This appeal is directed against the Final Order of the Ld. D.C.D.R.F., Siliguri dated 05.02.2021 in CC No 62 of 2015. The fact of the case in nutshell is that the Respondent the proprietor M/S Taniya Marketing Company has registered the Consumer Complaint before the Ld. D.C.D.R.F., Siliguri to the effect that he purchased a shop keeper package policy from the appellant company Bajaj Alliance General Insurance Co. Ltd.  for the period between 14.10.2013 and 13.10.2014 covering the money insurance with the single carrying limit of Rs. 2 Lakh. On 19.08.2014 one employee of Taniya Marketing Shri. S.N. Dutta went for collecting money from the market and collected cash Rs. 67,000/- which he kept with a brief case along with four cheques and other personal belongings and he was coming by a bus from Islampur to Siliguri and while he reached at Siliguri bus stand he found the brief case was missing. Then the M/S Taniya Marketing Company reported the incident of brief case missing at Pradhan Nagar Police Station Vide GDE No 1106 dated 19.08.2014. And the insurance company was intimated about the incident on 20.08.2014. One independent IRDA license surveyor Mr. Indranil Bhattacharjee was deputed to conduct the survey and investigating the claim. The Surveyor visited the office premises of the Complainant on 23.08.2014 and other subsequent dates and conducted the inquiry and survey and ultimately the surveyor submitted the report on 12.12.2014. The Insurance Company ultimately repudiated the claim on the ground for not submission of any FIR about the incident and the final police report about the case.

The Insurance Company has contested the Consumer Complaint by submitting the W.V and contended inter-alia that a receipt of claim intimation the company had deputed a surveyor Mr. Indranil Bhattacharjee to survey and investigate the matter and during the process of survey advised the claimant to submit relevant documents but the Complainant/Claimant did not submit the papers asked by the Surveyor and the Company also sent letter on 09.09.2014 and in another dates to the Complainant asking the Complainant to submit relevant documents. No such documents was produced about the Complainant. Ultimately, the Insurance Company has repudiated the liability due to non-submission of FIR and final Police Report.

 The Ld. Forum after hearing the case came into conclusion that the repudiation on the part of the Insurance Company on the ground of non-submission of FIR and Police Report or Final Report was not correct decision of the company and for that reason the Consumer Complaint was allowed and the Insurance Company was asked to pay the  monetary loss of Rs. 67,000/-, Rs. 40,000/- for harassment and mental pain and Rs. 10,000/- as litigation cost. Being aggrieved with this order this appeal follows on the ground that Ld. Forum has acted with material irregularities in not considering the facts and grounds of repudiation and the finding of the Ld. Forum was totally against the evidence and materials on record. And has failed to come into correct findings in the matter of determination of real controversy in dispute and in  unauthorized way has fixed the liability upon the appellant which was utter irregular and unjustified and the impugned judgement and order should be set aside.

The appeal case was conducted by Ld. Advocate Mr. Pawa on behalf of the appellant and appeal was admitted in due course and notice of memo of appeal was served upon the respondent/complainant who has contested the case through Ld. Advocate Mr. Lohia. Argument of both sides in terms of merit of the appeal was heard.

                                                                                Decision with reasons

Having heard the Ld. Advocate of both sides, it is established beyond any doubt that the complainant/respondent has purchased the shop keeper package policy having single carrying limit of Rs. 2 Lakh for the period from 14.10.2013 to 13.10.2014. And the disputed event was taken place on 19.08.2014. The Insurance Company claims that the Complainant has not registered any FIR about the incident before the Police and for that reason Police could not get any opportunity to unearth the truth or to take any resort to recover the theft items and as there was no FIR the question of Police investigation report or Final Report could be there and in absence of two vital documents like FIR and Final Report of Police the Insurance Company was compelled to repudiate the claim as the Complainant/Respondent could not furnish the other documents whenever the said document was sought for from the respondent. It is further contended on the part of the appellant/O.P that only GD entry about the incident before the Police is not enough to substantiate the event that actually the cash was missing from the running bus while, it was carrying by the employee of the respondent/complainant. It is further pointed out on the part of the insurance company/appellant that even if, the Police refused to accept any FIR from the Complainant about the incident then also the Complainant had the opportunity to file a case before the Ld. Court under Section 156 CrPc for registering a regular case so that Police could get an opportunity to proceed with the investigation. It is further pointed out that the matter also ought to have communicated to the Superintendent of Police or Commissioner of Police for taking appropriate action against the missing diary of the Complainant/Respondent.

