Chandigarh

StateCommission

CC/224/2019

Punjab State Warehousing Corporation (PSWC) - Complainant(s)

Versus

The Oriental Insurance Company Limited - Opp.Party(s)

Rahul Sachdeva Adv.

04 Dec 2020

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	224 of 2019
Date of Institution	:	27.09.2019
Date of Decision	:	04.12.2020

 

 

 

 

1. Punjab State Warehousing Corporation (SWC), SCO No.74-75, Bank Square, Sector 17B, Chandigarh through its Managing Director.
2. The District Manager, Punjab State Warehousing Corporation (PSWC), Gurdaspur.

. ...Complainants.

 Versus

1. The Oriental Insurance Company Limited (A Government of India Undertaking), SCO No.48-49, Sector 17-A, Chandigarh through its Senior Divisional Manager.
2. The Senior Divisional Manager, The Oriental Insurance Company Limited (A Government of India Undertaking), SCO No.48-49, Sector 17-A, Chandigarh.

…..Opposite Parties.

 

BEFORE:  JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                  MRS. PADMA PANDEY, MEMBER.

                   MR. RAJESH K. ARYA, MEMBER.

 

Present through Video Conferencing:-    

 

Sh. Rahul Sachdeva, Advocate for the complainants.

Sh. J. P. Nahar, Advocate for the opposite parties.

 

PER RAJESH  K. ARYA, MEMBER

                   The above captioned complaint has been instituted seeking directions to opposite parties to pay the clam amount of Rs.27,63,109/- in respect of Policy No.231200-2004-386 taken by the complainants from the opposite parties under the Floater Fidelity Guarantee Policy (Annexure C-1) for the period 04.03.2005 to 03.03.2006 with interest @18% per annum from the date it was due till its realization besides costs. It was the case of the complainants that consequent upon defalcation of stocks, by the employees of the complainants, at State Warehouse, Qadian & Ghuman (Gurdaspur), the complainants vide letter dated 30.05.2005 (Annexure C-2) requested the opposite parties to register the claim under the aforesaid policy. The Surveyor & Loss Assessor of the opposite parties vide his letter dated 31.03.2006 (Annexure C-3) asked for certain information/documents and the complainants vide letter dated 05.04.2006 (Annexure C-4) provided the detail of defalcation/misappropriation of stocks amounting to Rs.27,63,109/- and requested to register the claim. Vide letter dated 13.05.2010 Annexure C-5) specifically pin-point the documents/information required by the Surveyor for finalization of the issue. The complainants supplied the documents to the Surveyor vide letter dated 07.06.2010 (Annexure C-6). Thereafter, vide subsequent letters (Annexure C-7 to C-35), the complainants requested the Surveyor to submit his report immediately to enable the complainants to get the compensation of the claim. Further vide letter dated 08.03.2019 (Annexure C-36), requested the opposite parties to resolve long pending issues by visiting the AMD but to no avail. Further vide letter dated 15.03.2019, the complainants requested the opposite parties to fix date and time of the meeting with their AMD but none of the officials of the opposite parties attended the meeting at the scheduled date and time. Further vide letters dated 04.04.2019 and 01.05.2019 (Annexures C-38 & C-39), the complainants again requested the opposite parties to resolve the issues but of no avail.

2.                By stating that the aforesaid act and conduct of the opposite parties, amount to deficiency in providing service, negligence and adoption of unfair trade practice, the complainants have filed the present case seeking aforesaid relief.

3.                The opposite parties fled joint written statement, wherein, they took a specific preliminary objection that the complaint is hopelessly barred by limitation as the same has been filed after a period of more than 14 years whereas the cause of action arose to the complainants on 30.05.2005. It was further stated that no application has been filed by the complainants seeking condonation of delay and hence, the complaint is liable to be dismissed on this ground alone. Reliance has been placed on the judgment of Hon’ble Supreme Court of India in case titled State Bank of India Vs. B. S. Agriculture Industries, II (2009) CPJ 29 (SC), wherein it was held that writing of letters do not help and the complaint has to be filed within two years from the date the cause of action arose.

