Consumer Complaint No.79 of 2015
Date of filing: 13.3.2015 Date of disposal: 18.01.2017
Complainant: Baba Aluminium Products Pvt. Ltd., A4 Mangalpur Industrial Estate, Mangalpur, Raniganj – 713 347 (The Company is a private company under the meaning of clause (III) of sub Section – I of Sec. III incorporated under the Companies Act, 1956 (1-1956) represented by its Director Rajendra Prasad Chowdhury).
-V E R S U S-
Opposite Party: 1. Branch Manager, National Insurance Co. Ltd., Plot No. 408, 1st Floor, Raniganj, 29/A-N.S.B. Road, Opp. Ashoka Petrol Pump, Raniganj, Burdwan.
2. Divisional Manager, National Insurance Co. Ltd., Asansol Divisional Office, Upcar Garden, Asansol, District: Burdwan, PIN – 713 304.
Present: Hon’ble President: Sri Asoke Kumar Mandal.
Hon’ble Member: Smt. Silpi Majumder.
Hon’ble Member: Sri Pankaj Kumar Sinha.
Appeared for the Complainant: Ld. Advocate, Kousik Banerjee.
Appeared for the Opposite Party (s): Ld. Advocate, Ahi Bhushan De.
J U D G E M E N T
This complaint is filed by the complainant u/S. 12 of the C. P. Act, 1986 alleging deficiency in service and unfair trade practice as the Ops have repudiated his legitimate insurance claim.
Complainant is a private Limited company registered under Companies Act, 1956 engaged in manufacturing of aluminum goods and represented by its Director on behalf of the Directors of the Company. The Company was enjoying a policy bearing No. 150501/46/11/7500000075 held with the OP-1 for coverage of Standard Fire Perils Burglary Policy for the period from 20.12.2011 to 19.12.2012 and sum insured was to the extent of Rs. 62,50,000=00 for coverage of building for Rs. 10,00,000=00, plant and machinery Rs. 25,00,000=00 and for raw materials and finish goods semi raw materials and consumable items for Rs. 27,50,000=00. The company has paid appropriate premium as payable to the insurer duly acknowledged by the OP-1. Unfortunately, on either in the night of 1st March or zero hours of 2nd March, 2012 an incident of theft occurred in the factory premises when some miscreants entered into the factory from the back side and stolen some semi-finished goods weighing 780 kgs valued about Rs. 1,05,300=00. The matter was brought to the notice from some employees in the morning on 8 am on 02.3.2012 when all the employees came to attend their duties and immediately on noting the fact of theft, the officer-in-Charge, Raniganj P.S. was requested to investigate the matter and to book the culprits into the task and also to find put the stolen goods. The FIR in this regard was lodged with Raniganj P.S. on 02.3.2012 at 18:15 hours and a case was registered bearing No. 68/12 under Section 379/411 of IPC. The matter was also intimated to the OP-1 and a claim form was also issued by the OP-1 on 06.3.2012 which was filled in and submitted with relevant documents duly signed by the Director of the Company on 12.3.2012 claiming an amount of Rs. 1,05,300=00 as theft of semi finished goods from closing stock of semi finished aluminium circle for total quantity of 5480 kgs valued about Rs. 7,72,950=00 and the claim form was submitted along with Xerox copy of FIR and Xerox copy of insurance policy duly acknowledged by the OP-1 on 12.3.2012. On 19.4.2012 a letter received from Surveyor and Loss Assessor stating that the clarification is to be submitted regarding forcible entry by miscreants, possibility of climbing up at 309 ft. height boundary wall and taking out of about 780 kgs semi finished aluminium by the miscreants. Immediately on receipt of letter the matter was explained verbally to the Surveyor over telephone but since the Director was out of station the written reply could not be submitted in time. However, on his return a written submission was made on 13.8.2012 stating the fact that forcible entry by miscreants was from the south side from the factory where an electric pole is fixed for supply of power, the height of the boundary wall is only 12 ft. not 30 ft.. A number of photographs were taken about the possible area of location of theft and handed over to
Surveyor and was also explained during spot verification of the Surveyor at the possible area of theft. As per request of the Surveyor the documents like (a) Copy of the FIR, (b) photographs of boundary wall, godown and roof etc. was provided, (c) Xerox copy of purchase bill, (d) Xerox copy of stock register, (e) Xerox copy of hand book register, (f), Xerox copy of Aluminium Scrap Register, (g) Xerox copy of Aluminium circle register, (h) Xerox copy of utensil register, (i) cash book was provided to the Surveyor along with other information on 20.3.2012. As per request the final police report was also submitted to the Surveyor for speedy settlement of the claim. It is a matter of surprise on 16.10.2012 the OP-1 requested to provide original copy of FIR and final police report. But the said two documents along with other documents were submitted before the Surveyor on 13.8.2012 which was duly acknowledged by the said Surveyor on 24.8.2012, so the question of providing the above documents once again is only for ulterior motive not to process the claim as filed by the insured by insured with one pretext or other. On 30.10.2012 the Surveyor requested to explain to justify the forcible entry by the miscreants from south side of the factory which to the opinion of Surveyor was not specific reply in support of the claim. The Surveyor requested to explain further the incident of theft once again for disposing of the claim which is nothing but a