BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.
Consumer Complaint No. 117 of 2015
Date of Institution: 27.02.2015
Date of Decision: 04.05.2016
M/s.Holy City International, 23-B, Albert Road, Opp.Hotel Kumar International, Amritsar through its Managing Partner Shri Sandeep Gupta.
Complainant
Versus
United India Insurance Company Limited, Divisional Office II, Dharam Singh Market, Amritsar through its Divisional Manager/ Principal Officer.
Opposite Party
Complaint under section 12, 13 & 14 of the Consumer Protection Act, 1986.
Present: For the Complainant: Sh.Sumit Bhatia, Advocate
For the Opposite Party: Sh. Sandeep Khanna, Advocate
Coram
Sh.S.S.Panesar, President
Ms.Kulwant Kaur Bajwa, Member
Mr.Anoop Sharma, Member
Order dictated by:
Sh.S.S. Panesar, President.
- M/s.Holy City International through its Managing Partner Sandeep Gupta has brought the instant complaint under section 12, 13 & 14 of the Consumer Protection Act, 1986 on the allegations that the complainant firm is a partnership concern and a distributor of Samsung Electronics India having its registered office at address mentioned in the head note of the complaint. Sandeep Gupta being managing partner of the complainant firm has been authorized to file the present complaint vide resolution dated 28.01.2015. The complainant had obtained Burglary & Fire insurance policies of the value of Rs.2 crores with the Opposite Party vide insurance policy No. 200300/46/10/04/00000428 dated 13.09.2010 after paying requisite premium to the Opposite Party. Said policy was valid for the period w.e.f. 13.9.2010 to 12.09.2011. As such, the complainant is consumer of the Opposite Party. The complainant firm used to keep the stocks of electronic goods in its godown situated at M/s.Gitanjali Packing Industry, Uppal Farm, Ajnala Road, Opposite Golden City Colony, Amritsar which is a rented premises and the supplies used to be made from said godown by the complainant firm as and when required. On 25.3.2011, Sandeep Gupta partner of the complainant firm after taking the requisite articles from the above mentioned godown, locked the godown properly and came back to his place. Thereafter, Sandeep Gupta again visited his godown at 10.00 AM on 28.3.2011 and to his utter disbelief, he found that the locks of main shutter of his godown being broken. As such, Sandeep Gupta entered his godown & found out that burglary had taken place on the intervening night of 25/28 March, 2011 and it was found that 8 pieces of LED/LCD of Samsung make having total approximate value of Rs.4,50,000/- were stolen in the said burglary mentioned above. All the 8 pieces of LCD/ LED were properly arranged by Sandeep Gupta in the godown on 25.3.2011 before closing the lock of the godown. The matter regarding said burglary was duly intimated by the complainant firm without any delay on 28.3.2011 itself to the Police Station Kamboh, Amritsar wherein FIR No. 17 dated 28.3.2011 was registered with said Police Station under section 457, 380 IPC against unknown accused/ burglars. A written intimation was also given to Opposite Party through State Bank of Patiala, Mall Road, Amritsar on 29.3.2011 as the insurance in question was obtained by the complainant through said bank. Said intimation was duly received and acknowledged on 29.3.2011 and it has also been subsequently acknowledged vide letter dated 26.4.2014. On the same day, after lodging the FIR with Police Station, Kamboh, Sandeep Gupta came to know that some other articles had also been stolen on the intervening night of 25/28 March, 2011 and informed the police accordingly and he gave the statement regarding theft of LCD, DVD, Television, Washing Machines and A.C. After physical verification of complete stock, the complainant firm made the assessment of the loss of 118 articles which were stolen on the intervening night of 25/28 March, 2011 (viz. 39 pieces of ACs, 24 pieces of CTVs, 16 pieces of LCD, 1 piece of LED, 1 piece of Plasma TV & 38 pieces of washing machines). The complainant firm gave written intimation to the police station, Kamboh pertaining to the total loss as detailed above vide its letter dated 13.4.2011 which was duly received by said police station on 13.4.2011. As such, upon said intimation by the complainant firm the IO concerned made a relevant entry in the form of Zimni in the police records. This intimation was also given to State Bank of Patiala as the insurance in question was obtained by the complainant through said bank alongwith receipt of stock loss statement submitted with police authorities and it has also been subsequently acknowledged vide letter dated 26.4.2014 by the said bank. The police arrested one accused Balraj Singh and recovered 2 CTVs and 4 LCDs on 15.4.2011 & subsequently the police arrested another accused Gursharanjit Singh (Vicky) & recovered 1 TV and 1 washing machine on 8.5.2012. Thereafter in another FIR No.6 dated 7.1.2013 the police also arrested an accused Parminder Singh & recovered 4 ACs & 2 washing machines on 7.1.2013. Challan under section 173 Cr.P.C. has also been filed by the Police Station, Kamboh pertaining to FIR No. 17 dated 28.3.2011 in the court of Ms.Shivani Sangar in which Police Station, Kamboh has confirmed burglary loss for Rs.14,40,892.51 paisa at Amritsar. It is worthwhile to mention here that Opposite Party had also appointed a surveyor and Loss assessor Sh.Rajesh Gupta, who submitted his report without investigating the matter and without getting any related documents from the complainant firm. As such, the report of Rajesh Gupta is false and fabricated and not binding on the complainant firm. Being dissatisfied with the report of Rajesh Gupta, the complainant firm made a representation vide letter dated 7.10.2013 to the Opposite Party for reconsidering the matter in question. Opposite Party agreed to the request of the complainant and after obtaining all the documents pertaining to arrest & recovery of articles mentioned in para No. 8 & 9, appointed Ram Gopal Verma, Surveyors & Loss Assessor, New Delhi. Sh.Ram Gopal Verma, scrutinized & verified al the documents pertaining to the burglary, arrest of the accused & recovery of articles including the details of investigation by the concerned police station & submitted his report to Opposite Party which verified that the claim in question is genuine one and recommended the same to be paid accordingly. Sh.Ram Gopal Verma, surveyor also sought certain queries from the complainant firm which were duly explained in detail by the complainant firm vide its letter dated 14.7.2014. Sandeep Gupta on behalf of the complainant firm also visited the office of Opposite Party personally many times and approached the concerned officials of Opposite Party for the redressal of their grievances and requested them to pay the entire claim amount of Rs.14,40,892. 