C.F. CASE No. : CC/2012/24
COMPLAINANT : Shyam Karmakar,
S/o Sukumar Karmakar,
Vill. Nutangram, P.O. Hizuli,
P.S. Ranaghat, Dist. Nadia
OPPOSITE PARTIES/OPs : 1) Chief Manager,
Bajaj Allianz General Insurance Company
Authorized signatory
GE Plaza, Airport Road, Yerawada, Pune - 411006
2) Authorized signatory
Policy Servicing Office,
3/20/B K.K. Banerjee Road,
P.O. Berhampore, Dist. Murshidabad,
PIN – 742101
3) Chief Manager,
United Bank of India, Ranaghat Branch,
Subhas Avenue, P.O. Ranaghat, Dist. Nadia
PRESENT : SHRI PRADIP KUMAR BANDYOPADHYAY, PRESIDENT
: SMT REETA ROYCHAUDHURY MALAKAR, MEMBER
DATE OF DELIVERY
OF JUDGMENT : 18th December, 2013
: J U D G M E N T :
The instant case was instituted by one Sri Shyam Karmakar, S/o Sri Sukumar Karmakar a resident of Nutangram, P.O. Hijuli, P.S. Ranaghat, Dist. Nadia against the opposite parties / Bajaj Allianz General Insurance Company Ltd. and United Bank of India, Ranaghat Branch authorized signatory policy servicing office with an allegation of unfair trade practice / deficiency in service.
Shorn off the unnecessary details, the material facts of the instant case are that: the petitioner is a proprietor of jewellery shop under name and style S.K. Jweller and purchased one Insurance Policy under jewelers Block Insurance Policy from opposite party No. 1, Bajaj Allianz General Insurance Company Ltd. on 15.01.2011 through the opposite party No. 2, United Bank of India, Ranaghat Branch for a sum of Rs. 13,50,000/- being No. OG-11-2418-4099-00000001 and the policy was in vogue up to midnight of 14.07.11. The subsistence of the said policy on 21.12.2010 a burglary took place at midnight in the said jewellry shop by some miscreants by breaking the locks of the shops and took away some articles (gold and silver and cash). The petitioner lodged a FIR at Gangnapur P.S. bearing Gangnapur Case No 276 dtd. 22.12.2010 under Section 461/379 IPC. The petitioner informed the matter to his banker and also submitted claim application to the said Insurance Company and the Insurance Company got the investigation done through a surveyor, to whom the petitioner handed over all necessary documents including stock registrar etc. to enable it to realistically assess the loss. The case of the petitioner was that the said surveyor had assured him about the genuineness of his claim but subsequently the opposite party No. 1 Insurance Company asked more documents from the petition to expedite the claim. But the petitioner was not in the mood for complying the said request. Therefore, the opposite party No. 1 Insurance Company closed the file repudiating the claim of the petitioner. It was in this background the petitioner had been constrained to approach this Forum by filing a complaint under Section 12 of the Consumer Protection Act, 1986 praying for reliefs as stated in the petition of complaint.
On being served the opposite parties entered appearance and contested the case by filing written version challenging, inter alia, the very maintainability of the case. The opposite parties have got to say that the proceeding is misconceived, malafide, groundless and unsustainable in law. On such ground the opposite parties pray straightway dismissal of the case.
The core points that arise for our consideration are:
- Whether there was any deficiency in service from the side of the opposite party No. 1 Insurance Company in repudiating the claim of the petitioner?
- Whether the complainant is entitled to get any relief, if so, to what extent?
DECISIONS WITH REASONS
The fate of the present complainant hinges on the answer of the question is as to whether the opposite party No. 1 Insurance Company was justified in repudiating the claim of the petitioner.
Ld. Advocate representing the petitioner pleads that it is a glaring example of utter negligence / deficiency in service on the part of the opposite party No. 1 Insurance Company as because the petitioner complying the terms and conditions of the said policy submitted the claim along with all documents to assess loss but the opposite party No. 1 Insurance Company arbitrarily and unwarrantedly repudiated the claim of the petitioner. Thus, in the opposite party No. 1 Insurance Company fall squarely within the mischief of unfair trade practice as well as deficiency in service. Under the circumstances, the petitioner is entitled to get compensation for mental agony and harassment and cost of the proceedings in addition to loss suffered by the petitioner.
In rebuttal ld. Advocate appearing for the opposite party No. 1 Insurance Company submits that the documents and records submitted by the petitioner reveal the sales turnover in 9 month’s period of 2010-11 has increased by 1082.24 per cent as compared for the 12 month’s period of 2009-10. The rate of net profit ratio of 18.78 per cent of the previous year would yield a taxable profit of 26.76 lacs and in such case the situation would demand payment of Advance Income tax by a Govt. amount up to 15th December 2010 but the petitioner failed to show / submit any proof of such payment. Moreover, the turnover shown by the petitioner attracts VAT as per law of the land and the purchase bills submitted are also of big amount but neither the petitioner has paid VAT nor has charged VAT.