deliberate intention not to entertain the genuine claim. The reply forwarded by insured on 13.02.2013 by registered AD have furnished the reason for delay in reply to the letter dated 30.10.2012 which infact was not received by the insured but only collected from the office of the OP-1 as a result of which there was delay in replying the letter by the company to Surveyor. It has further stated that regarding the theft as lodged with Raniganj P.S. proceeded with the case u/S. 379 of IPC but in the final police report they mention the Section as 379/411 of IPC where 379 relates to theft and 411 IPC mentioned by police due to recovery of some theft articles from miscreants. From above it is clear that the Company has nothing to do about mentioning the appropriate section of the case and the same has framed by investigating official of the police authority. A clarification was also made regarding the word forcible entry which means entry and exit by applying force by the miscreants. However, the same word is not applicable since it was stated in the FIR that possibly the miscreants used the electric pole installed on the southern side of the factory for entry and exit. So no one has seen the incident and the actual theft of articles noted on 02.3.2012 when the factory started works (the factory remains close at night), as far as height of the boundary wall is concerned it has been clarified by the company the height of the boundary wall is concerned it has been clarified by the Company the height of the boundary wall is only 12 ft. and of not 30 ft. height as stated by the Surveyor. Thus above explanation was submitted by the company to the Surveyor clarifying all the points as asked for. It is amazing to note from the letter dated 04.3.2013 issued by the OP-1 stating that they have not received the reply of their letter dated 22.01.2013 addressed to the company regarding some clarification as they asked for. In the said letter it has also being stated that they have once again examined the issue and thereafter informed that abovementioned claim stands reputed by us for the following reasons. “The force-able entry or exit by miscreants is the primary condition to support a claim under this policy but there is not any evidence in support of force-able entry/exit by miscreants into/from the premises”. From above it is abundantly clear that the insurance company have not giving nay due credence regarding the FIR and Final Police Report when the charge have been framed by I.O. against two accused who have stolen the article and rescue of 55 pieces of semi finished aluminium plate about 20 kgs possession of two accused from jungle near from school para colony which was seized by police also as per seizure list which is absolute proof of the theft occurred from the factory premises. Again the company submitted clarification to the Divisional Manager, Asansol – OP-2 by way of personal visit followed by letter dated 27.5.2013 when the details have been explained to him with Surveyor and photographs. On 05.8.2013 a letter was written to the Regional Manager, Kolkata to look into the matter which is pending for 15 months. On 13.9.2013 the entire facts was submitted by the company by way of a registered letter to Grievance Cell, National Insurance Co. Ltd at Kolkata. On 03.10.2013 Deputy Manager, CRMD, HO vide his letter informed the Director of Company to get in touch Mr. R. K. Sahu and Sri Biswajit Dutta Mazumder regarding the grievance. Thereafter till date no action has been taken by the Insurance Company as regards to settlement of the claim amount of Rs. 1, 05,300=00. So under the above context the complainant has been compelled to file this case before this ld. Forum. Hence, the case arose. The complainant has prayed for directing the Ops to settle the claim on payment of the claim amount of Rs. 1, 05,300=00 arising out of the theft as occurred in the factory premises of the company, Rs. 1, 00,000=00 for harassment, mental torcher and financial loss sustained by the company due to non-settlement of the claim and Rs. 25,000=00 as litigation cost.
Notices were served upon the OP-1&2. The Ops have contested the case by filing conjoint written version. The Ops have denied all the allegations made by the complainant. After the theft incident was intimated to the Ops they issued the claim form and the same claim form was returned to the Ops duly completed with copy of FIR under Section 379 of IPC. Thereafter, Divisional Office of the Ops, National Insurance Co. Ltd. approved the name of Surveyor, Mr. S. Rajguru for survey of the loss on 15.3.2012. It is found from the claim records that against the enquiry letter dated 19.4.2012 of the Surveyor, the complainant clarified the matter vide letter dated 13.8.2012. As per the said letter dated 13.8.2012 of the complainant, it was found that they have stated in their said letter as follows:
- It seems foreseeable entry by the miscreants is from the south side of the factory, where an electric pole is fixed by D.P.S.C. for supply of power.
- It is reported that by dropping down 30 feet wall (later clarified 12 feet) miscreants got the open godown where the alleged semi-finished aluminium about 780 kgs reported lost by lifting the same anyway on the roof of the godown and taken away.
- Another point it has been mentioned that at the time of the incident nobody from the factory was present at the spot of incident and hence, obviously it is not known to them how the miscreants managed to lift their materials.