51 paisa, but to no effect. Opposite Party has failed to pay the claim amount so far to the complainant. The complainant was surprised to receive a repudiation letter dated 8.12.2014 from the Opposite Party whereby the claim of the complainant was illegally repudiated by the Opposite Party on flimsy grounds which were against the actual facts and circumstances. The complainant has prayed for grant of the following relief against the Opposite Party.
- Opposite Party may be directed to make good the deficiency by paying Rs.14,40,892.51 paisa as the entire claim amount to the complainant.
- Opposite Party may be directed to pay Rs.5 lacs as compensation on account of harassment and agony and deficiency in service for four years.
- Opposite Party may be directed to pay Rs.50,000/- as costs of proceedings to the complainant.
Hence, this complaint.
2. Upon notice, Opposite Party appeared and contested the complaint by filing written statement taking preliminary objections therein inter alia that the complainant is not covered under the definition of ‘consumer’ as defined in Consumer Protection Act, 1986. As such, the complainant concern has no right to invoke the jurisdiction of this Forum; that the complaint filed by the complainant is otherwise bad for non joinder of necessary parties and cause of action. In this regard, it is submitted that State Bank of Patiala is a necessary party. Basically as per insurance manual if there is financier clause the claim is also raised by the said financier, then amount is payable to the said financier and not to the insured; that the complainant has violated the basic terms and conditions of the policy in question and hence the present complaint is not maintainable. The intimation regarding the alleged burglary was not given to the Opposite Party within the stipulated period but the complainant intimated about the same after a long delay on 18.4.2011; that the present complaint is not maintainable being based on a false and concocted version of the complainant altogether. While lodging FIR No. 17 on 28.3.2011 the complainant had specifically mentioned the number and amount of the goods allegedly stolen i.e. 8 pieces LCDs/ LEDs worth Rs.4,50,000/-. Said FIR was lodged after thorough checking of the affected godown by the partner of the firm. However, it is alleged that the partner of the complainant firm came to know that some other articles had also been stolen on the intervening night of 25/28 March, 2011 and he informed the police accordingly, which contention of the complainant is self contradictory and an after-thought; that as per the investigation report of the investigator, there is no forcible entry into the godown by the culprits while committing the alleged burglary. As such, it is quite apparent that the claim is not a genuine one and is not payable as per terms and conditions of the policy in question; that the complainant has not approached this Forum with clean hands and has tried to conceal the material facts; that the complainant is estopped by its own act and conduct from filing the complaint. The complainant had failed to register any subsequent FIR pertaining to the alleged loss of 118 goods, after the earlier FIR. Moreover, no amendment regarding the said stolen goods was made in the previous FIR No. 17 by the complainant. The Opposite Party also sought an explanation from the complainant pertaining to above said misrepresentations and contradictions, but the complainant miserably failed to give any explanation and / or any reason thereto. Therefore, the Opposite Party repudiated the claim on merits vide repudiation letter dated 8.12.2014 which was addressed to the complainant clearly stating that the claim was not payable; that the present complaint involves complicated questions of facts and law regarding alleged burglary and liability of the Opposite Party which can not be disposed of in a summary manner, as such, the complaint is liable to be relegated to Civil Court for elaborative trial. On merits, the fact of obtaining of insurance policy by the complainant from the Opposite Party is not disputed. However, the parties are governed as per the terms and conditions of the contract of insurance and exclusion clause thereof. In this regard, it is further reiterated that the complainant is not covered under the definition of ‘consumer’ as defined under the Consumer Protection Act, 1986. As such the complainant is not entitled to file the present complaint. It is further stated that the FIR in question is forged and fabricated and is lodged by the complainant in connivance with the police authorities. As per the investigation report of the investigator, there is no forcible entry into the godown by the culprits while committing the alleged burglary. As such, it clearly shows that the claim is not a genuine one and is not payable as per the terms and conditions of the policy in question. It is further stated that the claim has been rightly declined by the Opposite Party. The complainant is estopped by is own act and conduct from filing the present complaint. The complainant has failed to register any subsequent FIR pertaining to the alleged loss of 118 goods, after the earlier FIR. Moreover, no amendment regarding the said stolen goods was made in the previous FIR No. 17 by the complainant. The Opposite Party has rightly repudiated the claim on merits vide repudiation letter dated 8.12.2014. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.
