BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.

Consumer Complaint No. 780 of 2013

Date of Institution: 22.11.2013

  Date of Decision: 6.5.2016

M/s. Asbestos & Allied Agencies Shreegopal Daga HUF, carrying on business at Village Chetrampur Road, Near Daburji, G.T. Road, O/s Octroi Post, Amritsar having its office at Daga House, Mahna Singh Road, Amritsar through Sh.Shreegopal Daga Karta

Complainant

Versus

United India Insurance Co.Ltd., D.O.II at 5 Dharam Singh Market, Amritsar through its Divisional Manager

Opposite Party

Complaint under section 11 & 12 of Consumer Protection Act, 1986

Present:    For the Complainant                            : Sh.S.K.Sharma,Advocate

For the Opposite Party               : Smt.Neena Kapoor,Advocate

Coram

Sh.S.S.Panesar, President

Ms.Kulwant Kaur Bajwa, Member

Sh.Anoop Sharma,Member

Order dictated by:

Sh.S.S. Panesar, President.

1.       M/s. Asbestos & Allied Agencies  through Sh. Shreegopal Daga complainant has  brought the instant complaint under the Consumer Protection Act, 1986  on the allegations that complainant obtained insurance policy from the opposite party for the insured amount of Rs. Four Crore only bearing policy No. A334/639/571353 dated 1.11.2010 effective from 1.11.2010 till 31.10.2011 against the premium of Rs. 4412/- which was duly paid by the complainant to the opposite party against the receipt in his favour. Thus, complainant having hired the services of the  opposite party for consideration is a consumer as defined under the Consumer Protection Act, 1986 and has right to invoke the jurisdiction of this Forum for redressal of his grievances against the opposite party by filing this complaint. Insurance policy covers the risk on the stock of all kinds and description of electrical fans like ceiling, pedestal, industrial/wall mounted/exhaust fans etc and/or their accessories, raw materials/packing materials/spares/stores and/or all other goods pertaining to insured’s trade/business, the property of the insured’s own or held by them in trust in deposit, on commissioned and/or in joint account with other whilst stored/lying/contained in the insured’s godown situated at the above address, covered against burglary/house breaking risk and there is a special condition in the said policy of risk cover of burglary /house breaking risk. The opposite party is bound by the terms and conditions contained in this policy. Before issuing the said policy, the opposite party through its officials had inspected the godown of the complainant and verified the facts on the spot and after their due satisfaction, they had issued this policy. During the validity of the insurance policy in dispute on 23/24.10.2011 at about mid night theft was committed in the godown premises of the complainant in which 1337 fans were stolen. On that very day i.e. 24.10.2011,  Parveen Kumar on behalf of the complainant immediately reported  this matter through  letter to the SHO, PS Chatiwind, Amritsar duly which was acknowledged by the police authority vide diary No. 133-Dasti/PS Chatiwind/24.10.2011. Opposite party was also informed telephonically by the complainant regarding the theft committed in his godown and loss suffered by the complainant in consequence thereto. On 25.10.2011  information in writing was given by the complainant to the opposite party regarding theft of 1337 goods in the premises and requested the opposite party to  send their surveyor to assess the loss, which letter was duly acknowledged by the opposite party with their seal and signature. Accordingly, the opposite party  appointed its surveyor namely Sumant Sood to assess the loss who inspected the premises. The complainant had supplied complete information by way of documents through a letter as desired by the surveyor