New India Assurance Co. Ltd. vs Dinesh Chandra

THIS is an appeal against the order dated 5.2.2003 passed by the District Forum, Tehri, Garhwal whereby the complaint of the complainant was allowed for recovery of Rs. 40,000/- (Rupees forty thousand) against the appellant.

THE brief facts of the case are that the complainant filed a complaint with the allegations that he had taken loan of Rs. 57,000/- (Rupees fifty seven thousand) from the Bank for opening a shop of readymade garment and general store. He had to repay the amount of loan in 80 six-monthly instalments. He was paying the instalments regularly. In the evening of 29/30.1.1999, there was a theft in the shop of the complainant, in which articles worth Rs. 42,778/- (Rupees forty two thousand seven hundred seventy eight) were stolen. THE shop was insured. THE claim was lodged with the Insurance Company but the Insurance Company repudiated the claim. THErefore, the complaint was filed for recovery of Rs. 42,778/- (Rupees forty two thousand seven hundred seventy eight) and Rs. 3,000/- (Rupees three thousand) was expenses of litigation. It was also prayed in the complaint that the Bank should be directed not to recover the amount of loan from the pension of the father of the complainant till the amount is paid by the Insurance Company. Such a relief can neither be given by the Consumer Forum nor it has been granted by the learned Forum as well. Therefore, we need not enter into the merit of this relief.

The Bank filed written statement and admitted the loan. It also admitted the payment of instalments. Other facts were denied. In para 6, it is alleged that the complainant has given his claim regarding theft in his shop. He did not furnish other details. The Bank further informed that the Insurance Company has informed that the necessary documents have not been filed, it shows that the claimant does not want to get claim amount, therefore, his claim is repudiated.

REGARDING the recovery from the Bank, the Bank has alleged that the father himself has given in writing that the debt be recovered from his pension. The Insurance Company denied the allegations of the complaint. If, however, admitted that the report of theft was received. A Surveyor was appointed. The Surveyor inspected the spot on 12.2.1999. Stock register, bill of purchase and sales, submission of stock list in the Bank and the list of articles stolen were called for from the complainant, he did not submit. Therefore, the claim was repudiated. After taking the evidence of the parties and hearing them, the learned Forum allowed the complaint for recovery of Rs. 40,000/- (Rupees forty thousand). Against which order the present appeal has been filed.

WE have heard the learned Counsel for the parties and gone through the records. The factum of theft is admitted. The insurance is also admitted. When the shop was insured and when there was theft and when the theft was during the insurance period, the Insurance Company has got no escape but to make the loss good. The Insurance Company also did not dispute regarding its liability but only alleged that the complainant did not co-operate. None of the papers were produced to it. All the papers, which were called for, have not been presented to it till date. It was argued that it is impracticable that a debt has been taken from the Bank, still the complainant has not maintained any stock register. It was argued that it is obligatory on the part of the debtor to submit monthly stock statement regarding his stock etc., so that the Bank may have a watch over the debt and its payment but the total denial of the complainant shows that he has only exaggerated the claim and without a actual theft of all those articles, he has shown the theft of Rs. 42,778/- (Rupees forty two thousand seven hundred seventy eight) in the complaint. Our attention was drawn on the various papers submitted by the complainant. The FIR shows that there was theft of the articles of Rs. 40,000/- (rupees forty thousand). The final reoort shows that theft was proved but neither any accused nor any article could be recovered, therefore, final report was submitted. The final report has been accepted. The complainant has filed a list of articles stolen. Such type of list can be prepared at any time and it is that the complainant has filed a list only of Rs. 42,778/- (Rupees forty two thousand seven hundred seventy eight). If he had to himself submit a list without any proof, he could have submitted it even for lacs of rupees. WE fully agree with the argument of the learned Counsel for the Insurance Company that such papers must be in possession of the complainant because these were obligatory to be filed before the Bank but knowingly these papers have not been filed. In the survey report, the Surveyor has shown the insurance of Rs. 1,00,000/- (Rupees one lac) but he has also reported that the complainant has reported theft of only Rs. 25,000/- (Rupees twenty five thousand). He, however, did not give any value of the articles stolen but only reported that present stock was of only Rs. 6,778/- (Rupees six thousand seven hundred seventy eight). In the claim form which is in the signature of the complainant, the complainant himself has given estimated value of the total contents of the premises at the time of the burglary as about Rs. 25,000/- (Rupees twenty five thousand). It was argued that if only articles worth Rs. 25,000/- (Rupees twenty five thousand) were there at the time of burglary, then hardly the theft of articles of Rs. 18,000/- or Rs. 19,000/-. The complainant himself has given his statement that Nayab Tehsildar has inspected the shop and the theft was of the articles worth Rs. 25,000/- (Rupees twenty five thousand) and cash of Rs. 250/- (Rupees two hundred fifty) was also stolen.

THE complainant himself has alleged at different places that theft in his shop was of Rs. 25,000/- (Rupees twenty five thousand). He is not entitled to any compensation more than this. THE order under appeal is to be modified to this extent. ORDER THE appeal is hereby partly allowed and partly dismissed. THE amount of award is reduced from Rs. 40,000/- (Rupees forty thousand) to Rs. 25,000/- (Rupees twenty five thousand only) and the appellant is directed to pay this amount to the complainant within a month. Cost of this appeal shall be easy. Appeal partly allowed.