OFFICE  OF  THE  DISTRICT  CONSUMER  DISPUTES  REDRESSAL FORUM, KAMRUP,GUWAHATI

C.C. No. 66/11

Present:-

                                    1)Md.Sahadat Hussain, A.J.S.         -   President

                                    2)Smti Archana Deka Lahkar         -   Member

                                    3)Md  Jamatul Islam                       -   Member

M/S Datamation Service                                    - Complainant

1^st Floor , 7^th Heaven Complex                           

G.S.Road, Ulubari

Guwahati-7.

Represented by Shri Pawan Agarwal

                           -vs-

1)        National Insurance Co.Ltd.                    -  Opp.parties

Divisional Office, Guwahati D.O. II

Rani Sate Sadan 4^th Floor M.L.Nehru Road,

Panbazar,Guwahati-781001.

2)        Sr.Divisional Manager

National Insurance Co.Ltd.

Rani Sate Sadan 4^th Floor M.L.Nehru Road,

Panbazar,Guwahati-781001.

Appearance-           

Learned advocates  Mrs.N.Das for the complainant  and Learned advocates  Mrs.Vijoy Lakhi Talukdar for the opp.parties.

Date of argument-   9.8.18        

Date of judgment-  24.8.18

JUDGMENT

This is a complaint u/s 12 of the Consumer Protection Act, 1986.

1)        The complaint filed by M/S Datamation , represented by  Shri Pawan Agarwal against N.I.C.Ltd, Guwahati and another  was admitted as proceeding U/S 12 of the Consumer Protection Act,1986 and notice was served upon them and they also filed their written statement on 20.3.2012. The complainant filed evidence of Pawan Agarwalla and he was cross-examined by the opp.party side. The opp.party side filed evidence of Sri Ashim Kr.Sarma and he was cross-examined by the complainant side. Thereafter, Ld.advocate Mr.N.Das filed written argument for the complainant and ld.advocate Mrs. Vijoy Lakhi Talukdar for the opp.parties. On 9.8.18, we heard oral argument of Ld.advocate Vijoy Lakhi Talukdar  for the opp.party side , but on that day the complainant side was found without step; and today we deliver our judgment which is as below.

