Again, the complainant filed another revision in Crl.R.P. No.72/2009, which was again allowed and the matter again remanded back to the JMFC Bhalki to start the enquiry afresh by giving an opportunity to complainant to establish his case of theft.   The complainant submitted his claim for damages and the O.P company appointed surveyor namely Birajdar, who conducted survey and assessed the loss to the tune of Rs.35,000/- only, however since the police had not yet filed final report, his claim was kept pending and the complainant approached the Forum filing the complaint NO.76/2005 and it came to be dismissed on 10.4.2016 with liberty to again approach the court once the final report is filed by the concerned police.   After remand of the case from the Sessions Court, and after issuing directions by the Magistrate court, the police conducted the investigation afresh and filed C-final report stating that, culprits could not be traced and the same has been accepted by the court and thereafter the complainant filed the present complaint.  It is false that, the complainant has suffered loss of Rs.1,80,000/-.  To support this, the complainant has not produced any documentary evidence.   There is a report of independent surveyor conducted soon after the alleged incident, as per which the extent of loss or damage is to the tune of Rs.35,000/- only.   It is submitted by O.Ps that, from the careful reading of the spot panchanama conducted by the police in the presence of complainant himself, it leads to an inference that absolutely there was no theft, and at the most it could be said that, there was an attempt to commit theft, because all the safety locks were found intact, and only gap of 8 inches in the right side of shutter was found, from where it is not at all possible for anybody to enter into the shop and commit theft.  The complainant has not challenged this spot panchanama.  Therefore, when the complainant has not produced spot panchanama, he cannot deny its contents, which goes to show that the complaint is fraudulent and false one and the complainant has created false story to make false claim.  The claim of complainant for payment of insurance policy amount of Rs.1,80,000/- is not at all tenable.  Admittedly, the policy is issued to cover the risk up to the maximum limit of Rs.1,80,000/-, yet the complainant dos not become entitled for entire policy amount, but he becomes entitled to the actual loss caused subject to strict proof of such loss and not for the whole of the policy amount.  The complainant has not produced any purchase receipt, stock register and such other documents to show that, the stock in his shop and extent of theft of watches.   Hence, the O.P company prays to dismiss the complaint.

 

 

 

 

4. The complainant has filed documents, detailed at the end of th

is order, so also the complainant has filed evidence affidavit justifying his side.  On the other hand, the O.P has filed documents, detailed at the end of this order, so also the O.P. has filed evidence affidavit justifying his side.  Both the complainant and O.P. filed their written arguments respectively.

 

 

5.         Considering contention of the complainant, the following points arise for our consideration:-

 

1. Whether the complainant has proved that there is deficiency in service on the part of the O.P.?
2. What order?

 

6.         Our answers to the points stated above are as follows:-

 

1. In the affirmative.
2. As per final orders owing to the following:

              

 

 

:: REASONS ::

 

 

7. POINT NO.1 :     As discussed above, the entire case is a classic example of apathy (s) of the state instrumentalities in highest order.  The police authorities entrusted to prevent crime and investigate the same properly to bring the offenders to book had mindlessly filed a ‘B’ report in the Cr.No.2/2004, probably taking a cue from the fact that, the shutter was open to the extent of 8 inches as described in the spot Panchanama and had inferred that, no human can enter into the premises through such gap. Amazingly, it did not strike to the mind of the I.O., the shutter could have been pulled down to such situation after committing the burglary.  Next, the I.O. was also unmindful of the violence (s) evident inside the shop in the shape of broken glass pieces, which were collected and sealed.  The ultimate inference therefore would be, the I.O. had only read that portion of the Panchanama, which would be help full for him to file a perfunctory ‘B’ report for statistical purpose.

 

8. However, as the matter stands, said ‘B’ report was challenged in the court of sessions twice was set aside and the jurisdictional Magistrate acting by the directions of the sessions Court had directed a fresh investigation.  Such reinvestigation culminated in a ‘C’ final report, which was duly accepted by the jurisdictional Magistrate.

 

 

9. In the meanwhile, the opponents/ Insurers have been sitting on the fence denying the claims of the insured,  taking advantage of the fluid situation, a most horrific approach.  It could have been appropriate for the opponent to accept their liability and satisfy the same after the ’C’ report was filed and they were informed as such by the legal notice Ex.P.7.  Alas, the opponents, another state instrumentality but, preferred to fish in troubled waters, resorting to legal jargons.  By not coming up to the occasion, we infer, the opponents have resorted to unfair trade practice and deficiency of service and hence we answer point No.1 accordingly.

 

10. POINT NO.2:   The opponents adopting a cloak and dagger approach are harping on two diagonally opposite canvassment.  At one point, they challenge the fact of burglary and at the other, they stick to the assessment of their own surveyor computing the loss of the insured at Rs.37,494/- vide Ex.R.1.  However, the surveyor vide the last Para of the report has certified the loss subject to the subrogation and other rights of the insurer and according to the terms and conditions and exceptions of the policy under which it is issued. The surveyor also at page-3 of the report mentions initial assessment of loss to the tune of Rs.1,38,314/- as per police Panchanama.  As a whole, the surveyors’ report at best can be designated as a stop gap assessment and not final.

 

11. In initio, during the drawal of the mahazar, the loss has been assessed at Rs.1,38,314.00 (Rupees one lakh thirty eight thousand three hundred fourteen) only and we are inclined to place reliance on such assesement irrespective of the half hazard calculations of the surveyor and hence,  proceed to pass the following:

 

 

                                                   ::ORDER:: 

 

1. The complaint is allowed in part.
2. The opponents are jointly and severally directed to reimburse the complainant in a sum of Rs. 1,38,314.00 (rounded off at Rs,1,38,320/) together with an interest @ 12% p.a. calculated from the date of burglary i.e. 05.01.2004 till the date of realisation,
3. The opponents are further liable to pay a sum of Rs.10,000/- towards compensation  and another sum of Rs.5,000/- towards litigation expenses.
4. Four weeks time granted to comply this order.

 

   

(Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 19^th day of August-2017).

 

 

   Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

Member.                                                                President.                                                                                         

                                                                          

 

 

 

Documents produced by the complainant

1. Ex.P.1-  Certified copy of F.I.R.
2. Ex.P.2- Copy order in Crl.R.P.No.31/2004 of Fast Track Court, 
                  Bhalki.
3. Ex.P.3- C.C. of order in Crl.R.P.No.72/2009 of sessions court, Bidar.
4. Ex.P.4- C.C. of Bidar Dist forum in complt. No.76/2005.
5. Ex.P.5- C.C. of J.M.F.C. Court order sheet.
6. Ex.P.6- C.C. of ‘C’ final report.
7. Ex.P.7- Office copy of legal notice with courier receipt.
8. Ex.P.8- C.C. of spot Mahazar in Cr. NO.2/2004 of Bhalki P.S.
9. Ex.P.9-C.C. of witness statement of Sudhakar.
10. Ex.P.10- C.C. of witness statement of Gyaneswar.
11. Ex.P.11- C.c. of ‘C’ report in Cr.No.2/2004 with enclosures.
12. Ex.P.12- C.C. of order sheet of the court of J.M.F.C. Bhalki in  
                     Cr.No.2/2004.

            

 

 Document produced by the Opponent.

 

1. Ex.R.1-  Survey report.

 

 

Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

       Member.                                                                      President.