The OP1, OP2 and OP3 are the Insurance company and their officials who were arrayed in the complaint filed u/s 34(1), 34(2D), 35, 36 and 39 of the Consumer Protection Act 2019 before this Commission by the Complainant cum insured and a claimant before this commission.

The claim of the complainant as averred in the petition filed dated 12.07.2022 is for a direction on the OPs Insurers to pay a sum of Rs.50,00,000/- along with  compensation of Rs.1,00,000/- to the Insured.

The brief facts leading to the complaint case is that the complainant was engaged as a proprietor since past 3 years in the business of selling of electronics goods to earn livelihood. The complainant availed financial assistance from financial institutions against security of it’s building, stock in trade and other assets for the business purpose. In order to cover the risk of fire and other hazards of his shop building, goods and materials, the complainant secured an insurance policy from the OP Insurance company. The policy had been running for more than three years which was to cover the risks during the periods till the latest from 12.04.2021 to 11.04.2022 with a Sum Assured of Rs, 1,00,00,000/- by paying an annual premium of Rs. 14,278/-.The complainant was accordingly carrying on his business in the shop premises while on 18.04.2021 at 05.00 am a fire incident was discovered as broken out causing total destruction of the shop and stocks and assets. A GD vide no 636 was entered at local Police station. In the complaint petition and also by adducing evidence, the complainant stated that all the belongings and stocks worth Rs.35,00,000/-, Building and Electrical connections for Rs.10,00,000/-  and Furniture of Rs.5,00,000/- in said shop room were burnt into ashes totalling to a loss for Rs.50,00,000/-. The complainant intimated the OP Insurance company regarding the fire incident on 07.05.2021 and filled up insurance claim form on 30.05.2021. The OP Insurance company engaged Sri S.N.Mitra as surveyor to assess the loss. The surveyor submitted his report and thereafter by a letter dated 28.03.2022 the OP Insurance company repudiated the insurance claim due to reasons quoted as “(a) submission of forged documents, (b) electrical wire testing (c) absence of forceful entry and (d) cause of loss are all bogus and false allegation”.

It is in that view, since the repeated requests and claims made through had not been complied with by the OPs, the complainant found it as vague, false and intentional dismissal by the insurer and hence filed the instant complaint before this district commission.

The list of documents that were exhibited by the complainant runs from Annexure ‘A’ to ‘G’ in series. 

The Ld. Advocate of the OPs filed Written Version stating inter-alia their contentions that the case of complainant suffers from suppression of material facts and misrepresentation of facts. It was also contended therein that after getting loss intimation, the OP Insurance Company appointed independent licensed Surveyor Mr. S.N.Mitra who though assessed the loss to the tune of Rs.20,00,000/- but mentioned that such loss assessment was done only to follow the compulsory guidelines provided in ‘The Insurance Surveyors and Loss Assessors (Licensing Professional Requirements and Code of Conduct Regulations, 2000)’ and simultaneously recommended Forensics examination in the survey report. The OP Insurance company according engaged third party namely M/s Bombay Forensic to conduct forensic for ascertaining the circumstances and cause of losses and took steps to for due diligence like verification of documents etc. The Ld. Advocate of the OP in the Written Version stated that though the initial survey was conducted to follow statutory guidelines but the same should not be considered as any kind of admission or ground of imposing liability. The insurance claim was repudiated by a letter dated 28.03.2022 on the basis of the receipt of the final report of the surveyor dated 27.02.2022 read with Forensic expert’s report dated 26.08.2021 that was exhibited under a firisti dated 11.07.2023 containing 41 pages duly serialized, which states the irregularities in respect of the instant insurance claim as the respective suppliers/vendors denied having issued those invoices to the insured which were produced by the complainant as genuine in support of the claim as a proof for the stocks procured for onwards sales and that too the handwritings found on the invoices found to match with that of the insured / claimant himself. Regarding electrical testing, the collected samples from the fire affected places of occurrence in presence of the claimant and the test result of such burnt electrical wires do not lend any support as a proof of electrical short circuit. During spot inspection by the investigators and surveyors at the premises, no proof of any forceful entry by breaking etc. were found by any third party, while the keys of the shop was admittedly available only with the shopkeeper cum claimant himself. During an in-depth investigations at the place, various samples have been collected which reveals presence of traces of hydrocarbon materials at the origin of fire area, that are not commonly stored at any business place. On that basis the OP insurance company claimed that those few documents provided by the complainant cum insured in support of the insurance claim are manufactured and forged. The OPs submitted that the insurance claim was repudiated being the policy becoming void in terms of the said policy due to such event of misrepresentation, mis-description, non disclosure of material facts and willful creation of damage, making all the benefits under the policy void and therefore forfeited.         

