DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

PATIALA.

                                      Consumer Complaint No. 175 of 21.8.2015

                                      Decided on: 26.4.2017

1. M/s Silky Boutique , Nabha Road, Nr. Gurdawara  Dukhnwaran Sahib, Adjoining Dhillon Hotel, Patiala through its Proprietor Mrs.Rekha Arora.
2. Mrs Rekha Arora w/o Sh.Radhey Sham sole Prop. M/s Silky Boutique presently resident of H.No.500, St. No.5,Tripuri Town, Patiala.

                                                                   …………...Complainant

                                      Versus

1. The New India Assurance Co.Ltd., H.O.New India Assurance Building 87, M.G.Road, Fort, Mumbati-400 001 through its M.D.
2. The New India Assurance Co.Ltd., Divisional Office, IInd (361500) Ist Floor, Leela Bhawan, Opp. Income Tax Office, Patiala.
3.  

                                                                   …………Opposite Parties

                                      Complaint under Section 12 of the

                                      Consumer Protection Act, 1986.

QUORUM

                                      Smt. Neena Sandhu, President

                                      Smt. Neelam Gupta, Member 

ARGUED BY:

                                      Sh.G.P.S.Baweja,Advocate, counsel for complainant.

                                      Sh.D.P.S.Anand,Advocate,counsel for Opposite Parties.

 ORDER

                                    SMT.NEENA SANDHU, PRESIDENT

                 M/s Silky Boutique through its proprietor Mrs.Rekha Arora   has filed this complaint under Section 12 of the Consumer Protection Act,1986 ( hereinafter referred to as the Act) against the Opposite Parties (hereinafter referred to as the O.Ps.) praying for the following reliefs:-

1. To pay Rs.9,59,468/- alongwith interest @18% per annum w.e.f.18.1.2014 with future interest till the date of realization;
2. To pay Rs.1,00,000/-as compensation on account of harassment & mental torture etc,
3. To pay Rs.25,000/- as litigation expenses and anyother relief which this Forum may deem fit.

2.                In brief, the case of the complainant is that in order to earn her livelihood, she was running a retail outlet of clothes under the name and style of M/s Silky Boutique and got the items/articles/clothes insured with the OPs vide Customer ID No.NL 5768074 and policy No.36150048130600000249 for the period from 11.9.2013 to 9.9.2014, for covering the risk of fire and allied perils under Section 1B of the policy and for Burglary and House breaking under Section 1C, for an amount of Rs.20,00,000/-.The premiums to this effect was also paid by her. On the intervening night of 17.1.2014 and 18.1.2014,  theft took place at the said premises, where the thieves after breaking the locks of the shutter have made illegal and forcible entry into the shop and stolen huge stocks of clothes including pent-shirts (suiting) ladies suits and Sarees etc and even taken away the locks. The matter was reported to the police. The local police after investigation registered FIRNo.22 dated 16.4.2014 at P.S. Tripuri Town, Patiala. She also lodged the claim with the OPs for an amount of Rs.9,59,468/-, the loss suffered by her. She furnished all the requisite details to the OPs.But the OPs illegally and unjustly repudiated her claim vide letter dated 22.8.2014 with the remarks “ there is no forcible entry in the shop and surveyor recommended to repudiate the claim”.She time and again requested the OPs to reconsider his claim but they failed to accede to her request. It is averred that local police also investigated the matter and was successful in apprehending the thieves and registered another FIR against the accused vide No.272 dated 22.12.2014 under Section 457,380,328,467,468,471,473,411 and 120B IPC at P.S.Kotwali, Patiala, whereby some of the stolen articles were recovered and got released by her from which it is cleared that the entry to the premises was made with force solely for the purpose of theft. A legal notice dated 30.6.2015 was also got served upon the OPs to reconsider the matter and honour the claim but the failed to reply the same. The OPs have thus acted negligently and deficiently and wrongly repudiated her claim without any reason or rhyme on false and flimsy grounds, which caused great mental agony and physical harassment to her.

3.                On being put to notice, the OPs appeared and filed the written version taking preliminary objections that the complaint is not maintainable and that complicated questions of law and facts are involved. On merits, it is stated that the complainant was running the shop for commercial purpose and does not fall under the definition of consumer and thus the complaint is liable to be dismissed. It is however further stated that the  Prop. of the shop had purchased Shop Keepers Insurance policy for the said premises for the period from 10.9.2013 to 9.9.2014 for a sum of Rs.20lacs , covering the risk of fire and allied perils excluding money and valuable , burglary and house breaking.It is denied that in the intervening night of 17.1.2014 and 18.1.2014 any theft had taken place by unknown thieves by breaking the locks of the shutter and made illegal and forcible entry into the said shop and took away huge stock of clothes including pents, shirts(shiting) lady suits and sarees etc. and also took away the locks with them. It is alleged that the investigator found that there was no forcible entry because locks were found missing and not broken and shutter was closed and insured could not prove the forcible entry in the premises.It is stated that on receipt of intimation of loss, the insurance company had immediately deputed Mittal Surveyors Pvt. Ltd who are Approved IRDA surveyor and loss assessor, Bathinda to assess the loss on 22.1.2014 who immediately visited insured shop  on  22.1.2014 and wrote a letter on 24.1.2014 to the complainant demanding list of stolen goods with copy of purchase bills, list of unstolen stocks with evident of quantity and rates, copy of balance sheet for the last three years and up to the date of loss, copy of purchase/sales account with bills, copy of stock record if any maintained, reason for late intimation, copy of supplier accounts, copy of bank stock statements duly verified by the bank and copy of bank account but complainant failed to supply the same for six months inspite of letters dated 28.2.2014,1.4.2014 and 31.5.2014, as she got prepared false accounts within this period. The surveyor on his first visit on 22.1.2014 found that the shop was giving very shabby and dirty look. He further found that after opening the boxes the same were empty and the racks contained obsolete items and recommended to get the case investigated and resultantly they deputed M/s Royal Investigators and Detective Associates to investigate the matter, who in their report dated 1.7.2014, found that the complainant failed to prove forcible entry because locks were found missing and not broken and shutter was closed.The FIR was lodged after three months of the incident and there were contradiction in statements of insured and the workers. The statement of the complainant regarding the stocks and maintaining the record was also found contradicted.The insured in his letter dated 19.7.2014 has stated that most of the transactions of purchase/sales have been on cash basis because there was no sale tax in the business of clothing.However,  purchases and purchase bills show that there were heavy purchased in bill No.2896 dated 21.12.2012 of M/s M.M.Trading Co. Patiala for Rs./16,00,000/- and failed to disclose how she managed and why the payment was not made through cheque when the insured was having cash credit limit of bank and no payment exceeding Rs.20,000/-can be made against single purchase per day. However, the surveyor assessed the loss to the tune of Rs.99,766/-.It is denied if the claim has been rejected illegally vide letter dated 22.8.2014. After denying all other averments made in the complaint, it is prayed to dismiss the complaint.

