BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE                        

Dated this the 2^nd January 2017

PRESENT

  SRI. VISHWESHWARA BHAT D     : HON’BLE PRESIDENT

   SRI. T.C. RAJASHEKAR                 : HON’BLE MEMBER

ORDERS IN

C.C.No.86/2012

(Admitted on 28.02.2012)

M/s Chemmanur Jewelry Pvt. Ltd,

Lalbagh, Towers, Ballalbagh Circle,

M.G. Road, Mangalore  575 003,

Represented by its Director

Mr. Anup

Chemmanur.

                                                                            ….. COMPLAINANT

(Advocate for the Complainant: Sri KK)

VERSUS

The Oriental Insurance Company Ltd,

663, 1^st Floor, 1^st Main,

Defence Colony, 100ft Road,

Indiranagar, 1^st Stage,

Bangalore  560038.

                                       ….......OPPOSITE PARTY

(Advocate for the Opposite party: Smt. HM)

ORDER DELIVERED BY HON’BLE PRESIDENT

SRI. VISHWESHWARA BHAT D:

I.       1. The above complaints filed under Section 12 of the Consumer Protection Act by the same complainant against same opposite parties alleging deficiency in service against claiming certain reliefs. 

The brief facts of the case are as under:

     The complainant claims had insured in respect of gold showroom situated at No.09 and 10, Ground Floor City Light, Balmata Road, Mangalore. Complainant claims on 13.9.2008 there was a theft in complainant showroom of gold ornaments of Rs. 1.78 lakhs was stolen complaint was lodged before the jurisdiction police and claim laid with opposite party.  Opposite party had appointed Mr. K.S. Ramananda Rao assessed the loss with the help of Mr. Naveen a Charted Accountant and filed report.  Opposite party is postponing settling of the complainants claim. Later complainant came to know after said the report of K.S. Ramananda Rao., opposite party appointed another surveyor Mr. Mohta from Apex Surveyor Pvt. Ltd, Bangalore to assess the loss again which is illegal.  Despite legal notice issued opposite party has not settled the claim and there was no proper response.  The stand taken by opposite parties is merely ruse to escape from liability hence seeks direction to opposite party to pay Rs.1.78 lakhs towards the loss with interest cost and damages. 

II.      Opposite party filed version admitting the policy issued the claim laid is barred by time.  There was no theft of any kind that was alleged by complainant.  As per the report of the opposite party Surveyor K.S. Ramanada Rao who took assistance of Mr. Navin Chartered Accountant the complainant has not submitted the schedule of closing stock, stock ledger of the show room profit and loss of the financial year 31.3.2009 and the survey report specifically mention to this non submission of the relevant documents.  Due to failure of furnishing the documents the opposite party was constrained to appoint the another surveyor B.D. Mohatha and the clarifications were sought for and after obtaining the relevant records from the complainant for verification in order to the claim which stand was informed to the complainant and the second surveyor failed to obtain documents from the complainant as per letter dated 24.12.2009 and 12.1.2011 but the complainant failed to provided the required documents.  Hence seeks dismissal of the complaint.

2.     In support of the above complainant Mr. Anand Kulal K filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents marked Ex.C1 to C16 detailed in the annexure.  On behalf of the opposite party Mr. Gopikrishna Rao (RW1) Administrative Officer also filed affidavit evidence and answered the interrogatories served on him and produced documents marked Ex.R1 to R3 detailed in the annexure. One Mr.K.S Ramananda Rao (RW2) Surveyor-Loss Assessor also filed affidavit evidence and answered the interrogatories served on him.

In view of the above said facts, the points for consideration in the case are:

1. Whether the Complainant is a consumer and the dispute between the parties?
2. If so, whether the Complainant is entitled for any of the other reliefs claimed?
3. What order?

      We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:         

               Point No. (i): Affirmative

              Point No. (ii): Affirmative

              Point No.(iii): As per the final order.

REASONS

IV.   POINTS No. (i): The complainant purchased the insurance policy as mentioned from opposite party No.1 is not in dispute.  A claim laid by complainant with opposite party the service provider towards loss suffer due to theft in the complainant’s showroom laid during the period covered under the policy with opposite party was repudiated.  Hence there is a dispute between the consumer the complainant and the opposite party the service provider as defined under the section 2 of the C P Act.  Hence we answer Point No.1 in the affirmative. 

POINTS No.(ii):  Ex.C8 is the copy of the FRR registration on the complainant lodge on behalf of complainant before the consent police.  It mentions the theft occurred on 13.92008 at about 6.41 PM.  The complainant was filed on 18.9.2008 of 18.30 hrs and the relevant portion as to the incident pertaining is mention in the following words in the complaint as follows:

By 6.41 PM on 13.09.08 two persons entered our Showroom situated at No.9 & 10, Ground Floor, City Light, Balmatta Road, Mangalore  575 001 and one of our sales executives showed them items displayed in the counter.  Since they were not satisfied with the displayed items, they requested to show the ornaments which were kept in one plastic container.  This plastic box contained ornaments kept in plastic pouches.  Both of these persons put their hands inside the plastic box in the pretext of selecting the ornaments.  During this processes they have stolen one plastic pouch containing 77 nos of studs of 148.57 grams and left the showroom.  The market value of the ornaments stolen is approx Rs. 178000/

Due to heavy rush in the showroom our sales person was not able to notice the theft at that time.