i.e. statement of the closing stock cum loss, the bill Nos. of all the items pertaining to the closing stock. But till date  he has not submitted any report to the complainant. It is , therefore, requested  that opposite party may be directed to produce the complete surveyor report alongwith all documents supplied by the complainant. On the letter submitted by the complainant, the police  investigated the matter during the course of which , the statement of godown keeper namely Parveen Mehra was recorded, who was working as godown keeper on  behalf of the complainant for the last more than 30-35 years. On 30.10.2011 as per the report of the policy, the police got an information against the accused persons from their informers and accordingly they got registered FIR No. 103 dated 30.10.2011 under section 399/402 IPC against the accused persons Gulzar Singh @ Gora & others by SHO PS Chatiwind . On the basis of  this secret information police arrested those accused persons and also recovered 63 fans, deadly weapons, one Indica car . In continuation of this letter dated 25.10.2011, complainant wrote a letter dated 29.3.2012 to opposite party to settle his claim at the earliest which was duly received by them but they put off the matter on one pretext or the other. The complainant requested the opposite party many a times telephonically to settle his claim, but they paid no heed to the genuine request of the complainant. Again on 20.10.2012 the complainant  wrote another letter to opposite party with a request to settle their claim in full and to remit the money of the insurance claim, but to no effect. Again complainant wrote letter dated 16.11.2012 to the opposite party through registered  AD post giving the reference of the previous letter  and details of the police investigation, arrest of the accused, recovery of the fans and requested the opposite party  through its Chairman cum MD at Chennai Address. It is worthwhile  to mention over here that on account of the theft of fans, recovery of which is not effected, the total  loss of Rs. 17,91,534.06P has accrued to the complainant and the complainant is entitled to recover this amount being the insurance claim, from the opposite party. Opposite party issued a false letter cum reply dated 29.11.2012 alleging that the policy number mentioned in the letter of the complainant  is incorrect . It does not match with the system of allocating policy number  to a risk and complainant was asked to furnish correct policy number alongwith copy of the police report . But from the beginning  the policy number was being quoted by the complainant in its letter and correspondence was correct and duly matched with the policy number  mentioned  . As such plea taken by the opposite party was false just to harass the complainant  to cover  up their own follies, wrongs, delay caused by them one way or the other  and also to delay the payment of the claim amount. However, complainant has furnished the policy number  taken from the policy itself as per  the requirement of the opposite party, vide letter dated 15.5.2013 for the settlement of the claim immediately. Ultimately  to the utter surprise  of the complainant, opposite party illegally , malafidely, arbitrarily , against the law, rules and on their own terms and conditions, repudiated the claim of the complainant alleging that infact, the alleged burglary has resulted on account of non taking of the reasonable steps by the complainant to safeguard the insured property. It was also falsely alleged that it is violation of the terms and conditions of the policy on the part of the complainant  and the insurance company is not liable to pay any claim. Hence, the claim was repudiated. The complainant has made request for grant of following reliefs vide instant complaint :-

