Haryana

Yamunanagar

CC/244/2011

M/s Car Shobha Point - Complainant(s)

Versus

The Oriental Insurance Co.Ltd. - Opp.Party(s)

Nalin Gupta

27 Feb 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

 

                                                                                          Complaint No… 244  of 2011.

                                                                                          Date of institution: 21.03.2011

                                                                                          Date of decision: 27.02.2017.

M/s Car Shobha Point, 17-B, Kamla Nagar, Near Telephone Exchange, Yamuna Nagar, Tehsil Jagadhri, Distt. Yamuna Nagar through its Proprietor Sh. Malchand Bothra.

                                                                                                               ...Complainant.

                                    Versus

The Oriental Insurance Co. Ltd. Opp. Madhu Hotel, Jagadhri Road, Yamuna Nagar, through its Branch Manager.

 

                                                                                                               …Respondent 

 

BEFORE:         SH. ASHOK KUMAR GARG, PRESIDENT.

                          SH. S.C.SHARMA, MEMBER.

 

Present:  Sh. Nalin Gupta Advocate, counsel for complainant.  

                Sh. Rajiv Gupta Advocate, counsel for respondent.              

             

 

ORDER

 

1.                      Complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986.

2.                     Brief facts of the present complaint, as alleged by the complainant, are that  complainant is doing business of car accessories, spare parts and its repair in the rented shop and got the fire insurance policy bearing No. 261700/48/2009/2706 from the respondent  (hereinafter respondent will be referred as OP Insurance Company) covering the risk of stock in trade of Rs. 9,50,000/- and furniture and fixture of Rs. 50,000/- i.e.for a total sum of Rs. 10,00,000/- which was valid from 28.01.2009 to 27.01.2010. Unfortunately, on 04.09.2009, the complainant closed his shop at about 7.30 P.M. and went to his home and thereafter at about 9.30/10.00 P.M. he received a telephonic call from his neighbourer shop owner who intimated that the smoke is coming out from the shop of the complainant. Upon which, the complainant immediately rushed to his shop where he found that a huge fire flames were coming out from the shop and the same was caught by fire. The complainant called the fire brigade and controlled the fire but the shop and entire material lying therein was totally burnt. Thereafter, complainant intimated about the same to the OP Insurance Company immediately telephonically and thereafter also intimated through writing on 07.09.2009, upon which the OP Insurance Company sent their surveyor to the spot who inspected the spot and assessed the loss. Police of Police post Rampura was also informed and a DDR No. 12 dated 05.09.2009 was registered. The complainant fulfilled all the necessary requirements and further supplied all the relevant documents to the OP Insurance Company as per their requirements but the Op Insurance Company, despite repeated visits and requests made by the complainant, did not settle the claim of the complainant. Even, the Op Insurance Company did not come forward to collect the totally burnt material as salvage, so, ultimately the complainant finding no other alternative, threw out the same, because the complainant had to make the payment of rent due to storage of fully burnt material in rented shop which was senseless thing. Since the day of incident i.e. 04.09.2009 till today the complainant visited so many times but all in vain. Lastly, prayed for directing the OP Insurance Company to make the payment of Rs. 10,00,000/- alongwith interest and also to pay compensation of Rs. 5,00,000/- and Rs. 11,000/- as litigation expenses.

3.                     Upon notice, OP Insurance Company appeared and filed its written statement by taking some preliminary objections such as complainant has not come to this Forum with clean hands and the true facts of the present case are that an intimation was given by the insured to the Op Insurance Company that a fire has taken place in his shop on 04.09.2009, upon which, OP Insurance Company immediately deputed Sh. Pankaj Goel, Surveyor and Loss Assessor to conduct the survey who submitted his report dated 18.03.2010 to the OP Insurance Company mentioning therein that insured did not cooperate and showed his reluctance to provide any information. The spot surveyor further reported that the insured is claiming huge loss of Rs. 10,00,000/- whereas the insured’s firm was not in possession of such a huge volume stock. Further, the insured’s version is contradictory because on the one hand he states that he is not maintaining any books and register of account/stock statement because he is a small shop keeper and on the other hand he is claiming a huge loss of stock of Rs. 10,00,000/-.

