DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016

Case No.248/2008

M/s Pallavi Copper Pipes Pvt. Ltd.

Near Sona Somic Factory

Shani Mandir Road

Village Begampur Khatola

Delhi Gurgaon Highway,

Gurgaon, Haryana-122001                                         ….Complainant

Versus

The  Divisional Manager

The United India Insurance Company Ltd.

54, Janpath, New Delhi-110001                      ….Opposite Party

                                                          Date of Institution        : 09.04.08    Date of Order                 :    06.09.17

Coram:

Sh. N.K. Goel, President

Ms. Naina Bakshi, Member

ORDER

Briefly stated, the case of the complainant is that the complainant is a company engaged in manufacturing copper pipes that are generally used in air conditioning, refrigerating and other cooling plants, machinery and equipments.  The complainant Co. took burglary insurance policy No.040100/06/04/00000835 from the OP Insurance Company and insured amount was Rs.2 crores. As per the insurance policy,  the OP undertook to indemnify for the loss of stock of all kind of copper, packing material, lubricants, allied materials and the above manufacturing unit.  On 30.07.06 at 2 a.m. some dacoits jumped over the wall and entered into the factory of the complainant by breaking open the front and rear doors after snatching the keys from security guards and they overpowered the guards by pistol and knives and they opened the main gate and got their vehicles inside the factory.  They took the security guards to the main gate of the workshop and the security guards called all the gunman who was moving inside the workshop to open the gate of workshop. The gunman opened the door of workshop as he recognized the voice of security guards and as the gunman opened the door of the workshop the dacoits immediately overpowered the gunman also and snatched his gun. Around 15-20 dacoits entered into the workshop and overpowered all the workers by showing them arms etc. and threatened and beat them and ordered them to sit down in a row. They took their vehicles in the backside of the workshop gate and there were 10-15 dacoits inside the workshop and they started to pick the copper pipes (i.e. raw material, finished goods, scrap and semi finished) by forcing their workers upto the backside gate as their vehicles were parked there and from  backside gate to vehicle the dacoits themselves loaded the material into the vehicle as the complainant’s workers were not allowed to go outside the gate. One of the trucks moved from the factory as heard by security guards and workers; then dacoits started to tying up the hands and legs of workers and security guards with clothes etc. and threatened them not to move from their place and closed both the workshop gates (front gate and back side gate) from outside and moved from the factory with the another vehicle. The whole incident ended approx. by the time 4.30 a.m. One security guard somehow managed to open his hands and informed about the incident to the security company owner Mr. V. P. Sharma and PCR around 5 a.m.  Mr. V. P. Sharma then informed Mr. Satish Gambhir, Manager of the Company and Mr. Satish Gambhir informed the Managing Director Mr. Rajesh Jindal about the incident. Mr. Satish Gambhir and Mr. Sharma reached the factory about 6.45 a.m. and thereafter Mr. Rajesh Jindal reached the factory and police were already in the factory and they told that they had caught one Tata 407 with looted copper pipes alongwith two dacoits. Thereafter, DSP visited the complainant factory and asked the officials to write an application as per their instruction for lodging an FIR and the complainant’s officials did the same as they presumed that the police had recovered the entire looted material. The police lodged an FIR and then the complainant’s officials were told to check the material lying in the vehicle which was recovered by the police from the dacoits. The complainant’s officials went to the police station and checked the material in the vehicle and found that not all the material which was looted in the night was in the vehicle and then they (perhaps police) said that the vehicle which was involved in the dacoity was only this vehicle and this material was recovered by the police from the dacoits and so there was no chance of missing other material.  But this was not the true fact as the entire material in the vehicle and substantial parts of part of material were missing.  The police had not recovered all the material which was looted. On taking stock verification the complainant’s officials found that the total material was 5491.800 kgs. and the material recovered by the police was 2195.300 kgs.  The total missing material’s weight was 3296.500 kgs. and this fact was also mentioned in the superdari application filed in the court of the ACJM, Gurgaon as well as they gave a letter alongwith the list of stolen/recovered/not stolen material to the SHO, Sadar Police Station, Gurgaon on 10.08.06 regarding un-recovered material and the same was acknowledged by the investigating officer on 10.10.06. They also gave another application regarding the status of unrecovered material by the police and the application was also acknowledged by the investigation officer with remark that they are still trying to recover the material.  In the last police report filed in the court (final report) at page No.24 the police has also mentioned that Sh.  Rama Ji foreman of the company was also present at the checking point when the police caught the dacoits but this is totally false as complainant’s foreman Sh. Rama Ji was never present there. Police tried to prove that only one vehicle which they recovered was involved in the dacoity and the same was caught alongwith the looted material by the police in checking. On the basis of police report Insurance Company rejected the complainant’s claim that the material looted had been recovered by the police which was as per FIR/ application given by the complainant.  It is submitted that the complainant’s officials wrote the details of the vehicle and the name of the dacoits as told by the police because they presumed that the police had recovered all the material; otherwise neither they had seen the tempo nor heard the names of dacoits. The OP rejected the claim as per the surveyor report on the false and frivolous ground and the OP vide letter dated 26.03.07 repudiated the claim of the complainant. The Insurance Company has stated that the weight of stolen goods was 2350 kg. while the weight of the recovered goods was 2195.30 kg and they erroneously  relied on  the volumentary analysis saying that it was not possible to load 5491 kg of copper pipe in a small Tata 407 truck.  They also without any basis ruled the possibility of involvement of another truck and they further took another false presumption that one cannot steel 5491 kg. of copper in two hours and falsely relied on the statement of foreman. Hence,  the repudiation of the claim of the complainant by the OP was arbitrary, without any basis. It is submitted that the complainant is entitled for the loss/occasion towards un-covered items as per details given in para 10 of the complaint.   The complaint has been filed with the following prayers:-

“a.     Direction to OP to pay Rs.18,22,421/-

b.      Award of 1,00,000/- compensation and also Rs.,10,000/- as cost of the litigation.”

