STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Complaint Case No | : | 73 of 2012 |
Date of Institution | : | 28.12.2012 |
Date of Decision | : | 01.05.2013 |
Paramatrix Info Solutions Pvt. Ltd., through its Director Sh. Vishal Gupta having their corporate office at SCO No.112-113, Ground Floor, Sector 34-A, Chandigarh.
…Complainant.
VERSUS
- Oriental Insurance Company Limited through its Managing Director having their Registered and Head Office at Oriental House, A-25/27, Asif Ali Road, New Delhi.
- Oriental Insurance Company Limited through its Regional Manager having their Regional Office at SCO No.109-110-111, Surendra Building, Sector 17-D, Chandigarh.
....Opposite Parties.
Complaint under Section 17 of the Consumer Protection Act, 1986.
BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
MRS. NEENA SANDHU, MEMBER.
Argued by:Sh. Paras Money Goyal, Advocate for the complainant.
Sh. Aftab Singh Khara, Advocate for the Opposite Parties.
PER MRS. NEENA SANDHU, MEMBER.
The facts, in brief, are that the complainant, is running the business of computer laptops and printers and its related products manufactured by Multinational Companies i.e. H.P, Sony, Apple and Brother. It was stated that the complainant, in normal course of its business, has been maintaining its cash credit limit in Canara Bank, Sector 35B, Chandigarh. It was further stated that, in the year 2005, the complainant had taken a Burglary and House Breaking Insurance Policy, for its business premises from the Opposite Parties, which was subsequently renewed on 31.05.2010 for the period from 01.06.2010 to 31.05.2011 vide Cover Note No.348376 (Annexure C-1). It was further stated that as per the Cover Note, under the heading ‘description of risk’, the stock worth Rs.1,90,00,000/- i.e. computer, laptops, printer, laser/color laser, laser all in one, networking material, other computer peripherals, spares and accessories, consumables, ink, tenors, battery backups (UPS), telecommunication equipments, Microsoft, other hardware and software products, servicing packing material and other items of similar nature lying on the front side of the complainant’s premises and in the ground floor in Sector 20, Tech Terminal02, Chandigarh, to the tune of Rs.10,00,000/-, were insured. It was further stated that apart from the above accommodation, the complainant was also occupying a part of basement of SCO No.124-125 in Sector 34, Chandigarh, which was being used as a godown and where the insured goods worth Rs.19,45,555/- were kept. It was further stated that some dispute arose between the complainant and the owner of the said SCO No.124-125, Sector 34, Chandigarh, namely Mrs. Madhu Gupta and her sons. They started sitting in half portion of the said showroom. It was further stated that the matter was reported to the Police vide DDR No.50 dated 18.12.2010 (Annexure C-1)as a result whereof, the complainant alongwith the Police officials, managed to enter the basement of the showroom, where the insured stock was stored, to get the same therefrom. It was further stated that the complainant was shocked to see that Mrs. Madhu Gupta and her sons had broken the portioned wall of the basement, which was in his occupation and, as such, trespassed by breaking open the lock and the portioned wall in a part of the premises let out to him (complainant). They had stolen all the material and stocks lying therein. It was further stated that after investigation, FIR No.280 dated 03.07.2011 was registered by the Police against Mrs. Madhu Gupta, and her sons namely, Sh. Sanchit Gupta and Sh. Ankit Gupta. It was further stated that the claim to the tune of Rs.19,45,555/-, as per the statements of account of the complainant, was lodged with the Opposite Parties, which appointed the Surveyor and Investigator. It was further stated that despite addressing all the queries, and submitting the requisite documents, the Opposite Parties, took considerable time, in processing the claim, which was finally repudiated by them (Opposite Parties), vide repudiation letter dated 04.06.2012 (Annexure C-10), on the ground, that the loss did not fall within the purview of house breaking and burglary. It was further stated that the complainant procured a copy of the complete file/record relating to the claim, from the Opposite Parties, under Right to Information Act. It was further stated that the Opposite Parties, completely brushed aside the other documents placed, on record, and failed to take into consideration the fact that Mrs. Madhu Gupta and her sons, had no right to claim possession over the part of basement, which was in occupation of the complainant, by way of partition of ply board, and was under his separate lock and key. It was further stated that the Opposite Parties had tried to make out a case, by relying upon the report of the Investigator and Surveyor in order to wriggle out of their legal obligation, to honor the claim. It was further stated that a legal notice dated 27.02.2012 (Annexure C-13) was also sent to the Opposite Parties, but to no avail. It was further stated that the aforesaid acts of the Opposite Parties, of repudiating the genuine claim of the complainant, on flimsy grounds, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, for directing the Opposite Parties, to pay Rs.19,45,555/- being the loss occurred under the insurance perils of the policy (Annexure C-1) alongwith interest @15% per annum, Rs.5,00,000/- as compensation towards harassment caused at their hands (Opposite Parties) and Rs.50,000/- as costs of litigation.
