BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL)
MAHARANA PARTAP BUS TERMINAL: MEZZANINE FLOOR.
KASHMERE GATE DELHI.
No. DF(Central)/2009/ Dated:
Complaint No.497/2008
Rajhans Gas Service
11, South Avenue Market
Near Teen Murti,
New Delhi Complainants
Versus.
The National Insurance Co. Ltd.,
XI, 6/90, Padam Singh Road
Karol Bagh,
New Delhi – 110 005 Opposite Party
ORDER
Ms. M Siddiqui, Member
The complainant is distributor of Indian Oil’s LPG and stores and sells LPG Indane Cylinder at Kh. No. 106/12, (East) Village Kakroli, Goela Dairy Farm, Najafgarh, New Delhi. It had “LPG Trader Combine Policy” from the OP with Policy No. 360500/48/07/2000002104 during the period 11.2.2007 to 10.2.2008 to cover risk of building and gas cylinders.
The complaint has further pleaded that on 24.9.2007 at about 10.30 A.M., two young boys came to the aforesaid gas godown and told the gunmen of the store Mr. Rai that they were from Delhi Police and would like to inspect the godown. He opened the gate but immediately thereafter, about 20 other persons followed them. They broke open the lock with stones and reached inside the store shed room. They also broke open two more locks with stones. Those people took away 32 filled LPG domestic cylinders. The matter was informed to the police control room. The higher police officers visited the premises and registered the F.I.R., P.S. Najafgarh. The complainant approached the Dy. Commissioner of Police, South West and vide letter dated 15.10.2007 informed him that the F I R was not properly recorded. On 27th January, 2008, the police filed the report “Untraced Report”.
The matter was taken up with the OP for settlement of the claim. The Insurance Company deputed M/s J D Gulshan and Company, assessors, valuers and risk consultant for inspection and report. However, the OP vide its letter dated 6.6.2008 repudiated the claim. The complainant has prayed for Rs.40,773/- as claim against 32 LPG Cylinders and Rs.50,000/- for the mental agony and harassment.
The Insurance Company has filed the written statement. It has taken the plea that the complainant is involved in commercial activity and as such it is not a consumer and the complaint is not maintainable. Otherwise, there has been no deficiency of service on the part of the OP. Further, as per Insurance terms and conditions of the insurance policy, there must have been forcible entry to recover the risk of burglary or house breaking. In the present case, there was no such forcible entry or by means of violence. The company after going through the report of surveyor and the other documents, found that claim of the complaiantn was not as per terms and conditions of the policy.
On behalf of the complainant, Shri Ajay Khurana, has filed his affidavit in support of the plea of the complaint. The OP has filed the affidavit of Shri N K Bhardwaj, Senior Divisional Manager. The parties to the complaint has placed on the file the insurance policy, copy of the FIR, copy of the report of the surveyor and assessors. Written argument has also been filed by the complainant. We have heard the Ld. Counsel for the parties and have given our thoughtful consideration to the material placed on the file.
The OP has taken preliminary objection that the complainant is not a consumer as it is involved in a commercial activity and, therefore, complaint is not maintainable before this Forum. It is correct that complainant is involved in commercial activities as it sells gas cylinders. However, it is a matter of record that it hired services of the OP to get insured the goods. i.e. gas cylinders etc, stored in its godown. The hiring of the service of the insurance company was not for commercial activities. It was to secure the goods of the complainant. So far the OP is concerned, the complainant was not having commercial activities to exclude the complainant to file complaint under the CPA. The complaint is maintainable.
The FIR was registered at PS, Najafgarh. It was recorded at the statement of Shri Ramesh Chand Pandey, who used to supply the gas cylinder. The complailnatn informed the SHO and the Dy. Commissioner of police (South West Distt.) that FIR was not properly recorded. This fact has also came in the report of the assessors, valuers and risk consultants as appointed by the OP. After making detailed enquiry, the assessors of the OP has observed in the report that “the point to be noted is here that the police have registered case under section 380 IPC only, and not under another additional section to imply that looting/burglary/forcible action having been taken by the culprits while committing the above occurrence, which may please be noted. We are of the opinion that the police avoid appending the sections related to looting/burglary/forcible action while registering and FIR because if they do, then they have to report the case to other superior officers, which spoils the record of that police stations/concerned beat officers.”
In view of the above facts and as per terms and conditions of the policy, the claim becomes payable under the policy only if the physical threat and/for house breaking and/or forcible entry/exit is offered so as to commit the crime.
The report of the assessors and the letter of the complainant to the DCP dated 15.10.2007 leave no doubt that it may be that true facts were not recorded in the FIR. Two persons posed themselves to be police officials and wanted to inspect the godown and, therefore, the gate were opened. Other people followed them and broke upon the lock and removed the gas cylinders. It is a case of forcible entry and committing of house breaking and removal of 32 gas cylinders.
The aforesaid act is covered under the terms and conditions of the Insurance Policy. There was no occasion for the OP to repudiate the claim. The assessors of the OP company assessed the loss of the 32 gas cylinders to Rs.40,773/- minus under – insurance @ 11.06% i.e. Rs.4,509/-. The loss was adjusted to Rs.36.264/-. That amount has not been paid to the complainant. It has been denied for the last more than two years. Hence, we allow the complaint and pass the following directions.
1. The OP company shall pay to the complainant a sum of Rs.36,264/- as the loss of the 32 LPG Cylinders.
2. The OP company to pay to the complainant compensation for harassment and mental agony to the tune of Rs.15,000/-
3. The OP company to pay to the complainant litigation charges to the tune of Rs.5,00/-
The aforesaid amount and shall be paid within 30 days form receipt of the order. Otherwise, complainant shall be entitled for simple interest @ 9% per annum for the entire amount from the date of this order till realization of the amount.
Copy of the order be sent to the parties, free of cost.
File be consigned to R/R.
Announced on __07/12/2009.
(S.R.AGARWAL) (M SIDDIQUI ) (B.B. CHOUDHARY)
MEMBER MEMBER PRESIDENT