Order by:
Sh.Amrinder Singh Sidhu, President
1. The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 on the allegations that complainant no.1 is a firm and this firm doing the work under the name & style of M/s Sharma Agency at Gali No.1, Durga Market, Bagh Gali, Moga Tehsil and District Moga and is a partnership firm and complainant no.2 Sunil Kumar Sharma is one of the partners of the complainant no.1 firm. So, being one of the partner and fully authorized and responsible for the acts done on behalf of complainant no.1, the complainant no.2 is competent to file the present complaint. Affidavit of complainant is Annex.C-1 & P/c of partnership deed is Annex.C-2. Further alleges that the complainant no.1 firm having business of sale and purchase of cosmetic goods and said firm is agent and distributor of selling the cosmetic goods in whole sale and the same is of different cosmetic companies. The complainant firm availed the finance amount for running the firm and took a cash credit facility/CC Limit for the complainant no.1 to the tune of Rs.20 Lac from Opposite Party No.3. Due to the said cash credit limit availed by the complainant no.1 through complainant no.2 from Opposite Party No.3-Bank insured the stock of complainant firm before the opposite parties no.1 and 2 vide Policy No.2012002616P115626603 to the tune of Rs.27,00,000/- from the period 23-02-2017 to 23-02-2018 after debiting the premium amount to the tune of Rs.14,044/- in the CC account of complainant no.1 firm and credited the same in the account of OP.no.1 & 2 who have tie up with Opposite Party No.3-Bank. The employees of opposite parties duly visited the premises of complainant no.1 and physically verified and inspected the stock lying in the shop of complainants and every year before receiving premium of insurance policies, the employees of Opposite Party No.2 on behalf of Opposite Party No.1 along-with the officials of Opposite Party No.3 since 2013 use to inspect the shop and stock of goods personally & after inspection and valued properly, they use to get the insurance of the stock lying in the shop of complainants, meaning thereby at the time of issuing policy in question from the period 23.03.2017 to 22.02.2018 they have insured the stock with the above said procedure and issued the policy in question. In this way, the complainant no.1 is a continuing policy holder from the last so many years of the opposite parties no.1 and 2 i.e. from the year 2013 and still the complainant no.1 firm is insured with the opposite parties no.1 and 2 for the next period i.e. from 23-02-18 to 22-02-19. Further alleges that on 11/12-02-2018 in mid night, some unknown persons broke down the lock of the shop of complainants i.e. M/s Sharma Agencies along-with three other adjoining shops in the same market and made theft in all the shops and all the stocks lying in the shop of complainants to the tune of Rs.33 Lac approximately out of which Rs.28 Lac stock was stolen which was duly insured with the opposite party no.1 and 2 has been stolen by them by breaking the lock of the shop of complainants and other three shops adjoining to the shop of complainant and in this regard one FIR No.37 Dt.12-02-2018, Under Section 457/380/427 of IPC, P.S.City South Moga has been lodged against four persons along-with fifteen unknown persons on the statement of complainant no.2 and all the details mentioned herein are mentioned in the said FIR and after thorough investigation challan has already been presented against all the accused i.e. 17 accused before the Ilaqa Magistrate along-with supplementary challan and they were appeared in the said case after getting bail. Immediately after lodging the FIR, complainant no.2 informed about the said incident to opposite party no.3 who further informed Opposite Parties No.1 and 2 by given a written letter Dt.13-02-2018 which was duly received by opposite party no.3. After the receipt of said letter from complainant no.2, the opposite parties no.1 and 2 appointed one surveyor/investigator namely K.S. Bawa & Company who visited the spot and investigated the matter regarding the loss suffered by complainants due to the theft/burglary in the shop of complainants. On the next day i.e. on 14-02-2018 the said investigator issued a letter to the complainants & demanding some documents as mentioned in the said letter Dt.14-02-2018. Thereafter one letter Dt.23-02-2018 was also issued by OP.no.2 to the branch manager of OP.no.3 that “you have not provided the estimate of loss suffered by your client along-with the details of stolen articles”, upon which OP.no.3 informed the same to complainant no.2. That on 24-02-2018 after receiving information from OP.no.3 regarding the letter Dt.23-02-2018, one written request letter was addressed to Branch Manager of opposite party no.2 by the complainant no.2 on behalf of complainant no.1 with a request and with a specific reason mentioned in the letter Dt.24-02-2018 that he wants some time approximately ten days for submitting the documents as demanded by OP.no.1 & 2 by issuing a letter Dt.23-02-2018 and submitted the same before the surveyor and the said letter was received by the insurance company on 26-02-2018. On 06-04-2018 and thereafter again on 23-04-2018, complainant no.2 submitted all the documents by mentioning the details in a written letter along-with documents to the insurance company for processing the claim of the complainants and after receiving the said letter they assured the complainant that his claim will be processed as early as possible as they have received all the documents and tried to process and passed the claim as early as possible. After submitting all documents including stock statements, bills etc. before the opposite parties no.1 & 2 and before their surveyor they again issued a letter no.RSI/B/18/149 and directed the complainant no.2 to submit the claim form, upon which complainant given the reply that “he has submitted all the formalities/documents required by you for the processing of my claim, but they said that your complete documents have been received except a claim form which is mere a formality for processing the claim”, upon which complainant demanded claim form from them by writing letter Dt.17-05-2018 and thereafter claim form was filled up and submitted by complainant no.2 to the opposite parties no.1 & 2 with a written letter Dt.07-08-2018 along-with the claim form and stock statements upto 11-02-2018 which was also acknowledged by the OP.no.1 & 2 and the claim was registered by the opposite parties no.1 & 2 vide claim no.2012002617C50007001/1 and after receiving the claim form they again assured that “your claim form will be processed shortly”. Thereafter again a number of times complainant no.2 received letters from opposite parties no.1 and 2 regarding demanding of documents which were also submitted by the complainant vide letter Dt.08-10-2018 and 11-10-2018 and the said letters and documents were duly received by the opposite parties no.1 & 2. Again on 28-01-2019 one letter received by complainant no.2 