2. The Opposite Parties, in their written version, took up the preliminary objections, with regard to the pecuniary jurisdiction of the Commission. It was stated that since, the dispute regarding the possession, over the property, wherein the insured goods were lying, was already pending in the Civil Court, the present complainant was not maintainable before this Commission. On merits, it was stated that after receiving the intimation vide letter dated 17.05.2011, the Opposite Parties, appointed Sh. Sumand Sud, as Surveyor to assess the claim, who submitted his report (Annexure C-12) to the effect that the burglary policy excluded the loss caused by any person, who was lawfully, on the premises i.e. the original landlord/tenant and, therefore, the claim lodged by the complainant was untenable, under the policy. It was further stated that the detailed inquiry regarding the alleged loss was conducted by the Surveyor. It was further stated that the matter regarding the initial occurrence of alleged theft, intimated by the complainant, to the police, was on 01.11.2010, wherein the complainant had categorically alleged theft, misappropriate and trespassing against Smt. Madhu Gupta (landlord). It was further stated that the complainant did not intimate the said theft to the Opposite Parties. It was further stated that, subsequently also the complainant did not intimate the Opposite Parties, as regards the written complaint made by it on 10.05.2011 to the Police authorities, as regard misappropriation and theft. It was further stated that the information was provided to the Opposite Parties, only on 25.05.2011 against the alleged burglary, which was an afterthought act on the part of the insured (complainant). It was further stated that the complainant failed to show any proof of storage of goods in the premises and payment of rent for the period the premises occupied by it, after March, 2010. It was further stated that there were no signs of forcible entry/exit from the premises, which was most essential to prove the burglary, as per the terms and conditions of the Policy. It was further stated that the Opposite Parties, on intimation of the alleged theft, also appointed M/s Royal Associates to investigate the same, which gave its report (Annexure C-12), to the effect that there was no sign of forcible entry in the building, and, as such, the claim was not maintainable under the Policy. It was further stated that, in the absence of any forcible entry, the alleged claim, was rightly repudiated by the Opposite Parties, as per the terms and conditions of the Policy. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
3. The complainant, in support of its case, submitted the affidavit of Sh. Vishal Gupta, its Director, by way of evidence, alongwith which, a number of documents were attached.
4. The Opposite Parties, in support of their case, submitted the affidavit of Sh. V. K. Bhoochar, Manager of Opposite Party No.2, by way of evidence, alongwith which, a number of documents were attached.
5. We have heard the Counsel for the parties, and have gone through the evidence and the record of the case, carefully.
6. As regards the first preliminary objection that this Commission has no pecuniary jurisdiction, to entertain and try this complaint, our answer to this objection, is in negative. As per Section 17(1)(i) of the Act, a complaint, seeking relief above Rs.20 Lacs and not exceeding Rs.1 Crore, can be filed before the State Commission. In the present complaint, the relief claimed by the complainant including the compensation, costs etc. is above Rs.20 Lacs. Thus, the complaint is maintainable before this Commission. Therefore, this objection of the Opposite Parties, is rejected.
7. Now coming to the next preliminary objection that since the dispute is already pending before the Civil Court, this Commission cannot adjudicate upon the matter, it is made clear that Section 3 of the Act, provide an additional remedy, which is not in derogation of the provisions of any other law for the time being in force. Therefore, the complainant can definitely agitate the matter with regard to the deficiency in service and indulgence into unfair trade practice on the part of the Opposite Parties, before this Commission. Therefore, this objection of the Opposite Parties is also rejected.
8. Before determining the issue of burglary, we would first like to decide the objection, raised by the Investigator, in its above report, as regards the non-possession of rented portion of the basement, by the complainant, after March, 2010. From perusal of the statement of Account (Annexure C-3), it is evident that the complainant was paying the rent regularly. It had paid a sum of Rs.29,175/- to Mrs. Madhu (landlord), on 20.05.2010, as rent. Therefore, we find force, in the submission of Counsel for the complainant, that at the time of loss, the complainant, was very much a tenant in a portion of the basement, as it had paid Rs.29,175/- as rent from April 2010 to June 2010, as reflected in the statement of account.
9. The claim of the complainant was repudiated vide letter dated 04.06.2012 (Annexure C-10), on the ground, that the loss did not fall within the purview of house breaking and burglary. The case of the complainant, was that it was a burglary, as Mrs. Madhu Gupta (landlord) and her sons, had forcibly, by breaking the partition, in the basement, entered into the area, in occupation, of its possession and had stolen the insured goods worth Rs.19,45,555/-. Now the question, before us, to be determined, is, as to whether the claim of the complainant was covered under the term ‘burglary’ or not.
