CONSUMER DISPUTES REDRESSAL COMMISSION-VII

DISTRICT: SOUTH-WEST

GOVERNMENT OF NCT OF DELHI

FIRST FLOOR, PANDIT DEEP CHAND SHARMA SAHKAR BHAWAN

CASE NO.CC/437/13

          Date of Institution:-    26.08.2013

          Order Reserved on:- 20.08.2024

                    Date of Decision:-      11.09.2024

IN THE MATTER OF:

SandhyaChemplastPvt. Ltd.

Through its Director

1-B, L.S.C., Naraina Industrial Area,

Phase-II, New Delhi - 110028

.….. Complainant

VERSUS

The Oriental Insurance Company Ltd.

Through its Branch Manager

9- Community Centre,

Mayapuri, New Dehli

…..Opposite Party

Suresh Kumar Gupta, President

1. The complainant has filed the complaint under section 12 of Consumer Protection Act, 1986 (hereinafter referred to as Act) with the allegations thatcomplainant is a private limited company incorporated under the Companies Act which has taken a standard burglary policy bearing cover note No.215502/48/2010/987 valid from 14.08.2009-13.08.2010 from OP. The complainant is into the business of trading of “plastic dana” being purchased from various markets situated within India and from outside India. The complainant is having godowns at Hamidpur Road, Near SanyamDharamkanta as well as Kundli, Haryana. During the intervening night of26/27.11.2009 at 2.00AM-2.30AM, three persons came to the godown situated at Hamidpur Road, Near ShayamDharamkanta and threatened the guard by putting the revolver on the head. They tied his legs and hands. All the guards were tied and broke open the main gate. The loaded the material in the truck and escaped with the goods. A total of 432 bags of plastic dana were found stolen upon which FIR bearing no.380/09 under section 457/380 IPC at PS, Alipur was lodged. The intimated was also given to the OP. The surveyor was appointed. The claim was not settled for a long time. The OP after the lapse of three years have repudiated the claim vide letter dated 14.08.2012. There is deficiency of service on part of OP as investigator was appointed almost after 18 months of the incident which is a clear disregard to the provision of IRDA notification – (protection of policy holder interest) regulation, 2002. The point no.9 of the said notification shows that surveyor shall not take more than six months to furnish the report from the date of appointment. There is gross deficiency and default on the part of OP. Hence, this complaint.

2. The OP has filed the written statement wherein preliminary objections are taken to the effect that there is no cause of action against the OP. The claim was repudiated on the grounds that security guards sleeping at the time of incident which is a clear negligence on the part of the complainant and breach of condition of policy no.3 of the insurance policy. The proposal form shows that no theft has taken place in the go-down in previous year but as per report of M/s Royal Associates theft incident took place every year in the go-down which is a breach of condition no.2 of the policy. There is difference between of the version of FIR and statement taken by the investigator. The statement of the complainant dated 29.06.2011 shows that 14-15 robbers entered the go-down and tied the security guard but FIR shows that security guards saw the broken shutter and one tempo was inside the go-down where some persons were loading the bags in tempo. FIR nowhere shows that security guards were tied by the robbers. The complainant has suppressed the material facts. The surveyor duly assessed and survey the claim of the complainant and thereafter filed the complaint. There is no deficiency of service on the part of OP.

3. The complainant has filed the rejoinder wherein he has denied the averments of the written statement and reiterated the stand taken in the complaint.

4. The parties were directed to lead the evidence.

5. The complainant has filed the affidavit of Sh. Rajesh Gupta, AR of the complainant in evidence wherein he has corroborated the version of complaint.

6. The OP has filed the affidavit of Sh. Rajender Kumar, Divisional Manager in evidence wherein he has corroborated the version of written statement and placed reliance on the documents i.e. insurance policy Ex.OP1/A and copy of the surveyor/investigation report Ex.OP1/B.

7. Heard and perused the record.

8. The complainant is having its go-down at Hamidpur Road, Near SayamDharamkanta, Bakoli, PSAlipur where complainant used to keep bags of plastic dana. The complainant has taken the insurance policy Ex.OP1/A.
9. The security guards were deputed at the go-down. The security guards were provided by Sh. Rajesh Kumar who is running a security agency in the name of Ganesh Security. He has given six security guards to the complainant. Two security guards used to give duty during day time whereas four security guards used to give duty at night. Rajkumar, Virender, Kamlesh and Ram Vilanwere on duty at the time of incident.