2)        The gist of pleading of the complainant is that Sri Pawan Agarwalla, who is doing partnership business alongwith Smti Santosh Agarwalla by Style DATAMATION SERVICES, G.S.Road, Ulubari (Guwahati) dealing in export, import, alter convert, modify, buy, sell electronic appliances, apparatus, computers, floppy, diskette, investors, calculators, word processors, printers , type writers, data processing equipments, software and  hardware etc.  taking 1^st floor and 2^nd floor of a multistoried building (7^th  Heaven Complex, G.S.Road, Ulubari, Guwahati) on monthly rent , 2^nd floor as office and 1^st floor as  store), insured  the goods with  the opp.parties at insured value of Rs.5,00,000/- vide policy No. 200600/46/09/7500000074 covering period 12.5.2009 to 11.5.2010. In the course of business; they purchased goods valued Rs.3,03,188/- from Infosystem Ltd, Guwahati on 11.12.2009 which was stocked in the first floor on 11.12.2009. They also purchased various electronic goods on 17.12.09 of Rs.1,03,845/- from supertion Electronics Ltd., Chatribari, Guwahati, vide Invoice No.E 0609 PS 101966 dt.17.12.09 and stocked in the 1^st floor. They also purchased goods amounting to Rs.1,74,668/- on 19.12.09 from Supertion Electronics Lrd., Guwahati on 19.12.09 vide Invoice No. E 0609 PS 101986 dt.19.12.09 and stocked in the 1^st floor on 20.12.09 at 10-30 while entered into the 1^st floor alongwith some of his staff in the 1^st floor found one window with grill broken and some goods stolen away by thieves on the night of 19.12.2009, and he lodged FIR with Panbazar P.S. who registered a case u/s 457/380 I.P.C.. On 20.12.09 he submitted a list of stolen good to the police he filed claim with the opp.parties on 24.11.10 , but the opp.parties, vide letter No. 200600/ Teat/AB/AS/had /11/119 dt.14.7.2011 informed him that they were enable to pay his claim and repudiated the claim on the ground (i) for declaring address of the insured premises is 2^nd floor of seven Heaven complex, Guwahati, Ulubari, G.S.Road, (ii) Survey report and the police  report suggests that  burglary occurred in the first floor of the said building which was not covered under the policy. After receiving the repudiation order, he clarified to the opp.parties that the address of the office was given in proposal as 2^nd floor of the building but situation of storing materials was given as 2^nd floor instead of 1^st floor while submitting the proposal form for the policy through overnight . He also filed appeal to the Insurance Ombudsman vide letter dated 8.8.11 , but received no reply from the said authority. From the Invoices it is evident from the Invoices that goods were sold to him by wholesellers to do business of this goods in the first floor of Seventh Heaven Complex. In the Income Tax Return it is also mention that the place of business as first floor of Seventh Heaven Complex. He has been running his business in the first floor of the building when the stolen materials were kept , but in the policy in address as second floor of the said building was mentioned by him through mistake and he could not detect the said discrepancy due to over sight while he received the policy. He has no other business place except the 1^st floor of the said building and as such it is prove that the said insurance policy covers the material stored in the first floor of the building. It is evident from the police report and the report of the investigator of the opp.party that theft/burglary occurred on 19.12.09 in the first floor of the said building and goods valued amounting to Rs.46,297.25/- were stolen by the thief. The repudiation as done by the opp.party is deficiency of service towards them and they are hence entitled to get order directing the opp.parties to pay them Rs.4,67,000/- against his policy alongwith  interest as well as Rs.10,000/- compensation alongwith cost of the proceeding.  The pleading of the opp.party is that , the complainant had paid premium to cover the risk mention in the policy bearing  No. 200600/46/09/7500000074 covering the period w.e.f. 12.5.2009 to midnight 11.5.2010 and the complainant filled up the proposal form for burglary and house breaking insurance and had given the address of the premises to be insured as Seventh Heaven Complex, 2^nd floor, G.S.Road, Ulubari, Guwahati which was a godown as per paragraph No. 2 A of the form and goods insured value given as Rs.5,00,000/- . But first floor of the said building was not insured with them nor it was covered under the policy in hand. The complainant on 20.12.09 found that some miscreants entered into the shop cum office of the complainant situated in the first floor of the said complex on the night of 19/20^th Dec/2009 and committed the theft. The police investigated about the matter on filing FIR by the complainant. The complainant inform them that on 19/20.12.2009 some unknown culprits entered into his  premises by breaking the windows and stole away valuable stocks. In the FIR lodged by the complainant it is clearly stated that some unknown miscreants took away valuable from the 1^st floor of Seventh Heaven Building. The surveyor deputed by them. After surveying the spot of theft, found that burglary had occured in the first floor of the said building , but the policy issued covered the second floor of the said building. They sent a letter to the complainant asking him to give clarification and to show cause to why they shall not repudiated his claim but he did not clarify the matter as requested by them. Perusing all the documents as well as the policy and the proposal form, the Divisional Manager vide letter No. 20060/Tect/AB/ HAD/11/119 dtd.14/7/11 repudiated the claim of the complainant . The complainant fill up the proposal form and also signed over it and as per that proposal form 2^nd floor of the said complex was used as godown. The complainant states in the complaint that they carried out business in the first floor and used 2^nd floor as godown. The policy issued covering the risk for the goods stored in the first floor only and as such the complainant is not entitled to any amount as claimed.