(i)      The opposite party may be directed to make payment of the insurance claim of Rs. 17,91,534.06 paise being the loss suffered by the complainant alongwith interest on it at the rate of 18% p.a. from the date of occurrence till actual payment.

(ii)     Compensation of Rs. One lac may be awarded to the complainant on account of mental pain, agony, harassment, inconvenience suffered by them at the hands of the opposite aprty.

(iii)    Costs of the proceedings to the tune of Rs. 20000/- may also be awarded.

Hence, this complaint.

2.       Upon notice, opposite party appeared through counsel and filed written reply taking certain preliminary objections therein inter-alia that complainant has not approached  this Forum with clean hands and has tried to conceal the material facts from this Forum , therefore, complaint is not maintainable ; that the complainant is stopped by his own act and conduct from filing the present complaint It has been perused that the insured has concealed the material facts meaning thereby  has violated the terms and conditions of the policy covered under the Insurance Policy. Keeping in view the terms and conditions of the policy, it is clear that as per contract of insurance pertaining to Burglary policy, the insured shall take all reasonable steps to safeguard the property insured against accident loss and damage however said conditions has been violated and the insured did not protect the insured godown with all due safety measures and in lieu of the exclusion clause (ii) of the policy, the opposite party was not liable to pay the insured sum in case the loss or damage has been expedited or any way assisted or brought about by any such persons or persons being an inmate or member of the insured’s household or of his business staff or any other person lawfully in the premises in the business is concerned. As per survey report and investigation report, claim has been repudiated and the same has been conveyed to the complainant vide letter dated 14.6.2013 ; that the present complaint is not maintainable before this forum as there are complication questions of law and facts which needs to be proved on the basis of strict principles of evidence. Occurrence and quantum of loss  has to be determined  otherwise once the claim is repudiated complainant has only remedy to move to Civil Court subject to limitation  ;  that there is no cause of action against the opposite party as there is no burglary in view of policy the main gate of godown was never broken by the culprits.  Property is insured against accident loss and damage however in the present case there is no theft accident or damage or loss on account of burglary but it is a case of pilferage. The thieves over the period of time were stealing their stock of fans slowly. Over the last ten odd years stock had been pilfered and the same accumulated to such an extent finally that all the quantity found missing was crowned on the head of thieves; that the insured had not shown stock loss in the VAT return filed after the discovery of missing stock. On merits, it is stated that factum of theft is a fact which has to be proved by way of evidence and lodging of FIR is a matter of record and anything contrary to record is denied being incorrect. The factum of theft is denied unless the FIR is legally proved. After submitting the claim  by complainant, opposite party appointed investigator/surveyor to investigate the theft and the investigations concluded that it is not a case of theft but it is a case of pilferage  and huge negligence on the part of the staff of the complainant. There are regular and subsequent incidents of stealing the stocks of the insured from the opening all ready created is the continuity  and the insured staff missing to notice the burglary regularly points to the staff not being vigilant in their duty of keeping an eye on the stock in detail when they would open the godown. As the complainant could not be vigilant as per the requirement of the policy conditions, opposite party is not liable to make the loss good. This thing was duly informed to the complainant. The opposite party never lingered on the matter but tried to resolve the claim by duly intimating. The investigator and surveyor to assess the loss was appointed and on the basis of their report  and investigations, claim has been repudiated being violation of the terms and conditions of the policy. There is no negligence or deficiency in service or unfair trade practice on the part of the opposite party. The complainant is not entitled for the claim of Rs.17,91,534.06paise or any other amount  and there is no contract of interest with the insurance company. Even otherwise in the light of submissions made above, the complaint is not legally maintainable and the complainant is not entitled  to any amount , as alleged and a prayer for dismissal of the complaint with cost was made.

3.       In his bid to prove the case Sh.Saurabh Sharma, Adv.counsel for the complainant has tendered into evidence affidavit of the complainant Ex.C-1, copy of Insurance cover note Ex.C-2, cover note Ex.C-3, copies of letters Ex.C-4,C-5, C-6, statement of Parveen Mehra Ex.C-7, Copy of letter issued by SHO, Chatwind Ex.C-8, letter to United India Insu.Co. Ex.C-9, letter issued to Chief Regional Manager Ex.C-10, letter to Chairman Cum Managing Director dated 13.5.2013 Ex.C-13, letter written by the United Insu.Co. to the complainant Ex.C-14, affidavit of Sh. Atul Markandey Ex.C-15, copy of stock register Ex.C-16, copy of report of surveyor Ex.C-17 and closed the evidence on behalf of the complainant.

4.       To rebut the aforesaid evidence Smt.Neena Kapoor,Adv.counsel for the opposite party tendered affidavit of Sh.Baldev Singh Ex.OP1, copy of letter dated 14.6.2013 repudiating the claim Ex.OP2, letter dated 7.2.2013 Ex.OP3, copy of Insurance policy Ex.OP4, copy of report of investigator Ram Gopal Verma  Ex.OP5,  letter dated 24.10.2011 signed by Parveen Mehra and Sanjay Sharma on behalf of complainant firm Ex.OP6, photographs Ex.OP7 to Ex.OP26 and closed the evidence on behalf of the opposite party.

