Meghalaya

StateCommission

FA/6/2008

Oriental Insurance Co. Ltd - Complainant(s)

Versus

M/s Hanuman Hardware Store - Opp.Party(s)

Mr. S. Jindal

20 Jun 2014

ORDER

 

 

 

 

MEGHALAYA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

SHILLONG

 

F.A No. 6 of 2008

 

BEFORE

 

Hon’ble President: Mr. Justice P.K. Musahary (Retd.)

Hon’ble Senior Member: Mr. Ramesh Bawri

 

 

1.             The Chairman, Oriental Insurance Co. Ltd, New Delhi

 

2.             The Regional Manager, Oriental Insurance Co. Ltd, Guwahati

 

3.             The Divisional Manager, Oriental Insurance Co. Ltd, Shillong

 

                                                                                                ………Appellants

Versus

                                   

      M/S Hanuman Hardware Store, Shillong

                                                                                                ………..Respondent         

 

 

 

For the Appellants                  :        Shri. S. Jindal, Advocate

                                                             

For the Respondent               :        Shri. S.P Sharma, Advocate

 

Date of judgment                    :        14.11.2014

 

Whether to be reported          :        No

 

Judgment and Order

 

Per: Shri Ramesh Bawri, Senior Member: The case of the Complainant before the learned District Forum was that he is a reputed businessman dealing with all kinds of hardware goods under the name and style of M/S Hanuman Hardware Store, Wahthapbru, G.S.Road, Shillong. The Complainant had insured his shop under the shopkeepers Insurance Policy with OP No-3 vide Policy Certificate bearing Insurance Policy No. 322406/2004/44/1094 dated 26/3/2004 with validity period up to 25/3/2005. That on the night of 18/9/2004, some miscreants broke into the shop premises of the Complainant and stole a huge quantity of hardware goods, paints, building material and money. The miscreants had also damaged the goods and furniture in the shop and an FIR was lodged with the officer-in-charge 29 Cantonment Police Beat House, Shillong. OP No-3 was informed by the Complainant about the incident on 19.09.2004. OP No-3 appointed Shri. S.Das Purkayastha as a Surveyor and carried out a detailed investigation on the spot. Required documents were produced before him in original and he made an inventory of the stock after burglary and asked the Complainant to submit the Claim Form along with documents. On 30.9.04 the Complainant submitted the Burglary Claim Form, Xerox copy of the FIR lodged with the Police, copy of the Policy document, amount claimed against theft, extract of stock register indicating the total value of stock, inventory stock after theft, list of total value of the stock after burglary, copies of invoices, bills, cash memos, consignment note and other vouchers, copy of Income Tax Return filed with ITO, copies of sale tax return filed with Superintendent of Taxes, copies of trading License and copies of the photographs taken by the Police. The Police submitted the final report u/s 457/380 IPC as true but no clue and a copy was given to OP No-3 on 29.8.05. On 1.9.05 and 12.9.05 the Claimant had written reminders to OP No-3 to which there was no response. Under the Insurance Regulatory and Development Authority it was mandatory for OP No-3 to complete investigation and release the amount within 30 days but in the instant case the OP had failed to do so. On 22.09.05 the Surveyor of the OP had asked the Complainant to submit the estimate of loss, Audited Trading Account, Profit & loss Account, Balance sheet with income tax return for the financial year 2001-02, 2002-03 & 2003-04, Audited Trading Account, Profit & loss account, Balance sheet for the period 1.4.04 to 18.9.04, Sale Tax return for the last six years, Purchase Memo for the period 1.4.04 to 18.9.04, Stock Register up to 18.9.04, Monthly bank stock statement for the last one year, Inventory of stock before loss 18.9.04, Police Report, Filled up Claim Form and License copy. The Complainant in response to the above had furnished the documents required on 23.9.05. On 15.11.05 the Complainant had written a reminder again to OP No-3 and a legal notice was issued on 6.8.06. OP No-3 did not reply to the legal notice issued by the Complainant. Due to negative and casual attitude of OP No.-3, the Complainant had to file a Complaint and claimed as follows: -