from the opposite parties no.1 & 2 regarding the demand of non traceable report from the police authorities accepted by the Hon’ble Court for further processing the claim of complainants and the same letter again received on 22-02-2019 and 05-03-2019 with a threat from the opposite parties no.1 & 2 to the complainants that “in case you have not submitted the same they will close the claim file of complainants being no claim” which is a false ground made by the opposite parties no.1 & 2 to forfeit the legal and genuine claim of the complainants after a lapse of approximately one year from the date of receiving the documents as well as from the date of incident which is otherwise not a requirement to process the claim of complainants but only to forfeit the genuine claim the said letters have been issued. That after receiving the above said letters again complainant wrote a letter Dt.05-03-2019 in lieu of the reply to the letter Dt.05-03-2019 issued by OP.no.1 & 2 and addressed to opposite party no.2 by mentioning the facts that out of theft goods police authority was recovered the goods for the value of Rs.1,25,000/- only out of the total loss to the tune of Rs.32 Lac from the shop of complainant and also mentioned in the letter that said partly stock recovered is lying in the Judicial Malkhana and requested them that “you can move an application before the Ilaqa Magistrate and assess the value of the recovered articles and in this situation police has not issued the non traceable report as demanded by Opposite Parties vide different letters being partly stolen stock recovered”. The said letter Dt.05-03-2019 was also received by the opposite parties no.1 & 2 from the complainant no.2, which is attached herewith. After receiving the said letter Dt.05.03.2019 the complainant on the request of opposite party no.1 and 2 and to process the claim again under the threat of OP.no.1 & 2 to close the claim file again moved an application before the concerned Ilaqa Magistrate and requested the Hon’ble Court to give directions to the investigating officer of the FIR no.37 Dt.12-02-2018, P.S. City South Moga to prepare the list of partly recovered articles out of stolen articles along-with its market value for the purpose of submitting before the opposite parties no.1 & 2 which was also allowed by the Ilaqa Magistrate and gave directions to the investigating officer to prepare the list of recovered articles lying in the Judicial Malkhana in the presence of complainant as well as in the presence of surveyor or any official of the opposite parties no.1 & 2. Thereafter after receiving the order from the Ld. Ilaqa Magistrate, the concerned SHO of P.S. City South Moga prepared a list of partly recovered articles lying in Judicial Malkhana along-with its market value in the presence of complainant as well as in the presence of surveyor of the opposite parties no.1 & 2 and submitted a report before the Hon’ble Ilaqa Magistrate along-with the list of recovered articles which was to the tune of Rs.1,25,000/- only. Thereafter the report and list of recovered articles along-with the photographs clicked at the time of said inspection were given to the opposite parties no.1 and 2 and the said report was also submitted by the surveyor of the insurance company to his insurance company, but again after receiving the said documents as demanded by them the opposite parties no.1 & 2 again issued a letter Dt.12.07.2019 by repudiated the claim of the complainants duly insured with them vide the policy already mentioned in the title of the complaint on flimsy grounds that the complainants have not filled the non traceable report as well as on the ground that accused of the case has not been arrested which is otherwise not a ground to repudiate the claim and moreover the only duty of the complainants as per the policy terms and conditions to inform about the theft to the insurance company immediately which he has done as mentioned above, but OP.no.1 & 2 intentionally and to forfeit the genuine claim repudiate the claim of the complainants, hence the present complaint has been filed. That the complainants are entitled to get insurance claim of Rs.30 lakhs on the basis of insurance policy stated above. There was no fault on the part of complainant in any manner. The complainant is also entitled for compensation of Rs.10 lakhs on account of mental tension, harassment and deficiency in services for not settling and deciding the claim even after receiving all the documents as required by them. That even after the due investigation the opposite parties have not paid the insurance claim to the complainants and more than 2 years has been lapsed from the date of incident and one year from the date of repudiation of the claim, but the opposite parties no.1 & 2 are putting on the matter on one pretext or the other and opposite party no.3 is also hand in glove with the OP.no.1 & 2 and also charged interest from the complainants in lieu of the CC account which will also be recoverable from the O.P.no.1 & 2 as they have delayed the claim of the complainants due to which the complainants were forced to pay the interest to OP.no.3. Moreover, due to the repudiation of claim by the OP.no.1 & 2, OP.no.3 initiated proceedings against the complainant for the recovery of CC Limit due to which OP.no.3 also issued notice for the recovery to the complainants through its counsel. Opposite Parties No.1 and 2 have been intentionally and knowingly harassing the complainant on one pretext or the other. Due to the total damage and loss, the complainant has been put to great hardship and his income has totally come to an end. The complainant has become penny less person and present he has no source of income. That the complainants were regularly paying the insurance premium from the last so many years to the opposite parties no.1 and 2 to cover any loss or damage and as such the complainants have paid huge amount to the respondents during the last so many years as insurance premium. Now when the loss has been occurred, the opposite parties no.1 & 2 are not paying the claim to the complainants and are delaying the payment by one way or the other and they have clear cut intention to forfeit the legal and genuine claim of the complainants. The complainant no.2 had visited the office of opposite parties no.1 & 2 many a times before issuing a letter Dt.12-07-2019, but to no effect and thereafter also the complainant no.2 visited the office of OP.no.2 a number of times, but lastly a week back the opposite parties no.1 and 2 have flatly refused to pay the insurance claim, so the cause of action has arisen to the complainants to file the instant complaint initially on 12-07-2019 when the OP.no.1 & 2 repudiate the claim and thereafter a week back at the final refusal of OP.no.1 & 2. In this way, said conduct of the Opposite Parties clearly amounts to deficiency in service and as such, the Complainant is left with no other alternative but to file the present complaint. Vide instant complaint, the complainant has sought the following reliefs.
