No. 6/14.05.2010.

HON’BLE JUSTICE SRI A. CHAKRABARTI, PRESIDENT.

Appellant through Mr. S. N. Dutta, the Ld. Advocate and Respondent through Mr. P. C. Bhattacharya, the Ld. Advocate are present.  Heard Mr. S. N. Dutta, the Ld. Advocate for the Appellant and Mr. Bhattacharya, the Ld. Advocate for the Respondent.  It appears that the appeal has been filed against the order dated 28.10.2009 passed by the D.C.D.R.F., Calcutta Unit-I in Case No. 70/2007 whereby the complaint was allowed and directions were issued.

In support of the appeal Mr. Dutta argued that the repudiation by the Insurance Company was made on the basis of report of Surveyor and such repudiation is on the ground of violation of Clause 2, 3 & 5 of the policy conditions by the claimant.  The second contention of Mr. Dutta, the Ld. Advocate for the Appellant is that the document filed as policy conditions before the Forum below were accepted by the Forum and the claimant did not raise any objection against the same and, therefore, the policy conditions so available in the records of the Forum, are to be considered for ascertaining the violation of Clauses 2, 3 & 5.

Mr. Bhattacharya strongly opposed the said prayers and contended that the conditions of the policy which was issued to this particular claimant, was never disclosed by the Insurer – Appellant in the Forum below and documents purportedly relied upon in the Forum below apparently shows those are Xerox copies of some terms and conditions and it does not indicate that it was a part of the policy obtained by the claimant nor it indicates that it was signed by the claimant, therefore, should not be relied on.

Considering the respective contentions we have also perused records of the Forum below.  We find that the only allegation of the Appellant – Insurer is violation of Clauses 2, 3 & 5 of policy conditions by the claimant.  For ascertaining the substance of the said contention we wanted to peruse Clause 2, 3 & 5 of the conditions of the policy issued to the claimant.  Apparently the document filed by the insurer in the Forum below claiming the same to be conditions of the policy of the claimant, do not indicate that those are parts of the policy issued to the claimant.  Mr. Dutta could not show any evidence of the Insurer wherefrom it is shown that those documents are actually parts of insurance obtained by the claimant.  Therefore, we are of the opinion that the policy conditions not being available on record, the allegation of violation of some of the terms thereof, cannot be upheld.  In the absence of the said policy conditions of the policy of the claimant we draw adverse presumption against the insurer for withholding the actual document.  In the circumstance the only ground of repudiating the claim being found not proved the contention of the Appellant is not accepted and the appeal is dismissed.  The impugned order is hereby affirmed.  There is no order as to cost.