The Ld. Advocate of the OPs filed Written Version but did not adduce evidence though availed the opportunity to file questionnaire before the complainant to which the complainant filed reply. Complainant did not avail the scope to file questionnaire for the OPs. The Ld. Advocate of the complainant filed BNA. Argument was heard on 07.09.2023 advanced by Ld. Advocate of the complainant when OPs were absent. As such, the instant complaint case was heard on the day of final hearing and adjudicated based on complainant’s evidence, written version, both side exhibits and all other materials available on record.

It is observed that the complainant was engaged for 3 years in the business of selling of electronic goods and other consumer durables by taking financial assistance from few financial institutions and banks. In order to cover the risk of fire and other perils at the shop building, an insurance policy from the OPs was secured by insured for a sum assured of Rs 1 Crore every year since past 3 years the last being from 12.04.2021 to 11.04.2022 covering the claim period. The complainant while carrying out business alleged that on 18.04.2021 a fire broke out causing complete destruction of his shop premises alongwith the stocks and assets. A general diary entry no 636 was filed at local PS on 18.04.2021 at 17.35 hrs. The ASI of of the local PS forwarded a report dated 13.11.2021 with remarks that ‘This is to report that during enquiry be learnt that there was a fire in the electronics goods shop styled as “A.L. Electronics Shop” at Jibonmondalhat under Bakultala PS on 18.04.2021 morning but no foul play detected so far’. The complainant claimed a damage worth Rs.35,00,000/- for the shop and stocks alongwith damage of the building and electrical connections worth Rs.10,00,000/- & damage of  Furniture for Rs.5,00,000/- totalling to Rs.50,00,000/-. The complainant filed fire insurance claim of Rs.50,00,000/- on 31.05.2021 before the Insurance company for the loss due to the said fire incident on 18.04.2021. The Insurance company appointed Surveyor namely S.N.Mitra to assess the loss and thereafter M/s Bombay Forensic was engaged for conducting forensic when by letter dated 28.03.2022 the Insurance company repudiated the insurance claim due to the reasons for submission of forged documents, adverse electrical wire testing report, absence of forceful entry to prove hand of any third party and opined the given cause of loss as bogus and false.

It appears that the shop building and assets were charged in favour of financial loan companies as security including the stocks in trade hypothecated in favour of those companies for discharge of loan obtained from them. It appears that since the insured is entitled to adjust the claim towards his outstanding dues, has not arrayed them as parties to the proceedings.

Now in the Bombay Forensic report dated 26.08.2021 analysis was done in parts. The site was inspected, statements to corroborate the evidences were compiled about the incident, physical & digital documents were collected and testing and chemical analysis were conducted to find out the cause of fire and the circumstance responsible. The said forensic report speaks a volume about the genuineness of the fire incident by determined by forensic through their Scientific officer for investigation and analysis of the incidence of fire for finding out the source, origin and cause of fire and circumstances thereof. In that regard, the Ld. counsel for the OPs and the Ld. counsel for complainant grossly disagreed on the serious dispute with regard to the consideration made on the findings of the third party forensic report regarding the aspects of documents submitted by the complainant claiming as genuine. The same having been the main and major issue before this commission, it needs to be gone into in this proceeding at it’s first place. In that view, the pivotal question on merits which needs consideration herein is with regard to the alleged forging of documents and to produce forged documents as genuine, before the issue of loss assessment for destruction of the materials in fire incident. On this aspect, the Ld. counsel for the complainant contended that the OPs have committed error in relying on the surveyor’s report & forensic report as sacrosanct, without giving credence to complainant’s depositions and exhibits. Complainant claimed that although the assessment of loss by the surveyor is a pre-requisite for payment or settlement of claim by the insurer, but surveyor's report is not the last and final word. We tend to agree to that, but still surveyor’s report and other documents like forensic are one of the major document to rely upon for due diligence specially in absence of other corroborative evidences. It is not that sacrosanct that it cannot be departed from surveyor’s report but is based on merits of such documents to form an opinion and arrive upon decisions that are conclusive. The complainant is also not entitled to set aside the surveyor's report read with forensic report, which may even be the basis or foundation for settlement of the claim by the insurer in respect of the loss suffered. And on the said proposition, we are certain that there can be no quarrel. The surveyor’s report certainly can be taken note as a piece of evidence until more reliable evidence is brought on record to rebut the contents of the surveyor’s report. In the facts arising in the case in hand the insured was seeking to rely only upon his own deposition and a mere GD entry alongwith two post incident photographs, rather than the surveyor’s and forensic report. During question reply, the Insured was given opportunity for cross examination for proving or disproving the Surveyor and Forensic report that was not availed. Neither any expert on fire fighting loss assessment was opted from the side of the complainant.  

