Delhi

StateCommission

C-287/2002

MS GLOBAL SINGHAL TELECOM INDIA PVT.LTD - Complainant(s)

Versus

THE BRANCH MANAGER THE NEW INDIA ASSURANCE CO.LTD - Opp.Party(s)

07 Sep 2018

ORDER

 IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Decision:       07.09.2018

Complaint No.287/2002

In the matter of:

M/s. Global Signal Telecom (India) P. Ltd.: Anand Vihar, New Delhi.                                                  Complainant

           

Versus

 

	The Branch Manager The New India Assurance Co. Ltd. BO-415, Main Mathura Road, Badarpur, New Delhi.	:
	Chairman & Managing Director The New India Assurance Co. Ltd. 87, Mahatama Gandhi Marg, Fort, Mumbai-400001		Opposite Party(s)

 

         

                   

CORAM     :        N P KAUSHIK

:

Member(Judicial)

 

1.       Whether reporters of local newspaper be allowed to see the judgment? Yes

2.       To be referred to the reporter or not?                                             Yes

 

 

Cases relied upon

 

1.       United India Insurance Co. Ltd. v. Roshanlal Oil Mills & Ors., (2000) 10 SCC 19;

 

2.       D. N. Badoni v. Oriental Insurance Co. Ltd,

          1 (2012) CPJ 272 (NC).

 

 

N P KAUSHIK – MEMBER (JUDICIAL)

 

JUDGEMENT

1. Complainant M/s Global Signal Telecom India Pvt. Ltd. is engaged in the business of manufacturing copper wires and conductors and admittedly insured with the New India Insurance Company Ltd. (in short OP) for an amount of Rs.25 lakhs.  During the currency of the insurance policy on 04.12.2000 at 2.30 hours a burglary took place in its premises at 18/44-45, Site IV, Sahibabad Industrial Area, Ghaziabad and the burglars took away copper wire ingots by making forcible entry and breaking the locks of the factory premises.  Complainant submitted that ingots weighing about 17 metric tonnes were stolen.  An FIR bearing NO. 274/2000 under Sections 395, 397 and 412 IPC was registered at Police Station, Link Road, Ghaziabad on 04.12.2000 at 7.30 hours.  Police filed charge-sheet against  5 persons.  Recovery of 45 ingots was shown.  Subsequently on 17.01.2001 police arrested one more person and recovered from him 39 more ingots of goods. 

 

 

2. Complainant intimated the factum of burglary to the OP on 04.12.2000 itself.  OP appointed M/s. Sonu as surveyor on 06.12.2000 who visited the site and took the statements of Directors of the complainant.  Relevant records were taken into possession. On 07.12.2000 surveyor conducted verification of the goods under loss.  On 11.12.2000 surveyor asked for certain documents from the complainant.  Excise Department on 10.01.2001 assessed the loss at 17,050.82 kgs.  On 01.08.2001 complainant made representation to the OP and asked for payment of insurance claim. 

 

 

3. On 29.12.2001, police closed investigation after observing that no balance material was to be recovered.  Final report could not be provided to the complainant.  On 01.01.2002 surveyor again demanded final report from the complainant. 

 

 

4. Another surveyor was appointed by the OP who submitted his report agreeing with the findings of the earlier surveyor to the effect that only 6000 kgs of copper ingots were stolen.  The surveyor gave a finding to the effect that there was never a theft of 17,000 kgs of copper ingots as claimed by the OP.

 

 

5. Relying upon the reports of the above referred two surveyors, OP vide its letter dated 07.04.2003 repudiated the claim observing that only 5369.11 kgs of copper ingots were available before theft in the factory premises.  The same had been recovered from the burglars.  Complainant’s claim of 17,050 kgs of material was repudiated by the OP on the following grounds:

 

• “That stock could have been shifted to other unit.

 

• That the stock could have been sent for job work.

 

• That the stocks as per WIP & Stock Records could have been wrongly computed/ claimed by you.

 

The investigators have established that your WIP records are not authentic, hence there is a wide variation in the quantity actually lost and quantity claimed by you.”

 

6. After completion of pleadings parties filed their affidavits towards evidence.  Written arguments too were filed.  I have heard the arguments addressed by the Counsel for the OP Sh. V K Anand.  None appeared on behalf of the complainant.

 

 

7. Complainant has often been absenting himself from the proceedings.  On 25.07.2017 none appeared for the complainant.  On the next date only an employee of the complainant appeared.  Costs of Rs.10,000/- were imposed upon the complainant.  On 23.01.2018 i.e. the next date, again a representative of the complainant one Ms. Leena Chopra was present.  Costs too were not deposited in the Consumer Welfare Fund as directed earlier.  Further on 09.04.2018 no Advocate appeared on behalf of the complainant.  On 23.05.2018 adjournment was sought by the complainant stating that the Counsel was busy in Ghaziabad courts.  Matter was listed for 07.09.2018 i.e. today.  Again none appeared on behalf of the complainant.  Commission however dictated these orders  on the basis of the judicial record including written arguments filed by the parties. 

 

 

8. Sole controversy in the case is whether 6000 kgs of ingots were stolen by the burglars or the quantity was 17000 kgs as claimed by the complainant.  The surveyor in its report running into 33 pages took into account the stock register and the physical verification aspect of the goods.  Surveyor reconciled the difference in the physical verification and the stock register as under:

 

• From the above verification we conclude that difference in quantity of WIPO of Tinsel Conductor as claimed and as actually stolen is due to store error as has been stated the reason for other items (by the insured), where we noticed difference in quantity as per stock register and quantity as per physical verification but no claim was made by the insured.