5.       We have heard the ld.counsel for the parties and have carefully gone through the record on the file.

6.       On the basis of the evidence on record, ld.counsel for the complainant Sh.S.K.Sharma has vehemently contended that  the complainant has been able to prove that in the burglary in dispute, the complainant suffered loss to the tune of Rs.17,91,534.06paise. The report of the investigator Sh.Sumant Sood Ex.C-17 bears witness to the said fact. The investigator appointed by the opposite party thoroughly investigated  the cases inspected the entire record from the complainant. There was absolutely nothing wrong in the  investigation conducted by  Sh.Sumant Sood. But,however, opposite party without assigning any reason , appointed another investigator namely Ram Gopal Verma, who did not conduct any investigation and recommended for “No Claim” case. Repudiation letter Ex.OP2 bears witness to that fact.There was absolutely no reason not to accept  the report of Sumant Sood,surveyor. Reliance in this context has been placed on United India Insurance Co.Ltd.-Complainant Vs. Bhriguram Mondal & Others –Respondents 2014(1) CLT 255 (NC). At the most opposite party could ask for explanation or clarification from Sumant Sood, Surveyor regarding doubts, if any, but it could not appoint new investigator to investigate the matter afresh. Provision has been made  in section 64-UM of the Insurance Act for appointment of surveyor and not for appointment of investigator. Report of the surveyor being valuable piece of evidence, cannot be ignored without cogent reasons. Reliance in this regard has been placed  upon M/s. Hareshwar Enterprises (P) Ltd Vs. National Insurance Co. Ltd & Ors 2009(2) CPC Page 660.

7.       Ld.counsel for the complainant has further contended that the doubt raised by the opposite party that the incident occurring in between 23/24.10.2011 was either a theft or siphoning off or pilferage and it did not fall within the ambit of burglary, is not tenable because the exit was made by opening the plastic sheet of the roofs  of the godown which is a forceful entry and as such it is a case of burglary as contemplated by the terms of the policy. Reliance in this context has been placed upon the case Mono Industries Vs. New India Assurance Co.Ltd. 2008(2) CPC 522, wherein it has been laid down  that  when the culprits entered the premises by removing roof’s sheet, entry was by way of breaking the locks proving forceful entry and exit which proves a case of burglary as contemplated by terms of policy. The surveyor did not  assess the loss despite  necessary record was furnished by the complainant. District Forum directed the Insurance company to pay the value  of stolen goods with 18%interest . In appeal, interest was deleted and a sum of Rs. 25000/- was awarded as compensation giving rise to present revision petition, proper method for granting compensation would be to award appropriate rate of interest , company directed to pay awarded amount with 10% per annum interest.

8.       On the basis of the aforesaid discussion, ld.counsel for the complainant has vehemently contended that the complainant has been able to prove his case beyond any reasonable doubt. The opposite party is deficient in service when it failed to allow the claim preferred by the complainant on the basis of the loss reported by the complainant on the fateful day of 23/24.10.2011. It is contended that the complaint may be allowed and the loss claimed vide instant complaint may be granted in favour of the complainant with compensation and cost of the litigation, as prayed for.

9.       But,however, from the appreciation of the facts and circumstances of the case, it becomes evident that the complainant has miserably failed to prove that the incident allegedly occurred in between 23/24.10.2011 was a burglary. As a matter of fact the statement made by the complainant at the time of recording the FIR by Parveen Kumar clearly states that the culprits have been stealing the goods in a long period of time. The time frame within which the alleged incident of taking away the goods  took place, is not certain. Recovery of just 63 fans have been made, despite loss to the tune of 1337 which exhibits a big difference between recovery & actual loss. But in the case in hand it is  a case of pilferage more of siphoning off or theft which might be going on for the last so many years.