10. The report of Sh. Sumant Sud, Surveyor, annexed at Page 96 of the complaint file, under the heading “CONCLUSION”, reads as under: -
“The Insured (the Sub Tenant) had started a legal battle against sons of Late Sh. Davinder Gupta (the original Tenant) in order to keep possession of their part of the premises in the year 2010. The Insured’s claim of Rs.19,26,002/- is based on the Stock Register produced by the Insured only. It is for the Police, the investigating authority, to determine the truth in the matter. However, the Burglary Policy excludes the loss caused by any person who is lawfully on the premises., i.e. the original tenant, therefore, the Claim lodged by the Insured is untenable under the Policy. Hence, the Underwrites are advised to file the claim as NO CLAIM.”
11. M/s. Royal Associates, which were subsequently appointed as the Investigator, by the Opposite Parties, gave a detailed final investigation report dated 14.02.2012, which is annexed at Page 82 of the complaint file and interalia, reads as under: -
“On the basis of above said findings and documentary evidence, we are of the opinion that theft of goods claimed by insured is not genuine. Mr. Sanchit Gupta suspect accused in FIR clearly said in his statement that they have not stolen goods in fact directors of Paramatrix Info Solutions, himself taken away all their goods from basement and vacated basement. FIR was lodged in the case. Insured could not provide any proof, from which it can be proved the basement was in their possession after March, 2010 for which rent was paid, but after March 2010, there is no proof of rent paid. There is no sign of forcible entry in building, so without forcible entry claim is not maintainable under policy. Insured could not provide any documentary proof regarding storage of goods in that building, so it is evident that goods were not stored in that building. This seems to be a property dispute, so claim is not maintainable as none of the goods were taken out by anybody. However, the burglary policy excludes the loss caused by any person who is lawfully on the premises that is the original tenant, therefore, the claim lodged by the insured is not maintainable under the policy. Insurer may consider admissibility of liability of claim as per terms and conditions of policy, keeping in view of the above said findings. This report is issued without prejudice.”
12. Admittedly, there was property dispute going on between the complainant and Mrs. Madhu (landlord), from whom it had taken a portion of the basement, on rent, for keeping the insured articles, as is apparent from copy of order dated 10.12.2010 passed by the Court of Civil Judge (Jr. Division), Chandigarh, placed, on record, by it (complainant), as Annexure C-4. As per the complainant, the insured articles, lying in the godown, were stolen, regarding which an FIR was lodged, and due intimation was given to the Opposite Parties, which appointed Surveyor and Investigator, to investigate the claim. The Investigator, in its report dated 14.02.2012, stated that Mr. Sanchit Gupta suspect (accused) in FIR clearly stated in his statement that they had not stolen goods, and, in fact, the Directors of Paramatrix Info Solutions, had taken away all their goods, from the basement and vacated the same. As per the own admission of the complainant, as also recorded by the Investigator, in its report, there was a common entry to the basement of the premises, which was properly locked. The lock was opened by the Police Authorities, with the key, in the presence of the complainant and the alleged material was found missing. There is no iota of evidence, to show that entry to the godown was made open by use of force especially when the lock at the main common entrance to the premises, was intact, and it was opened in the presence of the Police. Therefore, the appellant failed to prove that the alleged breaking open of the lock of the godown or causing entry by use of force preceded theft. In these facts and circumstances, the onus was on the complainant, to prove that there was forcible entry, into the rented portion of basement, which, it failed to establish, particularly, when the Investigator, after detailed and thorough investigation, in its report, specifically recorded that there were no signs of forcible entry into the basement of the alleged premises. The report of the Surveyor is an important piece of document and cannot be lightly brushed aside. In our view, the Opposite Parties, rightly repudiated the claim of the complainant, under the exclusion clause of the Policy, vide repudiation letter dated 04.06.2012 (Annexure C-10). In case Rajesh Verma Vs. United India Insurance Co. Ltd. & Ors., IV (2011) CPJ 491 (NC), the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, held that since there was no iota of evidence, to show that the entrance of the godown was opened by use of force, therefore, the appellant failed to prove that the theft had preceded breaking open of the lock of the godown or causing entry by use of force. There was, thus, no deficiency in service, on the part of the Opposite Parties.
13. No other point, was urged, by the Counsel for the parties.
14. For the reasons recorded above, the complaint filed by the complainant, being devoid of any merit, is dismissed, with no orders as to costs.
15. Certified Copies of this order be sent to the parties, free of charge.
16. The file be consigned to Record Room, after completion.
Pronounced.
1st May, 2013.
Sd/-
[JUSTICE SHAM SUNDER (RETD.)]
PRESIDENT
Sd/-
[NEENA SANDHU]
MEMBER
Ad
STATE COMMISSION
(Complaint Case No.73 of 2012)
Argued by:Sh. Paras Money Goyal, Advocate for the complainant.
Sh. Aftab Singh Khara, Advocate for the Opposite Parties.
Dated the 1st day of May, 2013.
ORDER
Vide our detailed order of even date, recorded separately, this complaint has also dismissed, with no order as to costs.
(NEENA SANDHU) MEMBER | (JUSTICE SHAM SUNDER) PRESIDENT | |
AD