 

(a) Claim amount                                                      Rs.   5,81,121/-

 

(b) Interest @ 15% from 18.9.04 to 5.2.07            Rs.   2,07,690/-

 

(c) Cost on account of mental agony                   Rs.   2,80,000/-

 

(d) Amount incurred on correspondence                        Rs.     28,000/-

 

(e) Lawyer's fees                                                       Rs.     10,000/-

 

(f) Cost of typing etc                                                            Rs.      12,000/-

 

         TOTAL                                                               Rs. 11,08,811/-

 

 

2.         The OP's filed joint show cause on 18.4.07. The OP’s admitted that information about the burglary on 18.9.04 in the Complainant’s shop was received on 19.9.04. On 20.9.04, Shri. S.Das Purkayastha, BE, Surveyor and Loss Assessor went to the shop of the Claimant and made a preliminary report of burglary claim. It was observed that the shop was ransacked and materials were lying scattered. The exit passage of the burglars with the materials was not at all conducive to take huge quantity of stocks consisting of hardware materials which are heavy items. The burglars had to lift the materials to the roof of the next building and cross over nearly thirty feet wide roofing of the next building with materials before reaching the vehicle. The materials stolen were not less than three truck loads. The preliminary surveyor asked the Complainant to produce the Estimate of loss, Audit trading account, profit and loss account, balance sheet with income tax return for the financial year 2001-02,2002-03, 2003-04; trading account, profit and loss account, balance sheet for the period 01.04.04 to 18.9.04; inventory stock as on 18.9.04 for both the shop and godown prior to the incident of the burglary; Sale tax return for the last six years and half return; all purchase memos and sale memos for the period 01.04.2003 to 31.3.2004 and 01.04.04 to 18.9.04; Stock register up to the date of loss; Monthly bank stock statement for the last one year; Police report; filed up claim form and license copy. The Complainant did not submit the all documents as above and the Surveyor could not ascertain the exact quantum of loss and submitted his report on 10.11.04 that no assessment could be made by him for this reason. In this view of the matter on 28.3.2005 the OP’s closed the claim as ‘No Claim’. Thereafter the OP appointed M/S P.Purkayasta and Associates, Surveyors and Loss assessors Guwahati for making final burglary survey report and the Complainant was requested to submit the aforesaid documents as advised by the preliminary surveyor. The Complainant, on 29.8.05, after almost a year submitted the stock statement before burglary without stock register and hence there was no scope to cross check or verification. The stock statement was not authenticated. The stock after burglary could not be physically verified but there was no acceptable material produced by the Complainant to ascertain the stock prior to 18.9.04. Further the Complainant was advised to submit audit trading; profit and loss and balance sheet for 2001-02,2002-03 and 2003-04 but had submitted unaudited and unsigned accounts of 2001-02 and 2003-04 only and not for the year 2002-03. The Complainant was also advised to submit all the purchase memos and sale memos for the period 1.4.03 to 31.3.04 and 1.4.04 to 18.9.04. The Complainant submitted only a few purchase vouchers but no sale vouchers were submitted. The Complainant had failed to submit the upto date stock register of loss. Thereafter on the request of the Complainant made on 15.11.2005, the OP’s re-opened the file. On 11.9.06, the OP’s requested the Complainant to submit the required documents within 15 days so that the claim could be settled failing which the claim would again be treated as no claim. The Complainant again failed to submit the documents as advised and the claim was again closed on 17.10.2006 with intimation to the Complainant. At this stage the Complainant approached the learned District Forum and filed Consumer Complaint No. 8 of 2007 on 16.02.2007.

 

3.         The issues framed and decided by the learned District Forum were (i) Whether the Complainant is a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986? (ii) Whether there is negligence or deficiency in service by the OP? (iii) Whether the Complainant is entitled to any compensation? (iv) Any relief entitled to by the Complainant.