 

The wide variation in quantity as physical verification and quantity as per stock register in case of Category II item which are eight in number other than theft item proves that the stock records maintained by the Insured are not authentic and that there is every possibility that the items (including item claimed) would have been moved from the Insured’s premises at the time of physical verification to the adjacent site since the Insured has a unit adjacent to the place where burglary took place and which is also in the same nature of business i.e. Conductor and Connectors.

 

The difference in quantity as per physical verification and quantity as per stock register in case of theft item is also because of some reasons as has been in case of rest of eight category II items were there has been a variation but theft has not been claimed by the Insured.  Thus actual theft quantity in the quantity recovered from the burglar i.e. 6000 kgs and not 17000 kgs as claimed by the Insured.”

 

 

 

9. Second surveyor/ investigator while referring to the quantity of the stolen goods took into account the quantity of the material that could be carried in one Tata 407 vehicle.  The relevant portion of the report runs as under:

 

• 9.     The Police state that they had recovered all the stolen items from the insured and also obtained statements from the culprits, which were given in presence of the Judge Ghaziabad.

 

 10.    The police stated that in one vehicle the culprits had loaded all the above copper bars and they have recovered the stolen materials with the vehicle (Tata 407) from Delhi from two different placed.

 

 

 

1.  

 

The robbery in the factory of the insured is genuine.  The claim of the insured, in our opinion, has been exaggerated since the police state that they have recovered the entire stolen materials while the insured state that they are yet to recover balance around 10 tons of materials.

 

Since the police has closed the case and filed charges against the culprits under various sections of IPC and also section 24 of the Arms Act, the same be treated as final.  As the police had recovered the entire stolen materials (we also strongly feel that within the sthort span of time the robbers could have taken only the recovered items) and filed the same in the court also there cannot be any items except the ones recovered by the police (as also confirmed by the places).

 

IN VIEW OF THE ABOVE ONLY THE LOSS ASSESSOR CAN ASCERTAIN THE QUANTUM/ NATURE CLAIMED ON THE BASIS OF EVIDENCE BOOKS, AND PHYSICAL INVENTORY THE CLAIM BE SETTLED AS DEEMED FIT BY THE INSURANCE COMPANY  AFTER NECESSARY FORMALITIES AND BASED ON THE REPORT OF THE LOSS ASSESSOR/ SURVEYOR.

 

 

 

10. Claim has been repudiated by the OP referring to the report of the first surveyor and giving reasons of variation in the claimed material of 17050 kgs and recovered material of 5369.11 kgs as under:

 

• “That stock could have been shifted to other unit.

 

• That the stock could have been sent for job work.

 

• That the stocks as per WIP & Stock Records could have been wrongly computed/ claimed by you.

 

The investigators have established that your WIP records are not authentic, hence there is a wide variation in the quantity actually lost and quantity claimed by you.”

 

 

11. This Commission vide its orders dated 08.03.2017 directed the complainant to place on record the final police report and the documents relating to the payment of excise duty during the relevant period.  Complainant was also called upon to furnish documents relating to verification of his stock by the Excise Department.  Relevant portion of the orders dated 08.03.2017 is reproduced below:

 

• In the meantime, complainant to place on record the final police report alongwith the status of the criminal case relating to dacoity/ theft. The complainant  also to place on record the documents relating to the payment of excise duty for the first three quarters of the year 2000 alongwith the documents relating to verification of the stock by the Excise Department. Let the information be placed on record by the complainant on affidavit. ”

 

 

Complainant failed to furnish the information as called for by this Commission.  It appears that the criminal court might have disposed of the matter, it being an 18 years old dacoity/ theft case.  Findings of the criminal court on the point whether the recovery made by the police was in respect of the whole of the material stolen or still a part recovery was to be effected.  Complainant obviously might have been a material witness to the said crime. 

 

 

12. Complainant has failed to furnish any such information despite directions.  The disclosure of the information called for, might have gone against him.  An adverse inference, therefore, has to be drawn against the complainant.

 

 

13. Complainant has not challenged the report of either of the surveyor/ investigator.  In the case of United India Insurance Co. Ltd. v. Roshanlal Oil Mills & Ors., (2000) 10 SCC 19, Apex Court held that the report of the surveyor has to be given due weightage.  In the case of D. N. Badoni v. Oriental Insurance Co. Ltd, 1 (2012) CPJ 272 (NC) Hon’ble National Commission held that the surveyor’s report has significant evidentiary value unless it is proved otherwise. 

 

14. In the absence of any material upsetting the report of the surveyor or the investigator, I am of the considered opinion that the material stolen from the premises in question was only 6000 kgs and not 17000 kgs as claimed by the complainant.  Admittedly the entire material weighing 6000 kgs was recovered from the burglars and the same has since been restored to the complainant.  OP, therefore, rightly repudiated the claim of the complainant for the loss of alleged 17000 kgs of the material.  Complaint is, therefore, devoid of merits.  The same is dismissed.  File be consigned to records.

 

 

 

(N P KAUSHIK)

MEMBER (JUDICIAL)

(am)