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Judgment
THIS complaint is filed under Section 12 of the Consumer Protection Act claiming a total compensation of Rs. 6,75,330/-.
SHORTLY stated, the allegations in the complaint are as follows: The 1st complainant is a firm doing the business under the name and style "Raja Jewellery. The second complainant is its Managing partner and other complainants are partners of the said firm. The complainant firm was insured with the opposite party for the period from 24.8.1992 to 23.8.1993. On 18.2.1993 at about 12.30 p.m. a group of people who claimed to be the members of I.S.S. gathered themselves into an unlawful assembly carrying dangerous weapons, pushed up the shutter of Jewellery Shop and trespassed into the Shop Room. They threatened the second complainant and her employees and started destroying the showcases, tables and stools. There were lot of gold ornaments in the show-cases. The assailants took the gold ornaments from the shop and carried them away and disappeared. On account of riot the first complainant sustained the following damages: (1) Damages to the shop room Rs. 4,950/- (2) Damages to furniture, fixtures, fittings etc. Rs. 9,875/- (3). Damages to stock of gold ornaments Rs. 60,505 /- Total loss/damages Rs.6,75,330/- The loss and damages caused to the complainant were informed to the opposite party. The opposite party visited the place of business of the first complainant firm on 4.3.1993, 6.1.93 and 15.3.1993. Thereafter the first opposite party sent a letter to the first complainant to produce some documents and the complainant produced all those documents. By a letter dated 6.10.1993 the opposite party informed the complainants that the Surveyor has assessed the loss sustained to the complainant only at Rs. 3,810/and the opposite party sent a discharge voucher but the complainant was not willing to accept the offer. It is on those allegations this complaint was filed. A version was filed by the opposite party admitting the policy but contending that the claim was unsustainable. It was further averred that on receiving intimation about the incident the opposite party deputed an independent licensed Surveyor Sri V. Lakshmana Iyyer (M.Sc. Eng), Chief Engineer, PWD (Retd.). Government of Kerala, to conduct survey on the alleged damage and loss. He submitted a preliminary report stating in spite of reminders no records were given to him by the complainants and that the representative of the insured informed him that he was not having any estimate with him. In the circumstances the opposite party deputed another independent licensed Surveyor and Loss Assessors M/s. T.S. Ramaswamy & Co., and they conducted the final survey and assessed the loss and submitted a report dated 18.9.1993 finding that no damage was caused to the building and assessed the loss caused due to the breakage of glasses of the show cases and counters under the head furniture and fixtures at Rs. 810/-. He also reported that the claim regarding loss of gold ornaments is not bona fide and no loss had taken place. He further reported that the police authorities registered a Crime No. 61/93 of the Fort Police Station in respect of the alleged incident. In the FIR, FI Statement, Scene Mahazar and other records of the said crime nothing was mentioned regarding the alleged loss of gold ornaments. The police investigation did not disclose any information about the looting of gold ornaments. Except the damage as described in the mahazar no loss or damage regarding any loss of gold ornaments was mentioned to the police by the complainants/insured. He also reported that the complainants did not produce account books, stock register, bill books etc. When demanded and they were produced subsequently. The Surveyor had reported that the account books, stock register, bill books etc. were not readily available and were not kept in regular course of business and there is every reason to think that the account books were fabricated for the purpose of the claim. On the basis of survey report, the records in Crime No. 61/93 registered by the police and other documents produced by the complainants, the opposite party came to the conclusion that not a single item of gold ornaments was taken by the rioters from the shop as alleged. Accordingly a discharge voucher for Rs. 3,810/- was sent but the complainant was not willing to accept it. In the circumstances there is no deficiency in service on the part of the opposite party and the complaint is liable to be dismissed.
On behalf of the complainant PWs 1 and 2 were examined and Exts. P 1 to 11 were marked. The opposite party has not adduced any oral evidence but produced Exts. R1and R2 survey reports.
THE following points for consideration are: (i) Whether the opposite party has committed any deficiency in the matter of settling the claim ? (ii) If so, what is the relief to which the complainants are entitled ? (iii) What is the order as to the cost ?
Point Nos. (i) and (ii): -In the affidavit filed by PW 1 he has sworn in terms of the complaint. He admitted in the cross-examination there is no mention in the affidavit as to the items of gold ornaments, which were removed. He also stated that he was not in shop when the incident took place. He also admitted neither in the affidavit nor in the complaint the details of gold ornaments were mentioned. Though PW 1 has stated in the cross-examination loss of gold ornaments was mentioned to the police. Ext. P 5 mahazar does not mention any loss of gold ornaments. It is seen from the mahazar it was taken in the presence of Managing Partner. If there is loss of gold ornaments one would expect him to mention loss of gold. However, we find mention has been made about damage due to breakage of glass of showcases. He has admitted in the crossexamination that he was present at the time of preparing the mahazar.
PW 2 has also filed an affidavit and he was also cross-examined. Though he stated that the loss of gold ornaments was reported to the police nothing was mentioned in the mahazar or anywhere about loss of gold. Complainant also does not give any details regarding items of gold. There is no acceptable evidence to show that there was loss gold. We, therefore, do not think that there is any deficiency on the part of the opposite party in not allowing any compensation for loss of gold ornaments. As regards other damages the opposite party offered an amount of Rs. 3,810/- which was assessed by the Surveyor. However the complainant was not willing to accept the offer. We, therefore, do not find any ground to hold that there is deficiency on the opposite parties and dismiss the complaint. We make it clear that the dismissal of the complaint will not preclede the complainant from approaching Civil Court if they are so advised. We direct the parties to bear their respective costs in the circumstances of the case. Complaint dismissed.