Next, in the said case, the very nature of the fire incident was in dispute from the very inception. The claimant had contended that the fire was caused by a possible cause of short circuit or some unknown source, which was seriously disputed by the insurer and a forensic in that regard had been held. It is in that light, a conclusion was to be reached by the commission adjudicating the claim as to whether any fraud was committed in making the claim with reference to the very nature of the incident. In that circumstance, a Forensic was held by the insurer which have been relevant to decide the question specially in view of unavailability of fire brigade report or any other dependable proof. In the said circumstance, from the incidence scene examination, records of versions of incidence, collection of evidences and forensic analysis / test reports, it becomes imperative that the investigator’s report was to be considered threadbare and a decision ought to have been arrived at. On the other hand, in the instant facts, even going by the contention put forth, it is noted that the cause of fire by which loss occurred by destruction of the shop and assets in the fire incident is the main issue. In that circumstance, the Forensic report becomes an indispensable document alongwith the survey report to make it exhaustive enough to arrive at a conclusion on that aspect to bring light on the fact.

Thirdly, the respective suppliers/vendors denied having issued the invoices to the insured which were produced by the complainant. Though complainant claimed those handwritten chits for total Rs. 3,77,660/- against a claim of Rs. 35,00,000/- valued for the stocks in trade, as genuine, in support of the claim, but upon examination by this commission also those appeared to very sketchy without any GST no. etc. and that too the handwritings found on those invoices are doubtful while comparing with handwritten report dated 18.04.2021 of the complainant to report fire incident.

Having noted the above, we are of the opinion that the exhibits are one of the major deciding parameter in absence of any other cogent proofs that the complainant could make available to take a position in the instant case. On the proposition of law that the surveyor’s report can be considered as a supporting document and that there are contrary evidence including Forensic report produced by OPs, the report of surveyor cum forensic not only becomes sacrosanct but becomes much of evidentiary value, specially when opportunity was made available to produce  rebuttal material by other side but not availed of.

In that light, the surveyor/forensic report, on which reliance can be placed and is taken note insofar as the exhibited reports pages from 1 to 41 relating to the circumstantial evidences about the fire incidence, the claimed loss due to destruction of stock by the insured, the consideration has been adverted sufficiently in the surveyor’s report including forensic. The Ld. counsel for the OPs has made detailed reference and taken us through details contained in the report. The consideration made by the surveyors to ascertain the correctness of the details relating to the fire incidence and the stock indicates that reference is made to the circumstances by which the irregularities were detected in the insurance claim. But the Ld. counsel for the complainants neither could exhibit sufficient corroborative evidence or document (except one local panchayat report which is found of generic type) in support of the claim or justify the cause of fire. The police report is also found interim and nothing directional came out. This is specially when the shop was admittedly under lock and key and the keys being available with only the complainant himself and no forceful entry could be established for a possible sabotage by any third party. Therefore, in the facts and circumstances herein the surveyors report was submitted as the natural process, the conclusion reached therein is plausible and reliable read with the Forensic report, keeping in view the manner in which the insurer had proceeded in the matter. Hence, the reliance claimed by the complainant cum insured on the surveyor’s report without giving credence to the Forensic report in the facts and circumstances of the instant case is faulty. In that view, the conclusion reached by the insurance company for the repudiation by the Insurer does not call for interference.

                                                                                         Ordered

The complainant petition fails on the correct appreciation of evidence. There is no ingredient available in the petition to show up any unfair trade practices or negligence or deficiency in services on the part of the OPs.

In the result, the complaint petition fails to succeed on contest.

There will be no order as to cost or compensation.

Let a plain copy of this Order be provided to both the parties free of cost as per CPR.

The final order will be available in the following websitewww.confonet.nic.in.