a) Opposite Parties may be directed to pay an amount of Rs.30 lakhs for the recovery of loss occurred to the complainants due to the burglary/theft of stocks lying in the shop of complainants to the tune of Rs.33 Lac approximately as per the stock statement along-with the original bills and other valuable documents, legal documents passport of complainant no.2 etc. which was lying in the shop of complainant, on the midnight of 11/12-02-2018 which was (all kinds of cosmetic goods, general merchandize goods or any goods stored in the shop of insured) duly insured with the opposite parties no.1 and 2 from the period 23-02-2017 to 23-02-2018 through Policy No.2012002616P115626603 to the tune of Rs.27,00,000/- after receiving the premium to the tune of Rs.14044/- from the complainants along-with interest @12% p.a, in the name of complainants,
b) An amount of Rs.10 lakhs as compensation for mental tension, harassment and agony suffered by complainant, to the complainant, jointly and severally.
c) An amount of Rs.77,000/- as litigation expenses.
d) Or any other relief which this District Consumer Commission may deem fit and proper.
2. Opposite Parties No.1 and 2 appeared through counsel and contested the complaint by filing the written version on the ground inter alia that the complaint is not maintainable; that there is no deficiency in service on the part of the Opposite Parties and that the complaint is absolutely false and frivolous. The true facts are that the complainant got insured his stock lying in the shop vide Shopkeepers Insurance Policy vide policy No.2012002616P115626603 valid for the period w.e.f. 23.02.2017 to 22.02.2018. On the intervening night of 11/12/.02.2018 some unknown persons broken down the lock of the shop of the complainant and stolen the stock lying in the shop worth Rs.28 lakhs. Opposite Party No.3 informed the answering Opposite Parties about the said incident and Opposite Parties No.1 and 2 immediately appointed the surveyor to investigate the claim and the surveyor opined that in absence of the non traceable report, the claim is not payable. However, the surveyor has assessed the loss to the extent of Rs.14,10,705/- and accordingly Opposite Parties No.1 and 2 vide their letter dated 28.01.2019 written to the complainant to provide non traceable report from the policy authorities duly accepted by the Hon’ble Court, but inspite of repeated requests and reminders, the complainants have not filed non traceable report and after going through the claim file, the Opposite Parties No.1 and 2 comes to the conclusion that the claim lodged is not payable at this stage and thus the claim was repudiated vide letter dated 12.07.2019 and hence, there is no deficiency in service on the part of the Opposite Parties No.1 and 2. On merits, Opposite Parties No.1 and 2 took up almost the same and similar pleas as taken up by them in the preliminary objections. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint was made.
3. Opposite Party No.3 appeared separately through counsel and contested the complaint by filing the written version on the ground inter alia that the complaint is not maintainable; that there is no deficiency in service on the part of Opposite Party No.3. No cause of action arose to the complainants against the answering Opposite Party. Moreover, the Opposite Party No.3 is not liable to pay any claim as claimed by the complainants. It is admitted that the complainant availed the cash credit facility to the tune of Rs.20 lakhs from the Opposite Party No.3. It is admitted that the stock of the complainant was insured with Opposite Parties No.1 and 2 as per policy in question. The answering Opposite Party is entitled to recover the dues of facility availed by the complainant. Moreover, the complainant is not entitled to recover any claim from the Opposite Party No.3. If the complainant is entitled to any claim from Opposite Parties No.1 and 2, then Opposite Parties No.1 and 2 be directed to pay the compensation to Opposite Party No.3 for repayment of facility availed by the complainant on the hypothecation of stock for which the complainant alleged to be stolen and hence, the complaint against Opposite Party No.3 is false and frivolous and the same may kindly be dismissed against Opposite Party No.3 being not maintainable.
4. In order to prove his case, the complainant has tendered into evidence his affidavit Ex.C1 alongwith copies of documents Ex.C2 to Ex.C36 and closed his evidence.
5. On the other hand, to rebut the evidence of the complainant, Opposite Parties No.1 and 2 tendered into evidence affidavit of Sh.R.N.Bansal Ex.Ops1 & 2/1 alongwith copies of documents Ex.OP1 & 2/2 to Ex.Ops1 & 2/8 and closed the evidence on behalf of the Opposite Parties No.1 and 2. Similarly, Opposite Party No.3 also tendered into evidence the affidavit of Sh.Tarsem Lal, Branch Manager Ex.Ops3/1 and closed their evidence.