3)        After perusing both sides’ pleading as well as evidence, it is found that both sides admit  that the complainant M/S Datamation Services, 1^st floor, Seventh Heaven Complex , G. S. Road, Ulubari, Guwahati is a partnership business of Shri Pawan Agarwalla and Shri Sontosh Agarwalla, and both of them have been doing business of export, import, alter convert, modify, buy, sell electronic appliances, apparatus, computers, floppy, diskette, investors, calculators, word processors, printers , type writers, data processing equipments, software and  hardware etc. in the name and style of M/S Datamation Services, in the 1^st floor Seventh Heaven Complex , G.S.Road, Ulubari, Guwahati-7. Both sides also admit  that, the complainant firm insured the goods of their business, vide policy No. 200600/46/09/7500000074, covering period 12.5.2009 to midnight 11.5.2010 and during effectiveness of said policy the miscreants on the night of 19.12.09 entered into first floor of Seventh Heaven Building and stolen away certain goods (Mercentiles) belong to the complainant therefrom ;  but nothing was taken away from 2^nd floor, nor the miscreants entered into 2^nd floor. The police in their investigation report and the surveyor of the opp.party unequivocally state  same thing. Thus, it is established that on 19.12.2009 some miscreants entered into the first floor of Seventh Heaven building which was being possessed by complainant on rent and stole away certain goods (Mercantile) therefrom  belong to the complainant firm. It is found from the evidence of the parties that after commission of the said theft, the complainant filed a claim with the opp.party vide their letter dtd. 24.11.10 (Ex.7), but the opp.party repudiated their claim vide their letter No.300600/TECT/AB/AAS/HAD/11/119 dtd. 14.9.11 on the ground that in the proposal form which was duly signed by the complainant when he had declared the address of the premises to be insured as Seventh Heaven Complex, 2^nd floor, G.S.Road, Ulubari , and as per surveyor report and the police report the loss was due to burglary that had occurred in the 1^st floor, but goods in the first floor was not covered under the policy . The complainant admits that in the proposal form the address of the premises to be insured given as Seventh Heaven Complex, 2^nd floor, G.S.Road, Ulubari, Guwahati-5 . But he states that through oversight it was written as 2^nd floor in the proposal form and actually it would have been written as 1^st floor in the place of wording 2^nd floor. It is found that during effectiveness of the said policy and till the day of incident of theft the complainant never raised that discrepancy in the policy before the opp.party, and nor,requested them to rectify the wrong. Thus we cannot hold that the complainant through oversight had written in the proposal form the address of the insured premises as Seventh Heaven Complex, 2^nd floor, G.S.Road, Ulubari, Guwahati-5 instead of writing 1^st floor in place of 2^nd floor . It is also found that after acceptance of the proposal, the policy was duly issued to the complainant by the opp.parties writing the said address of the insured premises. Thus the address given in the proposal form as well as in the policy cannot be said to have been written through oversight, rather it must be held that the complainant had put the said address in the said proposal form as per his own knowledge and the policy was also issued as per proposal of the  complainant giving coverage of  2^nd floor of Seventh Heaven Complex, which the complainant has been possessing on rent and doing business therein , but the concerned policy does not cover the first floor of the said building and its stored materials . Therefore, if any materials would had been stolen away by the miscreants  on 19.12.09 from the first floor of the said building , then also such loss is not covered by the policy in our hand  (Ex.3). Therefore , the complainant cannot claim any compensation for the loss he had suffered due to commission of burglary /theft on the day of 19.12.09 in the first floor of the said building . In such backdrop, we hold that the repudiation of the claim of the complainant, as done by the opp.parties, vide their memo No.200600/TEC/AB/AS/HAD/11 (Ex-D), is lawful one .

5)        Because of what has been discussed as above, we hold that the complainant has no cause of action against the opp.parties . Hence the complaint against the opp.parties is dismissed on contest.

Given under our hands and seal on this 24^th August ,2018.

(Smt Archana Deka Lahkar)   (Md.Jamatul Islam)   (Md.Sahadat Hussain)                                                   Member                                          Member                         President