 

4.         Having heard the parties and perused the materials on records, the case was decided by the learned District Forum on 18.08.2008 on the various issues as follows:

 

(i) Whether the Complainant is a consumer within the meaning of Section 2(l)(d) of the Consumer Protection Act, 1986? : - The Complainant and the OP No-3 are residing within Shillong of East Khasi Hills District located within the jurisdiction of the Forum. The burglary had taken place on the 18.9.04. The Complainant had informed the OP about the incident on the 19.9.04 as admitted by the OP in the show cause. The claim was not settled in spite of the fact that many documents had been sent by the Complainant as directed by the OP. The Complainant had written a letter dt 1.9.05 and 12.9.05 to the OP to settle the claim early. On 22.9.05 the Surveyor of the OP had requisitioned some documents from the Complainant and the Complainant submitted the same on the 23.9.05. On 6.8.06 the Complainant filed a legal notice to the OP for settlement of the claim. The OP vide letter dt 11.9.06 reminded the Complainant about their letter dt 26.7.06. Hence the cause of action of the instant case arose on

18.9.04, 1.9.05, 12.9.05, 22.9.05, 23.9.05 and 11.9.06 which were within two years. The issue is decided in the affirmative and in favour of the Complainant.

 

(ii) Whether there is negligence or deficiency in service by the OP?

The burglary had taken place on the 18.9.04 and the Claimant informed the OP No-3 on the 19.9.04. The OP appointed the Surveyor, Shri.S.Das Purkayastha who had carried out the investigation and directed the Complainant to file the claim form along with other documents. On 30.9.04 the Complainant submitted (a) Burglary Claim Form (b) Xerox copy of the FIR lodged with the Cantonment Police Beat House (c) Xerox copy of the Policy document (d) List stating the net amount claimed against the theft of goods, cash stolen from the counter and damages to furniture and fittings (e) extract of stock register stating the total value of goods in the shop at the time of burglary (f) Xerox copy of inventory of stock after burglary as taken and confirmed by the Surveyor (g) List stating the total value of the stock after burglary (h) Xerox copy of invoices, bills, cash memos, consignment notes and other vouchers in support of the claim (i) Xerox copy of the Income tax Return filed with ITO Ward-I, Shillong (j) Xerox copies of sale tax return filed with the Superintendent of Taxes, Circle-III, Shillong (k) Xerox copy of Trading License issued by the Khasi Hills Autonomous District Council (l) Copies of still photos taken by the police during the preliminary investigation. The documents were duly received by the OP on 4.10.04. On 29.8.05 the Complainant submitted the final report of the police to the OP which was received by the OP on the same day. There was no intimation received from the OP and on 1.9.05 and 12.9.05 reminders were sent by the Complainant about his claim. On 22.9.05 the Surveyor of the OP had asked the Complainant to submit (i) Estimate of loss (ii) Audited Trading Account, Profit & Loss Account, Balance Sheet with Income Tax Returns for the Financial year 2001-02, 2002-03,2003-04 (iii) Audited Trading Account, Profit & Loss Account, Balance Sheet for the period 1.4.04 to 18.9.04 (iv) Sale Tax Return for last 6(six) half yearly return (v) Purchase memo & Sale Memo for the period 1.4.04 to 18.9.04 (vi) Stock Register up to date of Loss 18.9.04 (vii) Monthly wise Bank Stock Statement for last one year if any (viii) Inventory of Stock before Loss 18.9.04 (ix) Police Report (x) Filled up claim Form (xi) License copy. The Complainant submitted the above documents on the 23.9.05 which were duly received by the OP on the same day. Since the Claim was not settled within 30 days time the Complainant submitted a letter to the OP on the 15.11.05 to know about his Claim. As there was no response from the OP the Complainant had sent a Legal Notice to the OP on 6.8.06. On 11.9.06 the OP had sent a letter to the Complainant for submission of the (i) Stock book for the period 2003-04 and from 1.4.04 to 18.9.04 (ii) Purchase Voucher for the above period (iii) Income Tax Returns copies with computation sheet for the assessment year 2004-05 duly certified by Income Tax Department as true copy of return submitted (iv) Income Tax record for the year 2002-03 and 2003-04 with computation sheet for assessment years duly certified by the Income Tax Department (v) Letter of undertaking & Subrogation. The Complainant stated that these documents were submitted twice to the OP earlier. The OP did not reply to the legal notice sent by the Complainant. The OP defended his case that the Complainant submitted the document required by the Surveyor, after almost one year i.e. on the 29.8.05. The Complainant had submitted unaudited and unsigned account for the year 2001-02 and 2003-04 but failed to submit for the year 2002-03. The Complainant submitted a few purchase vouchers and no sale vouchers were submitted. Stock register up to date of loss was not submitted by the Complainant.

