Punjab

Amritsar

CC/15/383

Raja & Co. - Complainant(s)

Versus

The New India Ass. Co. Ltd. - Opp.Party(s)

Deepinder Singh

07 Oct 2016

ORDER

 

Order dictated by:

Sh.S.S. Panesar, President.

 

1.       Raja & Company through its Prop.Sh. Raj Kumar Manchanda complainant has brought the instant complaint under section  12 &13 of  the Consumer Protection Act, 1986 on the allegations that complainant obtained insurance policy as shopkeepers Insurance policy having policy No.36050048130600000107 for the period from 19.1.2014 to 18.1.2015 covering the risk of cash in transit to the tune of Rs. 1.2 lacs. Unfortunately on 14.4.2014 the complainant after closing his showroom of electronic goods kept the bag containing the cash of Rs. 1.25 lacs alongwith other valuable documents in the dickey of his car bearing registration No. PB-02-CD 5319  and closed his showroom  and started towards his residence located in D-Block Ranjit Avenue, Amritsar. While on the way his car started flashing the signal of dickey opened and he on the way closed the dickey of the car again. On reaching home, complainant found the said bag containing the cash worth Rs. 1.25 lacs and other valuable missing. The complainant tried to search here and there but to no avail and filed police complaint vide FIR No. 343 at P.S. Civil Lines, Amritsar . The complainant also intimated the opposite party about the said loss. Opposite party then appointed the investigator and surveyor, who thoroughly investigated the matter and come to the conclusion that  the loss has occurred to the complainant. But the opposite party vide its letter dated 1.4.2015 has repudiated the genuine claim of the complainant on flimsy ground that the loss had occurred due to unlocked dicky. The complainant has sought for the following reliefs vide instant complaint:-

(a)     Opposite party be directed to pay the claim of Rs. 1,20,000- alongwith interest @ 12% p.a. from 14.4.2014 till realization;

(b)     Compensation to the tune of Rs. 50000/- may also be awarded to the complainant.

(c )     Opposite party may also be directed to pay adequate litigation expenses.

Hence, this complaint.

2.       Upon notice, opposite party appeared and contested the complaint by filing written version taking certain preliminary objections therein that complainant has not approached this Forum with  complete information . The real facts that before repudiating the claim  on merits vide letter dated 1.4.2015, opposite party appointed M.s. S.A. Investigating Agency to investigate the matter  and besides that also deputed Mr. Baldev Pathania to carry out survey and assessment of loss if any in order to quantify the quantum of loss. On receipt of reports from the independent investigating agency as well as independent surveyor, the claim was considered by the competent authority in the light of policy terms and conditions and finally the liability of the company was repudiated as the loss stands confirmed being occurred  on account of gross negligence on the part of the complainant i.e.leaving brief case containing cash in the unlocked dicky of the car during which the said vehicle remained unattended. Hence, the repudiation made by the opposite party is legal and valid ; that even otherwise the complainant has submitted the loss to the tune of Rs. 1,25,000/- whereas the independent surveyor has assessed the loss to the tune of Rs. 22500/- after considering the accounts and other papers of the insured concern. In this regard, it is submitted that it is the basic principle of law that the surveyor is the best person to assess the loss and the Forum cannot assume role of the surveyor. On merits facts narrated in the complaint have been specifically denied and a prayer for dismissal of complaint was made.

3.       In his bid to prove the case Sh.Deepinder Singh,Adv.counsel for the complainant tendered into evidence affidavit of the complainant Ex.C-1 alongwith documents Ex.C-2 to Ex.C-6 and closed the evidence on behalf of complainant.

4.       To rebut the aforesaid evidence Sh.P.N.Khanna,Adv.counsel for opposite party tendered into evidence Sh.Sukhdev Singh Gill,Sr.Divisional Manager Ex.OP1/1 alongwith documents Ex.OP1/2 to Ex.OP1/9 and closed the evidence on behalf of opposite party .

5.       We have heard the ld.counsel for the parties and have carefully gone through the record on the file as well as written synopsis of arguments submitted on behalf of the opposite party.

