Complainant Sanjeev Kumar vide the present complaint filed U/S 12 of the Consumer Protection Act, 1986 (hereinafter for short The Act) for issuance of the necessary directions to the titled opposite party no.1 i.e. United India Insurance Company Ltd, Pathankot to pay Rs.9,07,790/- alongwith interest @ 18% P.A. from the date of complaint till its realization. Opposite party be also directed to pay Rs.20,000/- to him for mental agony and pain.
2. The case of the complainant in brief is that he is proprietor of the M/s.Durga Furniture House situated at Dhangu Road, Pathankot and he has taken an insurance policy from opposite party no.1 issued in the name of M/s.Durga Furniture House which is taken through State Bank of Patiala, as he is having limit in this bank bearing Account No.65174699845. Product No.BR-CC-Stocks-SSI on 6.09.2013 and the premium has been debited from his account on 6.9.2013 as opposite party no.1 have collaboration with the opposite party no.2 which is thereafter renewed on 16.10.2014. Hence he falls under the definition of Consumer. He has next pleaded that the policy includes the theft and the fire loss to the furniture and the stock lying in the Furniture house and in the workshop as most part of the furniture are made in the workshop. The workshop is part and parcel unit of the Furniture House and it is to be termed as one and the same unit. He is having dispute with his brother Ajay Kumar who had illegally entered into his Furniture House and had made theft of the articles lying in the Furniture house. An FIR No.14 dated 20.01.2015 has been lodged by him in the police station division no.2 Pathankot. The said FIR was lodged after the detailed enquiry by the police and the police have lodged the FIR after finding that his brother had illegally tress-passed into his Furniture House. He had raised a claim against opposite party no.1 amounting to Rs.9,07,790/- after completing all the formalities as demanded by opposite party no.1 against the theft of the said articles but opposite party no.1 has repudiated his claim vide letter dated 3.12.2015 on the false and flimsy ground which is totally illegal, pervasive and against the principles of law. Thus, there is deficiency in service on the part of the opposite party. Hence this complaint.
3. Upon notice, the opposite party insurer appeared through its counsel and filed its written version taking the preliminary objections that the present complaint is legally not maintainable as the dispute regarding the factum of possession and ownership/title of M/s.Durga Furniture house is Sub Judice between the parties in various Civil suits and Criminal proceedings pending in the District Courts, Pathankot titled as:-
a) Pushpa Rani Vs. Ajay Kumar, Case No.3091/14
b) Pushpa Rani Vs. Ajay Kumar, Case No.3093/14
c) Pushpa Rani Vs. Ajay Kumar, Case No.171/15
d) Sanjeev Kumar Vs. Ajay Kumar Case No.584/14, and
e) FIR No.14 dated 20.01.2015 U/s. 380, 506, 341, 457/34 registered with Division No.2 between the parties.
As such the present complaint is premature and deserves to be dismissed out rightly and the Ld.Forum is lacking jurisdiction to decide the present complaint as the question of title is involved between the parties and is pending at the Civil Pathankot. On merits, it was submitted that as per the report of the investigator, Royal Associates, Ambala, dated 11.05.2015 the complainant Sanjeev Kumar had made a statement before the investigator during his investigation that his brother Ajay Kumar has got the possession of the alleged workshop during his absence on 07.10.2013 and started work there in the name M/s.Durga Furniture House. He further disclosed that the work at the workshop as well as the showroom was closed from the date of alleged possession of the workshop taken over by his brother Ajay Kumar. He had further disclosed that he is not furnishing the stock statements in the bank since 20.08.2013 as the work stands closed from 07.10.2013 as such the question of theft does not arise. As per the version of the complainant the alleged theft took place in the year 2013 but the FIR was lodged on 20.01.2015 and the intimation regarding the theft was given on 29.01.2015. As per the general condition no.4 of the policy the insured has to inform the insurance company immediately whereas the loss was reported after a period of one and half years. Moreover there is a family dispute between the complainant and his brother against the property of their father and the matter regarding the same is sub-judice in the Civil Courts. As per the operative clause of the insurance policy of the opposite party no.1 the policy has not been operated since there was no forceful and violent entry/exit into or out of the premises. It has been further submitted that the alleged claim of the complainant is rightly repudiated by the opposite party no.1 the claim being false, frivolous and does not call for any relief through this application. All other averments made in the complaint has been vehemently denied and lastly prayed that the complaint may be dismissed with costs.
