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2005 DIGILAW 46 (UTT)

Neha Batra v. Oriental Insurance Co. Ltd.

2005-02-23

K.D.SHAHI, LUXMI SINGH, SURENDRA KUMAR

body2005
ORDER K.D. Shahi, President — This is an appeal against the order dated 3.9.2003 passed by the District Forum, Haridwar whereby the complaint of the complainant was rejected with special cost of Rs. 5,000/- against the complainant. 2. The complainant has got her shop insured for Rs. 7,80,000/- from 21.11.1997 to 20.11.1998. In the night of 18/19.10.1998 there was a theft in her shop. The FIR was lodged with the police. The insurance is admitted. The amount of insurance is admitted. The theft is admitted. The Insurance Company appointed surveyor to assess the loss. It is said that originally the surveyor assessed the loss for Rs. 3,86,586/- but it again assessed the loss for Rs. 3,41,273/- and out of this there was stock of the insured himself worth Rs. 2,77,838/-. This was a watch shop. The complainant used to repair the watches of customers as well. The surveyor found that these watches are said to be worth Rs. 63,435/-. This can be said to be stocks held in trust. The surveyor, therefore, reported that the complainant may be paid a sum of Rs. 3,41,273/-, of course after verification of the stocks held in trust. 3. It is admitted fact that a sum of Rs. 2,77,838/- has been paid to the banker of the complainant on 2.12.1999. The claim of the other part of Rs. 63,435/- has been rejected. This was in respect of stocks held in trust. It is said that the complainant has received a sum of Rs. 2,77,838/- under protest. She filed the complaint with specific allegations that when the amount of Rs. 63,435/- was withheld, she wanted the reply from the Insurance Company but she did not get any satisfactory reply. The Insurance Company has surveyed all the receipts and purchase on 30.11.1999 and she specifically alleged that the amount of Rs. 63,435/- has been withheld illegally. She however claimed in the complaint a sum of Rs. 3,48,830/- but the entire allegations were in the complaint that the amount of Rs. 63,435/- should not have been deducted because the receipts were genuine. 4. It appears that the complainant during the course of proceedings before the learned Forum as well as though she has filed the complaint for recovery of the entire amount of Rs. 3,48,830/- but she has impressed that she should be paid a sum of Rs. 63,435/- should not have been deducted because the receipts were genuine. 4. It appears that the complainant during the course of proceedings before the learned Forum as well as though she has filed the complaint for recovery of the entire amount of Rs. 3,48,830/- but she has impressed that she should be paid a sum of Rs. 63,435/-, i.e., the value of the stocks held in trust. 5. Before us the learned counsel for the complainant referred the rulings as well as argued that when the surveyor has earlier given report for a sum of Rs. 3,86,586/-, it should not have been reduced to Rs. 3,41,273/- without any reason. The report of the second surveyor is not binding or the second report of the same surveyor is not binding but this plea appears to have been left because the complainant herself has given a letter of subrogation for this latter amount. She has also given a letter of undertaking for this amount. She has also written on 16.11.1999 that she has received the price of articles stolen. Merely writing UP or VP unnecessarily will not make it a case under protest, nor she is able to prove the case otherwise. 6. Now the only question is whether the complainant should have been given the amount of Rs. 63,435/- for the stocks held in trust or not. We are fully satisfied with the argument of the Insurance Company that this is not a loss of the insured. It is the loss of the persons who have given their watches to him in trust. If the complainant pays them the price of their watches, then this shall be the loss of the complainant but if she does not pay the price of these watches to the customers, this is a loss of the customers and not of the insured. Now this stock of Rs.63,435/- was left for verification. This amount could not have been given without verification. The complainant has prepared the receipts in one sitting in one date of various customers, which on investigation by the Insurance Company were found to be forged. According to the Insurance Company there is forgery by the complainant and this is why the learned Forum has imposed special cost against the complainant. The complainant has prepared the receipts in one sitting in one date of various customers, which on investigation by the Insurance Company were found to be forged. According to the Insurance Company there is forgery by the complainant and this is why the learned Forum has imposed special cost against the complainant. According to the complainant also as written in para 8 of the grounds of appeal that some fraud has been played by the Insurance Company to get another report. Thus from the sides there are allegations of fraud. In summary proceedings, we cannot examine fraud and for the parties are free to approach the Civil Court for regular trial but in these proceedings no finding can be given in that respect. On facts it is apparent as the papers have been filed by the Insurance Company in this appeal itself that most of the persons in whose name the receipts are said to have been issued have given in writing to the Insurance Company that they have not given any watch to the complainant for repair and they have not been paid any amount. These are Sunil Kumar, Lalit, Rajan Singh, Kedarnath, Manoj Kumar, Deepa, Karadev, Lata, Nancy and a number of such other persons. Thus in these circumstances the learned Forum was perfectly justified in rejecting the claim for that amount. 7. We do not find any force in this appeal. The appeal is liable to be dismissed. However, the complainant has been imposed with a special cost of Rs. 5,000/-. She has got the insurance of Rs. 7,80,000/-. She might not have been able to prove her case to the hilt but her case cannot be said to be totally false. In these circumstances there was no question of imposing any special cost against the complainant, although her complaint deserves to be dismissed. Therefore, this order of special cost is to be quashed. ORDER 8. The appeal is hereby dismissed with a slight modification that the order of payment of Rs. 5,000/- as special cost by the complainant to the Insurance Company is hereby quashed. The parties shall bear their own costs throughout. Appeal dismissed. *******