 

From the above it is seen that the OP had acknowledged receipt of the documents on 4.10.04 submitted by the Complainant on the advice of the Surveyor. On 29.8.05 the Complainant forwarded the final Police report to the OP. On 22.9.05 that is after nearly one year, the Surveyor had asked the Complainant to submit the documents which were duly received by the OP on 4.10.04. Such delay on the part of the OP amounts to deficiency of service. On 23.9.05 the Complainant submitted the documents as asked for by the OP which were duly acknowledged. Thereafter no communication was received by the Complainant for nearly another year, that is, till 6.8.06 when the legal notice was sent to the OP. On 11.9.06 the OP had asked the Complainant to furnish certain documents. Hence there was delay on the part of the OP to settle the claim or ask for a clarification or documents required w.e.f. 4.10.04 to 22.9.05 and from 23.9.05 to 11.9.06 which was nearly two years. Such an act amounts to willful negligence and deficiency in service and the issue is decided in the affirmative and in favour of the Complainant.

 

(iii) Whether the Complainant is entitled to any compensation?

As decided in the issue No.(ii) above, the OP had failed to settle the claim of the Complainant in time and there was willful negligence and deficiency in service and the Complainant is entitled to compensation as provided in the Consumer Protection Act, 1986.

 

(iv) Any relief entitled to by the Complainant?

The amount insured by the Complainant vide policy NO.322406/1094/2004/SKP from 26.3.04 to 25.3.05 was for Rs.10,00,000/- and cash in counter for Rs.5,000/-. This fact was also admitted by the OP and there is no dispute. The burglary had taken place on the 18.9.04 night. The Complainant had filed the FIR before the Officer-in-charge 29, Cantonment Beat House, Shillong on 19.9.04 that the miscreants had taken away an amount of Rs 4,991/- , list of goods stolen amounting to Rs.5,48,940/- and cost furniture damaged Rs.27, 190/-. Hence the total amount lost during the burglary was Rs.5, 81,121/- The Complainant has also claim for Rs. 2,07,690/- as interest with effect from 18.9.04 to 5.2.07; Rs.2,80,000/- as compensation for mental agony; Rs.28,000/- as expenditures on correspondences; Rs. 10,000/- as lawyer's fee and Rs.2,000/- as the cost of drafting, typing & Xerox. The OP stated that the amount claimed by the Complainant are highly excessive and without any reasonable and equitable basis. The OP has not taken any decision on the matter for want of the documents. The Surveyor of the OP in his letter dated 10.11.04 to the OP mentioned that on 20.9.04 at 12 PM he was instructed by the OP No-3 to investigate and survey the loss caused by the burglary alleged to have been occurred on the night of 18/19.9.04 in the shop of the Complainant. The Surveyor however, did not submit the estimated amount lost by the Complainant due to burglary. The Surveyor submitted the stock position of the Complainant after the burglary. Hence the said Surveyor had failed to perform his duties assigned to him by the OP. There is no other record filed by the OP to contest/contradict the amount lost by the Complainant on the night of 18/19.9.04 caused due to burglary. However the Complainant had furnished the list of material lost during the burglary on the 18/19.9.04 to the OP No-3. The Complainant had also furnished Stock Register up 18.9.04, inventory stock before 18.9.04, Audit trading account, profit & loss account, balance sheet with Income Tax Returns for the year 2001-2002 to 2003-04, sale tax return for the last 6(six) half yearly return, monthly wise bank stock statement for the last one year etc. and the Forum is in the opinion that the loss of the Complainant caused due to burglary could have been easily assessed by the OP based on the above information but due to the lack of sincerity. Since, the OP has failed on their part to make an assessment about the loss of the Complainant due to the burglary on the 18/19.9.04, the Forum has no other option but to award the compensation based on the claim by the Complainant and allowed as follows:

