Present (1) Nisha Nath Ojha,
District & Sessions Judge (Retd.) President
(2) Smt. Karishma Mandal,
Member
Date of Order : 31.12.2016
Nisha Nath Ojha
- In the instant case the Complainant has sought for following reliefs against the Opposite party:-
- To direct the opposite party to pay Rs. 1,23,000/- ( Rs. One Lac Twenty Three Thousand only ) for loss of incident on 25.09.2004.
- To direct the opposite party to pay Rs. 1,22,153/- ( Rs. One Lac Twenty Two Thousand One Hundred Fifty Three only ) for loss for incident on 13.10.2004.
- To direct the opposite party to pay Rs. 1,00,000/- ( Rs. One Lack only ) as compensation.
- To direct the opposite party to pay Rs.10,000/- ( Rs. Ten Thousand only ) as litigation costs.
- The facts of this case lies in a narrow compass which is as follows:-
The complainant has asserted that he had a mobile shop in the name and style of M/s Maurya Communication situated at Maurya Lok Complex, Shop no. B/3-105 Dist. Patna. The complainant used to deal in mobile of different brands specially Nokia and Samsung besides dealing in recharge voucher pertaining to RIM, Smart, Excel besides selling the accessories of the mobile such as battery, charger, cover etc. The aforesaid shop was insured under shopkeepers insurance policy vide annexure – 1. The said shop was hypothecated to opposite party no. 2 i.e. Allahabad Bank.
It is further case of the complainant that the aforesaid mobile shop was looted by officer – in – charge Kotwali Sri Rajendra Singh, Dr. Deepak Prasad, Vice Chairman P.R.D.A. and other officials of Bihar State Small Industries corporation Ltd. on 25.09.2004 and again on 13.10.2004 whereby and where under the complainant was put to loss of Rs. 1,23,000/- which includes the price of mobile sets, recharge vouchers and cash.
It has been further asserted that in the aforesaid theft/loot of his shop on 13.10.2004 by the aforesaid persons the complainant was put to loss of Rs. 1,22,153/-. The complainant thereafter filed a complaint case before Learned C.J.M., Patna being complaint case no. 2401 (C) 2004 for the incident of 13.10.2004 in which cognizance has been taken U/s 323, 380, 504 IPC for the incident of 25.09.2004 and again for the occurrence of 13.10.2004 U/s 380 IPC as will appear from annexure – 2 and 3.
The complainant has informed regarding the aforesaid occurrence to opposite party no. 1 Insurance Company and claim insurance as will appear from annexure – 4 and 5. The complainant again wrote a letter to opposite party no. 1 on 27.01.2005 regarding opening of his shop and requested to depute the surveyor as will appear from annexure – 6.
The opposite party no. 1 i.e. Insurance Company appointed a surveyor namely Birendra Kumar for assessment of loss of the shop. The said surveyor visited the shop took the entire stock and relevant documents such as receipt ledger etc.
The grievance of the complainant is that despite assessment by the surveyor the claim of the complainant was not settled by opposite party no. 1 despite his reminder and letters to opposite party no. 1 and 2 as will appear from annexure – 7 and 8.
On behalf of opposite party no. 1 a written statement has been filed stating therein that surveyor has assessed the loss of Rs. 90,851.50/- less salvage and policy access. It has been further stated that as the complainant has filed complaint case which is pending before Learned J.M., Patna hence opposite party no. 1 is unable to discharge his obligation as the matter is sub Judice. However as per panel advocate’s legal opinion the opposite party no. 1 can settle the claim under indemnity bond subject to right of recovery by insurance company if in the criminal case the accused are acquitted in the aforementioned complaint cases. However in Para – 14 of written statement the opposite party no. 1 has asserted as follows, “that after receipt of the legal notice from both the learned advocates the answering opposite party orally informed the complainant regarding the opinion and asked him to furnish indemnity/security bond and letter of subrogation and give a undertaking that if the accused are acquitted in the aforesaid criminal cases then the company will be entitled to recover the amount from the complainant.”
It has been asserted that the aforementioned proposal has been refused by the complainant.
On behalf of opposite party no. 2 a written statement has been filed stating therein that the grievance of complainant is only against opposite party no. 1 hence the opposite party no. 2 has been made party with ulterior motive and malafide intentions.
Heard the learned counsel for the parties and perused the record.
It s surprising that opposite party no. 1 has neither annexed the surveyor report with written statement nor complainant has annexed it by way of rejoinder. Hence we are not able to scrutinize the basis of calculation of the loss in question as admitted by opposite party no. 1 in Para – 14 of written statement.
It is needless to say that opposite party no. 1 had himself asserted that the surveyor has assessed the loss of Rs. 90,851.50/- less salvage and policy access and the opposite party no. 1 is ready to pay the aforesaid amount to the complainant after obtaining indemnity/security bond as well as other relevant documents from the respective parties.
No purpose will be served in repeating the same fact again and again because the opposite party no. 1 is ready to pay amount assessed by surveyor. It is needless to say that as the complainant has filed a complainant case relating to loot/ theft of his shop and the said case is sub judice. Opposite party no. 1 is under legal obligation to obtain indemnity and other relevant documents from the complainant and bank before the payment of the assessed loss to the complainant but it is also a fact that as surveyor report is not before us hence the complainant may challenge the basis of calculation of the surveyor.
For the discussion made above we direct the opposite party no. 1 to pay the amount of loss assessed by surveyor if the complainant and Bank are ready to execute relevant documents required by the insurance company in this regard.
If the complainant and Bank are not ready to execute relevant documents required by the insurance company then the payment will be subject to the result of the complaint case lodged by the complainant in this regard.
With the aforesaid observation this complaint case stands disposed off in the light of aforementioned directions.
Member President