The incident has been captured in the CCTV camera installed in our showroom.

We request you to kindly register a case and take necessary steps to nab the culprits and recover the stolen goods at the earliest.

CD containing the video footings is enclosed.

Thanking you,

Yours faithfully,

For Chemmanur Jewelry (P) Ltd.

2.     Ex.C9 is the intimation given to complainant of C final report filed by the jurisdictional police in respect of the C final report filed before the concerned Court. 

3.     Ex.C10 is a notice issued to complainant by Mr.K.S Ramananda Rao Loss Assessor/Valuer dated 1.10.2008 calling upon complainant to furnish the details especially pertaining to the complainant claim filled up claim form, Premises identification details, few stills from CD of CCTV showing those customers removing the pouch from plastic box and putting it inside the pocket, Audited balance sheet copies of Mangalore show room for the year 2006.07 and 2007.08, forwarding seeking sale purchase stock register and other requirements and monthly statement submitted to bank regarding to stock for the past one year, statement from concerned sales executive regarding the incidents etc..... Ex.C11 is reply dated 2^nd March 2009 addressed to Mr. K.S. Ramananda Rao to the letter as per Ex.C10 mentioning the giving reply to the particulars. 

4.    Ex.C16 is intimation given by opposite party to complainant dated 23.6.2011 mentioning that after obtaining clarification reply from the surveyor wherein they make mention that having obtained required clarification from the surveyor the claim is under process and that due to the reverting back to the complainant.  Thus being 23.6.2011 the complaint having been lodged within 2 years from this date is well in time.  As objection was raised on this count by opposite party is rejected, wherein back to the subject it was argued for opposite party that the stocks register was not produced by complainant before the surveyor.

5.    At Ex.R3 is the copy of the jewellery box policy schedule pertaining to the complainant the property insured is described at Ex.R3 in the specific column the property insured line quote under section I in property covered.

Stock and stock in trade consisting of Jewellery, Gold or Silver Ornaments, Plate, Pearls and precious stones of any sort or any kind whatsoever, Cash and Currency Notes &/or other merchandise and materials usual to the conduct of the Insured’s business, belonging to &/or held in trust or on commission for which the Insured is responsible and for which insurance has been taken as described in the schedule.

The first item is property insured is shown as 7 crores 10 lakh and in respect of column issued in display windows mentions as nil.   It was argued for opposite party that the stock on display window is not covered under the policy.  Getting back to the complaint as quoted from the complaint at Ex.C8 above there is a specific mention that what were shown to the customers were the plastic box containing ornament packed in the pouch after the customers were not satisfied with the displayed items.  The relevant portions of the complaint quoted above are underlined by us.  Thus from the above highlighted portion of the complaint lodged to place it is clear that what was stolen was not from the display window being displayed but was showed to the customers which were stocked in trade consisting of jewellery as seen from Ex.R3 quoted above and in our view it is covered under item No. I mentioned above. 

6.     In fact as seen from Ex.R3 the policy for jewellery block insurance furnished by opposite party mentions as to which are all the perils covered the relevant portions which reads thus:

As seen from Ex.R3 the property insurance section 1 quoted earlier in view of the wording subsequently quoted from the policy for jewellery block insurance.  In our view as theft is specially covered under section 1 as such the contention of opposite party that the risk of theft is not covered under the terms of the policy cannot be accepted.

7.     The learned counsel for opposite party during the course of argument pointed out the CD produced only show some clothes by the alleged customers lifted the stock and that there was no complaint by the sales executive and customers only folding clothes and not actually lifting any stock and that it is a few days after the alleged theft the complaint came to be filed.  In respect of the 1^st of the argument  it is to be noted that the persons who came as customers wanted a box of jewellery kept to be looked into and left without any purchases and during that period as verified from the CCTV the theft came to their notice.  Merely because the theft came to notice while verifying the CCTV is not the reason to reject the loss of the stock and as to purpose of the CCTV itself is to keep close watch on the movements of the persons who enter the premises under the guise of the customers.  Merely because the sale executive did not notice the actual lifting of the jewellery by the persons who came under the guise of customers is no justification to say that there was no theft committed.  Hence contention on this counterpart of the opposite party is rejected. 

8.     As to the other claim for opposite party of delayed lodging of complaint the complaint given to the police as per Ex.C8 itself explains.  The complaint itself mention did to heavy rush in the showroom and it was not able to observe the theft. In fact Ex.R1 the first survey report mentions due to riots/violence started in Mangalore City anti Christian by Vandalising churches/prayer halls the police were busy and the shops were shut on 15/16.9.2008 due to bundh calls the complaint lodged to police on 16.9.2008 was accepted and filed in FIR No.2224 on 18.9.2008 this reason has to be accepted considering the nature of the events.

