This case has been brought by M/S Jai Mata Di Medico having its show room cum office at shop no.-1 Main Gate IGIMS Sheikhpura, Raja Bazar, P.O-Raja Bazar, P.S-Sastrinagar, town and Dist-Patna-800014 through its partner Smt. Manju Agrawal w/o- Sri Shekhar Agarwal (Complainant) against The New India Assurance Co. Ltd, having its registered heard office at New India Assurance Building, 87, Mahatama Gandhi Road, Fort, Mumbai-800001, through its chairman (O.P no.1), The Divisional Manager, The New India Assurance Co. Ltd, Red Cross building, North Gandhi Maidan, P.S-Gandhi Maidan, Patna-800001 (O.P no.2), The Branch Manager, The New India Assurance Co. ltd, Patna Sahib Branch, Morcha road, Patna City, Patna-800008 (O.P no.3). Accordingly, the complaint has been filed for the following reliefs:
- O.P is directed to pay Rs.5,20,000/- claim amount @ of interest 12% and also Rs.2,00,000/- for harassment and mental agony plus litigation cost Rs.50,000/-.
The main case as averred in the complaint is that Complainant is the business man who runs his business of retail medicine shop at the main gate of IGIMS Sheikhpura, Rajabazar, Patna under the partnership of Smt. Manju Agrawal and said firm had taken insurance policy. The firm had also taken loan from Punjab National Bank, Buddha Colony branch Patna through the said bank Complainant had got opened one insurance policy which was under the name of “shopkeepers insurance” in the year 1996 policy was valid for the period from 22.08.2001 to 21.08.2002 to the extent of Rs.7 lacs. The insurance policy no. is 4854010207219/48-06476/00, dated 16.08.2001, the said policy was for a period 22.08.2001 to 21.08.2002 for a sum of Rs.7 lacs each. A photocopy of insurance policy paper is attached as annexure 1. Further stated that the Complainant through its partner Manju Agarwal was controlling the said business found that the lock of the shop is not properly locked and it seems that some person tempered the lock of the shop. Then Manju Agrawal reported the said matter to the SDO, Sadar Patna and the matter was also reported to the Hon’ble court in criminal revision no.80/2002. Under the order of the court the inventory was prepared on 20.03.2002 by the executive Magistrate Sri Ramanuj Prasad and Sub Inspector of Sastrinagar Police Station. After preparing the inventory it was found that the goods of the shop (medicines) have been stolen during the period when the said shop was under lock. It is further stated that the Complainant Manju Agrawal immediately filed first information report (FIR) to the Sastrinagar Police Station on 21.04.2002 about the aforesaid incident of theft in the said shop. The Sastrinagar P.S registered the FIR on 21.04.2002 as a regular P.S case no- 297/2002 under section 461, 379 and 34 of the I.P.C. Further stated that the Complainant through the bank submitted her insurance claim to the O.P for Rs.5,20,000/- which was received in the office of O.P on 24.04.2002. Further stated that the O.P insurance had appointed one Er.Balbir Singh as surveyor to examine the claim of the Complainant, who after his appointment visited the shop of the Complainant several times, and all the time he demanded some documents with regard to the claim and the Complainant always supplied all the material documents to the surveyor to his satisfaction. The letter of surveyor dated 06.05.2002 will show the list of document which were given to the surveyor. The photocopy of the letter dated 06.05.2002 is attached as annexure II. But the O.P always told that after completion of investigation by the Police Officers the claim shall be considered but it has not been considered. A photocopy of letter dated 11.05.2002 is attached as annexure III. The Complainant came to know through the notice of the court that Police has completed investigation and submitted final form on 15.06.2011 before the CJM, Patna. The case was found true and also ascertained the loss to the tune of Rs.5,24,365/-. The Learned CJM has accepted the final form on 26.07.2012. The FIR, final form have been brought as exhibit 4. Despite having production of copy of FIR, final form and order sheet and also other relevant documents to the O.P for settlement of his claim but O.P did not respond. The surveyor of the O.P has not concluded his survey nor ever submitted his final report. The Complainant also send legal notice on 05.09.2015 and reply to the said notice on 22.01.2016 was received for the first time. Accordingly, taken more than 10 years times of closure of claim because the O.P has repudiated the claim vide letter no.22.01.2016. The notices as well as reply are annexure 5 and 6.
On perusal of the record it appears that in this case O.P no. 1 to 3 have filed W.S. wherein it has been stated mainly that this complaint petition is hopelessly time barred and claim was repudiated in the year 2002 and repudiation letter was send to the insured in the year 2002 but Complainant filed this case after a gap of 14 years and after 13 years legal notice has been sent. There is no deficiency of service or latches on the part of O.P. Hence, this case is not maintainable. However, it is stated that O.P insurance company had “shopkeepers insurance” policy effective form 22.08.2000 to 22.08.2001 for Rs.7 lacs. It is also stated that insurance company had deputed Er. Balbir Singh surveyor for assessment of the loss and he had demanded stock statement relating to sale and purchase but it was not produced then he had submitted preliminary surveyor report dated 12.06.2002.The Complainant could not produce any chit of paper to substantiate loss amounting of Rs.5,24,365/- and police authority is not competent to assess the loss.
