Tamil Nadu

StateCommission

A/188/2015

Lalitha Natesan - Complainant(s)

Versus

The National Insurance Company Ltd., Manager - Opp.Party(s)

P.L. Narayanan

30 Aug 2022

ORDER

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present:   Hon’ble THIRU. JUSTICE R. SUBBIAH     :     PRESIDENT

                 THIRU R VENKATESAPERUMAL             :      MEMBER

 

F.A. No. 188 OF 2015

(Against the order passed in C.C. No.304 of 2009 dated 23.07.2014 on the file of the D.C.D.R.F., Chennai (North).

 

Tuesday, the 30^th day of August 2022

 

1.  Lalitha Natesan (Deceased)

    

2.  D. Natesan

     S/o.Dhandapani

 

3.  Sai Sarath (Minor)

     S/o. D.Natesan

     Rep. by father and Natural Guardian

     D. Natesan

        Both residing at

        Park View, III Floor

        Old No.85, New No.94

        G.N. Chetty Road

        T. Nagar, Chennai- 600 017.              ..  Appellants/ Complainants

 

Vs.

1. The National Insurance Co. Ltd.,

    Rep. by the Manager

    Aminjikarai Branch

    No.29, Pulla Avenue

    I Floor, Shenoy Nagar

    Chennai – 600 030.

 

2. The National Insurance Co. Ltd.,

    Rep. by Deputy General Manager

    Regional Office

    II Floor, Hamid Building

    190, Anna Salai

    Chennai – 600 006.                                       .. Respondents/

                                                                 Opposite Parties

 

Counsel for Appellants /Complainants             : M/s.P.L. Narayanan

                                                                    [ No representation ]

 

Counsel for the Respondents/

Opposite parties    : M/s. Radha Devi    

 

                                                                                                       

        This appeal is coming before us for final hearing on 05.07.2022 and on hearing the arguments of the counsel for the respondents and on perusing the material records, this Commission made the following :-

O R D E R

R.SUBBIAH J., PRESIDENT

                This appeal has been filed by the complainants under Section 15 of the Consumer Protection Act, 1986 challenging the order dated 23.07.2014 passed by the District Consumer Disputes Redressal Forum, Chennai (North) in C.C. No.304 of 2009, dismissing the complaint. 

 

                2.    The factual background culminating in this appeal is as follows:  The case of the complaint is that she was running a business under the name and style of MBI Pipes dealing in poly proline pipes.  It is a proprietary concern.  She was having a godown at No.86 Perungudi Industrial Estate, Perungudi, wherein stocks of pipes are stored.  All the stocks are insured with the National Insurance Company, the 1^st opposite party herein under Policy No.500502/46/07/ 7500000032 valid for the period from 29.05.2007 to 28.05.2008.  The insurance policy covers the risk of theft besides several other risks.  On 21.11.2017 morning, the night watchman in the godown reported that there was a theft during early hours of 21.11.2017.  Immediately the complainant lodged a complaint with the Thoraipakkam Police Station about the loss of pipe/ fittings to a value of Rs.3,06,762.33.  The said complainant was registered under FIR No.894/07 dated 30.11.2017.  In April 2008 the police authorities submitted a report to the Judicial Magistrate, Alandur stating that the case is undetectable.  Immediately after theft, the complainant had also sent a claim form to the opposite parties.  After 4 months, the 1^st opposite party responded, by letter dated 28.03.2008 informing the complainant that M/s. Golden Eye Detectives have been appointed for investigation and requesting the complainant to co-operate with them, so as to process the claim.     One J.Kothandaram, Surveyor and Loss assessor, appointed by the opposite party vide their letter dated 26.11.2007, asked the complainant to furnish a long list of 15 documents including police complainant, sales tax records, audited financial statements etc.  The complainant furnished all the documents.   The complainant vide letter dated 14.07.2008 furnished a similar set of documents to the 1^st opposite party also, which was received by them on 16.07.2008.  But the opposite party did not send any reply regarding the claim.  Hence the complainant sent a reminder on 10.09.2008 to the opposite parties requesting them to inform the status of her claim.  But, there was no reply for the said letter also.  Again a second reminder letter dated 09.10.2008 was sent by the complainant, for which the opposite party replied stating that since it is a time consuming process, the complainant has to bear for a few more weeks.   But, the opposite parties remained silent for many months.  Hence, the complainant sent a letter to the General Manager, National Insurance Co., Registered Office, Calcutta, requesting him to intervene in the matter.  The complainant also marked copy of the letter to the opposite parties and the Insurance Ombudsman at Chennai.  There was no answer from the opposite parties.  However, Insurance Ombudsman vide their Lr.No.IO (CHN)/10.03.1612/2008-09 dated 05.03.2009 replied that since the insurance has been taken not in individual capacity but on commercial lines, they are not in a position to entertain the complaint.  The complainant had sent about 17 reminders through series of e-mails from 06.12.2008 to 01.06.2009 to the Head Office of National                                                                                                                                                                                                                                                                                                                                      Insurance Company and the opposite parties.  But there was no response.  The head office vide e-mail dated 10.02.2009 directed the 2^nd opposite party to resolve the matter, for which also the opposite parties did not respond.  Therefore, the present complaint was filed before the District Forum, seeking the following direction to the opposite parties :-    

