JUDGEMENT

          Complainant the present Company STP Limited carrying on business of Waterproofing & Anti Corrosive Materials having its register office at 6, Lyons Range, Kolkata-700001having their Divisional Office at 55, Chowringhee Road, Kolkata-700071 by filing this complaint submitted that company insured his stock materials and other articles for total sum of Rs.1,50,47,000/- only out of which for a sum of Rs.5,47,000/- for risks covered plant and machinery and Rs.1,45,000/- for risks covered of stocks contents against Policy No.104200/46/11/7500000141 issued by National Insurance Company Ltd. and complainant’s factory is situated at Mouza-Sipaigachi, P.S.-Haripal, Dist- Hooghly, Pin-712706.

          That on 23.10.2011 at about 4:00 A.M. some unknown miscreants or thieves entered into the factory with mini-truck by breaking pad lock and chain forcefully and took away 20 drums of bitumen and one Mahadeb Bagdi one of Security Guards of that company saw the incident and thereafter the complaint about theft was lodged to Haripal Police Station on 24.10.2011.  But on the basis of the said letter police did not turn up, no action was taken.  But again on 12.11.2011 complainant further wrote a letter to Haripal Police Station and on the basis of the said complaint, Haripal Police Station started a case being No.178/2011 u/s 379 I.P.C. on 12.11.2011.  But ultimately police submitted Final Report on 31.12.2011 and the complainant intimated the incident to op no.2 with request to appoint one surveyor for necessary investigation and survey and to provide one claim form for submission of claim.

          Accordingly op appointed one surveyor named M/s A.K. Saha & Co. for necessary survey and investigation at the complainant’s factory situated at Mouza-Sipaigachi, P.O.-Haripal, Dist-Hooghly for assessment of loss and the said surveyor Mr. A.K. Saha & Co. after investigation surveyor submitted a letter dated 14.11.2011 to complainant and a copy forwarded to op no.2.  The said surveyor categorically started and assessed the loss amounting to Rs.75,603/- only dated 19.11.2011 which was under the custody of National Insurance Company Ltd.   The complainant claimed of Rs.1,19,981/-, but surveyor assessed Rs.75,603/- vide his report dated 19.11.2011.

          Thereafter op no.2 sent registered letter on 01.11.2012 addressing to the company for fake allegation that op nos. 1 & 2 did not agree neither the amount of Rs.75,603/- nor the claim amount of Rs.1,19,981/-.  Op no.2 voluntarily without any basis assessed of Rs.49,142/- and company replied against that letter but op nos. 1 & 2 did not reply and lastly Mr. Nandan Lahiri, Advocate on behalf of complainant’s company sent two letters on 01.01.2013 under Speed Post with A/D dated 03.01.2013 for settlement of claim but unfortunately op did not respond and for negligence and deficient manner of service and for adopting unfair trade practiced, the present complaint was filed praying for settlement of claim amount of Rs.1,19,981/- and compensation etc.

          On the other hand op nos. 1 & 2 by filing written statement submitted that the entire allegations are false and fact remains that complainant took Burglary & Housebreaking Policy (Business Premises) on going through the rules and regulation and also on fully understanding the terms policy and also being satisfied on the basis of a completed proposal form duly signed by the complainant and same was accepted by the op.  Further it is submitted that complainant did not report the matter to Haripal Police Station on 24.10.2011 and no document is filed to prove that any case was started on 24.10.2011 when allegation of the complainant that incident took place on 23.10.2011.  But it is proved that complainant intimated the above incident to police after 20 days from the date of occurrence or alleged loss and that was reported on 12.11.2011 by the complainant.  So, it is clear that complainant did not comply the terms and conditions of the policy when it is mandatory to report about the theft or burglary to the police station within 24 hours at the time of alleged incident.  It is further submitted that the assessment is based on the principles of Indemnity under which principles the insured cannot be put in a place to make profit out of insurance.  The loss was arrived at the difference of stock before loss and stock after loss and value was arrived on the basis of purchase bills produced before the surveyor by the complainant and the value of loss assessed arrived at Rs.1,12,276.80 paisa which was them applied to under insurance clause appearing in the 3^rd page of the survey report.  The value at risk on the date of loss was ascertained at Rs.1,65,92,828/- attached with the survey report and the sum insured agreed by the complainant on stock of Bituminous Product as shown expressly on the face of the policy being Rs.1,11,73,000/-.  So the loss after under insurance arrived at Rs.75,603/-.  However the complainant did not want to agree with the same violating the principles of indemnity and an insurer cannot pay more than the pro rata loss of the agreed coverage at the material time of loss but the complainant wish to make illegal profit out of the insurance contract for which those ops are not liable.

          Fact remains that op already communicated their stand for their letter dated 01.11.2012 to the complainant since they had nothing more to add violating the policy conditions in this regard they further communicated the upholding the same decision as a final reminder on 14.12.2012.  Moreover they have submitted that practically complainant has violated the terms and conditions of the policy being Clause-4A of the Policy which stipulates that incident should be informed to the police forthwith knowing well that delay information after 20 days delay in lodging FIR and claim may be repudiated only on the ground and it is established that delay of intimating to policy means violating the policy terms and conditions and it makes repudiation justified.  But even then op offered non-standard settlement only to maintain a moral approach which was attached in the said letter dated 01.11.2012 and in the above circumstances, the present complaint should be dismissed.