            Besides this, the OP Insurance Company also deputed M/s Duggal Gupta and Company, Surveyor and Loss Assessor to conduct the final survey and to assess the loss, if any. The insured submitted some documents in the month of June, 2010 to the surveyor despite repeated many letters but the same were not completed and therefore, the surveyor again wrote a letter dated 05.07.2010 to the insured to clarify the certain things. The insured informed the surveyor that he was not having any sale tax number and was not maintaining any stock register and he was himself maintaining his account and that he used to purchase the stock in cash/credit and all the record of purchase and sale was burnt in fire. The insured also informed that he has not filed income tax return for the year 2008-2009 as the income was below taxable limit. The surveyor, after going through the documents and letters of the insured dated 09.06.2010 and 31.07.2010 and affidavit of the insured, came to the conclusion that trading account and balance sheet submitted by the insured cannot be relied upon in the absence of documentary evidence. Furthermore, the estimate of loss submitted by the insured also varied because the earlier estimate given by the insured was Rs. 10,40,000/- which was later on revised to Rs. 10,55,350/- and it was very astonishing as to how the insured submits the estimate of loss in the absence of stock register and account books. The said surveyor had also desired the insured to submit the purchase bills and the insured submitted some purchase bills of three shops M/s Panjetha Motors and Car Shingar Yamuna Nagar of Rs. 2,35,150/- for May 2009 to August 2009, (ii) Narindra Car Accessories of Rs. 4,09,265/- and (iii) M/s Channi Car Accessories Karnal of Rs. 3,07,600/-  i.e. total purchase from 01.04.2009 to date of loss i.e. 04.09.2009 Rs. 9,52,015/-  whereas insured submitted the trading account from 01.04.2009 to 04.09.2009 according to which the purchase were only of Rs. 5,27,245/-. The surveyor also wrote a letter to M/s Channi Car Accessories, Karnal but the said letter was returned undelivered. The surveyor was also of the opinion that in the absence of authenticity of the bills and for want of correct address these bills cannot be relied upon. However, inspite of all above facts, the said surveyor for the purpose of quantification of loss assessed the loss to the tune of Rs. 4,91,241/- vide his report dated 20.09.2010 subject to terms and conditions of the insurance policy after applying the relevant depreciation and average clause.

            On receipt of the said report of the surveyor, claim was further proceeded by the OP Insurance Company and keeping in view the remarks of the spot surveyor and final surveyor and documents submitted by them and insured, the OP Insurance Company in order to arrive at the just conclusion of the case deputed Sh. Surinder Kumar Investigator to submit the fact finding report regarding genuinety of the documents/bill etc. submitted by the complainant/insured. The said investigator in order to verify the bills of M/s Channi Car Accessories, visited Karnal on 01.12.2010 but inspite of his best efforts he could not find and locate the shop of M/s Channi Car Accessories. The said investigator also conducted other local car accessories dealers of the Karnal who verbally informed him that there no firm at Karnal in the name of Channi Car Accessories.  On account of said fact, the bills from Channi Car Accessories amounting to Rs. 3,07,600/- were found fake being issued by non-est firm. Besides this, investigator visited Panjeta Motors and Car Singhar and owner of Narindra Car Accessories, Yamuna Nagar and found that the total bill of purchase of Panjeta Motor was of Rs. 2,35,150/- and bill of Narindra Car Accessories was of Rs. 4,09,925/-. Both the shop keepers gave a statement in writing and informed that they were not having any sale tax number, the entire transactions was in cash. As far as the total turnover of Panjeta Motor is concerned the same is of Rs. 4,10,000/- in the year 2009 and that of Narindra Car Accessories is Rs. 4,55,000/- and it was very astonishing that out of Rs. 4,55,000/- the sale to Shoba Car Accessories i.e. complainant is Rs. 4,09,925/-.