6. We have heard the ld.counsel for the parties, perused the written submissions filed by the parties and gone through the documents placed on record.
7. During the course of arguments, ld.counsel for the Complainant has mainly reiterated the facts as narrated in the complaint and contended that the written version filed on behalf of Opposite Parties No.1 and 2 has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. Opposite Party No.1 is limited Company and written version has been filed on the basis of special power of attorney given to ld.counsel for Opposite Parties No.1 and 2. Further contended that the complainants firm doing the work under the name & style of M/s Sharma Agency at Gali No.1, Durga Market, Bagh Gali, Moga Tehsil and District Moga and is a partnership firm and complainant no.2 Sh.Sunil Kumar Sharma is one of the partners of the complainant no.1 firm. So, being one of the partner and fully authorized and responsible for the acts done on behalf of complainant no.1, the complainant no.2 is competent to file the present complaint. Moreover the policy in question was issued in the name of complainant no.1 Sharma agency and this fact is admitted and fully proved by complainants & also proved from the documents. Annex.C-1 to Annex.C-4 referred to. The complainant no.1 firm having business of sale and purchase of cosmetic goods and said firm is agent and distributor of selling the cosmetic goods in whole sale and the same is of different cosmetic companies. It is also mention here that complainant firm availed the finance amount for running the firm and took a cash credit facility/CC Limit for the complainant no.1 to the tune of Rs.20 Lac from OP.no.3 7 this fact is also proved and admitted by Opposite Parties. Annex.C-5 are referred to. Further contended that due to the said cash credit limit availed by the complainants from the OP.no.3 i.e. Canara Bank insured the stock of complainant firm before the opposite parties no.1 and 2 vide Policy No.2012002616P115626603 to the tune of Rs.27,00,000/- from the period 23-02-2017 to 23-02-2018 after debiting the premium amount to the tune of Rs.14044/- after visiting the employees of opposite parties duly visited the premises of complainants and also physically verified and inspected the stock lying in the shop of complainants, meaning thereby at the time of issuing policy in question from the period 23-02-2017 to 22-02-2018 they have insured the stock with the above said procedure and issued the policy in question. It is also mention here that the complainants are continuing policy holder from the last so many years of the opposite parties no.1 and 2 i.e. from the year 2013 and still the complainant no.1 firm is insured with the opposite parties no.1 and 2 for the next period i.e. from 23-02-18 to 22-02-19. Annex.C-6 to C-8 are referred to. On 11/12-02-2018 in midnight, some unknown persons broke down the lock of the shop of complainants along-with three other adjoining shops in the same market and made theft in all the shops and in this regard one FIR No.37 Dt.12-02-2018, U/s;457/380/427 of IPC, P.S; City South Moga has been lodged against four persons along-with fifteen unknown persons on the statement of complainant no.2 and all the details mentioned herein are mentioned in the said FIR and after thorough investigation challan has already been presented against all the accused. Annex C9 to C11 are referred to. Immediately after the FIR the complainant no.2 informed about the said incident to opposite party no.3 who further informed the OP.no.1 & 2 by given a written letter Dt.13-02-2018 which was duly received by opposite party no.3. Annex.C-12 are referred to. After the receipt of said letter from complainant no.2, the opposite parties no.1 and 2 appointed one surveyor/investigator namely K.S. Bawa & Company who visited the spot and investigated the matter regarding the loss suffered by complainants due to the theft/burglary in the shop of complainants and this fact is not disputed one & admitted by opposite parties. Annex.C-13 & C-14 are referred to. After that a number of communication through documents was communicated and demanded by Opposite Parties and every time the same were supplied to the investigator of Opposite Parties as Annex.C-15 to C-17 referred to. After submitting the all documents including stock statements, bills etc. before the opposite parties no.1 & 2 and before their surveyor they again issued a letter no.RSI/B/18/149 and directed the complainants to submit the claim form, which was also acknowledged by the OP.no.1 & 2 and the claim was registered by the opposite parties no.1 & 2 vide claim no.2012002617C50007001/1 and after receiving the claim form they again assured that the complainant’s claim form would be processed shortly. Annex C-18 to C-26 are referred to. Again on 28-01-2019 one letter received by complainant no.2 from the opposite parties no.1 & 2 regarding the demand of non traceable report from the police authorities accepted by the Hon’ble Court for further processing the claim of complainants and the same letter again received on 22-02-2019 and 05-03-2019 with a threat from the opposite parties no.1 & 2 to the complainants that in case he has not submitted the same they will close the claim file of complainants being no claim which is a false ground made by the opposite parties no.1 & 2 to forfeit the legal and genuine claim of the complainants after a lapse of approximately one year from the date of receiving the documents as well as from the date of incident which is otherwise not a requirement to process the claim of complainants but only to forfeit the genuine claim the said letters have been issued. Copies of letters Dt.28-1-2019, 22-02-19 and 05-03-19 are attached herewith as Annex.C-27 to C-28. Further contended that after receiving the above said letters again complainant wrote a letter Dt.05-03-2019 in lieu of the reply to the letter Dt.05-03-2019 issued by OP.no.1 & 2 and addressed to opposite party no.2 by mentioning the facts that out of theft goods police authority was recovered the goods for the value of Rs.1,25,000/- only out of the total loss to the tune of Rs.32 Lac from the shop of complainant and also mentioned