4.                On merits, issuance of the Policy, in question, and lodging of claim by the complainants vide letter dated 30.05.2005, receipt of letters dated 12.11.2010, 03.01.2011 and 18.03.2011 has been admitted. However, it was stated that though the complainants were required to submit the documents at the earliest in support of the claimed amount but they did not submit the required documents to the surveyor for finalizing the claim. It was further stated that no documents were submitted till 31-03-2006 and the Surveyor vide letter dated 31.03.2006, demanded the documents i.e. Claim form; Monetary Claim Bill; copy of FIR against the erring employees; copy of charge sheet report; copy of Inquiry report; letters written, if any, by officials involved in defalcating the stocks in their support against the charge sheet served on them; copies of physical inspection/verification report conducted by the concerned officials; whether the erring officials had earlier been involved in any such act of defalcation for which they had already been served charge sheet before this incident; where the stock record can be verified. It was further stated that the Surveyor had been following up the complainants for submitting the above referred documents/information and sent letter dated 14-12-2006 and reminder dated 31-03-2007              (Exhibit OP1&2/2) but the complainants did not submit any document from 30.05.2005 to 31.03.2007. Even now at the time of filing of the complaint, the complainant has not annexed the copies of the required documents. It was further stated that it is settled law that the party which pleaded a fact has to prove the same by producing documentary evidence. It was further stated that the complainants have violated Condition No. 1 of the insurance policy. It was further stated that the complainants have not specified any details of the visit of the surveyor and that the documents verified by him. It was further stated that the surveyor had given a list of documents to the complainant vide letter dated 31-03-2006 (Annexure C-3) but the complainants did not submit the said documents. It was further stated that it is clear that from the reporting of the claim on 30-05-2005 till 13-05-2010, the complainants have not provided any documents, otherwise, the complainants would have given the details of documents provided on the specified dates It was further stated that the surveyor sent the final reminder vide letter dated 31-03-2007 for submitting the documents within seven days of receipt of the letter, failing which, it shall be presumed that the claimant was not interested in pursuing the claim and the claim shall be closed as 'No Claim'. It was further stated that the surveyor did not receive the documents as requested but he received some documents in May 2010 but that was too late to take into account the documents received as it was after more than three years. Lastly, pleading no deficiency in rendering service or unfair trade practice on their part, the opposite parties have prayed for dismissal of the complaint with costs.

5.                It may be stated here that in compliance to our order dated 11.08.2020, the opposite parties vide MA/588/2020 placed on record documents (Exhibits OP 1 & 2/3 to OP 1 & 2/14) and the complainants also placed on record certain documents (Annexure C-A to C-L), vide MA/598/2020 which were required by the surveyor vide letter dated 31.03.2006 and vide order dated 11.08.2020 of this Commission. Not only this, the complainants have also moved an application i.e. MA/655/2020 for placing on record documents (Annexures C-15 to C-39) as mentioned in the complaint. Another application has also been filed by the complainants i.e. MA/771/2020 for placing on record copies of relevant pages of the dispatch register in order to prove receipt of letters (Annexures C-15, C-21 to C-23, C-27, C-29, C-30, C-33, C-35, C-37, C-38 & C-39) by the opposite parties. None of the parties filed any reply to these applications. Therefore, these applications i.e. MA/655/2020 & MA/771/2020 are allowed and the documents sought to be placed on record by the complainants and the opposite parties are taken on record.

6.           The complainants filed rejoinder to the written statement of the Opposite Parties, wherein they reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Parties.

7.                The Parties led evidence, in support of their case.

8.                We have heard the contesting parties and have gone through record of the case, including the written submissions, very carefully.