At the time of hearing the appeal Ld. Advocate of the appellant highlighted the Survey Report where at the time of assessment of such loss the surveyor could ascertain from the cash book of relevant period which did not reflect the loss in the ledger, the cash was credited by making entry in the name of the insurer but no cash was entered into the cash book. On perusal of the report of investigator, surveyor very carefully. It is found that the conductor of the bus at the material point of time on inquiry confirmed that he had knowledge about the loss of the cash of the Complainant which was intimated by the Complainant at Siliguri bus terminus. The Ld. Advocate of the appellant Mr. Pawa referred a judicial decision reported in 2008(2) CPR 232 NC. He mentioned that the insurance company in order to mitigate the claim of the Complainant asked the Complainant to furnish the relevant documents. Which was withheld by the Complainant and for that reason, the repudiation on the part of the insurance company was justified one. As because as per guidelines of the Judgement of Hon’ble N.C.D.R.C. mentioned above that the insurance company is to decide which papers were necessary for settling insurance claim.

 Ld. Advocate of the respondent countered the arguments of the Ld. Advocate of the appellant mentioned that the Complainant as soon as the incident occurred immediately rushed to the nearby Police Station having jurisdiction and registered a GD as because Police at that point of time asked him to register the GD so that the missing brief case could be detected or could be search out within a short span of time and on the advice of Police no FIR could be registered. And for that reason the Complainant had no occasion to submit the copy of FIR and final Police Report which was not under his custody for disposal. He, mentioned that repudiation on the part of the Complainant was done in a mechanical manner which ultimately damaged the confidence of the insured upon the insurer. In support of his submission he cited judicial decisions.

1 (2009) iii CPJ 246(NC) Exclusion clause, no defence to insurance company.

2 (2005) III CPJ 112 (NC) (ii) Interpretation, two meaning.

3 (2000) I CPJ 113 (UPSC) FIR not produced. Non furnishing of FIR would not mean NO INCIDENT TOOK PLACE.

After, perusal of the documents very carefully it is found that the happening of the incident that is the missing of brief case from the custody of the man of Complainant in a running bus is established in the report of the surveyor. It is also established that within very short span of time of the incident the matter was intimated to the nearby Police Station by a GD entry. The claim was registered before the Insurance Company and the intimation about the incident to the company was held also within 24 hours. The report of surveyor also speaks that after checking the cash books, ledger etc. No anomaly could be detected to hold no cash was missing from the custody of the man of Complainant. The only lacuna on the part of the Complainant/Respondent is that no effective FIR could be registered before the concerned Police Station and for that reason he could not get the opportunity to collect any copy of Final Report or FRT to establish his claim before the Insurance Company. It is fact that the Complainant has not taken any further re-course for writing before the superior Police Authority to pass a direction upon the concerned Police Station to go on investigation at a length about the missing diary registered by the Complainant. It is also fact that the Complainant had the opportunity to file a court complaint about the missing or theft of the brief case containing money but the insurance company pointed out that the surveyor during the course of investigation revealed the truth about the alleged incident of missing or theft. Mere, non-submission of Fir and Final Report of Police does not compel the insurance company to repudiate the claim of the Complainant as because non-submission of such documents in any way cannot violate the terms and conditions of the insurance policy. Rather, such documents was not under the possession of the Complainant and he was not in a position to produce the said documents before the insurance company when the same was sought for.  So, in our view, the observation of Ld. Forum appears to be convincing, appropriate and no error could be revealed and the said Final Order does not invite any interference in the appellate stage. However, if, the quantum of awarded money in favour of the Complainant/Respondent if being paid within two months. Then, the carry out interest at the rate of 8% per-annum as imposed by the Ld. Forum for not compliance of order in due time should be waived. Thus, the appeal is hereby disposed of to that effect that in the memo of appeal no convincing ground are established in destroying the observation of the Ld. Forum in the body of Judgement or its Final Order.

                                                                                 Hence, it’s ordered

That the appeal be and the same is hereby dismissed on contest without any cost. The opportunity is hereby kept open for the appellant to comply the order of the Ld. Forum and to make payment the awarded money within two months from the date of receiving the copy of Final Order of this appeal then the Insurance Company will be absolved from the liability to pay interest at the rate of 8% Per-annum for non-compliance of the order of  Ld. Forum in due time.

Let a copy of this order be supplied  to the parties free of cost and the same to be communicated to the Ld. D.C.D.R.F., Siliguri for doing the necessary action.