in the letter that said partly stock recovered is lying in the Judicial Malkhana and requested them that “you can move an application before the Ilaqa Magistrate and assess the value of the recovered articles and in this situation police has not issued the non traceable report as demanded by you vide different-different letters being partly stolen stock recovered”. The said letter Dt.05-03-2019 was also received by the opposite parties no.1 & 2 from the complainant no.2, which is attached herewith as Annex.C-29. Further, after receiving the said letter Dt.05-03-2019 the complainant on the request of opposite party no.1 and 2 and to process the claim again under the threat of OP.no.1 & 2 to close the claim file again moved an application before the concerned Ilaqa Magistrate and requested the Hon’ble Court to give directions to the investigating officer of the FIR no.37 Dt.12-02-2018, P.S; City South Moga to prepare the list of partly recovered articles out of stolen articles along-with its market value for the purpose of submitting before the opposite parties no.1 & 2 which was also allowed by the Illaqa Magistrate and gave directions to the investigating officer to prepare the list of recovered articles lying in the Judicial Malkhana in the presence of complainant as well as in the presence of surveyor or any official of the opposite parties no.1 & 2. Copy of application and order passed thereon is attached herewith as Annex.C-30 & 31. Thereafter, on receiving the order from the Ld. Ilaqa Magistrate the concerned SHO of P.S; City South Moga prepared a list of partly recovered articles lying in Judicial Malkhana along-with its market value in the presence of complainant as well as in the presence of surveyor of the opposite parties no.1 & 2 and submitted a report before the Hon’ble Ilaqa Magistrate along-with the list of recovered articles which was to the tune of Rs.1,25,000/- only. Annex.C-32 & C-33. Ld.counsel for the complainant further contended that thereafter the report and list of recovered articles along-with the photographs clicked at the time of said inspection were given to the opposite parties no.1 and 2 and the said report was also submitted by the surveyor of the insurance company to his insurance company, but again after receiving the said documents as demanded by them the opposite parties no.1 & 2 again issued a letter Dt.12-07-2019 by repudiated the claim of the complainants duly insured with them vide the policy already mentioned in the title of the complaint on flimsy grounds that the complainants have not filled the non traceable report as well as on the ground that accused of the case has not been arrested which is otherwise not a ground to repudiate the claim and moreover the only duty of the complainants as per the policy terms and conditions to inform about the theft to the insurance company immediately which he has done as mentioned above, but OP.no.1 & 2 intentionally and to forfeit the genuine claim repudiate the claim of the complainants, hence the present complaint has been filed. Copy of repudiation letter Dt.12-07-2019 is attached herewith as Annex.C-34. That another point is whether the complainant firm is registered firm. On this point, Hon’ble Supreme Court of India titled as Shiv Developers Vs. Aksharay Developers, decided on 31/01/2022 has held that EVEN UNREGISTERED FIRM CAN ALSO FILE SUIT AS WELL AS COMPLAINT THERE IS NO BAR ON THE SAME. Other point is that the surveyor report is most important given by the Opposite Parties no.1 & 2 and further this District Consumer Commission has no power to decide complaint as voluminous evidence need to be recorded and only power with civil court and the same is also not applicable in this complaint duly refers in judgment dated 18/08/2021 the same is also not applicable and in this regard NATIONAL INSURANCE COMPLANY LTD.VS HARESHWAR ENTERPRISED WHERE COURT HELD THAT SURVEYOR REPORT IS NOT THE LAST AND FINAL WORD AND THE REPORT CERTAINLY CAN BE TAKEN NOTE AS A PIECE OF EVIDENCE AS RELIABLE EVIDENCE IS ON RECORD TO REBUT THE SAME D/O 18/08/2021 and hence, the Opposite Parties may be directed to make good the loss of the hypothecated stock of the complainant and allow the complainant as per the claim filed by the complainant.
8. On the other hand, ld.counsel for Opposite Parties No.1 and 2 has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that that there is no deficiency in service on the part of the Opposite Parties and that the complaint is absolutely false and frivolous. The true facts are that the complainant got insured his stock lying in the shop vide Shopkeepers Insurance Policy vide policy No.2012002616P115626603 valid for the period w.e.f. 23.02.2017 to 22.02.2018. On the intervening night of 11/12/.02.2018 some unknown persons broken down the lock of the shop of the complainant and stolen the stock lying in the shop worth Rs.28 lakhs. Opposite Party No.3 informed the answering Opposite Parties about the said incident and Opposite Parties No.1 and 2 immediately appointed the surveyor to investigate the claim and the surveyor opined that in absence of the non traceable report, the claim is not payable. However, the surveyor has assessed the loss to the extent of Rs.14,10,705/- and accordingly Opposite Parties No.1 and 2 vide their letter dated 28.01.2019 written to the complainant to provide non traceable report from the policy authorities duly accepted by the Hon’ble Court, but inspite of repeated requests and reminders, the complainants have not filed non traceable report and after going through the claim file, the Opposite Parties No.1 and 2 comes to the conclusion that the claim lodged is not payable at this stage and thus the claim was repudiated vide letter dated 12.07.2019 and hence, there is no deficiency in service on the part of the Opposite Parties No.1 and 2. Further, the contention of ld.counsel for Opposite Party No.3 is that if the complainant is entitled to any claim from Opposite Parties No.1 and 2, then Opposite Parties No.1 and 2 be directed to pay the compensation to Opposite Party No.3 for repayment of facility availed by the complainant on the hypothecation of stock for which the complainant alleged to be stolen.
