FIRST ADDITIONAL BENCH

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,  PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                             First Appeal No.849 of 2011

                                                          Date of Institution: 30.05.2011  

                                                          Date of Decision : 20.04.2015

Anuradha Handa wife of Harsh Kumar Handa, r/o House No.8, Aman Vihar, Malwal Road, Ferozepur City, proprietor of M/s Rama Motors (HPC Dealer), VPO Khai Pheme Ki, Tehsil and District Ferozepur.

                                                          …..Appellant/Complainant

                                      Versus

1.       United India Insurance Company Limited, 3 The Mall, Ferozepur,         through its Branch Manager

2.       U.S Kohli, Kohli Surveyor, Dutt Road, Moga

                                                          .….Respondents/Opposite parties

First Appeal against order dated 26.04.2011 passed by the District Consumer Disputes Redressal Forum, Ferozepur.

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

          Shri Vinod Kumar Gupta, Member.  

          Shri. Harcharan Singh Guram, Member.

Present:-

          For the appellant              :         Sh.Nakul Sharma, Advocate

          For the respondent No.1  :         Sh.Munish Goel, Advocate

          For the respondent No.2 :          Ex-parte.

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

           The appellant (the complainant in the complaint) has directed this appeal against the respondents of this appeal (the opposite parties in the complaint), challenging order dated 26.04.2011 of District Consumer Disputes Redressal Forum Ferozepur, relegating the parties to approach competent Civil Court for the redressal of their grievances. The instant appeal has been preferred against the same by the appellant.  

2.      The complainant Anuradha Handa has filed this complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that complainant is the sole proprietor of M/s Rama  Motors District Ferozepur. The complainant purchased three polices covering different risk factors bearing policies no. 200102/11/09/11/00000179, 200102/11/09/11/00000178 and policy no.200102/46//09/04/00000033 for the period from 24.08.2009 to 23.08.2010. The complainant insured petrol pump premises including all fixtures. On 14.01.2010 at night time, when new tank lorry of petrol came to unload the petrol and diesel in the tank, it was found that there was shortage of 2870 petrol and 3030 liter of diesel turbo and this occurred, due to the theft committed by some unknown persons. FIR No.31 dated 18.02.2010 under Section 379 IPC was lodged about the theft at police station Sadar Ferozepur against unknown persons. There was huge fog on 14.01.2009 and theft was committed by some unknown persons in a routine manner. Matter was duly brought to the notice of Senior Superintendent of Police as well. The complainant intimated the OPs regarding the theft of the petrol and diesel in his petrol pump. The Surveyor was appointed by the OPs for assessing the loss. The surveyor gave a false report to the effect  that factum of theft was incredible and report of surveyor is, thus, a forged and fabricated document. The Surveyor has not considered  the claim of the complainant despite the photographs attached therewith. The complainant submitted reply dated 11.02.2010 to the report of the surveyor about it. The complainant has filed the complaint directing the OPs to pay the insurance claim of Rs.2,42,543.30  being loss caused to the complainant by means of theft, along with interest @ 18% per annum and amount of Rs.50,000/- as compensation for mental harassment and Rs.11,000/- as costs of the litigation.

3.      Upon notice, the OPs appeared and filed written reply raising preliminary objections that complex question of facts and law are involved in this case entailing recording voluminous evidence, which is impermissible in the summary proceedings by the Consumer Forum. The complaint is alleged to be bad for non-joinder and mis-joinder of the necessary parties. U.S Kholi has been alleged to be unnecessarily implicated in the complaint. The complainant sent the intimation to the OPs with only four days delay from the theft on 18.01.2010. The complainant also gave intimation to the police Sadar Ferozepur at later stage and hence complaint of the complainant is liable to be dismissed on that score. The complaint of the complainant is alleged to be false and frivolous. The version of the complainant is false and not correct and complainant has no right to file the complaint. On merits, the complaint was contested by the OPs and this fact was admitted that OPs that it issued insurance policy in this case. It was further averred that with regard to alleged theft on 19.01.2010, the OP No.1 received written intimation on 18.01.2010, whereupon U.S Kohli was appointed as Surveyor and he visited the spot on 22.01.2010 and looked into the matter. On 25.01.2010, he sent the registered letter to the insured putting eight queries and reminder dated 05.02.2010 also followed thereto. The report of the Surveyor was to the effect that no theft was ever committed by some unknown persons and the case of the complainant is false. The OPs prayed for dismissal of the complaint of the complainant on account of falsity of the version of the complainant.