Ld. Advocate further submits that as per the stock declaration submitted by the petitioner to this bank for the period March, 2010 to November, 2010, the value of stock varied from 10.27 lacs to 16.42 lacs. But as per bank’s physical inspection, the value of stock as on 24.08.2010 was 7 to 8 lacs. Hence, there was a big gap in the statement of stock.
Ld. Advocate further submits that the purchase bills submitted by the petitioner were to be verified, but despite the surveyors best effort they could not trace any of the petitioner’s suppliers located in Kolkata. In view of the above they requested the petitioner to arrange for verification of the purchase bills submitted so that their authenticity can be established but as reported no co-operation was extended by the petitioner nor did he reply to the surveyor’s letter. Thereafter, the surveyor sent registered letters to the suppliers but the letters, except to of them, were returned back to the Insurance Company with remarks as not bound. The said two recipients who received he said letters also did not reply to it wherein confirmation regarding the supply being made to New S.K. Jewellers were asked for. Thus, it appears that the purchase documents submitted by the petitioner which forms the very basis of the existence of stock are not authentic.
Ld. Advocate further submits that the statement account collected from bank for the period from 01.04.2010 to 28.12.10 while it was noted that the debit entries are in respect of self drawings and only credit entry in the account was in respect of subsidy accounting to Rs. 2,36,400.00 whereas the purchase and sales made by the petitioner during the said period as per this documents submitted was Rs. 1,39,46070.00 and Rs. 1,42,79700.00 respectively and as per terms of C.L. facility the transactions are supposed to be passed through the bank. Hence, the entries in the purchase and sales cannot be taken at per. The surveyor has sent the petitioner letters dated 11.06.2011 and 25.06.2011 informing him of the above and also had a number of meetings with the petitioner but he has not been able to expedite on the above.
Ld. Advocate further submits that from the FIR lodged with local P.S. it was noted that the petitioner had suffered loss on account of stock of silver having weight of 50,000/- kg and gold having weight of 25 to 30 grams and cash of Rs. 90,000.00, however, from the stock register submitted by the petitioner it was noted that the closing stock of silver as on the date of loss was 65,000 kg of silver and as per cash book submitted the closing cash balance as on the date of loss was 21,698.38 and there was no gold stock as on the date of loss. In other wards it is clear that the statements do not corroborate with the records which were submitted to the surveyor by the petitioner.
Ld. Advocate further submits that as per warranty attached to the policy the insured premises was supposed to be under 24 hours watch and ward, but as per information made available to us the premises used to remain unattended after this business hours, which is out and out a violation of the said warranty.
In view of same the opposite party No. 1, Insurance Company had closed the file and repudiated the claim of the petitioner. The opposite party No. 1, Insurance Company have acted bonafide without fraud and deception and within the bounds of their authority and there is no deficiency in service on the part of the opposite party No. 1, Insurance Company. Under the facts and circumstance, opposite party No. 1, Insurance Company pray that the present petition of complaint be rejected outright with cost.
We have given our anxious thought to the arguments advanced by the ld. Advocate for both sides and also perused the materials on record.
It is well-established in the light of various judgments of the Apex Court that the terms and conditions of the Insurance Policy have to be construed strictly and if there is any violation of the terms, the party cannot claim any relief. Despite this law the opposite party No. 1, Insurance Company held not repudiated the claim of the petitioner outright rather the Insurance Company appointed a surveyor to assess the loss. This pro-insured attitude of the opposite party No. 1 Insurance Company is appreciable. But the petitioner is guilty of contributory negligence. He had neither co-operate the surveyor nor he submitted some absolutely essential arguments required for proper assessment of the said loss, without those documents the surveyor was compelled to finalize his report on the basis of the final police report’ (annexure-D) submitted by the petition. Both the police and surveyor assessed the loss to the tune of Rs. 1,10,000/-. The petitioner is entitled to get the said amount. But the petitioner is not entitled to get any compensation and cost for his contributory negligence. It is well settled-principle of material justice none can be rewarded for his own fault. We pass no order against the opposite party No. 2 and opposite party No. 3 as the liability to settle the claim of petitioner rests upon the opposite party No. 1, Bajaj Allianz General Insurance Company Ltd. In the result the case succeeds. Accordingly it is,
Ordered,
that the case is decreed on contest against the opposite parties. The petitioner is entitled to get Rs. 1,10,000/-. The opposite party No. 1 is directed to pay the decretal amount of Rs. 1,10,000/- to the petitioner within a period of one month since the passing of this order in default he is entitled to get interest @ 9% p.a. upon the decreetal amount since this date till the realization of the full amount.
Let a copy of this judgment be delivered to the parties free of cost.
