Order No. 13 date: 27-07-2017

Sri Shyamal Gupta, Member

This Appeal is directed against the Order dated 21-04-2014 passed by the Ld. District Forum, Kolkata I (North) in C.C. No. 29/2011.

Case of the Complainant, in short, is that an incident of burglary took place at his show room on 29/30-09-2006.  The matter was reported to the OP Insurance Company with a request to depute a Surveyor for assessing the loss.  Also, local Police Station was informed of the matter on 30-09-2006, who immediately started investigation.  They took the security guard of the showroom for interrogation and also interrogated other staff of the showroom.  Formal FIR was lodged in this regard on 02-10-2006.  The OP Insurance Company deputed two Surveyors, who thoroughly investigated the matter.  Despite this, the OP Insurance Company dragged the matter for long.  Hence, the complaint.

By submitting a WV, it is submitted by the OP Insurance Company that reported loss could not be established either incidence wise or quantity wise.  Despite specific direction of the Surveyor, the Complainant could not explain/provide details as to how the loss amount was calculated – both model wise as well as quantity wise.  The Surveyor also opined that the incidence of burglary could not be established by proving forcible entry into the shop.  As such, according to the OP, the Complainant was not entitled to any relief.

Decision with reasons

Heard the Ld. Advocates of both sides and gone through the documents on record, including the citations referred to.

The Appellant firstly disputed the claim on the ground that the reason for delayed intimation to the local Police has not been properly explained by the Respondent.  However, it appears from the documents on record that the Respondent vide its letter dated 24-04-2007 explained the reason for lodging formal FIR in respect of the alleged incident of burglary on 02-10-2006 instead of 30-09-2006 itself.  In the said letter, the Respondent stated in unequivocal terms that on discovery of the burglary on 30-09-2006 morning, he called up the local Police Station over phone, who immediately swung into action and apprehended one local boy and also took the security guard for interrogation on that day and their statement before the authority concerned would establish his claim in this regard and finally on 02-10-2006, the Police Authority recorded his statement.  It is indeed strange, despite such clarification, the Appellant repeatedly harped on the string of non-receiving of any clarification from the side of the Respondent in this regard. 

It is the further allegation of the Appellant that the Surveyor deputed for the purpose of causing due investigation did not find any trace of forcible entry inside the showroom.  In this regard, it transpires from the copy of letter dated 22-12-2006 that he sent 5 nos. photographs to Mr. Alok Banerjee, Surveyor.  Further, from the photocopy of survey report of Mr. Souren Chatterjee dated 28-07-2008 that he sent some photographs, being given by the Respondent, to the Appellant.  For some obscure reasons, the Appellant has not furnished the same on record in order to nullify the contention of the Respondent that those photographs contained clinching evidence of ransacking of the showroom/forcible entry inside the showroom. 

Next let us consider whether there is any iota of truth in the contention of the Appellant that despite repeated reminders, the Respondent did not furnish item wise/quantity wise/value wise details of stock being taken away by the miscreants. 

It transpires from the documents on record that the Respondent provided a Stock Statement containing details of stock position before the alleged burglary took place together with stock available after the said incident as well as missing stock.  Incidentally, variant no. of missing stock together with quantity and value was also duly mentioned in the said statement.  The said statement further shows how the Respondent derived at the loss figure.  The statement being computer generated through the Software developed by TITAN and in absence of any tangible proof of any sort of tampering of the same through manual intervention, authenticity of the same can hardly be disputed. A glance through the same reveals that the same was prepared in such a simple manner that even a layman would not find it at all difficult to co-relate and/or cross check the veracity of said statement from other available documents.  Mr. Banerjee, Surveyor was visibly reluctant to go for random physical checking of one or two variants.  He could also collect copies of inward supplies and sales bills in order to go for back-of-the-envelop calculation, but that was not done.  This is quite inexplicable.  

If one co-relates these facts with the conduct of Alok Banerjee, who initially carried out necessary inspection, it gives enough fodder to suspect his sincerity of purpose in the whole affair.  Undisputedly, due information about the peril was conveyed to the Appellant by the Respondent on 30-09-2006.  However, for some obscure reasons, the Appellant took three days to appoint a Surveyor.  What is more intriguing is the fact that Mr. Banerjee visited the show room of the Respondent on 09-10-2006.  In case of theft/burglary related matters, first 24 hours are considered golden hours to collect material proof regarding such incident.  However, for some obscure reasons neither the Appellant nor the concerned Surveyor was in a state of hurry.  It is quite obvious, if an inspection is carried out more than a week since the happening of incident, vital clues regarding an incident are bound to elude the Investigator. 

It is stated by the Respondent that burglars made forceful entry after removing the AC machine installed in the servicing room.  However, the concerned Surveyor disputed such fact.  It is futile to expect that a showroom owner would not seal/repair the wide opening being created by miscreants and wait for an endless period exposing remaining goods at further risks till such time the Surveyor makes spot survey at his own sweet will. 

It is also alleged by the Surveyor in his report that during his conversation with the Officer-in-Charge of the concerned Police Station, he was given to understand that since the occurrence of burglary was reported two days after the date of occurrence, the IO did not take any photograph.  Question survives, if that was indeed so, wherefrom the photographs being sent by the Respondent to him or those were handed over to Mr. Souren Chatterjee, Surveyor emerged. It is also not clear why did he speak to the OC of concerned Police Station instead of the concerned IO to enquire about the matter.  Since the Respondent did not claim that he took any photograph, if he so desired, Mr. Chatterjee, Surveyor could also cross-check from the Police Station concerned if indeed the concerned IO took those photographs or not.

To our mind, if the Appellant as well as the Surveyor, who was initially appointed, was indeed serious to cause a meaningful enquiry, they would certainly act with due alacrity and reached the spot instantaneously. 

It is always desirable that the conduct of a Surveyor should always remain above board.  We fail to understand why Mr. Banerjee, Surveyor did not make a joint inspection report to note down his findings during spot survey itself.  This would have certainly given his report more authenticity.  Since a Survey Report is prepared behind the back of the Insured, the possibility of preparation of a hostile report on the face of undue influence of the Insurance Company cannot be ruled out.  However, whenever joint inspection report is prepared and details of findings are noted down in presence of the Insured, the latter cannot deny contents of the same being a co-signatory of such a report.  Unfortunately, there is nothing to show that the Surveyor concerned prepared any joint inspection report.

We are fully conscious of the fact that Survey Report carries immense significance.  However, whenever the conduct of Surveyor remains doubtful, the Survey Report cannot be given due prominence that it deserves.

Considering all these aspects, we afraid, no reliance can be placed upon the Survey Reports being placed on record by the Appellant.

On a thoughtful consideration of the facts and circumstances of the case, it does seem to us that by allowing the complaint, the Ld. District Forum committed no jurisdiction error.  As such, we see no reason to interfere with the impugned order in any manner.

The Appeal, thus, fails.

Hence,

O R D E R E D

that FA/691/2014  be and the same is dismissed on contest.  The impugned order is hereby affirmed.  No order as to costs.

Let a copy of this order be sent to the Ld. District Forum together with the LCR forthwith.