4.      The complainant tendered in evidence the affidavit of complainant Ex.C-1, letter dated 24.03.2010 addressed to SHO Police Station Ferozepur by U.S. Kholi Surveyor Ex.C-2, copy of FIR Ex.C-3, copy of letter addressed to SSP, Ferozepur by Sh. S.P Khera President Ex.C-4, terms and conditions of policy Ex.C-5, copy of insurance policy document Ex.C-6 and Ex.C-7, copy of letter addressed to Sh. U.S Kohli  by M/s Rama Motors Ex.C-8, copy of letter dated 13.01.2011 addressed to M/s Rama Motors Ex.C-9, copies of Newspapers cuttings reports Ex.C-10 to Ex.C-16, copies of photographs Ex.C-17 to Ex.C-20, copy of police report regarding FIR No.31, copy of newspaper cutting Ex.C-22, copy of FIR Ex.C-23. As against it, OPs tendered in evidence the affidavit of Sh. R.K.Doda Divisional Manager of OPs Ex.R-1, copy of letter dated 18.1.2010 Ex.R-2, copy of letter dated 22.01.2010 Ex.R-3, terms and conditions of policy Ex.R-4, copy of letter dated 22.01.2010 Ex.R-5, copy of letter dated 22.10.2010 Ex.R-6, copy of registered letter dated 25.01.2010 Ex.R-7, copy of letter dated 5.2.2010 Ex.R-9, copy of postal receipt Ex.R-10, copy of letter dated 11.02.2010 Ex.R-11, copy of letter dated 06.03.2010 Ex.R-12, copy of postal receipt Ex.R-13, copy of letter dated 6.03.2010 Ex.R-14, copy of letter dated 24.3.2010 Ex.R-15, copy of postal receipts Ex.R-16 and Ex.R-17, copies  of statement Ex.R-18 to Ex.R-20, copies of photographs Ex.R-21 to R.-31, copy of letter dated 13.1.2011 Ex.R-32, affidavit of U.S Kohli Ex.R-33. On conclusion of evidence and arguments, the District Forum, Ferozepur dismissed the complaint of the complainant by directing the parties to approach the regular competent civil court for the redressal of their grievance, as the complex matter cannot be adjudicated in summary proceedings by Consumer Fora. Dissatisfied with the order of the District Forum Ferozepur dated 26.04.2011, the complainant now appellant has preferred this appeal against the same.

5.      We have heard Ld.Counsel for the parties and have also examined the record of the case.  The affidavit of complainant is Ex.C-1 is on the record in support of her averments, Ex.C-2 is the letter sent to SHO Police Station Sadar Ferozepur by U.S Kohli Surveyor to the effect that from his investigation, the theft of the diesel and petrol was not proved. The copy of FIR No.31 dated 18.02.2010 is Ex.C-3 on the record lodged by the complainant. Ex.C-4 is letter sent by Sh.S.P Khera President to SSP regarding theft of the diesel and petrol at the pump, Ex.C-5 is copy of the terms and conditions of the insurance policy between the parties, Ex.C-6  are the details of the terms and conditions of the policy document, Ex.C-8 is the letter sent to Sh.H.S. Kohli Secretary, Ex.C-9 is letter dated 13.01.2011 addressed to M/s Rama Motors, Ex.C-10 to Ex.C-20 are copies of Newspaper cutting reports, Ex.C-21 is report of the police,  Ex.C-22 is newspaper cutting report, Ex.C-23 is copy of the FIR. OPs relied upon the affidavit of Sh.R.K.Doda, Divisional Manager, United India Insurance Company Ex.R-1 to the effect that the written version filed by the OPs is correct and it is stated to be correct on oath, Ex.R-2 is letter sent by the complainant to Branch Manager of the OP on 18.01.2010 regarding alleged theft, Ex.R-3 is letter dated 22.01.2010, Ex.R-4 is terms and conditions of the document of insurance policy, Ex.R-5 is the letter addressed to Surveyor, Ex.R-6 is letter dated 22.01.2010 addressed to complainant/M/s Rama Motors by Sh. R.K. Doda, Divisional Manager of OPs, Ex.R-7 is letter of Surveyor putting certain queries, Ex.R-11 is letter dated 11.02.2010 addressed to  Sh.U.S Kohli, the Surveyor from complainant/ M/s Rama Motors , Ex.R-12 is letter addressed to complainant by the surveyor for giving pointwise correct reply. The surveyor found the case of theft to be fake one in this case and affidavit of Surveyor Ex.R-33 is on the report of the survey on the record. The surveyor recommended that case of the complainant is "No Claim".

6.      From perusal of above-referred evidence on the record and hearing the respective submissions of counsel for the parties, we find that on the copy of the FIR has been proved on the record by the complainant to prove the fact of theft. This copy of FIR has been cancelled and cancellation report duly sent by the police in this case vide Ex.C-21 on the record. It was submitted by the complainant now appellant that the surveyor has no authority to ask the investigator to cancel the FIR. We find that the SHO of Police Station has to conduct the independent investigation and collect evidence and then to reach the conclusion, whether to put up the challan or to send the case as cancelled. This authority has been vested in the SHO of Police Station by the Code of Criminal Procedure. The District Forum found that the matter is complex in this case, which cannot be decided without recording voluminous evidence, entailing the cross-examination and re-examination of the witnesses.  We find that the order of the District Forum is correct in as much as seriously disputed matter are involved in this case. FIR has been cancelled by the police and the surveyor found no genuine theft of petrol and diesel in this case. Therefore, we agree with the findings of the District Forum that the matter, which is complex in nature, cannot be adjudicated in summary proceedings by the Consumer Forum.  Only those matters, which are not seriously disputed, can be adjudicated in summary proceedings by the Consumer Forum. We do not find any illegality in the order of the District Forum dismissing the complaint of the complainant by directing the parties to approach the competent Civil Court for the redressal of their grievance, if any. The order of the District Forum cannot be said to be faulted in any manner in our view and same is affirmed in this appeal.

7.      As a result of our discussion, finding no merit in the appeal, the same is hereby dismissed.  

8.       Arguments in this appeal were heard on 15.04.2015 and the order was reserved. Now the order be communicated to the parties.

9.      The appeal could not be decided within the statutory period due to heavy pendency of court cases.

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

                                                                   (VINOD KUMAR GUPTA)

                                                                             MEMBER

                                                               (HARCHARAN SINGH GURAM)

                                                                             MEMBER

April 20   2015.                                                              

(ravi)