10. During the intervening night of26/27.11.2009 at 2.00AM – 2.30 AM, the theft of plastic bags containing plastic dana took place from the go-down of the complainant. The Police were informed. The Police came to the spot and recorded the statement ofone Birkhai Singh who stated that he along with Rajkumar, Virender, Kamlesh and Ram Vilanwas on duty at the go-down. At 2.00AM-2.30AM they were sleeping. They got up on hearing the sound of engine of tempo and saw that shutter of the go-down is lying broken and some persons were loading the plastic bags of 25kgs in the tempo. They raised an alarm upon which the persons along with tempo fled from the spot.The owner of the go-down reached on the spot and found that 432 plastic bags containing 25kgs of plastic dana in each bag are missing. The FIR was lodged. The case was investigated and sent untraced by the Police.

11. The claim was lodged with the OP. The investigator was appointed.The investigator has recorded the statements of Sachin Gupta i.e. owner of the complainant, Rajesh Kumar, owner of the security agency, Gokul who is running ShyamDharamkanta, Shiya Saran Saini running a tea shop near the go-down and also inquired from PS, Alipur about the theft. The investigator also visited ShriSatguru Poly Chem and Sarna Sales who told that goods were supplied by them to the complainant but failed to produce record and payments receipts to the investigator. The investigator found that the main eye witnesses i.e. security guards  working with the complainant at that time were not available and their present whereabouts were not known so their statements could not be recorded. The statement of the neighbours show that they were not aware of the incident and go-downs have been lying closed for the last three years. They have not seen the goods being taken out or kept inside the go-down. The theft took place twice in a year in the go-down. The firms which supplied the material to the complainant failed to show the record on the premise that same is two years old and they are not keeping the record with them. It appears that bills might have been manipulated just to increase the stock. There is variation in the statement given by the security guards to the surveyor regarding the incident. The 432 bags cannot be loaded in a tempo and complainant has failed to clarify this fact. The complainant has failed to explain about the continuous purchase of stock despite negligible sales in November. The complainant failed to provide the vehicle numbers vide which goods were brought to this go-down.
    All this show that goods were not stored in the go-down and this led to the rejection of the claim.

12. The statement of the security agency does not show that BirBakshiwas deputed as security guard with the complainant either for the morning duty or for the evening duty.

13. The security guards namely Rajkumar, Virender, Kamlesh and Ram Vilan were on duty on that day. They were not produced either by the complainant or by the security agency before the investigator of the OP to record their statements in order to verify the actual facts about the incident. The addresses were not even provided by the security agency. The non-production of these security guards has created a dent in the case of the complainant.

14. There is variation in the contents of FIR as well as statement given by Sachin Gupta. The number of alleged persons are not shown in the FIR. The guards on duty were the best persons to disclose this fact but even the maker of FIR has failed to disclose the number of persons who had come to go-down. The statement of Sachin Gupta shows that 432 bags being 25kgs each were found missing whereas even approximate number of bags are not given by the maker of the FIR. It is quite surprising that none of the security gaurds tried to stop those persons or even tried to note down the registration number of the vehicle.

15. The FIR shows that incident took place in between 2.00am-2.30am. The statement of Sachin Gupta shows that robbers have tied the security guards and gave them beatings but no such fact is disclosed by the maker of FIR. There are lots of contradiction between FIR and statement of Sachin Gupta.

16. The neighbours did not support the complainant. The owner of ShyamDharamkanta, situated nearby to the go-down stated to the investigator that go-down is lying closed for the last three years. He has not seen the movement of goods from the go-down and no one lives in the go-down for the last three months except one watchman. The statement of Shiya Saran, who is running a tea shop near the go-down shows that go-downs have been lying closed for the last two years. There is no movement of the goods from the go-down. Their statements clearly put a dent in the story projected in the FIR by the complainant. Their statement puts a big question mark about the claim raised by the complainant.

17. The alleged suppliers namely Sh. SatguruPoly Chem and Sarna sale have failed to produce the record in support of the bills including payment details which allegedly creates a doubt on the claim of total number of bags kept in the alleged go-down.

18. The complainant has failed to bring anything on the record that report submit by the investigator is contrary to the facts. The report submitted by the surveyor is an importancepiece of evidence which cannot be ignored unless there is cogent evidence otherwise. The complainant has failed to lead any evidence disproving the report submitted by the investigating agency. In the absence of any evidence to the contrary, the report submitted by the surveyor is accepted.

19. In view of above discussion, the complainant has failed to substantiate the allegations as set out in the complaint. No deficiency of service is found on the part of OP and accordingly the complaint is dismissed.

• A copy of this order is to be sent to all the parties as per rule.
• File be consigned to record room.
• Announced in the open court on 11.09.2024.