S.NIZAR vs Divisional Manager, National Insurance Co. Ltd.

THIS petition is filed under Section 12 of the Consumer Protection Act attributing deficiency in service on the part of the first opposite party is not settling the insurance claim and seeking a direction to the first opposite party to pay an amount of Rs. 6,00,000/-.

THE material allegations in the complaint are as follows : THE complainant was conducting a business under the name and style M/s. New Thread Equipments dealing in all kinds of tailoring goods at T.C. No. 37/23, Pazhavangadi, Thiruvananthapuram during the years 1992-94. He was financed by the State Bank of Hyderabad, the second opposite party in the complainant. THE stock in trade and the firm was insured with the first opposite party for a sum of Rs. 6,00,000/- covering the period from 15.9.1993 to 14.9.1994 which is evidenced by Exbt. Pi-policy. It is also alleged that the stock and share were verified by the second opposite party periodically and the stock statement dated 2.3.1994 of the complainant was also verified and accepted by the second opposite party. On 3.3.1994 night a burglary took place in the complainant''s shop room and the tailoring goods were stolen. On the very next morning the damages were estimated at more than Rs. 6,10,400/- by the complainant due to the burglary. THE complainant lodged a complaint before the Fort Police Station, Thiruvananthapuram and a case was registered as Crime No. 89/94. Exbt. P3 in the FIR relating to this. The complainant approached the first opposite party with a claim tor Rs. 6 lakhs. However, by communication dated 1.3.1995 the first opposite party repudiated the claim. Thereupon on 9.9.1996 the complainant sent a notice through lawyer which is evidenced by Exbt. P4 [and the acknowledgement relating to this Exbt. is P4(a)], saying that the act of the first opposite party in repudiating the claim is illegal. It is on these allegations the complaint was filed.

A revision was filed by the first opposite party in which the insurance policy was admitted. It is also admitted that they got an insurance claim relating to the alleged occurrence and it was contended that the opposite party conducted a very detailed investigation and survey by independent Surveyors and Investigators and that on the basis of the reports and documents filed by the surveyors and Investigators deputed by the opposite party, the opposite party found that there is no actual violent and forcible entry into the premises as alleged by the complainant. It is also alleged that the complainant himself has admitted that he does not maintain stock register and the complainant had made unaccounted purchases. In the circumstances, it is contended that the repudiation is valid and there is no deficiency on the part of the first opposite party.

THE second opposite party also filed a version in which it was contended that the second opposite party is an unnecessary party. It is also Stated that Exbt. P2-statement was submitted only on 5.3.1994. Finally it was contended that they are not liable to pay any compensation. On behalf of the complainant, he was examined as PW 1. An affidavit was also filed by him in lieu of chief examination. Exbts. PI to P5 were also marked. On behalf of the opposite party RWs 1 and 2 were examined and Exbts. R1(a) to R1(f) series were produced.

THE following points arise for consideration : (i) Whether the first opposite party has committed any deficiency in repudiating the claim for insurance amount ? (ii) Whether the complainant is entitled to any relief ? (iii) If so, what is the order as to cost ?

The complainant in his affidavit has spoken in terms of the averments contained in the complaint. He was cross-examined by the opposite parties. He admitted that Exbt. R1 is the report filed by the Police after investigation and it has been stated in Exbt. R1 that on examination no tampering was detected in the lock. He also admitted that in Exbt. R1 it is stated that there is some incredibility in the occurrence. He further admitted that in the letter given to the Surveyor on 4.6.1994 it was stated that there is no stock register maintained and that he has not paid any income tax. Rw 1, the Branch Manager of the Insurance Company, M.G. Road, Thiruvananthapuram, was examined as Rw 1. He admitted the policy. He further stated that preliminary survey was conducted by one Ananda Shenoy. One Sri Sivaramakrishna Iyer a retired Dy. S.P. was deputed for making an investigation and his report is Exbt. R1(b). He further stated that one Ramaswamy was appointed as Surveyor and he has filed a report and it is Exbt. R1(f). He stated that from the Survey Reports and from the investigation report it is seen that there was no forcible entry and loss of articles. He has also stated that regarding this police has filed a report and it is Exbt. R1(c) which shows that the lock was sent to Forensic Laboratory and it is stated that the result was that no tampering was detected.

RW 2 is Sri S. Sivaramakrishna lyer, a retired Dy. S.P. and he deposed that he investigated into the matter and he filed Exbt. R1(b) report, and that report would show that there is no evidence of burglary.

THE crucial question to be considered is whether there was a burglary in this case resulting in theft of goods stacked in the shop and whether in making repudiation the first opposite party has committed any deficiency. THE survey report Exbt. (b) is to the effect that there is no evidence to show that there was tampering with the lock. THE evidence of RW 2 and his report also are also to this effect. THE final investigation report of the police also does not support of the case of the complainant. In view of these materials it would be difficult to find that there is any deficiency on the part of the first opposite party. We, therefore, dismiss the complaint. However, we make it clear that this will not preclude the complainant from approaching a Civil Court and establishing his case. We direct the parties to bear their respective costs. Complaint dismissed. ___________