9.                First coming to the preliminary objection raised by the opposite parties that the complaint is hopelessly barred by limitation as the same has been filed after a period of more than 14 years whereas the cause of action arose to the complainants on 30.05.2005, it may be stated here that there is force in the argument raised. In the instant case, the cause of action arose to the complainants on 30.05.2005, when, they (complainants) vide letter dated 30.05.2005 (Annexure C-2), requested the opposite parties to register their claim. It is also on record that vide letter dated 31.03.2006 (Annexure C-3), the Surveyor, in order to process the claim, asked the complainants to provide various documents/information. However, the complainant, provided only the detail of defalcation/Misappropriate of stocks vide letter dated 05.04.2006 (Annexure C-4).  There is nothing on record to prove that after letter dated 05.04.2006, the complainants wrote any letter to the opposite parties up-til 13.05.2010, on which date, the complainant wrote letter dated 13.05.2010 (Annexure C-5) to the Surveyor to specifically pin-point the documents/information required by him for finalization of the issue. Moreover, Exhibit OP 1&2/2 is the Final Reminder dated 31.03.2007 sent by the opposite parties to the complainants to send the desired information within 7 days of receipt of the said letter, failing which, claim shall be closed as “No Claim”. Supplying of certain documents in May 2010, as admitted by the opposite parties in their reply, will not extend the stipulated period for filing complaint as provided in the Consumer Protection Act, 1986. The opposite parties have rightly placed reliance on the judgment of Hon’ble Supreme Court of India in case titled State Bank of India Vs. B. S. Agriculture Industries, II (2009) CPJ 29 (SC), wherein it was held that writing of letters do not help and the complaint has to be filed within two years from the date the cause of action arose. Even from the date of Final Reminder Letter dated 31.03.2007, the complainants should have filed the complaint by 31.03.2009. The same having been filed on 27.09.2019 i.e. after 10 years is hopelessly barred by limitation and deserved to be dismissed on this score.

10.               Even on merits of the case, in their written arguments, the opposite parties have stated that the complainants have lodged claim of Rs.27,63,109/- but the alleged defalcation has not been supported by any cogent evidence. F.I.R. was registered on 02.05.2005 and another FIR was got registered on 06.06.2005. It was stated that the complainants wrote letter dated 20.05.2005 to SSP Batala for defalcation of Rs.2,69,542/- by one Subhash Chander. It was further stated that another letter dated 28.08.2006 to SSP Batala for defalcation of Rs.2,12,736/- by above Subhash Chander was also written by the complainants. Perusal of order dated 17.01.2019 passed by Judicial Magistrate 1^st Class, Batala, placed on record by the opposite parties transpires that Sh. Subhash Chander was acquitted by the said Court though he was charged for financial loss of Rs.2,69,542/- only. It was further stated that though the complainant has made a claim of Rs.27,63,109/- but by own showing of the complainants, the alleged defalcation was only for Rs.2,69,542/- and this also could not be proved by the complainants. 

11.               As discussed above, the complainants failed to supply the documents and information, as required by the Surveyor as desired vide letter dated 31.03.2006 (Annexure C-3), as a result whereof, the opposite parties had to issue Final Reminder Letter dated 31.03.2007, Exhibit OP1 & 2/2, to the complainants to supply the required documents within a period of 7 days failing which the complaint was to be closed as “No claim”. Despite receiving this Final Reminder Letter dated 31.03.2007, the complainants slept over the matter up-till 13.05.2010 and it was only vide letter dated 13.05.2010 (Annexure C-5) that the complainants requested the Surveyor to specifically pin-point the documents/information required by him for finalization of the issue.  It is thus clear that up-till 13.05.2010, the complainants failed to supply any document to the opposite parties. It was for the first time vide letter dated 07.06.2010 (Annexure C-6), the complainants supplied some documents to the Surveyor and so on. Clearly, the complainants failed to abide by the terms and conditions of the Policy, in question, specifically Condition No.1, which reads thus:-

“On the discovery of any act of defalcation or circumstances which may give rise to a clam, the employee shall:

1. Forthwith give written notice to the issuing Office of the Company;
2. Immediately take all the steps to prevent further loss;
3. Supply at the request of and free of expenses to the Company all such proof, information and other evidence (verified by statutory declaration if so required relating to the claim as the Company may require”.

Thus, the complainants miserably failed to supply the required documents, required in support of the claim, not only till the date of Final Reminder Letter 31.03.2007 but they supplied certain documents vide 07.06.2010 (Annexure     C-6). It is also established from the copies of orders placed on record by the opposite parties, that the complainants failed to prove their case of defalcation to the extent of the claim filed and that is why, they did not supply the required documents to the opposite parties for the reasons best known to them. Thus, an adverse inference is drawn against the opposite parties and their complaint is liable to be dismissed.

12.               For the reasons recorded above, the complaint is dismissed both    on  the  ground  of limitation  as  well  as on merits also, with no order as to costs.

13.               Certified Copies of this order be sent to the parties, free of charge.

14.               The file be consigned to Record Room, after completion.

Pronounced

04.12.2020.

 

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

(PADMA PANDEY)

MEMBER

 

 

(RAJESH  K.  ARYA)

MEMBER

 

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