AZAD STORES vs NEW INDIA ASSURANCE CO LTD

-THIS appeal under Section 15 of the Consumer Protection Act is directed against the order dated 31st August, 2000 rendered in Complaint No. 30/1994 directing the opponent to pay Rs. 18,285 towards the claim of the complainant with no order as regards the cost.

THE facts giving rise to the present appeal shortly stated are: that the complainant is having a business in the name and style of ''azad Stores''; that he is the Proprietor of the said firm and doing business of selling books, stationery and other allied articles in Raikhad area in the City of Ahmedabad; that the complainant had obtained a ''shop keepers'' policy from the opponent Insurance Company bearing No. 482 1020106624 for the period 9. 5. 1992 to 4. 5. 1993 and the sum insured was Rs. 1,00,000; that the communal riots broke out in the City of Ahmedabad and on 7. 12. 1992 a mob of about 1,000 to 2,000 persons looted the shop of the complainant taking away the stock in the shop as well as books of accounts, also damaging furniture that was in the shop; that the complainant filed a complaint with the police authority also stating that the stock worth Rs. 80 to 85,000 was looted/damaged by the rioters in the incident also damaging furniture; that the complainant filed the claim before the opponent Insurance Company claiming compensation on the basis of Insurance Policy, that the Insurance Company had appointed surveyor Shri Jatinbhai Bhimani who visited the shop verified and took photographs. It is stated that the complainant supplied all the necessary documents/information required by the Surveyor, but the Surveyor assessed the damage to the tune of Rs. 18,285 stating that the complainant did not furnish the requisite documents, also did not produce the books of accounts, stock register, etc. to suggest the stock on or around the date of incident in the complainant''s shop. It is further stated that the complainant had furnished all the necessary documents and details and the Insurance Company unjustifiably offered Rs. 18,285 only which is grossly inadequate looking to the damage suffered and the documents supplied. According to the complainant he suffered damage to the tune of Rs. 99,125 including the stock looted and damage to the furniture. The opponent filed the reply and disputed the claim of the complainant also contending that the complaint is not maintainable. It is not denied that the complainant was doing business in the name and style as alleged and that the complainant had taken insurance of the ''shop keepers policy'' and the policy was issued by the opponent for the period stated in the complaint for the amount of Rs. 1,00,000. It is also not denied that the communal riots had taken place in the City of Ahmedabad on 7. 12. 1992; that the complainant''s shop was looted by the miscreants in the said communal riots, period of insurance also not disputed; that Shri Jatinbhai Bhimani was appointed as the Surveyor and had made the spot investigation and the complainant was informed by various reminders to submit copy of the FIR/stock register, purchase bills, vouchers, etc. relating to the furniture but the complainant did not co-operate and did not furnish the necessary documents/information/details to the Surveyor. It is denied that all the documents as required by the Surveyor were supplied by the complainant and as the complainant did not co-operate and furnish the necessary information/documents to enable the Surveyor to assess the loss, the Surveyor from the material available to him assessed the loss at Rs. 18,285. Thus in substance what the opponent says is that the complainant did not furnish stock register, documents, purchase vouchers, copy of the FIR, etc. and considering the material available with the Surveyor the loss has been assessed as above.

The learned Ahmedabad City Forum considering the contentions of the parties and the material available on record passed the order as aforestated which is challenged in the present appeal by the complainant.

IT is submitted by Mr. A. R. Siddiqi, learned Advocate for the appellant that the complainant (appellant) had taken a ''shop keeper''s policy'' from the opponent Insurance Company; that the communal riots had broken out in the City of Ahmedabad and elsewhere in December 1992; that on 7. 12. 1992 the complainant''s shop was broken open by the miscreants and the stock/goods lying was looted, furniture of the shop was damaged and the complainant in all suffered damage to the tune of Rs. 99,125 including damage to the stock and furniture; that the stock in the shop at the relevant time was to the tune of Rs. 80 to 85 thousand that on 3. 3. 1993 the opponent repudiated the claim for non-supply of the documents; that the Surveyor assessed the loss to the tune of Rs. 18,285 only. It is submitted by Mr. C. A. Modi, learned Advocate for the opponent that the complaint is filed by the Power of Attorney Holder; that the complainant has disclosed this fact before the learned City Forum and that the complaint is liable to be dismissed.

IT is not in dispute that the complainant was having a business in the name and style of ''azad Stores'' selling books, stationery and other allied articles for which he had obtained ''shop keeper''s policy'' from the opponent Insurance Company for a sum assured Rs. 1,00,000, that in the communal riots on 7. 12. 1992 the complainant''s shop was broken open by the miscreants and the goods/articles were looted from the shop and the furniture damaged; that the police complaint was filed; and that claim was lodged by the complainant with the opponent Insurance Company. According to the opponent the complainant did not furnish necessary bills/documents with the result loss was assessed by the Surveyor at Rs. 18,285. It is suggested from the impugned judgment that the complaint was originally filed through the Power of Attorney Holder, subsequently as suggested from the impugned order the second complaint was filed by the proprietor himself and the complainant has also deposed before the learned Ahmedabad City Forum. In view of the fact that the complainant as the proprietor has himself filed the complaint the submission of Mr. Modi that the complaint is not maintainable, having been filed by the Power of Attorney Holder does not deserve any credence.