            After taking into account all the relevant documents and statement recorded by the investigator, the investigator vide his report dated 09.03.2011 came to the conclusion that the documents available on record are manipulated one and to get the claim from the OP Insurance Company through fraudulent way. Neither the insured nor his supplier were maintaining any stock register or sale tax number. There is no bank limit and income tax returns were not filled either by the insured or the alleged dealers who are showing the bills in cash beyond Rs. 20,000/- which is violation of Income Tax Act and Haryana Vat Act. The investigator had also recorded the statement of landlord of the shop in which the insured was running his shop  and stated that the insured had already taken out the major portion of stock before fire. On receipt of the report of investigator, the claim was further proceeded by the OP Insurance Company and it was found that as per report of the spot surveyor, final surveyor and investigator, trading account, balance sheet and purchase bills etc. submitted by the insured, the claim was not payable as the complainant has committed fraud and has misrepresented and has given false declaration to the OP Insurance Company. The insured submitted false and bogus bills to the company and created false evidence just to take the claim, therefore, the Op Insurance Company vide its letter dated 30.03.2011 informed the complainant that his claim is not payable as per clause 1 & 8 of the general conditions of the insurance policy wherein it was recorded clause No. 1 “ this policy shall be voidable in the event of misrepresentation mis-descriptions and non disclosure of any material particular:

Clause_8 “ If the claim be in any respect fraudulent, or if any false declaration be made or used in support thereof or if any fraudulent means or devices are used by the insured or any one acting on his behalf to obtain any benefit under the policy or if the loss or damage be occasioned by the willful act, or with the connivance of the insured, all benefits under this policy shall be forfeited.

            On merit, controverted the plea taken by the complainant and reiterated the stand taken in the preliminary objections and lastly prayed for dismissal of complaint.

4.                     In support of case, counsel for the complainant tendered into evidence affidavit of Parabhjit Singh C/o Narindra Car Accessories as Annexure CW/A, Affidavit of Mukesh Panjeta C/o Panjeta Car Shinghar as Annexure CW/B and documents such as photo copy of insurance policy as Annexure C-1, Carbon copy of intimation letter dated 07.09.2009 alongwith estimate of loss as Annexure C-2, Original Copy of DDR as Annexure C-3, News Paper cutting as Annexure C-4, Carbon Copy of letter for obtaining report from Municipal Committee as Annexure C-5, Receipt of Municipal Committee as Annexure C-6, Report of Municipal Committee as Annexure C-7, Copy of letter dated 04.10.2009 as Annexure C-8, Photo copy of Rent Deed as Annexure C-9, Photo copy of computer generated detail of stock loss as Annexure C-10, Copy of letter dated 05.07.2010 issued by Surveyor & Loss Assessor as Annexure C-11, Copy of clarification letter dated 31.07.2010 sent by the complainant to the surveyor as Annexure C-12, Computer generated balance sheet, trading and Profit and Loss account as Annexure C-13 and C-14, Letter dated 14.02.2011 for vacating the shop as Annexure C-15, Copy of letter to collect the salvage as Annexure C-16, Postal receipt as Annexure C-17 and Enquiry report of post office as Annexure C-18 and closed the evidence on behalf of complainant.  