                                               Decision with reasons

          In the present case after considering the vital fact of the complaint and also the written statement including the copy of FIR it is clear that complainant actually reported about the incident of theft on 12.11.2011 at Haripal Police Station and Haripal Police Station started a case being No.178/2011 dated 12.11.2011 u/s 379 of I.P.C. which was registered as GD No.869/2011 in the Ld. ACJM, Chandannagore, District-Hooghly and in that case FRT was ultimately submitted on 31.12.2011 by Haripal Police Station before Ld. ACJM, Chandannagore and that FRT was accepted by the Ld. ACJM on 17.08.2012.  Considering that document, it is clear that actually complainant has claimed that incident took place on 22.11.2011 night in between 2:00 A.M. to 4:00 A.M. some unknown miscreants committed theft in respect of 20 drums of Bituminous product from the factory premises.  But truth is that in between 22.10.2011 to 12.11.2011 no complaint was lodged to Haripal Police Station.  So, it is clear that after lapse of 20 days from the date of alleged incident of theft on 22.10.2011 the complaint was lodged before Haripal Police Station.  So, it is clear that complainant has violated the statutory condition of the Clause 4A of the policy.  So, it is clear that to get claim in respect of theft or loss, complainant was duty bound to report about the incident to the policy authority in writing about the incident forthwith.  But that has not been done by the complainant.  So, invariably complainant has violated the mandatory clause of the terms and conditions of the policy i.e. 4A.

          Another factor is that it is most surprising that there was no security guard but about security guard, there is no such assertion whether guard was at the time in the factory or not.  Fact remains complainant has alleged that some miscreants came along with truck broke the pad lock and took away 20 drums of Bituminous.  Then it is clear that guard was not there.  If guard would be there invariably the guard must have to resist the miscreants.  If guard would be found active in that case there was no chance of breaking opened the key because if guard was within factory compound in that case lock and key must be inside not from outside.  So, complainant has suppressed the entire fact.  But as per Clause-3, the insured did not take reasonable step to safeguard the property insured against incident of loss, damage and theft etc. but complainant did not take any reasonable care in this regard and truth is that guard was not there.

          Another fact is that the company lodged complaint on 12.11.2011 at Haripal Police Station and Haripal Police Station received on that date i.e. copy of FIR wherefrom it is found that there is only information to that effect that on Saturday 20.10.2011 night some unknown miscreants committed theft of 20 drums of Bituminous and this incident is taken place in between 12P.M. to 4:00 A.M. on Saturday night and considering that FIR it is clear that there was no guard in the factory about existence of night guard at the relevant time is also not in the FIR that means guard was not there.  Then it is proved beyond any manner of doubt that complainant did not take reasonable care to protect the property from damage or loss or etc.  So practically complainant did not comply the mandatory provision of clause of the terms and conditions of the policy i.e. Clause-3 also.  In this regard we have gone through two rulings reported in (I) (2013) CPJ 69 N.C. and also (III) (2013) CPJ 479 N.C. and considering both the rulings, it is clear that as per terms and conditions of the policy if insured does not act and does not intimate the police within 24 hours from the date of incident in that case if insurer settled the claim even on non-standard basis for breach of conditions that is justified and legal and even if any repudiation is made by the Insurance Company that is also justified and relying upon the said findings of the Hon’ble National Commission in both the cases and also considering the present fact and circumstances, of course we are of view that there was or is violation of the conditions of the policy by the complainant and complainant willfully did not inform the matter to policy forthwith, but reported after lapse of 20 days and no doubt complainant has violated the terms and conditions of the policy i.e. Clause-4A.  At the same time complainant has falsely stated that his guard was there but that is false because in the FIR there is no such version that the main gate of the factory which was under lock and key was broken by some miscreants in presence of the night guard.  Rather it is only informed that theft was committed by some unknown miscreants by taking 20 drums of bituminous product.  But no allegation is that the main gate of pad lock was broken and gate was opened in presence of the night guard.

          So, it is clear that only for the purpose of getting claim amount, subsequently a mere information of commission of theft was reported without informing that his guard was threatened, lock was broken etc.  So, it is clear that complainant has also violated the terms and conditions of the policy i.e. Clause-3 also and truth is that complainant did not take any such precautions, protections for protecting the property, no guard was there.  So, no doubt complainant has violated the terms and conditions of the policy i.e. Clause-3 also.

          So, as per terms and conditions of the policy insured is violator in all respect and so complainant committed breach of terms and conditions and for which op insurer has his authority to repudiate the claim.  But in this case we have gathered that op showed their moral values and granted a sum of Rs.49,142/- adopting non-standard basis and fact  remains about the claim of the complainant, op reported it and op always reported for what reasons that amount was assessed vide their letter dated 11.11.2012 and further reported that it would not be possible to reconsider the same.

          But anyhow complainant is not willing to receive it for which this complaint is filed.  But we have gathered that the complainant as insured is a violator of the terms and conditions and even if in the present case the claim would be repudiated by the op when it would be justified.  But when op has shown their moral values and compensated by adopting the principal of non-standard basis as per judgement of different higher authorities.  So, we find that there was no deficiency and negligence on the part of the op and practically complainant’s entire complaint is vexatious and it is proved that the complaint is full of false statement about presence of night guard etc which is evident from the copy of FIR.  So, present complainant is not honest insured.  So, in the above circumstances we are convinced to hold that there is no ground to allow this complaint as settlement as made by the op is justified legally valid and complainant’s claim is found baseless for the overact of the complainant who is the violator of the terms and conditions of such policy.

          Thus the complaint fails.

          Hence, it is

                                                            ORDERED

          That the complaint be and the same is dismissed on contest against the ops with cost of Rs.5,000/-.

          The complainant is directed to receive the settled amount, if he so requires and op is directed to send the same after getting Savings Bank Account number of the complainant company against which the amount may be transmitted by the op and if complainant is not willing to accept it by submitting such detail, in that case, in future complainant shall have no right to file any further complaint.