Per Hon’ble Mrs. S. P. Lale, Member

          This consumer complaint has been filed before this State Commission on 16/10/2006 by Mr. Amrit Jawanmal Shah (hereinafter referred to as ‘the original Complainant’) through Consumer Welfare Association, against the Oriental Insurance Company Ltd., (hereinafter referred to as ‘the Opponent’), alleging deficiency in service on account of non-settlement of insurance claim lodged by the original Complainant.

[2]     Initially, this complaint was allowed by the State Commission, vide an order dated 6/11/2007 and the Opponent was directed to pay to the original Complainant, an amount of `27,00,000/- together with interest thereon @ 6% p.a., as from the date of lodging of the claim till realization of the entire amount by the original Complainant.  Being aggrieved by the said order, the Opponent preferred an appeal bearing No.17 of 2009 before the Hon’ble National Consumer Disputes Redressal Commission.  Said appeal was partly allowed by the Hon’ble National Consumer Disputes Redressal Commission, vide an order dated 15/2/2010 and order dated 6/11/2007, passed by the State Commission, was set aside and the matter was remanded to the State Commission with a direction to decide the complaint afresh after affording one opportunity to the Opponent (Insurance Company) to file its defence version and surveyor’s report, if any, to assess the loss suffered by the original Complainant, of course subject to the right of rebuttal to the Complainant.

[3]     Upon remand of the matter, the Opponent has not filed its written version of defence.  Therefore, on 5/10/2010, the State Commission directed to proceed with the complaint in absence of written version and directed both the parties to file their respective evidence, if any, on affidavit as per provisions of Section-13(4) of the Consumer Protection Act, 1986.  The evidence is led accordingly.

[4]     Heard Mr. S. B. Prabhawalkar – Learned Advocate for the Complainant; and Adv. Kush Dhawan, holding for Mr. Dinesh B. Gupta – Learned Advocate for the Opponent.

[5]     We have gone through the pleadings, affidavits and documents, as also, written notes of arguments filed by the parties.

[6]     According to the original Complainant, there was a theft of jewellery and cash committed at Shop No.2, at 126/128, third floor, Trimurti Estate, Shaikh Memon Street, Zaveri Bazaar; on 5/4/2004.  Due to said theft, the original Complainant suffered loss to the extent of `27,00,000/-.  The original Complainant informed about the said incidence to the Opponent and a police report was also lodged.  The Opponent appointed a surveyor and an investigator both of whom after visiting the spot, conducted the survey and gave their reports.  They expressed their doubt about any loss having being actually occasioned to the Complainant due to the alleged theft to the insured’s shop.  Therefore, the Opposite Party lodged a police complaint, as against the original Complainant, under Sections 420 & 511 of the Indian Penal Code for lodging a false claim in order to defraud the Opponent.  However, the original Complainant was exonerated from the criminal offence and was acquitted from all charges.  After remand of the present consumer complaint, the Opponent has simplicitor filed on the record an affidavit of its officer, by name Mr. Sudip Dutta.  Mr. Sudip Dutta, in his affidavit, only stated that the Complainant has not furnished the required documents to the Opponent.  Thus, practically there is no denial on the part of the Opponent to the allegations made by the original Complainant in the complaint.  The Opponent failed to adhere to the directions of the Hon’ble National Consumer Disputes Redressal Commission, vide its order dtd.15/2/2010.  The Opponent did not file its written version on the record nor filed any supplementary survey report to assess the loss suffered by the original Complainant.  Since there is a failure on the part of the Opponent to file its written version on the record, the uncontroverted allegations in the complaint are required to be taken as admitted and need to be relied & acted upon.

[7]     The original Complainant has supplied all relevant documents to the Opponent, as per Exhibit-C, at page (23) of the compilation of the appeal memo.  The Opponent has repudiated the claim of the original Complainant solely on the ground that it was dishonest, mischievous and malafide being tainted by fraud as per Policy Clause No.(09).  Apart from the said reason, there was no ground stated by the Opponent in repudiating the claim.  The Opponent, vide its letter dated 14/3/2005, stated that the original Complainant has not submitted the required documents as per survey report.  However, the original Complainant has filed his affidavit of evidence dated 18/1/2011 and stated that he had supplied to the Opponent, required documents as per survey report vide his letter dated 23/4/2004.  The Opponent, in its affidavit-in-reply dated 21/9/2001, again raised identical plea but the entire affidavit of the Opposite Party is silent about what documents were not furnished to them by the original Complainant.  In fact, the original Complainant had supplied all requisite documents as and when called for.  The Opponent had not appointed an independent surveyor and investigator.  No independent enquiry was conducted by the Opponent nor the Opponent filed any affidavit of M/s. Associated Surveyors & Consultants Pvt. Ltd., and an affidavit of Mr. R. T. Naik, as an investigator in the matter, as per Section-13(4) of the Consumer Protection Act, 1986; which is mandatory.  The Complainant has also placed on the record the balance sheet for the year 2004-05 of Royal Jewellers, Stock Register Copy, duly signed by the Investigator of the Opponent on 8/4/2004.  Therefore, the repudiation of insurance claim was improper.  All details were provided to the Opponent from time to time.  All these circumstances are sufficient to prove that the Complainant suffered a loss of `27,00,000/- on account of burglary committed at their shop at Royal Jewellery. 

[8]     Thus, relying upon the documents on the record and affidavits filed in support thereof by the original Complainant and relying upon the fact that the Opponent failed to file its written version on the record inspite of specific directions of the Hon’ble National Consumer Disputes Redressal Commission in Appeal No.17 of 2009, we have not got any other option but to hold that the Opponent is guilty of deficiency in service and adoption of unfair trade practice.  The Opposite Party ought to have considered the claim lodged by the original Complainant, at-least after acquittal order passed by the criminal court, acquitting the original Complainant from the offence of cheating and others.  Certificate issued by the police clearly showed that the complaint of theft was true but not detected.  Thus, this is a clear cut case of deficiency in service on the part of the Opponent and acting upon the affidavits and documents placed on the record by the parties, we are inclined to allow the complaint.

          In the result, we proceed to pass the following order:-

ORDER

The complaint is partly allowed.

The Opponent is hereby directed to pay to the original Complainant – Mr. Amrit Jawanmal Shah; an amount of `27,00,000/- together with interest thereon @ 9% p.a., as from the date of repudiation viz. 08/Jan/2005 till realization of entire amount by the original Complainant.

The Opponent is further directed to pay to the original Complainant, an amount of `25,000/- towards costs of the complaint.

The amounts already paid by the Opponent be adjusted towards the above-referred amounts.

Copies of the order be furnished to the parties.

Pronounced on 10/June/2011.