THE main contention between the parties is about the supply of documents/details about the loss as alleged in the complaint. According to the complainant he had supplied all the documents and information to the Surveyor/insurance Company. It is suggested that number of reminders were sent by the Surveyor requiring the complainant to produce stock register, purchase register as well as invoice, vouchers, etc. suggesting purchase and sale of goods/material by the complainant but nothing sort of that has been produced by the complainant and, therefore, from the material available the loss assessed by the Surveyor i. e. Rs. 18,285 was offered to the complainant but he did not accept the same.

ACCORDING to the complainant after he was offered Rs. 18,285 he had sent further documents/information to the Insurance Company but the Insurance Company closed the file treating it as ''no Claim''. It is suggested that the Surveyor called upon the complainant to furnish the documents/information to support the claim; that at the time of survey the complainant was not present and it was conveyed to the complainant to furnish the details of riots leading to the occurrence of the incident, also the details estimating loss and damage of the shop, quantity based salvage supported by bills/invoices, books, statement of income tax as well as return, etc. and also certified copy of the FIR, Panchnama, final investigation report, photographs etc. It does not appear from the record that the complainant complied with all the requirements as asked by the Surveyor. It is also suggested from the record that formerly the complainant had a sales tax number and he was paying the sales tax but when there was increase in the permissible limit the sales tax number was got cancelled. It is also suggested from the evidence of the complainant that he is not paying any income tax as he does not have any income liable for income tax payment. It is pertinent to note that neither the copy of the FIR nor the copy of the Panchnama prepared in course of the investigation has been produced to support the claim of the complainant as per the impugned judgment. According to the complainant stock registers/sales register, books of account, etc. have been destroyed in the incident. Thus it appears that the loss of stock to the tune of Rs. 80,000 to Rs. 85,000 would be approximate and not supported by the documentary evidence. All what has been produced on record is the photographs showing damage to the shop which fact is not disputed by opponent. It is pertinent to note that not even the affidavit or the copy of the bills showing the persons from whom the complainant purchased the books, are coming forth on the record; that the persons who sold the materials/goods to the complainant could have at least filed the affidavits or copy of the bills to show that the complainant used to purchase materials/books/goods from them and purchases by the complainant in a month were upto a particular amount. Nothing of the sort has been produced. If the complainant was really making purchases of goods of a particular amount at least those people would certainly help the complainant and come forward saying that the complainant used to purchase articles/materials from them. The complainant having suggested that he is not earning any taxable income so as to require filing of the income tax return and pay income tax and the complainant also does not have sales tax number that would also suggest the size of the business that he must be having. The Surveyor considering the area where the shop of the complainant is situated and also the size of the shop has assessed the damages/loss as pointed out above.

Surveyor Mr. Jatinbhai Bhimani has filed his affidavit in which he has categorically stated that in spite of several reminders the complainant did not furnish any evidence in support of his claim. It is also suggested that the details supplied by the consultant of the complainant were absolutely vague and incomplete and the complainant was directed to contact the Surveyor and if the complainant did not come with the evidence to the Surveyor the complainant''s claim would be treated as ''no claim''.

IT is suggested that the Surveyor wrote to the Insurance Company that the complainant is not coming to the Surveyor in spite of letters written as above. There is absolutely no evidence to suggest the purchase of the material/goods by the complainant prior to the incident nor there is any evidence on record to suggest stock on or around the date of the incident. No evidence in the form of stock register, sales register, purchase register, bills, voucher, invoice for purchase or sale are coming forth. Nothing of that sort has been produced before the Surveyor. It is observed in para 10 of the impugned order that the complainant has admitted that purchase register of goods, stock register prior to 7. 12. 1992 were not saved in the incident of 7. 12. 1992. It is also admitted that he did not supply details/information and documentary evidence about the sale of the said shop up to the date of the incident to the surveyor. In short what is suggested is that the complainant failed to give evidence in support of his claim and also the names and addresses of the persons from whom he purchased the goods prior to the incident. There is no evidence to suggest sale by the complainant prior to the incident on or around 7. 12. 1992. There is no evidence even of the neighbours of the shop to suggest the quantum of business the complainant was having at least that would have thrown some light on the issue.

IT is pertinent to note that it is not suggested from the record as to on what basis the complainant has stated that there was stock of Rs. 80-85 thousand in his shop on the date of the incident. It is not shown what is the basis for the claim of the stock to the above extent. It may be that the complainant is either maintaining relevant books of account but has not chosen to produce the same for the reasons best known to him or he does not have any evidence regarding purchase/sales, stock, etc. and he just gave a figure of Rs. 80-85 thousand. In any case the claim of the complainant cannot be said to have been established for want of reliable and satisfactory evidence in this regard. The above discussion would reveal that the complainant has not been able to substantiate and establish the claim lodged before the opponent Insurance Company and the surveyor Shri Jatinbhai Bhimani assessed the damage on the basis of the material produced before him by the complainant and this amount was offered to the complainant. The amount of Rs. 18,285 was admittedly offered by the opponent Insurance Company to the complainant which the complainant did not accept and for these reasons we are of the opinion that no interference is called for in the order passed by the learned Ahmedabad City Forum. In the result this appeal is dismissed with no order as to cost. Appeal dismissed.