1. to pay the claim amount of Rs.3,06,762.33 with 18% interest per annum from the date of complaint till the date of payment;
2. to pay damages for a sum of Rs.50,000/- towards mental agony and hardship ;
3. to pay a sum of Rs.45,000/- towards loss of business income.

 

            3.  The case was resisted by the opposite parties by filing a version.  The opposite parties deny all the allegations and submit that there was an inordinate delay of more than 9 days by the complainant in reporting the alleged theft in the godown.  Even the name of the security staff from whom the theft was alleged to be reported, was not disclosed in the FIR.  The exact time of theft was not stated in the FIR.  There is no reference about the use of force by the alleged culprits while entering into the godown.  It is not mentioned whether the security staff stayed in the godown throughout the night of the alleged occurrence.  There are glaringly patent and gross discrepancies that are apparent on the face of the record, in the certified copy of the report of the police to the court.    The FIR has been lodged only as an after thought by the complainant, after receipt of the letter dated 26.11.2007 sent by Mr.J.Kothandaraman, Surveyor & Loss Assessor, appointed by the 1^st opposite party to conduct the survey and to assess the alleged loss.   The Surveyor in his letter dated 18.02.2008 addressed to the 1^st opposite party has categorically stated the following lines :-

1. The insured claims to have lost many items which could not be carried just by hand and this exercise should involve a goods carrying vehicle; as the insured informed that a watchman resided with his family in the same premises, an investigation has to be carried out to find out how this was possible;
2. The insured informed that all the purchases were made from M/s.SSS Medical Trans, a sister concern of the insured; hence the source of purchases have to be verified;
3. The alleged lost items are mainly brass products covered by plastic; hence the alleged crime might have been perpetrated by known people who are knowledgeable in this trade;
4. In the proposal form, the insured answered in the affirmative for the question whether the premises occupied at night, whereas for the query whether premises were guarded by watchman, the insured replied, ‘no’ thus contradicting her statement.

Hence, the Surveyor advised the 1^st opposite party to appoint an investigator to thoroughly investigate the matter.  Thereupon, the opposite parties appointed M/s. Golden Eye Detectives, an independent and professional detective agency.  The said Investigator, vide their interim report dated 26.02.2009, pointed out several anomalies and discrepancies in the investigation conducted by the police namely,

1. Police have not conducted enquiry with neighbours;
2. Forensic department was not called to the spot by police and routine formalities like tracing of finger prints, using services of sniffer dogs, etc., have not been carried out by police, which are normally done in burglary case;
3. The materials involved in the alleged theft are made of brass covered by plastic; only known people in the employment of the insured will be aware about such material; such alleged occurrence cannot be undergone without the connivance of complainant’s employees;
4. The materials alleged to have been stolen cannot be just lifted out in any bag; the burglars must have definitely used load auto or van to mobilize the materials and if so, what was the watchman doing until that time?