 

(a) Rs. 5,81,121/- an amount loss by the Complainant due to burglary on the night of 18.9.04 (b) Rs. 10,000/- as the cost on correspondences (c) Rs.10,000/- as lawyer's fee (d) Rs.5,000/- as the cost for typing etc (e) Rs.1,00,000/- as compensation for mental agony for delay in payment of the insured amount for nearly 4(four) years now. In all, the OP is directed to pay an amount of Rs. 7,06,121/- (Rupees seven lakhs six thousand one hundred twenty one) only to the Complainant.

 

5.         Aggrieved by the said order dated 18.08.2008 passed by the learned District Forum, the Insurance Company is before us in Appeal. We have heard the learned counsels from both sides and examined the documents on record. At the outset it, however, needs to be stated that the first challenge to the impugned order raised by the Appellant was with regard to the bar of limitation in filing the Complaint. As this ground related to the jurisdiction of the learned District Forum and went to the root of the matter, it was our considered view that the maintainability of the complaint be first decided as no purpose would be served by going into the merits of the appeal in case it was ultimately decided by us that the complaint was indeed not maintainable before the learned District Forum owing to the bar of limitation. Hence, with the consent of the respective counsels of the Appellant as well as the Respondent, we had earlier taken up this Appeal for hearing on this issue alone. Having heard this issue at length, we held vide our order dated 28.3.2014 that “We are of the firm view that the Complaint was not barred by limitation. Our reasoned order shall follow. Meanwhile, list the matter for hearing.” Accordingly, we then proceeded to hear the Appeal on merits and have passed a separate order stating our reasons for holding that the complaint was not barred by limitation.

 

6.         The other grounds of Appeal pressed before us by the learned counsel for the Appellants are as follows:

 

I. FOR that the Judgment and Order dated 18-8-2008 as passed by the learned District Forum holding the Appellant Insurance Company guilty of rendering deficiency of service and of negligence and awarding a total amount of Rs. 7,06,121.00 to the Respondent is not sustainabIe both under facts and law and thus is required to be set aside.

 

II. FOR that while passing the impugned Order the Hon'ble District Forum failed to notice that the Claim of the Complainant/ Respondent was duly processed without any delay as per the established norms and practices in vogue.

 

III. FOR that in view of what has been stated hereinabove in ground No. II, the

finding of the Hon'ble District Forum that “There was a delay on the path of the OP to settled the claim or asked for clarification or documents  required with effect from 4-10-2004 to 22 -09- 05 and from 23-09 -2005 to 11-09-2006 which was nearly two years", is not at all sustainabIe. There was no delay or negligence on the part of the Appellant Insurance Company. The delay was in fact on the part of the Respondent / Complainant who despite several requests and reminders failed to submit the required document / papers and for want of which both the Surveyors appointed by the Insurance Company could not assess the loss. The papers submitted by the Respondent Claimant vide his letter dated 30-9-2004 and 29-8-2005 were in fact not the papers  which were actually required by the Appellant Insurance Company and its both the  Surveyors to assess the loss. Therefore, the observation and findings of the Hon'ble District Forum relating to the issue No. (ii) relating to the negligence or deficiency in service on the part of the Appellant Insurance Company is both perverse in law and facts.

