ORDER Speaking through Smt.Meenakshi Kulkarni, Lady Member.
1. This complaint is filed on 30.01.2009 under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the “Act”) against the Opposite Party (in short the OP) for awarding Rs.79,697=00 along with 12% interest, Rs.15,000=00 for mental agony, Rs.5,000=00 for cost of litigation etc.
2. The facts of the case in nutshell as is narrated by the complainant are as follows: The complainant is a Managing Partner cum Dealer of I.B.P. Co. Ltd. and his running a Petrol and Diesel pumps under name and style “Sri. Yalaguresh Petroleum”, near Nidagundi on NH-13 Road. He insured his business with OP under Policy No.670906/48/05/00584 which was valid for a period from 05.08.2005 to 04.08.2006. The said policy covered the risk of money for payment of wages, salaries and the other earnings and the money in the personal custody and also collected by the appointed workers under him. On 21.06.2006 at about 12-30 in the night, some un-known persons entered the premises of the said Petrol Pump and assaulted the employees and the stole a sum of Rs.79,697=00 from the locker and the Cash Counter. The said incident was registered by his Employee Sri.Vijaykumar Jakkannavar in Muddebihal Police Station under the Crime No.136/2006. At the time of giving the said information, the employee was unaware of the cash kept in the Cash Counter and the locker. So, he wrongly submitted the stolen amount in the said incident of Rs.26,000=00 only. He was unaware of the business transaction held on 19.06.2006 from 8-00 AM to 12-00 AM and the said amount being kept in the locker in the office premises. However, he specifically stated at the time of the complaint that the exact amount being stolen from the premises would be revealed only after verifying outlet sale bills and readings of the pumps. Thereafter, on the same day i.e. on 21.06.2006 subsequent complaint was filed before the Police Station by the complainant stating the actual monitory loss caused due to the theft in the said incidence being to the tune of Rs.79,697=00. It was also submitted that the said submission filed before P.S.I. Muddebihal should be taken as part and parcel of the FIR. The Insurance Policy of the complainant covered the risk of indemnity for monitory loss due to robbery, theft and other natural calamities. Hence, the said claim is covered under the Policy. The complainant is an indemnity holder of the said Policy. So he submitted the claim to the OP along with all the necessary documents. On the receipt of the same, OP raised the objection with regard to the banking transaction on the next day of the incident with respect to deposit of the sum of Rs.54,800=00 in the bank and called for the explanation by a letter dated: 05.10.2007. The complainant submitted the same to the OP. However, OP did not act upon the said submission so the complainant issued a legal notice on 30.06.2008 calling upon to pay the loss and settle the claim within stipulated time of 15 days. However, OP did not act upon the same. Hence the complaint.
3. After receipt of the notice, OP Counsel filed the objections. In this, OP totally denies the complaint as false and vexatious. The statement of the complainant that Rs.79,697=00 were stolen on 21.06.2006 and registration of the Police Complaint with the wrong figure of Rs.26,000=00 are totally denied by the OP-Counsel. The OP appointed Mr. Birejdar & Co., Chartered Accountants as an independent Surveyor and Loss Assessor to carry-out the loss caused to the complainant due to the theft. The said Investigation Report was submitted under Report No.6510 dated: 10.07.2007. In this, the loss due to the theft was assessed at Rs.23,624=00. So, OP immediately offered to pay the said actual loss to the complainant. But, the complainant refused and neglected to accept the same. Hence, OP prays to dismiss the complaint with cost.
4. The complainant counsel has filed 20 documents in support of his case which are marked as Exhibit C1 to C20 and OP Counsel has filed only one document in support of his case which is marked Exhibit OP1. Perused all the documents.
5. Both the parties have filed affidavit in lieu of evidence. Now the following points do arise for our consideration in deciding the case. They are: (i) Whether OP has rendered deficiency in service to the complainant entitling him to the claim as is sought for? (ii) What Order?
6. Our Findings to these points are as hereunder: i) Affirmative, ii) As per the operative portion of the Order here below.
7. We shall substantiate our findings on the following: R E A S O N S POINT NO.1: Exhibit C1 is the original Insurance Copy field by the complainant. Exhibit C2 and C13 are the true copy of the FIR. Exhibit C5 is the Spot Panchanama. Perused all these documents. In this, it is seen that Vijaykumar Rayanna Jakkannavar has filed this FIR with Muddebihal Police Station under Crime No.136/2006. In this, he had admitted that the total cash of Rs.26,000=00 is stolen. Exhibit C4 is an additional statement given by the complainant on 21.06.2006 to PSI Muddebihal in support of the original FIR as noted above. Exhibit OP1 is the Investigation Report submitted by M/s Birajdar & Co., Chartered Accountant who is an independent Surveyor and Loss Assessor at Solapur. The main contention in this complaint is towards the loss of actual cash to the tune of Rs.79,697=00 as claimed by the complainant as against assessed by OP to the tune of Rs.23,623.88 which is arrived by the Chartered Accountants appointed by the OP-Company. We perused the additional Statement given by the complainant to the P.S.I. Muddebihal with the Investigation Report of OP. In this, the diesel pump outlet I and II and petrol pump outlet of I and II on 19.06.2006 to 20.06.2006 from 8-00 AM to 8-00 AM are produced in total. There is no dispute among between the parties as to quantity of liters of diesel sold and the cash received. The same tallies with the observations made by the Chartered Accountants on the petrol pump outlet I and II and diesel pump outlet I and II on 19,06.2006 and 20.06.2006 and also of 21.06.2006 from 8-00 AM to 8-00 AM. All the cash entries as is claimed by the complainant are tallying with the corresponding entries made by the Chartered Accountant in his Investigation Report including the cash received from Mr. S.S.Patil towards credit sales recovery on 20.06.2006. The figure arrived by the OP’s investigator for the robbery on the midnight on 20.06.2006 is Rs.23,623.88 after deducting the cash deposited on 21.06.2006 of Rs.54,800=00. For this, an explanation from complainant has stated that the cash which is deposited in given by the complainant the S.B. Account on 21.06.2006 is out of the sale proceeds on 21.06.2006 after the Panchanama and Police Investigation was over. This is out of the sales which started on 21.06.2006 at 8-00 AM in the morning till 3-30 PM. The said explanation was called for by the OP vide letter dated: 12.03.2007 towards in the name of the complainant Exhibit C6. When such explanation is already given by the complainant, there was no need for OP to continue with the deduction of Rs.54,800=00.
