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Pindi Fashion Mall Pvt. Ltd. v/s Oriental Insurance Company Ltd.

    First Appeal No. 171 of 2011

    Decided On, 15 November 2011

    At, Union Territory Consumer Disputes Redressal Commission UT Chandigarh

    By, THE HONOURABLE MR. JUSTICE SHAM SUNDER
    By, PRESIDENT
    By, THE HONOURABLE MRS. NEENA SANDHU
    By, MEMBER & THE HONOURABLE MR. JAGROOP SINGH MAHAL
    By, MEMBER

    For the Appellant: Sandeep Bhardwaj, Advocate. For the Respondent: Vinod Chaudhri, Advocate.



Judgment Text

S. Jagroop Singh Mahal, Member:

1. This is complainant’s appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act) against the order dated 25.5.2011 passed by the learned District Consumer Disputes Redressal Forum-II UT, Chandigarh (hereinafter referred to as the District Forum) whereby the complaint was allowed and the OPs were directed to pay to the complainant/appellant Rs. 1,04,806 (as assessed by the Surveyor) along with compensation of Rs. 20,000 and costs of Rs. 7,000 within a period of 30 days from the receipt of its certified copy, failing which the OP was to pay Rs. 1,24,806 along with interest @ 12% p.a. from the date of repudiation of the claim i.e. 8.2.2010 till the date of actual payment besides paying Rs. 7,000 as costs of litigation. The complainant has prayed for enhancement of the compensation.

2. Brief facts of the case are that, the complainant obtained money insurance policy from OP, that on the intervening night of 31.8.2009/1.9.2009 a theft took place in the premises of the complainant in which Rs. 2.56 lacs cash was stolen. The complainant lodged FIR on 1.9.2009. The case was investigated but an untraced report was sent by the police. The OP was informed and they appointed a Surveyor who visited the site and all the desired documents were furnished to him. The claim was however, repudiated vide letter dated 8.2.2010 alleging that he has manipulated the claim showing abnormal high sale a day before the incident. It was also alleged that the amount of Rs. 75,000 was deposited on 10.8.2009 but no corresponding entry was made in the cash book on that date. The appellant/complainant has produced copies of the bills, cash receipts, vat bill, cash book, day book, VAT return and audit report and made a prayer to pay the full amount of Rs. 2.56 lacs with cost and compensation.

3. In their written reply the OP alleged that the amount of Rs. 75,000 deposited by the complainant in the bank on 10.8.2009 had no corresponding entry available in the cash book and it was, therefore, frivolous claim. It was alleged that the record was manipulated by the complainant and inflated claim was submitted and, therefore, it should be referred to Civil Court for adjudication. It was alleged that the complainant is commercial organization and therefore outside the purview of the Act.

4. Both the parties led evidence in support of their case.

5. After hearing the learned Counsel for the parties and on going through the evidence on record, the learned District Forum allowed the complaint, as stated in the opening para of this order.

6. Feeling aggrieved the instant appeal has been filed by the appellant/complainant for enhancement of the compensation.

7. We have heard arguments of the learned Counsel for the parties and have perused the record.

8. The OPs had appointed a Surveyor who submitted his report Annexure R-l. The OP has also appointed Sh. Jaspal Singh Investigator to carry out the investigation in the claim. He submitted the report that burglary has been committed by unknown persons by making forceful entry in the Fashion Mall at night hours. The Surveyor however, came to the conclusion that the sale was inflated a day before the burglary and only a sum of Rs. 1,04,806 was in hand on that date which is alleged to have been stolen. The Surveyor did not take into consideration Rs. 75,000 which according to him was deposited by the complainant in the bank but was not reflected in the books. Cash sales 4% amounting to Rs. 31,455 and the cash Rs. 45,297 received from the customers was also not accepted as true and in this manner while deducting these amounts from the amount of Rs. 2,56,558 shown by the complainant a sum of Rs. 1,04,806 was held to have been stolen. The contention of the appellant is that the Surveyor of the OP, while admitting that burglary has taken place, has committed a mistake in respect of the abovementioned three items.

9. We first take the amount of Rs. 75,000. It was alleged in the report of the Surveyor and hence in repudiation letter that the complainant deposited Rs. 75,000 in the Canara Bank on 10.8.2009 but did not show this fact in its books. The complainant has produced Annexure C-9, which is the bank statement which shows that no such amount of Rs. 75,000 was deposited by the complainant/appellant in his bank account on 10.8.2009. The OP has not produced any evidence from the bank records to suggest if the said amount was ever deposited by the complainant in their bank account on that date. The Surveyor has therefore, wrongly deducted this amount from the cash in hand on false assertion without examining the bank record. The amount of Rs. 75,000 was not deposited by the complainant in bank but it was in hand on 31.8.2009 and had been stolen. The complainant is, therefore, rightly claiming this amount from the OP.

10. As regards the amount of Rs. 31,455, the contention of the complainant/appellant is that goods were sold to Neena Aggarwal wife of Bhuwan Aggarwal and he referred to Annexure C-11, which is a copy of the bill. Annexure C-11, however, does not show the name of the purchaser therein. The affidavit of the purchaser was not produced before the learned District Forum to support the sale. The appellant moved an application for producing the affidavit of Neena Aggarwal as additional evidence but the same has not been allowed, and otherwise also the name of Neena Aggarwal is not mentioned in the bill. She, therefore, cannot be said to have purchased any such material from the complainant. This amount of Rs. 31,455 was, therefore, correctly deducted from the cash in hand.

11. The contention of the complainant is that a sum of Rs. 45,297 was received as cash from the customers for sale on which VAT was payable. The complainant has produced the bills in this respect but mere production of the bills would not prove the sale unless the affidavit of the person who sold or purchased the goods or the person who issued cash memos was produced. The complainant did not produce any such affidavit to prove the said sale or the cash memos and, therefore, the learned District Forum rightly declined to allow the compensation of Rs. 45,2

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97. 12. In view of the above discussion, we are of the opinion that the complainant was entitled to the compensation of Rs. 75,000 also, which was declined on wrong facts. The present appeal is, therefore, liable to succeed. The impugned order is accordingly modified and instead of Rs. 1,04,806, the complainant would be entitled to Rs. 1,79,806 (Rs. l,04,806+75,000) . The amount of Rs. 1,24,806 would be consequently enhanced to Rs. 1,99,806. All other directions issued by the learned District Forum shall remain the same. The complainant/appellant would also be entitled to Rs. 7,000 as costs of litigation in appeal. Copies of this order be sent to the parties free of charge.
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