10.     Not only that it is  case of the complainant himself that the godown where the goods were stacked was joint with M/s. Daga & Company, a sister concern of the complainant. It was joint godown and the articles belonging to both the firms/companies were kept without any differentiation . Both the companies were dealing in the sale of  electric fans. In such a situation, it cannot be stated that the goods lost in the incident belonged to the complainant firm/company only and none of the goods belonging to the sister concern was stolen in the incident. The whole episode  require a thorough probe and a lot of evidence is required to be led. This Forum being vested with summary jurisdiction, cannot undertake trial  for determining the rights and liabilities of the parties. Even otherwise, also, the instant case falls within the ambit of theft, siphoning or pilferage , repudiation of the insurance claim cannot be questioned before the District Forum because the Insurance policy covered the risk of burglary only & no other type of risk was covered therein. Reliance in this respect can be placed upon Tecon Valves Pvt.Ltd Appellant Vs. New India Assurance Company Ltd IV(2013) CPJ 170 (UT) Chandigarh wherein it has been  held that in the face of the facts and evidence, on record, by no stretch of imagination, the incident, in the absence of force and violent entry, could be said to be relating to burglary . When there was no evidence to prove the act of burglary, the question of entertaining the insurance claim did not arise.

11.     As a matter of fact the opposite party took all the steps to settle the claim and investigator/surveyor was appointed to investigate the loss in the alleged incident but after investigation, it has been proved that there was no burglary in lieu of the policy. The main gate of the godown was never broken by the culprits. The property is insured against accidental loss and damage. However, in the present case , there was no damage or loss on account of burglary but it is a case of pilferage . It appears thieves over the period of some time were stealing the stocks  of fans slowly and the stock was being pilfered since long. The loss ultimately accumulated to such an extent finally that all the quantity found missing was crowned on the head of thieves . So far as, keeping in view the terms and conditions of policy, it is clear that as per contract of insurance, pertaining to burglary policy, the insured has not taken all reasonable steps to safeguard the property insured against  accidental loss and damage. The claimant has tried to find fault in the report of the second Surveyor namely Ram Gopal Verma and has questioned the veracity of his report on the ground that  the photographs placed on record Ex.OP17 to Ex.OP26 clearly show that part of the roof top of the godown is without plastic sheet(s), whereas the second investigator was appointed i.e. much after the alleged occurrence. There was no question to keep the opening of the roof of the godown intact at the time of alleged visit of the second investigator for such a long period of time. Even figure of loss mentioned on the top of photographs is shown to be Rs.17,11,206/- which was assessed by Sumant Sood Investigator. The contention of the complainant has been that these photographs were actually clicked by the first surveyor namely Sumant Sood and those have been pressed into service by the second investigator, simply to repudiate the claim of the complainant. But these factors do not make any difference because in the case in hand, complainant has miserably  failed to show that the alleged incident in which the loss of electric fans numbering 1337 odd has been stated to have occurred to the complainant, does not fall within the ambit of burglary. Rather the same has been proved to be a pilferage or siphoning of which was taken place in a number of years. Even the stocks which were allegedly pilfered did not entirely belong to the complainant. It is the admitted case of the complainant that the stocks of M/s.Daga & Co. HUF were also stacked there in the godown of the complainant and no separate arrangement of the goods of two concerns was made. In such a situation, it cannot be stated that the alleged goods allegedly pilfered belonged to the complainant in its entirety . Moreover,  the matter involved in the case in hand cannot be  decided summarily . Lot of evidence in the shape of documents & witnesses is required for ascertaining whether there was burglary or not or the goods lost in the incident belonged to which of the two concerns namely the complainant company and M/s. Daga & Company HUF ?

12.     Consequently, no fault can be found in the repudiation made by the opposite party. Rather this Forum being summary in nature cannot decide the complex matrix of law and facts. The parties, in their wisdom, could approach the appropriate Forum/Court for deciding the matter in accordance with law. Instant complaint stands disposed of accordingly. . Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

Announced in Open Forum

Dated : 06.05.2016

/R/                                                                         ( S.S.Panesar )

President

                              ( Kulwant Kaur Bajwa)           (Anoop Sharma)

                                                Member                         Member