THE NEW INDIA ASSURANCE CO. LTD. vs ANURAG GUPTA

The complainant/respondent Anurag Gupta, sole proprietor of M/s Sonia Refrigeration, filed the consumer complaint in question against the petitioner/OP, the New India Assurance Company Limited, saying that he had been doing business of spare parts of air conditioner / fridge and other electrical goods etc. and that he had taken insurance policy from the OP Insurance Company for 5 lakh for his stock in trade, furniture and fixtures etc. vide policy No. 320302/48/03/01944. The complainant had also taken overdraft facility from the Bank of India, Shahdara, Delhi and hence, his stock in trade was hypothecated in favour of the aforesaid bank. On the intervening night of 25.03.2004 and 26.03.2004, there was a theft committed in his shop and stock in trade amounting to 4 lakh approximately was stolen, for which FIR bearing No. 63/2004 u/s 457/380 IPC was lodged on 26.03.2004 with Police Station Dilshad Garden, Delhi. However, the Police gave untraced report on 16.06.2004 regarding the stolen goods. The complainant filed preliminary claim form with the OP Insurance Company on 27.03.2004, which appointed a surveyor M/s. B.B. Sethi & Co. to assess the loss and also deputed an investigator Vikram Arora. As stated by the complainant, he had supplied each and every document to the surveyor as well as the investigator. The OP, after taking into account the reports of the surveyor etc. intimated to the complainant on 27.05.2005 that their claim had been settled at 90,296/-. The complainant submitted letter of subrogation, indemnity letter and settlement voucher vide his letter dated 10.06.2005, stating that the said documents were given as partial satisfaction of the claim. However, the Insurance Company intimated to him vide their letter dated 14.06.2005 that the claim had been settled fully and finally at 90,296/-. As per the complainant, he was entitled to get a total amount of 3,57,613/- as he had suffered loss to that extent. He sent a legal notice dated 12.07.2005 to the OP, but the OP made payment of 90,080/- to his account in the Bank, directly in August 2005. He filed the complaint in question seeking directions to the OP Insurance Company to pay him the balance amount of 2,92,533/- including 25,000/- as compensation against mental harassment etc.

The complaint was resisted by the insurance company by filing a written statement before the District Forum, in which they stated that after thorough examination and investigation of the claim, the complainant was found entitled to a sum of 90,080/- and the said sum had been paid to him as full and final settlement. The complainant failed to cooperate with the surveyor as well as the investigator. The OP Company also requested him vide letter dated 26.07.2004 to cooperate with them and provide the basic documents. As per the OP, the Insured was not maintaining item-wise stock-register. It further stated that the loss had bene computed as per the details given in the FIR to the Police. The surveyor computed a sum of 1,15,296/- being the loss as per the documents submitted by the complainant. The OP insurance company deducted 25,000/- from the said assessment saying that the gas cylinders were not covered under the policy and offered a sum of 90,296/- to him.

The District Forum, after taking into account the averments made by the parties, arrived at the conclusion that the complainant was entitled to a total sum of 2,54,000/- and after deducting 90,000/- already paid, the complainant was entitled to get a further sum of 1,64,000/-. The District Forum also allowed 5,000/- as compensation and 1,000/- as cost of litigation. The District Forum stated that it was not justified to take only the details of the items submitted at the time of filing the FIR, while making the assessment of loss.

Being aggrieved against the said order, the OP challenged the same by way of appeal before the State Commission and the said appeal having been dismissed vide impugned order, the OP Company is before this Commission by way of the present revision petition.

During arguments, it was contended by the Ld. Counsel for the petitioner that the Company had already made full and final settlement of the claim and paid the necessary amount to the complainant, for which he had already given the letter of subrogation, discharge voucher etc. The Ld. Counsel stated that the report of the surveyor is an important document and should be relied upon, while allowing the claim in such cases. The complainant had not been able to provide the copies of the purchase bills etc. to the surveyor. The Ld. Counsel also stated that the State Commission had not applied its mind, while passing the order in question as in the first paragraph in the impugned order, they had referred to the claim regarding accident of a vehicle, whereas the present claim was related to the theft of the stocks in trade.

Per contra, the Ld. Counsel for the respondent stated that the concurrent findings of the consumer fora below should not be changed in the exercise of the revisional jurisdiction. In fact, the surveyor had ignored the list of items as given by the complainant, but erroneously relied on the list given in the FIR only. The order passed by the consumer fora below was, therefore, in accordance with law and should be upheld.

I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.

The main point that merits consideration in the present case is about the quantum of loss suffered by the complainant at the time of theft at his premises. The main ground taken by the OP Insurance Company is that the Consumer Fora below failed to take note of the fact of absence of stock register and the item-wise details of the articles stolen during the incident. The surveyor stated in the report as follows:-

"Since the police report does not mention exact description and quantity of items lost and also there is no itemwise stock register, the lost is being considered as per the enquiries, purchase bills for the current period, i.e., immediately prior to loss, seasonal affect/requirement and the details given in the police FIR. The items not mentioned in the Police report are not being considered and the items with no supporting purchase bills though mentioned in the FIR are also not being considered. "

The surveyor stated categorically in his report that based on the details received and given in the FIR, the loss assessed as per the purchase bills had been quantified as 1,15,296/-, after making deduction for error in estimation/dead stock etc. and including 25,000/- for gas cylinders. The details of each item alongwith its value had been given in the said report. It was also stated in the report that the basis of assessment and amount calculated had been explained to the insured, who had agreed for the same, but the written consent was not given by him. The OP Insurance Company had already made payment to the complainant in terms of the report of the surveyor. The District Forum as well as the State Commission have not given any reasons for coming to the conclusion that the complainant was entitled to an additional sum of 1,64,000/-. As observed by the State Commission and the District Forum, it may be true that the information given at the time of lodging the FIR may not be the sole basis for quantifying the loss suffered by a person during theft etc. However, in the absence of any concrete finding as to how a sum of 2,50,000/- was arrived at, it may not be justifiable to allow any additional amount to the complainant. The contention made by the Insurance Company that there was no stock register and the item-wise details were not available with the complainant, have not been satisfactorily explained by them. It is also clear from the version of the OP Insurance Company that the surveyor and the investigator had to write a number of letters to the complainant, asking him to furnish the necessary documents to them. In the light of these facts, I do not find any justification for making payment by the OP Insurance company for any sum in addition to what has already been allowed by them.

Based on the discussion above, this revision petition is allowed and the orders passed by the State Commission and District Forum are set aside and the consumer complaint is ordered to be dismissed with no order as to costs.