 

IV. FOR that the finding and observation of the Hon'ble District Forum that “under the Insurance Regulatory Development Authority (lRDA) It is mandatory for the Insurance Company to complete Investigation and release the amount within 30 days" is contrary to the IRDA (Protection of Policy Holders Regulation 2002), which creates reciprocal rights and obligations both on the part of the Insurer and the Insured but in any event it does not give any right to the insured to base his complaint on the said count. Under the regulation the Insured has no such right to make a complaint to the Consumer Forum but he has a right to make the Complaint to the IRDA only which will investigate the matter and take appropriate action.

 

V. FOR that the Hon'ble District Forum while passing the impugned Order failed to notice that the Complainant vide letter dated 30-9-2004 had submitted the  Burglary Claim Form, xerox copy of the FIR lodged with the Police, copy of policy documents, amount claim against theft, extract of stock registered indicating the total value of stock, inventory stock after theft, list of total value of stock after burglary, copies of invoices, bills, cash memos, consignment note and other vouchers, copy of Income Tax Return filed with the ITO, Copies of Sale Tax Returns filed with Superintendent of Taxes, copies of Trading Licence and copies of photographs taken by the Police. The aforesaid papers/documents were not the papers which were required to be submitted. The papers submitted by the Respondent/ Complainant vide his letter dated 30-9-2004 and again on 29-8-2005 could not form the basis of ascertaining the stock position prior to the date of burglary i.e. prior to 18-9-2004 and after 18-9-2004.

 

VI. FOR that the Hon'ble District Forum, while passing the impugned Order failed to take into consideration the report dated 10-11-2004 of the Surveyor Shri . S. Das Purkayastha (Annexure -3) who in his report has categoricalIy stated that the burglary took place by breaking the GCI Sheet roof and the stolen article were not less than 3 (three) truck of loads which the burglary had to lift to the roof of the next building and cross over nearly 30 ft. wide roofing of the next building, which was not at all humanly feasible and possible.

 

VII. FOR that the Hon'ble District Forum failed to notice that in a burglary claim of the instant nature, the Complaint is required to establish the stock position and its value prior to the date and time of the burglary with acceptabIe evidence and documentary proof. The Complainant is required to produce the audited balance sheet, stock registered, purchase memos and other reIated documents

to ascertain as to what was the stock and its value prior to the date of incident. The Insured is also required to establish the position of the stock and its value, which was left out after the burglary had taken place. None of this was done in the instant case.

 

VIII. FOR that the Hon'ble District Forum failed to notice that the Respondent/

Complainant failed to prove the deficiency in service on the part of the Appellant Insurance Company in as much as it was the Respondent/ Complainant  who failed to submit the required documents, asked by the Insurance Company in order to assess the exact quantum of loss.

 

IX. FOR that the Hon'ble District Forum failed to notice that the loss incurred by the Respondent/ Complainant had not been proved by adducing any evidence.

Therefore, the Hon'ble District Forum quite arbitrarily merely on the basis of list of stolen goods, amounting to Rs. 5,81,121/- submitted by the Respondent/Complainant allowed Rs. 5, 81,121/- as loss due to burglary, which

loss even could not be quantified by the two Surveyors appointed by the

Appellant Insurance Company.

 

X. FOR that the Hon'ble District Forum also quite arbitrarily awarded additional

sums over and above the above stated sum. It is humbly submitted that there was no basis for the L'd DCF to have done so.

 

XI. FOR that the observation of the Hon'ble District Forum that the Complainant had also furnished stock registered upto 18-9-2004 is based upon no evidence. No such stock register and purchase register with supporting vouchers invoices, cash memos and bills were produced to ascertain and quantify the exact amount of loss.

 

7.         Learned counsel for the Respondent has denied and resisted every ground raised by the Appellants and vehemently supported the impugned order, contending:

 

1. That there is deficiency in service by the Appellant/ Opposite party.

 

1.  That the Respondent/ Complainant had furnished all the documents as

suggested by the surveyor in original and had also furnished other requisite documents to the Appellant/lnsurer long back.