The OP should have the settled the claim at Rs.78,423.88 as his arrived by the independent loss and surveyors appointed by themselves. We believe the affidavit of the complainant to this effect because this explanation was given in-writing on 05.11.2007 by the complainant to the quarries raised by the OP himself. The Investigation Report is dated: 10.07.2007. The explanation of depositing the amount of Rs.54,800=00 on 21.06.2006 was submitted by the complainant on 05.11.2007. Under such circumstances, the OP should have considered the said submission and settled the same at Rs.78,423.88 as is arrived by their independent investigator M/s Birajdar and Co., Chartered Accountant. This is because all other transaction including sale of petrol and diesel and deposit of money in the banks, name of the attenders on the petrol pump etc. tally with each other.
On Page No.1 of the said Investigation Report, the documents on which the said Investigation Report is prepared the listed-out. When such a detail investigation is made by a qualifying independent loss assessor, there was no need for OP to doubt on the explanation given by the complainant. If at all OP had any doubt of the said deposit of money on 21.06.2006, OP could have again gone in details about the corresponding document to rule-out the doubt which is not done by the OP. On Page No.2 of the said Investigation Report in column No.3, the presumed explanation for deposit of Rs.54,800-00 is given as under : “It appears that the cash deposited on 21.06.2006 in State Bank of India, Nidgundi Branch Rs.54,800=00 is out of diesel, petrol and oil sales of partly 20.06.2006 and partly 21.06.2006 upto 3-30 pm and only remaining cash balance is lost due to burglary from the pump” With this, it can be seen that it is not confirmed opinion based on the basis of the documentary evidence. This is because all the calculations as seen in the Annexure-A on both the dates i.e. 19.06.2006 and 20.06.2006 totally tally in quantity of liters sold, amount of cash received, amount of cash deposited in the bank and other expenses done in the cash.
The total cash receipts of 20.06.2006 is already deposited and is admitted by the Chartered Accountants. Under such circumstances, the deduction of Rs.54,800=00 only on account of suspicion is wrong especially when the same is explained by the other-side party. The short notes of cash flow admitted by OP’s Expert is as under: Date Name of Attender Sale of Deisel/ Petrol, Oil etc. Cash Collected Cash Deposited Bank Deposit/ Other exps. 19.6.06 Hanumant 2010.60 litres Oil: 578-00 76076.28 7295=00 12931=00 50000=00 6426.50 19.6.2006 Bank LIC Prem. 20.6.2006 Bank 20.6.2006 Bank 19.6.06 Haggi 357.00 Ltrs Petrol 17907.50 2204=00 10000=00 5703.50 19.6.2006 Bank 20.06.2006 Bank 20.06.2006 Bank 20.06.06 Haggi 374.00 Ltrs Petrol Oil 20607.40 550.66 3296=00 500=00 17362=00 20.6.2006 Bank Pigmy Stolen (21.6.06 Bank) 20.06.2006 Vinay 2004.60 ltrs Diesel Oil 75773.38 60.00 14572-00 200=00 61061=88 20.06.2006 Bank Driver Stolen 21.6.2006 Bank The stolen cash shown above is deposited in Bank on 21.6.2006 whereas the theft has already taken place in midnight at 12-30 when it is so, the deposit of Rs.54,800=00 on 21.6.2006 is necessarily out of the sale proceeds of 21.6.2006 from 8=00 AM to 3=00 PM.
8. Hence, we are of the opinion that the deduction of Rs.54,800=00 from the total amount with the pump attendant arrived by the investigation is not legal and not supported by the documentary evidence. This is the deficiency in service rendered by the OP. Hence, we answer to Point No.1 in affirmative.
9. POINT NO.2: The complainant has prayed for Rs.79,697=00 towards the actual loss of money. In the reports submitted by the independent Surveyor and Loss Assessor appointed by the OP-Counsel and this report figures out the loss at RS.78,428=88. This difference is due to 32 liters of petrol used on 19.06.2006 for testing and Gophless. However, we goby the same and in our opinion, the complainant is entitled to Rs.78,428=00 towards the loss of cash on the date of the theft. The complainant also prays for Rs.50,000=00 towards mental agony and Rs.5,000=00 towards cost of litigation. In our opinion, Rs.5,000=00 towards mental agony and Rs1,000=00 towards cost of litigation will meet the ends of justice. In view of the aforesaid discussion, we proceed to pass the following: O R D E R 1) The complaint of the complainant is partly allowed. 2) The OP is hereby ordered to pay 78,428=00 (Rupees seventy eight thousand four hundred twenty-eight) towards theft of cash of the complainant in his business premises within 2 months of passing of this Order, failing which complainant is entitled to interest at the rate of 10% per annum from the date of filing of this complaint, till its entire realization. 3) The OP is also ordered to pay Rs.5,000-00 (Rupees five thousand) towards mental agony & Rs.2,000-00 (Rupees two thousand) towards the cost of this litigation to the complainant. There is no interest towards the mental agony and cost of litigation.