This case has arisen out of an application U/s 35 of the Consumer Protection Act, 2019.
The case of the complainant is that the petitioner operates the business and deals in production of tea, tea plant etc & holder of policy vide No:OG-19-2414-4010-00002704 w.e.f 17.01.2019 to 16.01.2020 under O.P.No:1.
That on 14.03.2019 at about 11pm in the night some miscreants broke down backside door of the petitioner’s tea factory and stolen 06 tones 360 kgs of made tea valued Rs.195/- per kg for which petitioner suffered huge monetary loss. It was informed to Islampur P.S & case No:137/2019, dated 15.03.2019 U/s 379 IPC was started & it was also intimated to O.Ps on 15.03.2019. Said case was ended in Charge Sheet No:464/21, dated 26.08.2021 U/s 379 IPC but no stolen item was recovered.
That O.P.No:2 appointed a Surveyor for assessing the loss sustained by the petitioner due to said theft who visited & inspected petitioner’s factory but after lapse of several days O.Ps did not settle the claim, so petitioners sent a letter dated 21.10.2021 to O.P.No:2 with all his documents but no result. Petitioner prays for a direction upon O.Ps to pay Rs.12,40,200/-, compensation of Rs.1,00,000/- for mental pain, agony & harassment & Rs.50,000/- as litigation cost.
O.P.No:2 did not contest the case.
O.P.No:1/Insurance Company contested the case by filing W.V admitting the Insurance policy, as a Burglary policy sum assured Rs.75,00,000/- in the name of petitioner’s firm & that after receipt of intimation from the complainant Claim No:OC-19-2405-4010-0000009 was registered, but O.P was informed long days after the incident which is in contravention of both the terms & conditions of Insurance policy & M.V.Act. O.P deputed a Surveyor to assess damage/loss of goods & Surveyor Mr. Somendra Chakraborty went to the spot i.e insured’s factory at Haskunda, P.O:Matikunda, P.S:Islampur, Dist:Uttar Dinajpur on 31.03.2019 & met Mr. Chandra Sekhar Mandal, Manager of petitioner’s company who stated that on 13.03.2019 at about 7:20 am he came to know from his colleague that locks from inside at backside of said factory were broken & teas were stolen away approximately weighing 6360 KG & net loss assessed to Rs.6,18,591/-. Without prejudice to admitting any liability if O.P found liable to pay the loss then the liability should not be more than net assessed amount. O.P.No:1 prays for dismissal of the case.
Points for consideration is:-
- Whether there was any deficiency in service on the part of the O.Ps which gives rise cause of action to file the complaint and the complainant is entitled to get the claim?
D e c i s i o n w i t h r e a s o n s
Admittedly, Paragrown Growers & Tea Planters Pvt. Ltd having registered office at Haskunda, Post:Matikunda, P.S:Islampur Dist:Uttar Dinajpur, represented by its Director Manoj Dutta was insured with O.P.No:1/Insurance Company by a Burglary policy No:OG-19-2414-4010-00002704, sum assured Rs.75,00,000/- w.e.f 17.01.2019 to 16.01.2020 subject to terms, conditions, exclusion and limitation mentioned in the insurance policy Exhibit-1.
Exhibit:2 shows that Chandra Sekhar Mandal Manager of said firm lodged a written complaint to I.C, Islampur P.S dated 14.03.2019 that yesterday in the night at about 11 pm some miscreants broke down the backside door of the tea factory & stolen 6 tones 360 kgs i.e 6360 kgs of made tea, Lot No & S.L.No have been mentioned & Islampur P.S G.D.E No:588 & Case No:137/19, dated 15.03.2019 U/s 379 IPC was started which was ended in Charge sheet No:464/21, dated 26.08.2021 U/s 379 of IPC against 04 F.I.R name accused persons but stolen items were not recovered, vide GR 734/19 and the case is pending for disposal.
The case & evidence of Manoj Dutta, the Director is that after said occurrence Police & O.Ps were intimated on 15.03.2019. Defence case is that they were informed on 28.03.2019 after long days delay. In cross-examination Manoj Dutta stated that he cannot recollect the exact date of intimation, so far he knows claim has to be submitted within 07 days of the incident and in time he had submitted the claim with the Insurance Company. Filing of GDE/FIR immediate after incident of theft condoned the delay in intimation, if any, & thereby terms & conditions of Insurance policy and M.V.Act was/were not contravened.
It is not disputed that O.P/Insurance Company deputed Mr. Soumendra Chakraborty for survey and assessment of loss who went on the spot i.e insured’s factory on 31.03.2019 & submits report confirming the loss of 6360 KG made tea and net loss assessed to Rs.6,18,591/-. According to O.P due to non-submission of required documents claim could not be settled in time but claim of Manoj Dutta dated 21.10.2021 (after getting copy of charge sheet etc dated 26.08.2021) supported by required documents, received by Insurance Company dislodge its claim. It is not found that the claim of the petitioner was settled in spite of petitioner’s intimation & claim and Surveyor’s report which amounts to deficiency in service on the part of O.P/Insurance Company.
Tax invoice submitted for petitioner shows minimum value of made tea @ Rs.120/- per Kg so stolen made tea 6360 KG valued Rs.7,63,200/-(6360X120).
We therefore, are of the opinion that the petitioner is entitled to get Rs.7,63,200/- for theft of 6360 KG made tea kept in the godown of petitioner’s Company/Firm, being duly insured with O.P.No:1/Insurance Company but due to submission of claim after getting copy of Charge sheet of late, the petitioner is not entitled to get compensation for alleged harassment, mental pain & agony and litigation cost, if any.
In the result the case succeeds.
Hence, it is
O R D E R E D
that the C.C-49/2022 be and the same is allowed on contest against O.P.No:1 and ex-parte against O.P.No:2 but without any cost.
We do direct O.P.No:1&2 jointly & severally to pay Rs.7,63,200/- to the petitioner’s Company/Firm within 01 month from the date of the order i.d it shall carry interest @6% pa till realization in full & the petitioner is at liberty to take due course of Law.
Let a copy of this order be given to the parties free of cost.