Hence the alleged burglary would not have happened without the connivance of the staff of the complainant.  In view of such anomalies and discrepancies pointed out by the Surveyor, the 1^st opposite party referred the claim for an independent legal opinion from an Advocate conversant in criminal law, who in his legal opinion dated 15.06.2009 had stated that the suspicions expressed by the surveyor and investigators appear to be genuine and had concluded that there is a foul play involved and advised the 1^st opposite party to get the police case reinvestigated by CBCID.  Hence, the claim of the complainant was not settled by the opposite parties and the present complaint has been filed with false, fraudulent and ulterior motives.  Thus, sought for dismissal of the complaint.

 

            4.  In order to prove the case, on the side of the complainant, along with proof affidavit 13 documents were filed and the same were marked as Exhibits A1 to A13.  On the side of the opposite parties, along with proof affidavits 5 documents were marked as Exhibits B1 to B5.

 

            5.  After analyzing the entire evidence on records, the District Forum has come to the conclusion that the complainant has miserably failed to establish the negligence and deficiency in service on the part of the opposite parties, hence dismissed the complaint.  Aggrieved over the same, the present appeal has been filed.

 

            6.  Keeping in mind the submissions made by the counsel for the respondents/ opposite parties, we have carefully gone through the entire material available on record.  There is no representation for the appellants/ complainants.

 

                7.   It is the specific case of the complainant that till date the Insurance company has not repudiated the claim of the complainant   But they set up the defence of delay in lodging the complaint with the police, which is factually incorrect.  In fact by letter dated 14.10.2008, Ex.A11, the opposite party had requested the complainant to wait for a few weeks.  Thereafter, they have not responded.  The value of the goods lost are co-related with the purchase invoices and prima facie loss of goods and the value thereof have been established.  As per the insurance coverage the opposite parties are bound to pay the claim amount.  But the opposite parties, by relying upon the interim report of the Investigation Agency dated 26.02.2009 marked as Ex.B3, had submitted that the investigator had given a report raising suspicion on the complaint lodged by the complainant. 

 

                8.  Be that as it may, when there is a disputed question of facts, the issue involved in this case cannot be decided by the Consumer Forum in a summary manner.  Therefore, this kind of issue needs elaborate oral evidence, by giving opportunity of cross-examination to the other side.  Therefore, it would be appropriate for the complainants to approach the concerned civil court for their redressal, where the parties can adduce elaborate oral evidence by affording opportunity of cross examination to the other side. 

 

                9.  Therefore, we find no infirmity in the order passed by the District Forum and hence the order dated 23.07.2014 made in C.C. No.304 of 2009 on the file of District Consumer Disputes Redressal Forum, Chennai (North), is confirmed.  Consequently, the Appeal is dismissed.   However, the appellants are at liberty to approach the appropriate forum.              

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             

 

 

R. VENKATESAPERUMAL                                    R.SUBBIAH

         MEMBER                                                  PRESIDENT

 

 

Index :  Yes/ No

 

AVR/SCDRC/Chennai/Orders/August /2022

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

F.A. No. 188 of 2015

 

HON’BLE THIRU

  JUSTICE R.SUBBIAH, PRESIDENT

        Therefore, we find no infirmity in the order passed by the District Forum and hence the order dated 23.07.2014 made in C.C. No.304 of 2009 on the file of District Consumer Disputes Redressal Forum, Chennai (North), is confirmed.  Consequently, the Appeal is dismissed.   However, the appellants are at liberty to approach the appropriate forum.              

 

MEMBER                  PRESIDENT

30.08.2022               30.08.2022