5.                     On the other hand, counsel for the Op Insurance Company tendered into evidence affidavit of Sh. R.S. Kalra, Divisional Manager OIC as Annexure RW/A, Affidavit of Pankaj Goel, Surveyor & Loss Assessor as Annexure RW/B, Affidavit of Surinder Kumar, Investigator as Annexure RW/C  and documents such as Photo copy of spot survey report dated 18.03.2010 of Sh. Pankaj Goel, as Annexure R-1, Photo copy of Surveyor report dated 20.09.2010 of M/s Duggal Gupta Surveyors (P) Ltd. as Annexure R-2, Photo copy of investigation report dated 09.03.2011 of Surinder Kumar as Annexure R-3, Photo copy of letter dated 05.07.2010 as Annexure R-4, Photo copy of letter dated 09.06.2010 issued by complainant as Annexure R-5, Photo copy of letter dated 31.07.2010 issued by complainant as Annexure R-6, Photo copy of repudiation letter dated 30.03.2011 as Annexure R-7, Photo copy of letter  dated 01.12.2010 sent by the Investigator to the Channi Car Accessories, Karnal as Annexure R-8, Photo copy of statement of owner of shop as Annexure R-9, Photo copy of photographs as Annexure R-10, Photo copy of letter dated 03.12.2010, 21.12.2010 and 01.02.2011 sent by the Investigator to the Panjeta Motors as Annexure R-11, R-12 and R-12 respectively, Statement of owner of firm M/s Panjeta Motors as Annexure R-14, Photo copy of letter dated 16/18/01/2011 issued by Investigator to Panjeta Motor as Annexure R-15,  Photo copy of postal receipts as Annexure R-16, Photo copy of letter dated 01.02.2011 issued by the Investigator Surinder Kumar to M/s Panjeta Motors as Annexure R-17, Photo copy of letter dated 01.02.2011 , 16.01.2011 and 21.12.2010  issued to Narindra Car Accessories by the Investigator as Annexure R-18, R-19 and R-20 respectively, Photo copy of statement of Narindra Car Accessories as Annexure R-21 and Photo copy of insurance policy alongwith terms and conditions as Annexure R-22 and closed the evidence on behalf of OP Insurance Company.

6.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very carefully and minutely.

7.                     It is not disputed that the complainant firm obtained an insurance policy bearing No. had taken one insurance policy bearing No. 261700/48/2009/2706 valid w.e.f. 28.01.2009 to 27.01.2010 covering the risk of stock in trade, i.e. car accessories, spare parts and its repair amounting to Rs. 9,500,000/- and furniture and fixture of Rs. 50,000/- i.e. total amounting to Rs. 10,00,000/- from the OP Insurance Company which is duly evident from the copy of insurance policy Annexure C-1/R-22. It is also not disputed that a fire took place in the shop of the complainant in the night of 04.09.2009 which is also duly evident from the copy of DDR Annexure C-3 and copy of news paper cutting Annexure C-4 and copy of report and receipt issued by Municipal Committee Annexure C-5 to C-7. It is also not disputed that complainant was running his business in rented shop which is also duly evident from the copy of Rent Deed Annexure C-9 and statement of owner of the shop Annexure R-9. It is also not disputed that on intimation of the insured, Sh. Pankaj Kumar Geol and M/s Duggal Gupta & Company were deputed for spot survey and final survey who submitted their reports dated 18.03.2010 and 20.09.2010 Annexure R-1 & R-2 respectively and after that investigator Sh. Surinder Kumar was also deputed for investigation who submitted his report dated 09.03.2011 Annexure R-3.

8.                     Learned counsel for the complainant argued at length that genuine claim of the complainant has been wrongly repudiated on the false and flimsy ground by the OP Insurance Company and draw our attention towards the photo copy of stock loss as well as balance sheet trading account profit and loss account of copy of DDR,  News Paper Cutting Annexure C-8 to C-14 and reiterated the contents mentioned in the complaint.