The main point for consideration is that whether the Complainant is entitled to relief as prayed for?
Heard both sides. Learned Counsel on behalf of the Complainant submitted that of course there is delay in filing the complaint and on account of delay same is not maintainable but while the Commission will consider that the delay has not been deliberate rather it has been under the circumstance which had compelled the Complainant to file this case after such a long delay. It has further been contented that in this case final form has been submitted on 26.07.2012. Wherein the case of theft was found true and during investigation the loss to the goods under tune of Rs.5,24,365/-have been found. The annexures they are FIR, final form which would justify about the submission of final form in the case of committing theft. Unless the case would have been found true how the case could have before the District Consumer Commission. It is also relevant to consider that the statement made by the O.P would itself indicate that the surveyor had not concluded its report. Only on account of preliminary report that the Complainant did not produce the connecting papers of sale and purchase and others cannot be a ground which can be taken that surveyor had submitted final report after inspection of the required materials rather it would be deemed that still claim is pending and not finally repudiated. It has lastly been contented that the last date of cause of action is on 25.01.2016 while legal notice send by the Complainant was received by the O.P. The reply notice dated 22.01.2016 send by the O.P would also signify whereby information has been given that her claim has been closed since long though such repudiation is without information. Therefore, submitted that this complaint petition be allowed.
Learned Counsel on behalf of O.P submitted that though insurance is admitted and the occurrence is also admitted but at the time of verification by the surveyor document was not brought before him for inspection such the case register, sale and purchase register stock statement. Then the surveyor vide letter dated 06.05.2002, reported that due to non-production of the document preliminary surveyor report dated 12.06.2002 has been submitted. It has further been contended that there is no denial of the insurance on the day of alleged occurrence of committing theft into the shop of Complainant. But after a long gap or several years this case has been filed and lastly submitted that on account of delay in the case same shall not be maintainable as observed by Hon’ble Apex Court in catena of case. Hence, submitted that this complaint be dismissed.
Considering the submission as raised on behalf of both the sides and after perusal of the documents as placed and also the argument as advanced we are of the opinion that of course there is long delay in filing the present case and prima facie it is not maintainable but considering the circumstances moving around from the date of occurrence of theft into the insured shop of Complainant it appears that in this case after registration of the FIR on 21.04.2002 Final Form has been accepted on 26.07.2012 by the learned CJM. Thereafter it appears that legal notice was send by the Complainant upon the O.P on 05.09.2015 to settle the claim. O.P received the notice and replied on 22.01.2016. This case has been presented on 30.08.2016. It is also relevant to consider that as per the contents of the O.P that surveyor submitted report dated 12.06.2002 but same as preliminary surveyor report. However it has been shown that the registers required were not produced before him. But it is important to mention that it is obvious that surveyor did not submit before final surveyor report and it be deemed that surveyor did not conclude. It is also relevant to consider that policy “Shopkeepers insurance” was issued for the period 22.08.2001 to 21.08.2002 to the sum assured Rs.7 lacs and thereafter there is no case of the insurance that premium amount after opening the insurance policy has not been deposited by the Complainant. After discussing the facts whatever it was required to be dealt with to bring true picture that whether in this case the question of limitation of filing the present case after a such long delay is ignorable or not by this Commission. But after considering the entire facts delay in filing the complaint appears to be condonable. In this regard here together we express our view that the power vested to condon the delay to a Commission can be exercised in this case in the light of the facts above as discussed elaborately. Because it is apparent that Complainant is not found sitting either lack of knowledge or deliberately. Because while the FIR is instituted against the unknown then the submission of final form by the I.O becomes relevant and thereafter the order by the court in the matter. The occurrence of theft in the insured shop of the Complainant had taken place in the year 2002 but the learned court had taken cognizance on account of submission of final form in the year 2012. Further the submission of the surveyors report as premilinary report which also amount that still the surveyor did not conclude final report. After the above we are of the firm view that in this case the delay in filing the present complaint is condonable and it is evident that this case after filing on 30.08.2016 was admitted on 22.09.2016. It is also obvious that O.P insurance company has never denied the theft into the shop of Complainant and the shop was not covering the risk on the day of alleged occurrence. It is also not in dispute that the shop of the Complainant was valued by the company itself while the shop was insured for Rs.7 lacs. Therefore, we allow this complaint case to the extent that after considering the facts above altogether O.P is directed to pay Rs.3,50,000/- (Three lacs fifty thousand rupees only) including the cost and compensation to the Complainant within two months of this order including the interest @ 6% P.A. accrued thereon since the day of filing of this case i.e.30.08.2016. In case of non-payment, Complainant shall be entitled to recover the amount in due course of law.