6.       On the basis of the evidence on record,ld.counsel for the opposite party has vehemently contended that it is not disputed that the complainant was holder of shopkeeper Insurance policy 36050048130600000107 which was valid w.e.f. 19.1.2014 to 18.1.2015, copy whereof is Ex.C-2 (Ex.OP1/9) . It has been the case of the complainant that on 14.4.2014 the complainant after closing his show room kept the bag containing cash of Rs. 1,25,000/- alongwith other valuable documents in the dicky of his car bearing registration No. PB 02 CD 5319 and closed his showroom. The complainant  left for his residence located in D Block, Ranjit Avenue, Amritsar  in the car and while on the way his car started  flashing the signal of dicky being open. The complainant on the way closed the dicky of the car  and on reaching home, he found the said bag containing cash worth Rs. 1,25,000/- and other valuable missing from the dicky of the car. The complainant lodged an FIR No. 343  at P.S. Civil Lines, Amritsar, copy whereof is Ex.C-4 on record. The complainant intimated the loss  claim to the opposite party and the opposite party appointed Investigator and surveyor  in this regard. The investigator and the surveyor thoroughly investigated the matter and came to the conclusion that the loss intimated by the complainant to the Insurance company was exaggerated  & the surveyor found the same to be Rs. 22,500/- for the purpose of the insurer. However, the claim was left to be decided by the Insurance company as per terms and conditions of the Insurance policy. Report of the surveyor accounts for Ex.OP1/4. The Investigator on the other hand has found that the complainant himself was negligent. The dicky wherein the amount as well as other valuable documents were said to be kept in a bag was left opened by the complainant. The relevant  extract of the findings of the investigator are noted down as under:-

“The insured’s proprietor had kept the brief case containing cash negligently in the dicky of the car which remained open thus unlocked when the shutters of the shop were being put down.

The insured’s proprietor has confirmed that while driving he observed that the dickey  of the car was open with the car giving the signal for the same.

The point means that the dickey was not properly locked when Mr.Raj Kumar Manchanda after keeping the brief case in the dickey of the car went to put down the shutters of the shop hence, the car as well as the brief case were unattended and kept in unlocked condition.

The insured’s proprietor did not check the brief case when the dickey was noticed open which means that he was negligent about his belongings.”

7.       The report of investigation accounts for Ex.OP1/6. The perusal of the findings of the investigator shows that the alleged loss of the money has taken place due to the negligence of complainant himself and as per terms and conditions of the Insurance policy in dispute, the complainant is not entitled to be indemnified by the Insurance company. Reliance in this connection has been placed upon New India Assurance  Company Limited-Petitioner Vs. T.V.Sarathi-Respondent II(2009) CPJ 169 (NC) wherein it has been held that in this case the claim was repudiated by the Insurance company on the ground that reasonable steps towards safeguard  the property were not taken . While considering the merit of the  case, the  Hon’ble National Commission has come to the conclusion that as the camera in question was left unattended, therefore, the initial burden was on the complainant/respondent to show that he had taken due care to safeguard the insured goods but he has failed to prove the same , rather, it stands proved that he was clearly negligent in leaving the camera unattended and as such the repudiation made by the Insurance company was upheld as correct one. In this judgement the warranty clause that the insured shall take all reasonable steps to safeguard the property insured and in failure thereof, the company is not liable to pay any loss or damage of the unattended property, has also been referred. In this case the surveyor has assessed the loss to the tune of Rs. 22,500/-. Although the complainant has tried to find fault in the surveyor report by producing copy of  CA in additional evidence Ex.C-6 in which it has been stated that a sum of Rs.1,25,000/- were in hand on that day in the business concern of the complainant. But, however, the survey report as well as investigation report conducted by independent surveyor and investigator have proved that the loss actually occurred to the complainant, was to the tune of Rs. 22,500/- only. Mere report of the  CA to the effect that a sum of Rs. 1,25,000/-was the cash in hand on the fateful day, does not prove the case of the complainant regarding loss of the said amount in the theft incident. Moreover, the onus was upon the complainant to prove that surveyor’s assessment was wrong. It was  the burden upon the consumer to establish by producing evidence that what has been left out by the opponent and what has not been correctly and properly assessed by the opponents . In the absence of the same, the surveyor report has to be accepted by the court. Reliance in this connection can be had on  United India Insu.Co. Vs. Hotel White Rose 2004(3) CLT page 494 of the Hon’ble Gujarat State Consumer Disputes Redressal Commission.

8.       From the aforesaid assertions, it has been vehemently contended by the ld.counsel for the opposite party that claim of the complainant has rightly been repudiated. There is no deficiency of service on the part of the opposite party and therefore, claim filed by the complainant may be dismissed with cost.