4.                In support of the complainant, the ld. counsel for the complainant has tendered in evidence Ex.CA sworn affidavit of Smt.Rekha Arora, Ex.CB affidavit of Sh.Radhey Sham alongwith documents Exs.C1 to C34 and closed the evidence.

                   The ld.counsel for the OPs tendered in evidence Ex.OPA affidavit of Sh.I.S.Sidhu, Sr.Divn Manager, Ex.OPB, affidavit of Sh.Parmod Mittal, Surveyor, Ex.OPC affidavit of Sh.Kashmir Singh, Investigator alongwith documents Exs.OP1 to OP31 and closed the evidence.\

5.                We have heard the ld. counsel for the parties and have also gone through the record of the case, carefully.

6.                 At the out set, the ld. counsel for the Ops vehemently argued that they have rightly repudiated the claim on the basis of the report given by the Investigator, who during investigation found that as per history of loss there was no forcible entry because locks were found missing.

7.                 On the contrary, the ld. counsel for the complainant has submitted that on the intervening night of 17.1.2014 and 18.1.2014 some thieves, after breaking the locks of the  shutter of the shop had made forcible entry and stolen the stuff/clothes lying in the shop  and had taken the broken locks alongwith them with the intention to  not to leave any clue regarding theft. Accordingly, the Prop of the shop  had lodged the claim with the Ops but they repudiated her genuine claim vide letter dated 22.8.2014,Ex.C21, on the flimsy ground that there was no forcible entry in the shop as locks were found missing. The ld. counsel for the complainant further  argued that as usual on the intervening night of 17.1.2014 and 18.1.2014, the Prop. of the has closed the shutter of the shop with the locks, properly  and the burglars  after breaking the locks had made a forcible entry in her shop and stolen the stuff lying in the premises and they have also taken away the broken locks with them.  It is not the case of the Ops that on the intervening night of  burglary the prop. of the shop left  the shutter of the shop un locked.

8.                          It may be stated that merely on the fact that locks were not found at the site, does not lead to the conclusion that it was not a forcible entry into the premises leading to burglary. Thus, we have no hesitation in saying that the repudiation of the claim of the complainant by the Ops was  only on presumption. There is no denying fact that the some stuff stolen from the shop of the complainant had been recovered and duly released to the prop. of the shop by the police. Even otherwise this fact  cannot be ignored that there can be every possibility that the thieves/burglars after breaking the locks of the shutter had made forcible entry in to the shop and stolen the stuff lying therein and had also taken the broken locks alongwith the stolen stuff. Be that as it may, the ops were not justified in repudiating the claim on the ground that the locks were found missing at the premises, where theft took place. Therefore, we are of the view that the OPs are liable to indemnify the complainant as per the terms and conditions of the insurance policy.

          Now the question which falls for consideration is that what should be the quantum of  indemnification ?

          From the surveyor’s report, Ex.OP29, it is evident that surveyor has assessed the loss to the tune of Rs.99,766/-, whereas the complainant has claimed Rs.9.59,468/-. The report of the surveyor is detailed and well explained and it being  an important document  cannot be brushed aside without any compelling evidence to the contrary. Therefore, the complainant is  to be indemnified to the tune of  Rs.99,766/- round of  Rs.1,00,000/-  alongwith interest. From the insurance policy, Ex.C1, it is evident that the same has been  issued  in the name of  M/s Silky Boutique and the complaint has also been filed by M/s Silky Boutique. Since the complaint has been filed by the juristic person, therefore, it is not entitled to get any compensation on account of mental agony and physical harassment. However, complainant is entitled to get litigation expenses.

9.                In view of the aforesaid discussion, we partly allow the complaint  and direct the OPs in the following manner:

1. To pay Rs.1,00,000/-alongwith interest at the rate of 7% per annum from the date of repudiation i.e. 22.8.2014 till its realization.
2. To pay Rs.20,000/- towards litigation expenses.

The Ops are further directed to comply the aforesaid directions within a period of 45 days from the date of receipt of the certified copy of this order, failing which they shall pay interest @9% p.a. on the amount of Rs.1,00,000/- . Certified copy of this order be sent to the parties free of costs under the rules. Thereafter file be indexed and consigned to the Record Room.

ANNOUNCED

DATED:26.4.2017                                    NEENA SANDHU

                                                                       PRESIDENT

                                                                   NEELAM GUPTA

                                                                         MEMBER