 

1. That the Respondent/ Complainant had adduced evidence/ documentary      proof for the loss incurred.

 

1. That the surveyor failed to perform his duties i.e., to quantify the exact quantum of loss incurred.

 

1. The Insurer is required to give strictest proof as to which documents the

Claimant/Respondent did not submit.

 

1. That due to gross negligence and delay on the part of the Insurer, the Claimant has suffered a good deal of monetary loss.

 

8.         What clearly transpires from the records is that the Complainant/ Respondent furnished the following documents to the OP No. 3 on 19.09.2004 and 30.09.2004: (a) Burglary Claim Form (b) Xerox copy of the FIR lodged with the Cantonment Police Beat House (c) Xerox copy of the Policy document (d) List stating the net amount claimed against the theft of goods, cash stolen from the counter and damages to furniture and fittings (e) extract of stock register stating the total value of goods in the shop at the time of burglary (f) Xerox copy of inventory of stock after burglary as taken and confirmed by the Surveyor (g) List stating the total value of the stock after burglary (h) Xerox copy of invoices, bills, cash memos, consignment notes and other vouchers in support of the claim (i) Xerox copy of the Income tax Return filed with ITO Ward-I, Shillong (j) Xerox copies of sale tax return filed with the Superintendent of Taxes, Circle-III, Shillong (k) Xerox copy of Trading License issued by the Khasi Hills Autonomous District Council (l) Copies of still photos taken by the police during the preliminary investigation.

 

Later, the Final Police Report confirming the case to be true was also furnished on 29.08.2005.

 

9.         Despite this even after one year, on 22.09.2005 Shri. S. Das Purkayastha, Surveyor, has written a letter to the Respondent asking him to furnish the following documents: (i) Estimate of loss (ii) Audited Trading Account, Profit & Loss Account, Balance Sheet with Income Tax Returns for the Financial year 2001-02, 2002-03,2003-04 (iii) Audited Trading Account, Profit & Loss Account, Balance Sheet for the period 1.4.04 to 18.9.04 (iv) Sale Tax Return for last 6(six) half yearly return (v) Purchase memo & Sale Memo for the period 1.4.04 to 18.9.04 (vi) Stock Register up to date of Loss 18.9.04 (vii) Monthly wise Bank Stock Statement for last one year if any (viii) Inventory of Stock before Loss 18.9.04 (ix) Police Report (x) Filled up claim Form (xi) License copy.

 

10.       Comparison between paras 8 & 9 above is evidence enough to show that most of the documents blindly asked for by the Surveyor had already been furnished by the Respondent almost one year ago, which shows total non- application of mind by the Surveyor. If the Insurance Company had not handed over the documents received from the Respondent to the Surveyor, the Respondent cannot be found fault with. It is of course the case of the Respondent that these documents were even produced before the Surveyor but submitted to the Insurance Company on his advice. Moreover, there is a letter dated 23.09.2005 addressed to the Surveyor, duly receipted by the Insurance Company, purporting to attach all the additional documents required by the Surveyor vide his letter dated 22.09.2005.

 

11.       The preliminary Surveyor Report of the Surveyor dated 10.11.2004 states that the Respondent failed to furnish the documents stated in Para 9. This is not borne out by the facts inasmuch as most of the documents sought by him had already been furnished to the Insurance Company by the Respondent in September 2004 itself. If despite this the Surveyor chose not to assess the loss, it is not the fault of the Respondent and the learned District Forum rightly went ahead to assess the loss based on the documents on record as it was the only course before it.

 

12.       It may be stated here that although the Respondent had furnished copies of its Income Tax Returns in ‘Saral’ form for the assessment years 2002-2003, 2003-2004 and 2004-2005 along with the Balance Sheets and Trading  Profit and Loss Accounts, bearing the signature and seal of the Income Tax Department, which are also available in the case records, turning a total blind eye to the fact that the Respondent had filed the Returns in the ‘Saral’ Form meaning thereby that he was not required by law to get his accounts audited, the Insurance Company strangely wrote to the Respondent on 11.09.2006 asking him to submit copies of his Income Tax Returns for the said  Assessment years ‘duly certified by the Income Tax Department’. They also took the untenable ground that the documents submitted by the Respondent could not be considered official documents as the Respondent or his Chartered Accountant had not signed the said documents. The Surveyor too could not insist on Audited Accounts as the Respondent by his very nature and size of business was not required to get his accounts audited under any law.