3. In his bid to prove the case, ld.counsel for the complainant tendered into evidence the affidavit of Sandeep Gupta Ex.C1, copy of authority letter Ex.C2, copy of repudiation letter Ex.C3, intimation dated 29.3.2011 Ex.C4, intimation dated 11.4.2011 Ex.C5, intimation dated 13.4.2011 Ex.C6, intimation to SHO Ex.C7, representation dated 7.10.2013 Ex.C8, representation to OP Ex.C9, letters to investigator Ex.C10 and Ex.C11, challan of FIR No. 17 Ex.C12, copy of FIR No.17 Ex.C13, recovery memo Ex.C14, copies of Maps Ex.C15 to Ex.C18, arrest memo Ex.C19, recovery memos Ex.C20 and Ex.C21, investigation report Ex.C22, arrest memo Ex.C23, recovery memo Ex.C24, copy of FIR No.6 Ex.C25, recovery memo Ex.C26, challan of FIR No.6 Ex.C27 and closed the evidence on behalf of the complainant.
4. To rebut the evidence of the complainant, the Opposite Party tendered into evidence the insurance cover note Ex.OP1, copy of letter dated 16.10.2012 Ex.OP2, copy of letter dated 29.3.2013 Ex.OP3, copy of letter dated 27.12.2013 Ex.OP4, copy of letter dated 18.12.2012 Ex.Op5, copy of letter dated 24.12.2011 Ex.OP6, copy of insurance policy Ex.OP7, copy of insurance policy Ex.OP8, affidavit of Sh.H.K.Prinja, Divisional Manager Ex.OP9 and closed the evidence on behalf of the Opposite Party.
5. We have heard the ld.counsel of both the parties and have carefully gone through the evidence on record.
6. On the basis of evidence on record, Sh.Sandeep Khanna, Advocate counsel for the Opposite Party has vehemently contended that the alleged occurrence allegedly took place between 25.3.2011 and 28.3.2011 and statement of the complainant was recorded by the police on 28.3.2011 for lodging the FIR. In his statement made to the police, the complainant has stated that after verification 8 items were found stolen, regarding which FIR No. 17 dated 28.3.2011, copy whereof accounts for Ex.C13 on record was registered under section 457/380 IPC. But however, later on the complainant recorded supplementary statement on 13.4.2011, copy whereof accounts for Ex.C7, wherein it was stated that there was loss of 118 articles comprising LCDs, DVDs, Televisions, Washing Machines, ACs, etc. which are big items which has not taken such a long time for the complainant to ascertain the loss of the said big items which cast serious doubt on the version of the complainant party. There is no doubt that Sh.Rajesh Gupta was appointed in the case as investigator who assessed the loss. Sh.Rajesh Gupta, Investigator made detailed investigation, wherein he vide letter dated 24.12.2011, copy whereof is Ex.OP6 had stated that “the subsequent claim vide letter dated 13.4.2011 is an after thought as it should not have taken so much time to file the claim. In response to that we have received an e-mail from Shri Krishan Insurance Services wherein they have forwarded the reply to Holy City International. Now keeping in view the above, you are requested to depute an investigator to verify the genuineness of the claim and to verify whether Daily Dairy in respect of the goods claimed later on had been written or not and whether the goods stolen are part of the FIR or not.” Rajesh Gupta, Investigator has created a doubt over the genuineness of the claim of the complainant, therefore, being dissatisfied with the report of Rajesh Gupta, the complainant firm made a representation vide letter dated 7.10.2013, copy whereof accounts for Ex.C8 to the Opposite Party for reconsidering the matter in question. Once Rajesh Gupta had found the claim of the complainant to be doubtful, further investigation if any, was required to be got made from said Rajesh Gupta only and the secondary investigator Ram Gopal Verma appointed on the request of the complainant was neither legal nor advisable. Other discrepancy regarding the violation of the loss of the alleged articles was at the first instance estimated to be Rs.4,50,000/-, whereas on the basis of after thought version of the complainant it was raised to Rs.14,40,892.51 paisa.