9. First we come to the point of maintainability of this complaint. So far as maintainability of the Complaint is concerned, Hon’ble National Commission, New Delhi in Harsolia Motors v National Insurance Company Ltd. [I (2005) CPJ 26 (NC)] has held that a contract of insurance is a contract of indemnity and, therefore, there is no question of commercial purpose in obtaining insurance coverage. In view of law laid down by Hon’ble Supreme Court, the Complainant is a “Consumer” and the Complaint before this District Consumer Commission was maintainable. In this regard, recently Hon’ble National Commission, New Delhi in First Appeal No. 1142 of 2014 titled as M/s.Integrated Solutions Vs. Oriental Insurance Company Limited, decided on 17th February, 2020 also held so. On the question of whether Complainant is a Consumer or not as defined under the Act, we would like to quote the Judgment of Hon’ble Supreme Court Canara Bank Vs. M/s United India Insurance Co.Ltd. & Ors., Civil Appeal No.1042 of 2020 decided on 6.2.2020, in which the issue of who is a “Consumer” has been discussed at length. It has been noted that definition of ‘Consumer’ under Section 2 (1) (d) (ii) of the Act is very wide and includes person who hires or avails any services for a consideration. Therefore, we are of the considered view that this objection of the Opposite Party-Insurance Company does not hold ground and needs to be ignored.
10. Perusal of the contention of the ld.counsel for the complainant shows that the written version filed on behalf of Opposite Parties No.1 and 2 has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. Opposite Party No.1 is limited Company and written version has been filed on the basis of special power of attorney given to ld.counsel for Opposite Parties No.1 and 2. In this regard, Hon’ble Supreme Court of India in a judgment (2011)II Supreme Court Cases 524 titled as “State Bank of Travancore Vs. Kingston Computers India Pvt. Ltd.” and in para no.11 of the judgment, has held that
“the plaint was not instituted by an authorized person. On the plea that one authority letter dated 02.01.2003 was issued by Sh. R.K.Shukla in favour of Sh. A.K.Shukla. Further plaint failed to place on record its memorandum/articles to show that Sh. R.k.Shukla has been vested with the powers or had been given a general power of attorney on behalf of the Company to sign, verify and institute the suit on behalf of the Company.”
Similar proposition came before the Hon’ble Delhi High Court in “Nibro Ltd. Vs. National Insurance Co. Ltd.”, 2 (2005) 5SCC 30 that the
“bear authority is not recognized under law and ultimately, it was held that the plaint was not instituted by an authorized person. Here also appellant has not placed on record any resolution passed by any Board of Director in favour of Mr. Soonwon Kwon and that he was further authorised to delegate his power in favour of any other person. Further there is no memorandum/articles of the Company to show that Mr. Soonwon Kwon is one of the Director of the Company. In the absence of that evidence on record we cannot say that the special power of attorney given by Director Soonwon Kwon is a competent power of attorney issued in favour of Sh. Bhupinder Singh. In the absence of any resolution of the Company or any memorandum/articles of the Company to show that Sh. Soonwon Kwon is Director and that he was further authorised to issue power of attorney in favour of Sh. Bhupinder Singh.”
Recently our own Hon’ble State Commission, Punjab Chandigarh in FAO No.1235 of 2015 decided on 25.01.2017 in case titled as L.G.Electronics India Private Limited Vs. Sita Ram Chaudhary also held that the plaint instituted by an unauthorized person has no legal effect.
11. For the sake of arguments, for the time being, even if the written reply filed by Opposite Parties No.1 and 2 is presumed to be correct, the next plea raised by Opposite Parties No.1 and 2 is that on the intervening night of 11/12/.02.2018 some unknown persons broken down the lock of the shop of the complainant and stolen the stock lying in the shop worth Rs.28 lakhs. Opposite Party No.3 informed the answering Opposite Parties about the said incident and Opposite Parties No.1 and 2 immediately appointed the surveyor to investigate the claim and the surveyor opined that in absence of the non traceable report, the claim is not payable. However, the surveyor has assessed the loss to the extent of Rs.14,10,705/- and accordingly Opposite Parties No.1 and 2 vide their letter dated 28.01.2019 written to the complainant to provide non traceable report from the police authorities duly accepted by the Hon’ble Court, but inspite of repeated requests and reminders, the complainants have not filed non traceable report and after going through the claim file, the Opposite Parties No.1 and 2 comes to the conclusion that the claim lodged is not payable at this stage and thus the claim was repudiated vide letter dated 12.07.2019.