 

13.       Having applied our minds and perused the entire records we are of the clear view that the Surveyor was not right in refusing to assess the loss on the ground that the Respondent had not furnished the documents as stated in his Report dated 10.11.2004. Further that the documents furnished to the Appellants by the Respondent were valid and adequate enough for the Surveyor to assess the loss and failure on the Surveyor’s part to do so, either through his own fault or by the fault of the Insurance Company in not handing over the documents to him, cannot be a ground to reject the claim. In any case, the Insured cannot be expected to furnish each and every document that the Insurer seeks ad nauseam according to its whim and fancy and the Insurer has a duty to assess the loss at least on the basis of the documents furnished. It cannot reject a claim in toto for mere non-submission of a document or two.

 

14.       Besides this, we are inclined to form an impression that the Appellants have attempted to avoid payment of the claim through every conceivable means. Insistence on Income Tax Returns certified by the Income Tax Dept./ Chartered Accountant which we have referred to above is one such reason. Denial of receipt of documents is another. Yet another reason which almost confirms our suspicions is the statement made by Appellant No. 3 in his show cause filed under Affidavit before the learned District Forum at Para 2 thereof stating that “The materials alleged to have been stolen was not less than three truckloads with the exit passage from the roof.” How the Appellants came to work out and state under oath that the materials allegedly stolen were to the tune of ‘three truckloads’ we do not know because there is no such finding in the Surveyor’s Report. On the other hand, what we do find upon assessing the ‘Details of Goods Stolen’ at page 19 of the memo of Appeal is that the total weight of the goods claimed by the Respondent to have been stolen is barely 10 tons i.e. not even one truck load. This in itself shows that the Appellants have, under oath, tried to mislead the learned District Forum and show the Respondent in bad light in order to shadow their own deficiency and avoid their own liabilities, which we do not approve of. Even the Surveyors lop-sided attitude is reflected in his remarks indirectly doubting the loss as claimed. He states in his Report that “The exit passage of the burglars with the materials is not at all conducive to take huge quantity of stock. The hardware materials are generally heavy items”. Details of the goods stolen as claimed by the Respondent show that not a single item weighed more than 25 kgs but, oblivious to this fact, the Surveyors generalized the issue and stated that ‘Hardware goods are generally heavy items’. 25 kgs are not heavy enough to deter even a common burglar. Yet further, the Insurance Company has boldly asserted that the Respondent failed to establish the position of the Stock left out after the burglary whereas the Surveyor himself made a physical inventory of such stock and it even forms Annexure A of the Surveyors Report dated 10.11.2004.

 

15.        We have examined the reasoning and findings of the learned District Forum and, in our view, the assessment of loss has been made fairly and justly and on the basis of the documents on record. In fact the entire order is well-reasoned and fair and far from arbitrary. The Compensation awarded, besides the assessed loss from burglary, is also fair and just, particularly in view of the  harassment caused to the Respondent and the fact that no interest has been awarded by the L’d District Forum.

 

16.       In view of the discussion above and in the light of the findings of the learned District Forum, coupled with the fact that Police investigations have also found the case to be true, we are of the firm opinion that the impugned order dated 18.08.2008 passed in Consumer Complaint No. 8 of 2007 is well reasoned, fair and just and nothing tangible has been brought before us to convince us otherwise. The Respondent has suffered enough by non-payment of his claim for so long. We therefore affirm the impugned order dated        18.08.2008 passed by the learned District Forum in Consumer Complaint No. 8 of 2007 and dismiss the Appeal. The Appeal stands disposed of. Return the case records. No costs.  

 

 

 

SENIOR MEMBER                                                  PRESIDENT