9.                     On the other hand, learned counsel for the Op Insurance Company Sh. Rajiv Gupta, hotly argued at length that claim of the complainant has been rightly repudiated as per clause 1 and Clause 8 of the terms and conditions of the insurance policy by the OP Insurance Company vide its repudiation letter dated 30.03.2011 Annexure R-7. Learned counsel for the OP Insurance Company further argued that the complainant has himself admitted in his letter dated 31.07.2011 (Annexure C-12) that all the books were destroyed in fire and further do not have any books of accounts with him except ledger and cash book but no supporting voucher etc. for the period from 01.04.2009 to date of fire i.e. 04.09.2009 as the same were available in the computer of our part time accountant. Learned counsel for the OP Insurance Company further draw our attentions towards the final surveyor report dated 20.09.2010 (Annexure R2) in which an amount of Rs. 4,91,241/- were assessed by the final surveyor subject to terms and conditions of the insurance policy after applying the relevant depreciation and average clause. Further, the learned counsel for the OP Insurance Company draw our attention towards the investigator report dated 09.03.2011 (Annexure R-3) in which in the last para of report under head conclusion it has been mentioned that all the documents available on record are manipulated one to get the claim from the OP Insurance Company through fraudulent way and also referred the statements of dealers i.e. Panjeta Motors and Narindra Car Accessories recorded by the investigator and argued that both the firms had no sale tax number and failed to submit their trading account on which basis they had issued bills/cash memo in favour of the Car Shobha Point complainant firm. Further argued that bills of amounting to Rs. 3,07,600/- allegedly issued by M/s Channi Car Accessories, Karnal were totally fake as no such shop in the name of M/s Channi Car Accessories, Karnal was in existence and further the bills issued by M/s Narindra Car Accessories and Panjeta Car Accessories were also manipulated and forged one as these firms were not maintaining any accounts and not having any sale tax number and even the payments have been made in cash beyond Rs. 20,000/- in violation of Income Tax Act, hence, these bills are not authenticated and forged one. Lastly, prayed for dismissal of complaint.

10.                   After hearing both the parties and going through the investigation report Annexure R-3 and Surveyor and Loss Assessor reports Annexure R-1 and R-2, it is clear that complainant has failed to prove the actual loss occurred in his shop due to fire on 04.09.2009. Even, in the letter dated 31.07.2011 (Annexure C-12) complainant himself has admitted that all the books were destroyed in fire and he has not having any books of accounts with him except ledger and cash book but no supporting voucher etc. for the period from 01.04.2009 to till date of fire as the same available in the computer of his part time accountant. But the complainant has neither placed on file any affidavit of that part time accountant neither name of that part time account has been disclosed by the complainant in his complaint or to the surveyor. The complainant has further admitted in this letter Annexure C-12 that he has not filed any return for the year 2008-2009 as the income during the year was below taxable limits. Further, we have also perused the documents Annexure C-13 to C-14 i.e. balance sheet and trading and profit or loss account as on 31.03.2009 but these documents are not duly proved by the complainant even neither these documents bears the signature of the complainant nor any seal of the firm. These documents are only computer generated copies which can be easily generated/prepared by anyone as per his own wishes. The complainant has not produced any books in support of these documents. When the OPs Insurance Company had repudiated the claim of the complainant vide letter dated 30.03.2011 (Annexure R-7) by mentioning that on investigation by Sh. Surinder Kumar, Investigator, purchased bills/cash memos of M/s Channi Car Accessories, Urban Road, Karnal submitted by you in support of your purchase have been found fictitious and fake, then it was the duty of the complainant to controvert the version of the OPs Insurance Company by proving the bills issued by M/s Channi Car Accessories, Karnal by calling the witnesses with record from that firm but the complainant has totally failed to do so.