12. Perusal of the case shows that the only plea raised by the Opposite Parties No.1 and 2 for repudiating the claim of the complainant is that the complainant has not provided the non traceable report from the police authority and due to this reason, the claim lodged by the complainant was repudiated vide letter dated 12.07.2019. Moreover, the surveyor who was appointed by Opposite Parties No.1 and 2 has assessed the loss to the tune of Rs. Rs.14,10,705/-, but due to the aforesaid reason, the claim of the complainant is not payable. But bare perusal of the documents placed by the complainant in support of his contention shows that these required documents have already been produced by the complainant to the Opposite Parties No.1 and 2 for the settlement of the claim and the copies of documents i.e. copy of FIR Ex.C9 alongwith accused details as well as copy of rapat rojnamcha issued by P.S.City South, Moga, copy of challan presented by the police Ex.C10, copy of supplementary challan Ex.C11, copy of letter regarding intimation of theft Ex.C12, copy of letter Ex.C15, copy of submission of documents Ex.C16, Ex.C17, Ex.C18, Ex.C19, copy of insurance claim form Ex.C20, copy of detail of stock lost Ex.C22, Ex.C23, copy of further submission of documents Ex.C24, Ex.C25, copy of stock statement cum MSOD issued by Canara Bank Ex.C26 vide which the Opposite Party No.3 duly authenticated the stock statement alongwith copy of balance sheet as on 31.03.2018 showing the stock, copy of letter Ex.C28, copy of legal notice Ex.C35, and these documents have nowhere denied by the Opposite Parties No.1 and 2 in their written reply as well as in duly sworn affidavit of Sh.R.N.Bansal Ex.Ops1 & 2/1 Divisional Manger, but without any reason, the Opposite Parties No.1 and 2 have not settled the claim of the complainant regarding the theft of hypothecated stock of his shop only on the ground that the non traceable report has not been submitted. But it is not the duty of the complainant to get produce the non traceabale report as it is upon the police authority to issue the non traceable report within a reasonable time. In this regard, it has been held by Hon’ble National Commission, New Delhi in case M/s.Delkon (India) Pvt.Ltd Vs. The Oriental Insurance Company Limited III(1993) CPJ 313 (NC) that the complainant can not be denied his claim on the ground that final report was not forthcoming. It was further held that when complainant had lodged FIR but has not received the final report from the police, there is no contractual obligation under the policy of insurance for the insured to produce final investigation report from the police. The same view has been taken by Hon’ble Andhra Pradesh State Commission in case New India Assurance Company Limited Vs. Yadvalli Gangadevi I(2004) CPJ 263 as well as by Hon’ble Delhi State Commission in case Ridhi Gupta Vs. National Insurance Company Ltd. III(2008) CPJ 459. In view of the above discussions, we are of the opinion that Opposite Parties No.1 and 2 were not justified in closing the case of the complainant without any reason.
13. It is not denied that the complainant firm availed the finance amount for running the firm and took a cash credit facility/CC Limit for the complainant no.1 to the tune of Rs.20 Lac from Opposite Party No.3. Due to the said cash credit limit availed by the complainant no.1 through complainant no.2 from Opposite Party No.3-Bank insured the stock of complainant firm before the opposite parties no.1 and 2 vide Policy No.2012002616P115626603 to the tune of Rs.27,00,000/- from the period 23-02-2017 to 23-02-2018 after debiting the premium amount to the tune of Rs.14,044/- in the CC account of complainant no.1 firm and credited the same in the account of OP.no.1 & 2 who have tie up with Opposite Party No.3-Bank. But on the other hand, the surveyor who was appointed by Opposite Parties No.1 and 2 has assessed the loss to the tune of Rs. Rs.14,10,705/-, but we failed to understand on which account, the surveyor of the Opposite Parties No.1 and 2 has assessed the loss to such meagre amount and no such reason has been a assigned by the surveyor of the Opposite Parties No.1 and 2 for reducing the claim amount of the complainant. On the other hand, the complainant has vehemently contended that the loss occurred to the complainants due to the burglary/theft of stocks lying in the shop of complainants to the tune of Rs.33 Lac approximately as per the stock statement along-with the original bills and other valuable documents, and these hypothecated stock has duly been authenticated by Opposite Party No.3-Bank from whom the complainant firm has obtained the Cash Credit Limit against these stocks. We are of the opinion that if there are some flaws in the surveyor’s report, it is not binding upon the insured/insurer. We are further fortified with the judgment of the Hon’ble Supreme Court reported in (2009) CPJ 46 (SC) titled “New India Assurance Company Limited v. Pardeep Kumar” wherein it has been laid down that surveyor’s report is not the last and final word. It is not that sacrosanct that it cannot be departed from; it is not conclusive. The approved surveyor’s report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured. Hon’ble State Consumer Disputes Redressal Commission, in First Appeal No.370 of 2019 decided on 19.01.2022 in case titled as Vishav Jindal Versus Lombard General Insurance Company Limited, also held so. The relevant para of the order passed by Hon’ble State Consumer Disputes Redressal Commission, Punjab at Chandigarh is reproduced as under:-
“We are of the opinion that if there are some flaws in the surveyor’s report, it is not binding upon the insured/insurer. We are further fortified with the judgment of the Hon’ble Supreme Court reported in (2009) CPJ 46 (SC) titled “New India Assurance Company Limited v. Pardeep Kumar” wherein it has been laid First Appeal No. 370 of 2019 12 down that surveyor’s report is not the last and final word. It is not that sacrosanct that it cannot be departed from; it is not conclusive. The approved surveyor’s report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured’
Furthermore, Hon’ble Supreme Court of India in New India Assurance Company Limited Vs. Luxra Enterprises Private limited (2019) 6 SCC 36 (Paragraph-21) has held that the stock, hypothecated with the Bank, who had first charge on it, was verified by the bank, can not be ignored by the Insurer. In this regard, Hon’ble National Consumer disputes Redressal Commission, New Delhi in Consumer Case no.101 of 2009 titled as Mahalaxmi Dyers & Chemicals Limited Vs. new India Assurance Company Limited, decided on 7th September, 2021 also held so. Hence, keeping in view the aforesaid judgement of Hon’ble Supreme Court as well as Hon’ble National Commission, New Delhi and Hon’ble State Commission, Punjab at Chandigarh (supra), the aforesaid report of the surveyor can not be deemed to be correct.