4. Upon notice, the opposite party no.2 appeared through its counsel and filed its written version taking the preliminary objections that the complaint of the complainant is bad for mis-joinder of party; the complaint is without any cause of action, hence liable to be dismissed; the complaint is absolutely false, frivolous and complainant is not entitled for any relief from this Hon’ble Forum as he has not come to the Forum with clean hands. On merits, it was denied that the forth ground taken is totally baseless as the workshop is just situated near M/s.Durga Furniture House or that the product no.BR-CCF-Stocks-SSI taken from the State Bank of Patiala who is running business in collaboration with opposite party no.1 clearly indicates that the complainant is running a small scale industry or that the workshop is the part and unit of M/s.Durga Furniture House or that it does not matter that whether the theft has taken place in the workshop or in the furniture house as the workshop is part and parcel unit of the furniture house or that most of the stock is lying in the workshop or that not in the furniture house or that the furniture house is only to display the articles. Opposite party lastly prayed that complaint may be dismissed with special costs u/s 35-A C.P.C.
5. Complainant tendered into evidence his own affidavit Ex.C-I, of Smt.Pushpa Rani Ex.C20 and of Smt.Bandhna Ex.C-28, along with the other documents exhibited as Ex. C2 to Ex C19, Ex.C-21 to Ex.C-27 and Ex.C-29 to Ex.C32 and closed the evidence.
6. Sh. Pardeep Singh, Sr.Branch Manager U.I.I. tendered into evidence his own affidavit Ex.OP1/1, alongwith the other documents Ex.OP1/2 to Ex.OP-1/9 and closed the evidence.
7. Counsel for the opposite party no.2 tendered into evidence affidavit of Harjit Kaur Chief Manager Ex.OP-2/A and closed the evidence.
8. We analytically observe with the judicial precision & find that the OP insurers have validly repudiated (Ex.C6 of 03.12.2015) the complainant’s insurance claim pertaining to the alleged ‘theft’ of insured stocks at the complainant’s workshop/business premises by his estranged (parent-disinherited) brother Ajay Kumar and his wife; who as per FIR # 14 of 20.01.2015 (Ex.C15) have been stealing and selling stocks of wood/timber & other goods like car, scooter, mobile etc after having illegally entered into the disputed premises on 04.10.2013. It also finds a reference to one earlier complaint # 1371-SP-D of 03.11.2014 (Ex.C16) and finally registers the present FIR U/s 380, 506, 341, 457, 34 IPC. The complainant has further produced documents Challan Form U/s 173 CRPC (Ex.C18) pertaining to FIR # 14 of 20.01.2015 referring to complaint of 03.11.2014 but with no reference to the Stolen Stocks as per the Insurance Claim List dated 08.03.2015 (Ex.C1p) as also of the exact date/period of theft etc. The civil court orders of 15.04.2014 (Ex.C19) and others refer to inter-se civil and criminal litigation amongst the family members with one of the ‘2’ brothers heading each group. The affidavit Ex.C20 of Pushpa Rani mother also deposes of the ‘2’ nos of continuing Cross FIRs # 14 & 146 of 20.01.2015 and 11.10.2013, respectively; besides civil suits # 3091/ 2014; 3093/ 2014; 171/ 2015 & 584/2014 that shows the long term animosity and litigation between the family members. Further, copies of cross-complainants to the police authority right from 08.10.2013, 10.10.2013, 16.10.2013 and 25.11.2014 (Ex.C21 to Ex.24) stand produced on record duly proving inter-se dispute of ownership amongst the family members. The other documents exhibited as Ex C25 to Ex.C30 and finally the disputed WILL (Ex.C32) further re-confirm the duality of ownership under adjudicatory litigation in the local civil as well as criminal courts of competent jurisdiction.
9. Lastly, we find that ‘theft’ amongst other issues (of disputed possession) has also been a ‘sub-judice’ matter and thus its insurance claim has been rightfully repudiated. We also find that the OP1 Insurers affidavit Ex.OP1/1 and other supporting documents Ex.OP1/2 to Ex.OP1/9 conform to the acceptable evidence on records of the complaint proceedings and the same also holds true for the affidavit OP2/A as produced by the OP2 Bank. We respectfully concur with the legal propositions as transpiring by virtue of the quoted NCDRC judgment in RP # 4066 of 2008 titled: Oriental Insurance Co Ltd., vs. Om Parkash Gupta and Anr.; but it again shall be of no assistance to the complainant since it deals with theft of goods with ‘possession’ held out in trust whereas the present complaint pertains to stolen goods with disputed possession.
10. In the light of the all above, and finding no worthwhile statutory merit in the present complaint, we ORDER for its dismissal with however no orders as to its costs.
11. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Naveen Puri)
President
Announced: (Jagdeep Kaur)
September 09, 2016 Member
*MK*
