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Judgment
V.K. Jain, Presiding Member
IA/2834/2014 (C/delay)
For the reasons stated in the application, the delay of 13 days in filing the appeal is condoned subject to deposit of Rs.10,000/- with the 'Consumer Legal Aid Account' of NCDRC, within six weeks from today.
FA/263/2014
The complainant company is engaged in the business of selling gold and diamond jewellery and the company had taken an insurance policy from the appellant which interalia covered theft of jewelley belonging to the complainant / respondent. An FIR was lodged by Mr. Sachin Vijay Gupta, Director of the complainant company on 23.12.2004 alleging therein that when he came to his showroom at Gurudwara Road, Karol Bagh, New Delhi at about 11.55 a.m. in his Scorpio car accompanied by his employees namely, Chetan Sharma and Dharmender, he was carrying two briefcases, the colours of which were Grey and Maroon. He got down from the car carrying grey briefcase with him. Marron colour briefcase containing jewellery was left in the car. His employees started opening the showroom of the company, whereas his driver Ram Khiladi who had come driving another car and his Manager Neeraj Gupta stood near the car . The complainant then asked his employee Ishwar Chand Sharma to bring briefcase from the car. When Ishwar Chand reached the car, the briefcase of Maroon colour containing jewellery was found missing.
On the same day, Mr. Sachin Vijay Gupta gave a handwritten letter to the concerned SHO at about 6.15 p.m. in which he alleged theft of two briefcases both containing jewellery from the car. It was stated in the said letter that when the informant was standing outside the shop/showroom, and the employee was opening the shop/showroom, a tall person blocked his view and on enquiry he made some useless queries to justify his presence. At the same time, another person engaged his driver by enquiring about a post office and a third person pushed his broker Neeraj away. When the informant asked his employees to take out the briefcases, both the briefcases were found stolen.
It would thus be seen that there are following material contradictions between the versions given in the FIR and the version given in the letter, though both the FIR as well as the letter emanated from the same person, namely, Mr. Sachin Vijay Gupta:-
In the FIR, it was clearly stated that the Grey briefcase was carried by Mr. Sachin Vijay Gupta with him when he got down from the car. On the other hand, in the letter given at 6.15 p.m. on the same day, he claimed that both the briefcases i.e. Grey briefcase as well as the Maroon briefcase were left in the car.
Mr. Sachin Vijay Gupta specifically alleged theft of only Maroon briefcase in the FIR. On the other hand, he alleged theft of both Grey as well as Maroon briefcases in the letter given in the evening.
Mr. Neeraj was described as Manager in the FIR whereas he was described as a broker in the letter given in the evening.
The FIR gives an impression as if the articles of jewellery were kept only in the Maroon briefcase whereas in the letter given in the evening, it was claimed that both the briefcases contained jewellery.
In the FIR, there is no allegation that a second person had diverted the attention of the driver by asking him about the post office and the third person had pushed Mr. Neeraj. These averments find mention only in the letter given in the evening. However, the averment regarding a tall person being present near the shop/showroom of the complainant finds mention in both the FIR as well as the letter.
I have carefully perused the consumer complaint. No explanation has been given by the complainant for the material contradictions as noted hereinabove, between the FIR and the letter given in the evening. The learned counsel for the complainant/respondent submits that the FIR was lodged as per the dictation of the police officer. However, no such averment is found either in the letter given in the evening or in the consumer complaint. Therefore, the oral submission made by the learned counsel cannot be accepted.
In my opinion, had the two briefcases both containing jewellery are stolen as is the case made out in the letter given in the evening, Mr. Sachin Vijay Gupta would not have alleged theft of only one briefcase in the FIR lodged by him at the police station. The police officer had nothing to gain by persuading the informant to claim theft of jewellery kept in one briefcase since FIR was duly registered by the concerned police station, it would make no difference to them whether the jewellery was kept in one briefcase or it was kept in two briefcases. Either way the offence made out would be one and the same.
Therefore, I am unable to accept the version given by the complainant in the letter given by him in the evening of the incident. It appears to me that the letter given in the evening was an after thought, given after due planning and was motivated in order to make a higher claim and seek a higher compensation from the insurer. The aforesaid material contradiction between the FIR and the letter given in the evening which go to the root of the material was conveniently ignored by the surveyor without even asking the complainant to give an explanation for those variations. In my opinion, the theft of the second bag from the case does stand duly proved. The Insurer therefore was justified in paying only a sum of Rs.15 lakhs to the complainant.
Though this is also the submission of the learned counsel for the Insurer that having voluntarily executed the Discharge Voucher of Rs.15 lakhs before receiving the said amount from the insurer, the complainant is estopped from claiming any further amount from the Insurer, I need not go into this question. On merits the complainant has not been able to substantiate the claim to the extent it has not been paid. The learned counsel for the petitioner relies upon the decision in M/s. K N Resourses Pvt. Ltd. Versus Divisional Manager/Regional Manager, Oriental Insurance co. Ltd., - Consumer Case No. 1247 of 2016 decided on 01/03/2019, United India Insurance Vs. Ajmer Singh Cotton & General Mills & Ors., [II (1999) CPJ 10 (SC)] & New India Assurance Co. Ltd. Vs. Genus Power Infrastructure Ltd., [(2015) 2 SCC 424]. However, I need not examine those judgements since the case of complainant with respect to the theft of the second bag does not stand otherwise proved.
For the reasons stated hereinabove, the impugned order is set aside and the consumer complaint is consequently dismissed with no order as to costs.
The amount of statutory deposit be refunded to the appellant alongwith interest which may have accrued on that amount. The amount, if any, deposited by the appellant with the State Commission shall also be refunded to the appellant alongwith interest which may have accrued on that amount.