11.                   Further, we have also perused the statement recorded by the investigator of owner of the shop Annexure R-9 in which the owner of the shop has stated that complainant had already removed maximum goods/ material from the shop prior to the incident took place. We have also perused the investigator report Annexure R-3 in which at page No.5 & 6, the investigator has specifically mentioned that even to other firms namely M/s Panjeta Motors and Car Singhar and M/s Narendra Car Accessories had no sale tax number and failed to submit their trading account on which they had issued bills or cash memos in favour of the complainant firm and further all the payments beyond Rs. 20,000/- were made by the insured firm to the suppliers i.e. M/s Panjeta Motors and Car Singhar and M/s Narendra Car Accessories in cash which is in contradiction of Income Tax Act and further under clause d, the investigator has mentioned that he visited Yamuna Nagar on 06.02.2011 and contacted the neighbourers of the insured M/s Trimurti Engineering Works, Jagadhri Road, Yamuna Nagar who confirmed verbally that the said fire had occurred according to the well planned conspiracy but to got recorded his statement verbally and assured to record his statement in this regard before the competent authority as the case may be at the time of need and in the conclusion at page No.9, the investigator has specifically mentioned that all the documents available on the record are manipulated one to get the claim from the company through fraudulent way.

12.                   Although, the surveyor and loss assessor M/s Duggal Gupta, Surveyors Private Limited has assessed the loss to the tune of Rs. 4,91,241/- on the basis of record whatsoever was submitted by the complainant by using their expert skill but at the same time the report of the Investigator Sh. Surinder Kumar Annexure R-3 cannot been overlooked. By consolidating both the reports which are in detailed and keeping in view the entire scenario and pleading and documents of the case, we are of the considered view that one thing is clear that complainant firm was not having any cogent evidence to prove the actual loss suffered by it, as neither the complainant firm was paying income tax nor was having any sale tax number. Further, the complainant firm has also not placed on file any affidavit or any evidence in other way by producing any Accountants or Sale tax/Income tax Advocate or any Chartered Accountant who was maintaining the accounts of the complainant firm to prove that complainant firm was having stock to that extent as the complainant is claiming in his complaint on the date of alleged incident in his shop. Further as per report of the investigator which was not controverted by the complainant that the bills issued by M/s Channi Car Accessories, Karnal amounting to Rs. 3,07,600/- were found fake and fictitious, so, we are of the opinion that the complainant is not entitled to get any claim on account of that bills i.e. of M/s Channi Car Accessories, Karnal.

13.                   However, the complainant has placed on file affidavits of Paramjit Singh of M/s Narendra Car Accessories as Annexure CW/A and Sh. Mukesh Panjeta of M/s Panjeta Motors and Car Singhar as Annexure CW/B in support of his case. Although both the firms M/s Panjeta Motor and Car Singhar and M/s Narindra  Car Accessories  were not having any Sale Tax number and have also not submitted their trading account on which they had issued the bills/cash memos in favour of the complainant but even then it cannot be said that the bills issued by these firms were not issued by them as both the firms have placed on file their respective affidavit and Ops Insurance Company failed to controvert the same. And further, it is not the case of the OP Insurance Company that no fire took place in the shop of the complainant which is duly proved from the copy of DDR Annexure C-3 and copy of report of Municipal Committee Annexure C-5 to C-7 and News Paper Cutting Annexure C-4, so, we are of the considered view that repudiation in toto of the claim of complainant is not justified and complainant is entitled to get some relief. The surveyor & Loss Assessor has assessed the total loss of Rs. 4,91,241/- after taking into all facts of the case and after deducting the amount of forged bills issued by M/s Channi Car Accessories  amounting to Rs. 3,07,600/- as mentioned in the surveyor report Annexure R-2 under clause 7.6.4. The complainant is entitled to get Rs. 1,83,641/- ( Rs. 4,91,241-3,07,600).   

14.                   Resultantly, we partly allow the complaint of complainant and direct the OP Insurance Company to pay a sum of Rs. 1,83,641/- to the complainant within a period of 30 days after preparation of copy of this order failing which complainant shall be entitled to recover interest at the rate of 6% per annum from the date of filing of complaint till its realization. Order be complied within 30 days after preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced: 27.02.2017.

                                                                                                (ASHOK KUMAR GARG)

                                                                                                PRESIDENT

                                                                                                DCDRF,YAMUNANAGAR

 

 

 

                                                                                                (S.C.SHARMA)

                                                                                                MEMBER