9.       However, from the appreciation of the facts and circumstances of the case, it becomes evident that complainant admittedly availed insurance policy in dispute which was valid during the period  the theft in question took place containing money as well as other valuable documents from the car of the complainant on 14.4.2014. The complainant on coming to know about the theft, lodged report with the local policy and FIR No. 343  was lodged. The opposite party on receipt of the claim , appointed Baldev Pathania, as surveyor , who conducted the survey and reached the conclusion that a loss to the tune of Rs. 22,500/- occurred to the complainant in the theft incident on the fateful day and he referred the recommendation to the opposite party for considering the same in accordance with terms and conditions of the Insurance policy. The opposite party did not make the payment of the loss assessed by the surveyor and rather appointed Investigator namely M/s. S.A.Investigating & Consulting Agency to investigate  the matter, who conducted the investigation and found that the alleged theft took place due to the negligence of the complainant himself and therefore, no claim was payable. But, however, findings of the investigator in this regard are not without any blemish. Since the bag containing money as well as important documents was kept in the dickey of car on the fateful day, in such a situation it cannot be held that the complainant did not take reasonable care to protect his property. However, the stand of the opposite party to the extent that the money involved in the theft case was to the tune of Rs. 22,500/- only has to be accepted because the report of the surveyor is binding on the parties. The surveyor happens to be an independent person and has no axe to grind against the complainant. Further more report of the CA Ex.C-6 which has been pressed into service in proving that  an amount of Rs. 1,25,000/- was in hand on that day, is not sufficient that theft of the said amount has taken place in the incident.  Thus, we hold that a sum of Rs. 22,500/- was lost in the theft incident which took place on the fateful day. So far as the alleged negligence of the complainant in taking proper care &  protection of his goods is concerned, the same has been duly taken by the complainant since the bag containing money was kept in the dickey of the car and when the complainant came to the notice that dickey of the car was open , he immediately stopped his car and locked the dickey. On reaching home, complainant found the bag containing money and other documents was missing from the dickey of the car & he immediately lodged the report with the police. As such, there is nothing lacking on the part of the complainant  in care & protection of his goods.  We find support in this regard from United India Insurance Co. Limited Vs. Suresh Kumar 2011(2) CPJ 272 (NC) wherein it has been laid down that source of the money is established. Soon after coming to know about the loss of the amount, respondent lodged the FIR with the police, which indicates that , infact, the money had been stolen from the possession of the respondent. It is not disputed before us that the respondent had taken a cash-in-transit policy in the sum of Rs.20 lacs. The respondent had taken the policy to safeguard against the loss of money in transit. There is nothing on record to show that the claim lodged by the respondent was false or at any stage managed. We do not find any infirmity in the order passed by the State Commission. Finding recorded by the State Commission is a finding of fact, which cannot be interfered with in exercise of revisional jurisdiction. Under section 21 of the  Consumer Protection Act, 1986, in revision, this Commission can interfere with the orders only if it appears that the Authority below has exercised jurisdiction so vested or has acted in the exercise of its jurisdiction illegally or with material irregularity. We find no error/irregularity in the exercise of jurisdiction by the State Commission in its impugned order. Dismissed. No costs.. Further reliance can be had on United India Insurance Co.Ltd. –Petitioner Vs. Parveen Sharma-Respondent 2010(3) CPC 62 (NC) wherein it has been laid down that from the records, we find that the respondent/complainants have lodged a report with the police on 18^th of September 2004 itself, the receipt of which bears a stamp and acknowledgment of the Najafgarh Police Station, New Delhi. Besides, the SHO, Najafgarh Police Station, New Delhi vide his note dated 26^th of March, 2009 has clearly stated that the complaint was received on 18^th of September 2004 itself and bears a  diary number of the police station. In so far as the other  grounds raised by the ld.counsel for the petitioner/insurance company, such as the respondent/complainants having obtained a policy for the first time and having enhanced the value of the insurance within a short period and further that nobody would wear jewellery while going to temple etc, are concerned, we find that the same have been fully considered by the State Commission, who has given the detailed reasons for not accepting the same and no new point has been raised by the learned counsel for our consideration at the stage of revision. As such the revision petition is disposed of in above terms with no order as to cost.

10.     From the aforesaid discussion, it transpires that complainant has proved his case for indemnification of Rs. 22,500/- on the basis of Insurance policy in dispute from the opposite party. Opposite party has been deficient in service when it refused to pay the amount of Rs. 22500/- to the complainant, on the basis of the survey report submitted by surveyor Baldev Pathania. As such instant complaint partly succeeds and the opposite party is directed to pay a sum of Rs. 22,500/- to the complainant alongwith interest @ 9% p.a. from the date of filing of the complaint until full and final recovery. Cost of litigation are assessed at Rs. 3000/-. Compliance of this order be made within a period of 30 days from the date of receipt of copy of this order ; failing which, complainant shall be entitled to get the order executed through the indulgence of this Forum. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced in Open Forum