9.     Another ground on which the claim of complainant was rejected by opposite party was on the basis of report of 2^nd surveyor appointed by opposite party to survey the loss.  However the learned counsel for complainant referring to Ex.R1 the Surveyor Report of K. S. Ramananda Rao pointed out he has assessed the loss sustained due to the theft at Rs.1,56,536/ as mentioned at page 6 of this report.  But after this report of 26.9.2009 the opposite party admittedly appointed Apex Surveyors Private Limited which in the report Ex.R2 in the report in remarks column the 2^nd survey by the opposite party the claim may be repudiated.  And one of the grounds mentioned was failure of complainant to co operate to the 2^nd survey.  However the learned counsel for complainant has drawn our attention to the reported judgments in National Insurance Company Ltd vs. New Patiala Trading Company 2002 CPJ 516 (CP)(NCDRC) in this reported case referring to section 64 of Insurance Act and C P ACT it is held:

Insurance-Surveyor Consumer Protection Act, 1986 Insurance Act, 1938 Section 64 UM-Section prescribes a complete code as to how a surveyor of the Section would not generally permit the appointment of a second surveyor In case of any deficiency in the report, insurer can seek his views or obtain further report from him Insurer not to appoint a second surveyor only to counter or contradict or rebut the report of the first surveyor.

Thus ongoing through this reported judgment we are of the view that the action of opposite party in appointing a second loss assessor and calling for report afresh is wholly unjustified and against settled principles of law by opposite party in appointing 2^nd survey are wholly unjustified. 

10.     Thus considering the entire rival contentions as discussed above we are of the view that the complainant succeeded in establishing deficiency in service on the part of opposite party to complainant.  Hence we answer point No.2 in the affirmative

11.  As to entitlement the claim of complainant shall be allowed to the assessed loss at Ex.R1 of Rs.1,73,929/ with future interest at 9% from the date of the Ex.R1 i.e. 26.9.2009 till the date of payment.  In respect of claim for damages compensation awarding a sum of Rs.30,000/ and cost of the litigation with Advocate fee at Rs.5,000/ would meet the hands of justice. 

POINTS No. (iii): Wherefore the following order

ORDER

   The complaint is allowed with cost. Opposite party is directed to pay Rs. 1,73,929/ (Rupees One lakh Seventy Three thousand Nine hundred Twenty Nine only) to complainant with interest at 9% from 26.9.2009 till the date of payment. Opposite party shall also pay Rs.30,000/ (Rupees Thirty thousand only) as damage compensation to complainant .

2.    Advocate fee fixed at Rs.5,000/ (Rupees Five thousand only)

3. Payment shall pay within 30 days from the date of the copy of this order.

Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.

(Page No.1 to 11 directly dictated by President to computer system to the Stenographer typed by her, revised and pronounced in the open court on this the 2^nd January 2017)

             MEMBER                                              PRESIDENT

(SRI. T.C. RAJASHEKAR)              (SRI. VISHWESHWARA BHAT D)

D.K. District Consumer Forum              D.K. District Consumer Forum

 Additional Bench, Mangalore                Additional Bench, Mangalore

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1  Mr. Anand Kulal K

Documents marked on behalf of the Complainant:

Ex.C1: 18.9.2008  : Copy of claim petition filed by complainant

Ex.C2: 12.4.2011  : Copy of the Lawyer’s notice

Ex.C3:                 : Postal Acknowledgement

Ex.C4: 05.5.2011  : Copy of the reply notice

Ex.C5: 03.5.2010  : Reminder letter issued to opposite party

Ex.C6: 01.2.2011  : Copy of Resolution passed in the Board of Directors meeting of Complainant Company

Ex.C7: 17.9.2012  : Authority letters given to Mr. Anand Kulal K

Ex.C8:                 : Copy of FRR along with complaint

Ex.C9:                 : Notice sent from the court

Ex.C10:1.10.2008 : Letters sent by K.S. Ramananda Rao to the complainant

Ex.C11: 02.3.2009 : Office copy of letter sent by complainant to Opposite party

Ex.C12: 20.3.2009 : Office copy of letter sent by complainant to  Opposite party

Ex.C13: 22.2.2010 : Office copy of letter sent by complainant to Opposite party

Ex.C14: 30.8.2010 : Office copy of letter sent by complainant to Opposite party

Ex.C15: 31.8.2010 : Postal Acknowledgement

Ex.C16: 23.6.2011 : Copy of letters sent by opposite party to Complainant

Witnesses examined on behalf of the Opposite Parties:

RW1  Mr. Gopikrishna Rao, Administrative Officer

RW2  Mr.K.S Ramananda Rao Surveyor-Loss Assessor

Documents marked on behalf of the Opposite Parties:

Ex.R1: Surveyor Report by K.S. Ramananda Rao dated 26.9.2009

Ex.R2: Report by Apex Surveyors Private Limited dated 31.3.2011

Ex.R3: Jewellers Block Policy

Dated: 02.01.2017                                    PRESIDENT