14. Ld.counsel for the Opposite Parties No.1 and 2 relied upon the order of Hon’ble National Consumer Disputes Redressal Commission, New Delhi titled as Amit Lakhanpal Vs. M/s.Granite Gate Properties Private Limited, but the present citation is not applicable on the case I nhand because in Amit Lakhanpal case supra, the complaint is filed by Amit Lakhanpal in personal capacity, but in the complaint in hand, the complaint is duly filed by Partnership Firm itself through its partner. Moreover, Order XXX of CPC, 1908 is not binding in proceedings before District Consumer Commissions as per Regulation 26 Miscellaneous of Consumer Protection Regulations, 2005 (Now Consumer Protection (Consumer Commission Procedure), Regulations 2020) that (1) In all proceedings before the Consumer Commission, endeavor shall be made by the parties and their agent to avoid the use of provisions of Code of Civil Procedure, 1908 (5 of 1908): Provided that the provisions of the Code of Civil Procedure, 1908 may be applied which have been referred to in the Act or in the rules made thereunder. Consumer Protection Act specifically states that only those provisions of CPC 1908 shall be applicable which are specifically made applicable through Consumer Protection Act, 2019 (Consumer Protection (Consumer Commission Procedure), Regulations 2020) are made applicable by the legislation. Furthermore, Hon’ble Supreme Court of India, in case Gurshinder Singh Vs. Shriram General Insurance Company Limited and Ors. 2020 (4) while reiterating the verdict passed in the case of Om Prakash Vs. Reliance General Insurance and Anr. Civil Appeal No.15611/2017 (5) has held that insurance claims should not be declined on technical grounds, if the reason behind it is satisfactorily explained and proved. It was further opined by the Hon’ble Court that if the insurance claim is declined by the Insurer because of untimely intimation of occurrence of theft, it would be considered as a technical aground of rejection and the same would be unjust and not fair, if the respective claim in question has already been verified.
15. In such a situation the repudiation made by Opposite Parties No.1 and 2 regarding genuine claim of the complainant appears to have been made without application of mind. It is usual with the insurance company to show all types of green pesters to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the 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. In similar set of facts the 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 went on to hold as under:-
“It seems 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.
16. Now come to the quantum of compensation. The complainant has claimed the total loss occurred to them due to the burglary/theft of stocks lying in the shop of complainants to the tune of Rs.33 Lac approximately as per the stock statement along-with the original bills and other valuable documents, and these hypothecated stock has duly been authenticated by Opposite Party No.3-Bank from whom the complainant firm has obtained the Cash Credit Limit against these stocks. But it is not disputed that the complainant has purchased the Policy bearing No.2012002616P115626603 to the tune of Rs.27,00,000/- from Opposite Parties No.1 and 2 for the period 23-02-2017 to 23-02-2018 and hence, at the most, this District Consumer Commission can not allow the claim of the complainant more than Rs.27 lakhs taking the assistance of the view expressed by the Hon'ble Apex Court and also by the Hon'ble National Commission, and keeping in view the terms of the policy and the unrebutted hypothecated stock lying at the time of theft in the shop of the complainant.
17. Ld.counsel for Opposite Party No.3 has strongly contended that if the complainant is entitled to the claim amount from Opposite Parties No.1 and 2, then Opposite Parties No.1 and 2 be directed to pay the compensation to Opposite Party No.3 for repayment of facility availed by the complainant on the hypothecation of stock for which the complainant alleged to be stolen. As such, we allow the complaint accordingly.
18. Under Clause 9 of Insurance Regulatory and Development Authority (Protection of Policy Holder’s Interest) Regulation 2002 interest is payable on the loss, after expiry of 6 months of the loss. In the present case, the loss occurred on 12.02.2018 as such, the Opposite Parties No.1 and 2-Insurance Company is liable to pay interest w.e.f. 12.08.2018.
19. In view of the aforesaid facts and circumstances of the case, we partly allow the complaint of the Complainant against Opposite Parties No.1 and 2-Insurance Company, to the tune of Rs.27 lakhs (Rupees twenty seven lakhs only) as per insurance policy alongwith interest @ 8% per annum from 12.08.2018 i.e.(after expiry of 6 months of the loss as occurred on 12.02.2018) till its actual realization and direct the Opposite Parties No.1 and 2-Insurance Company to firstly clear the due amount of facility availed by the complainant on the hypothecation of lost stock of Opposite Party No.3-Bank and the remaining amount, if any, be remitted to the complainant out of the awarded amount of Rs.27 lakhs alongwith interest as awarded above. Opposite Parties No.1 and 2-Insurance Company is also directed to pay the lump sum compensation to the complainant to the tune of Rs.10,000/- (ten thousands only) on account of harassment, mental tension and litigation expenses. The compliance of this order be made by Opposite Parties No.1 and 2-Insurance Company within 45 days from the date of receipt of this order, failing which the complainant shall be at liberty to get the order enforced through the indulgence of this District Commission. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.
20. Reason for delay in deciding the complaint.
This complaint could not be decided within the prescribed period because the State Government has not appointed any of the Whole Time Members in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021 as well as due to pandemic of COVID-19.
Announced in Open Commission.
Dated:08.03.2022.