OP in the written statement has inter-alia stated that considering the report submitted by the surveyor Sh. R. G. Verma (Chartered Accountant), the claim of the complainant was not admissible and payable as the complainant had not suffered any loss, that the whole of the stolen stock/goods were recovered by the police which were loaded in the truck as mentioned in the FIR. It is clear from the report of the surveyor that the present claim is a case of afterthought and inflation of claim. Hence, there is neither any deficiency in service nor any unfair trade practice on the part of the OP Co. It is submitted that the present complaint raises various complicated and intricate questions of facts which cannot be decided by this Forum and, therefore, the present complaint is liable to be dismissed.

Complainant has filed a rejoinder-cum-evidence.

The right of the OP to file evidence was closed by our predecessors on 03.06.2009.

          Written arguments have been filed on behalf of the complainant.        

Arguments on behalf of the parties are heard.

The parties have failed to mark Exhibit Nos./Annexure nos. on their respective documents.

The complainant filed the Burglary BP policy from 15.06.2006 to 14.06.2007 including the stock register filed with the policy. We mark the document as Anenxure-1 for the purposes of identification. The complainant filed the dacoity report vide letter dated 31.07.2006 to the OP Co. We mark the document as Anenxure-2 for the purposes of identification. The FIR report No.587 is filed as Annexure-3. Copy of the application moved in the court of the ACJM, Gurgaon whereby material weighing 2350 kg. was received on superdari has been filed.  We mark the document as Anenxure-4 for the purposes of identification. The complainant vide letter dated 03.08.2006 sent the details of the documents to the OP as Annexure-5.  The surveyor vide letter dated 05.08.2006 informed the complainant regarding assessment of the claim. We mark the document as Anenxure-6 for the purposes of identification. The complainant vide letter dated 10.08.2006 sent the details to the surveyor as Annexure-7. The complainant filed a letter dated 10.08.2006 written to the SHO, Gurgaon informing therein that the total copper pipe of 5491.88 kg. was stolen and 2195.300 kg. was recovered and the still balance of 3296.500 kg. was not recovered and sent the details of balance cooper pipe. The complainant filed a claim before the OP as Annexure-8. The complainant again sent a letter dated 10.10.2006 to the SHO, Gurgaon regarding balance of copper pipes which was not recovered.  The complainant vide letter dated 22.11.2006 sent all the details   to the surveyor as Annexure-9.  The complainant had filed the copy of the order dated 26.11.2007 delivered by the court of the Addl. Sessions Judge, Gurgaon. We mark the document as Anenxure-10 for the purposes of identification wherein the court has held that “ the prosecution had not been able to prove the charge against the accused beyond doubt. Therefore, they are acquitted after giving benefit of doubt. They are in custody. They be released forthwith if not required in any other case. Case property be disposed off according to law.”

The case of the complainant is that infact 5491.88 kg. of material was stolen from the factory premises and the police recovered only 2195.30 kg. material and thereafter acting on the police report, the surveyor appointed by the OP also took into consideration the goods weighing 2195.30 kg. into consideration on the basis of whose report the OP repudiated the claim of the complainant in respect of the remaining goods. In copy annexure-2 written by the complainant to the OP, the complainant has assessed the estimated loss of the stolen articles approximately as Rs.20,00,000/- (rupees twenty lacs only). Thus, as per the assessment made by the complainant itself, the estimated loss amount was about Rs. 2,00,000/-.

In the detail and estimate of loss dated 30/31.07.2006 which we mark as Mark Z for the purposes of identification, the complainant had inter-alia given the weight of the total scrap during dacoity as nil. During the dacoity, the stock lost of raw material was  2064.600 kg. These are two documents which had been given birth by the complainant and none else. The complainant had created these two documents on its own and without any pressure from any corner whatsoever.

The FIR was recorded on the basis of statement of Achhe Lal (employee of the complainant). The case of the complainant in this regard is that the FIR had been registered after recovery of stolen goods and the complainant’s official made the FIR by presuming that the police had recovered the entire looted material. Thus, the statement of Achhe Lal recorded by the police under Section161 Cr.P.C. became/ becomes quite material. Vide letter dated 03.08.2006 (annexure-5), the complainant sent the copy of the statement of Achhe Lal along with copies of other documents to the OP. However, the copy of statement of Achhe Lal has not been filed on the record and non filing of the copy of his statement on record is destructive. We raise adverse presumption against the complainant. As per the documents filed by the complainant itself, the weight of the stolen articles could not be 5491.800 kg. and hence we accept the plea taken by the OP that the entire goods stolen from the factory premises were recovered by the police. Therefore, we do not see any reason to disbelieve the report of the surveyor, the copy of which Ex. OP-1. Hence we hold that the complainant has failed to prove any deficiency in service on the part of OP.

Secondly, the pleadings and the documents filed by the parties involve issues which infact require serious consideration and recording of evidence of the parties which also imply oral examination and cross-examination of the witness/es of each other.  Therefore, in our considered opinion, the issues raised in the complaint otherwise cannot be decided in the summary proceedings held under the Consumer Protection Act. 

In view of the above discussion, we do not find any merit in the complaint and dismiss it with no order as to costs.

Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations.  Thereafter file be consigned to record room.

Announced on  06.09.17.