7. Not only that, no use of force was allegedly used at the time of committing alleged burglary at the godown of the complainant. As such, the alleged incident can not be termed as burglary, it was either theft or pilferages or siphoning of the articles either by the employees of the complainant or by the thieves in a long span of time. But however, as per the terms and conditions of the insurance cover, the complainant was entitled to grant the insurance amount in case of burglary only, therefore the complainant has rightly been declined the insurance claim vide repudiation letter dated Ex.C3. It is further contended on behalf of the Opposite Party that the complaint filed by the complainant is without merit and therefore, the same is liable to be dismissed.
8. But, however, from the appreciation of the facts and circumstances of the case, it becomes evident that the godown belonging to the complainant firm was under insurance cover vide insurance policies, copies whereof are Ex.OP7 and Ex.OP8 for an amount of Rs.2 crores on payment of insurance premium to the tune of Rs.31,200/- and Rs.5,515/- respectively, at the relevant time. It is also proved on record that burglary took place at the godown of the complainant comprising 118 articles detail of which has been given in the complaint, on the intervening period of 25.3.2011 to 28.3.2011. The matter was reported to the police on the basis of which requisite FIR was registered at P.S.Kambo, copy whereof is Ex.C-13. The simple fact that at the first instance, loss of 8 articles was reported vide statement of the complainant for lodging FIR, but however, after verification of the godown, loss was found to be regarding 118 articles and the application dated 13.4.2011 was forwarded by the complainant to the police for initiating action accordingly. In this case, not only that the matter regarding burglary was reported, but the police also made recovery from three accused Balraj Singh, Gursharanjit Singh (Vicky) and Parminder Singh vide recovery memos Ex.C14, Ex.C20, Ex.C21, Ex.C24 and Ex.C26 respectively. The contention that no force was used at the time of committing the alleged theft/ burglary, but evidence is otherwise because the lock of the godown was found to be broken which itself shows that force was used for committing the burglary. In such a situation, it can not be stated that it was a case of theft, pilferages or siphoning allegedly claimed by the Opposite Party.
9. Much stress has been laid on the fact that earlier Rajesh Gupta had submitted report against the complainant party, rather he had requested for further investigation on the basis of amended claim filed by the complainant. On the request of the complainant, Opposite Party considered that fresh investigation was required to be undertaken in connection with burglary incidence. Accordingly, Ram Gopal Verma was appointed as an Investigator who thoroughly, investigated the case and submitted his investigation report Ex.C22 and found the insurance claim to the tune of Rs.12,87,312/-, in favour of the complainant. The report of the investigator can not be brushed aside and due weightage has to be accorded to the report of the investigator. In this regard, reliance can be placed upon Oriental Insurance Company Limited Vs. B.Ramareddy II(2006) CPJ 339 (NC) wherein it was held by Hon’ble National Commission that surveyor’s report is an important piece of evidence. Compensation can be awarded only on the basis of surveyor’s report. Hon’ble Supreme Court of India in case Sri Venkateshwar Syndicate Vs. Oriental Insurance Company Limited, II(2010) CPJ 1 (SC) has also held that the report of the surveyor is to be given due importance and weighage and it can not be brushed aside without valid reasons.
10. It is usual with the insurance companies that they induce customers to go in for obtaining insurance policies by showing them greener pastures,but, however, when the matter comes for payment of the insurance claim, the insurance companies coin flimsy and baseless excuses to avoid payment of the insurance claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. On this point, Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 has held to the following effect:-
“It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy.
The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.
11. From the appraisal of the evidence on record, it becomes evident that the complainant has been able to make out a case for grant of insurance claim to the tune of Rs.12,87,312/-. The defence taken by the Opposite Party is found to be ingenuine and baseless. Consequently, the instant complaint succeeds. We direct the Opposite Party to make the payment of insurance claim of Rs.12,87,312/- as assessed by surveyor, to the complainant within 30 days from the date of receipt of copy of this order, failing which the awarded amount shall carry interest @ 9% per annum from the date of passing of this order. Opposite Party shall also pay Rs.10,000/- as compensation for causing mental tension and harassment to the complainant besides Rs. 5000/- as litigation expenses. The complainant is at liberty to get this order enforced through the indulgence of this Forum. Copies of the order 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: 04.05.2016. (S.S.Panesar) President
(Anoop Sharma) (Kulwant Kaur Bajwa)
Member Member