- Also it has been reported that since the incident occurred at any time at the night of 02.3.2012 and they came to know about the theft only on 02.3.2012 at about 8.00 am an FIR was lodged with the Raniganj P.S. on 02.3.2012. The factory remains closed during night hours.
Thereafter, the surveyor wrote a letter to the complainant on 30.10.2012 & 13.01.2013 respectively to the Director of the insured to establish the evidential proof for forcible entry/exit, as the same is the primary condition to support a claim under burglary Policy (Business Premises). Be it mentioned that the complainant/Insured did not give any specific reply in their said letter, as no circumstantial or physical evidences are there to support their claim. Moreover, they have not mentioned about their security guards who are required to look after at night and as such the said Surveyor requested the insured/complainant to explain the matter to early dispose off their claim vide letter dated 30.10.2012 and he also requested to explain the mater latest by 15 days from receiving his letter dated 13.01.2013 i.e. before deciding on the claim lodged by the insured/complainant. Lastly, the surveyor opined on 13.02.2013 that the claim does not come under the purview of admissibility for Burglary Claim Settlement. Thereafter, these Ops wrote a letter to the complainant to make comments with regard to shortcomings of non-compliance of the following i.e. (i) the forcible entry/exit by miscreants is the primary condition to support a claim under the policy in question, but the Ops regret to inform the insured/complainant that there is not any sign of forcible entry/exit and (ii) these Ops also regret to inform to the insured that they are yet to receive the reply of the letter issued by the said Surveyor dated 30.10.2012 & 13.01.2013, which was originally addressed to the insured and copy endorsed to these Ops. Due to the said shortcomings/non-compliance, the claim does not seem to fall within the purview of consideration of settlement and thus these Ops vide their letter dated 22.01.2013 to the insured, to make their comments within a fortnight of receipt of this letter to enable them to take further action in respect of the claim of the insured, failing which these Ops will presume that the complainant/insured has no comments to offer and thereafter these Ops vide their letter dated 04.3.2013 informed to the insured they have once again examined the issue and informed that the above-mentioned claim stands repudiated by them for the following reason i.e. the forcible entry or exit by the miscreants is the primary condition to support a claim under this policy, but there is not any evidence in support of forcible entry or exit by miscreants into/from the premises. Thereafter these Ops further issued a letter dated 04.3.2013 to the insured stating that their file stands closed on account of (i) inspite of letter/reminders sent to the complainant/insured have not been complied with the required papers/documents and (ii) these Ops closing the claim file on account of the following reasons i.e. repudiated for not to be established the admissibility for Burglary Claim and also informed that they absolve themselves from any future liability arising out of the claim.
Decision with reasons:-
Perused all the documents placed by the complainant as evidence on affidavit. Heard argument at length. Perused the relevant copy of the policy, FIR, FRT etc. and also terms and conditions of the policy where the Operative Clause states that “The Company hereby agrees subject to terms, conditions and exclusions herein contained or endorsed otherwise expressed hereon to indemnify the insured to the extent of intrinsic value of (a) Any loss of or damage to property or part thereof whilst contained in the premises describe in the Schedule hereto due to burglary or House breaking (theft following upon an actual forcible any violent entry or and exit from the premises) and Hold-up. (b) Damage caused to the premises to be made good by the insured resulting from burglary and/or housebreaking or any attempt there at any time during the period of insurance”. But in the instant complaint the complainant has miserably failed to adduce any evidence that burglary occurred. In view of the judgment of the Hon’ble National Commission ‘burglary’ means forcible entry in a premises or exit from the premises. Perused FIR, FRT how the police regarding the incident where it has been clearly stated ‘theft’ u/s. 379 of IPC, i.e. no mentioning of burglary. But as in the instant complaint there is no evidence that forcible entry/exit (as there was no security guard at night but as per terms of policy under General Condition No. 3: “Reasonable Care: The insured shall take all reasonable steps to safeguard the property insured against loss or damage”) was made by the miscreants, hence this complaint cannot be allowed on merit.
It is evident furthermore from the policy document that the complainant’s manufacturing unit was under the coverage of an insurance policy covering building material for Rs. 10,00,000=00, plant machinery and accessories for Rs. 25,00,000=00 and raw materials, finished goods, semi-raw materials and consumable items for Rs. 27,50,000=00. It is the case of the complainant that some finished and semi-finished goods were stolen from the said manufacturing unit in the night of 1st March or zero hours of 2nd March, 2012. The complainant has assessed the loss to the tune of Rs. 1, 05,300=00 towards stolen articles. But the policy reveals that coverage for the finished and semi-finished articles is of Rs. 27, 50,000=00. Hence, it can be ascertained in view of the Section 11 (1) of the C.P. Act, 1986 that the District Forum shall have jurisdiction to entertain a complaint where the value of the goods or service and compensation does not exceed Rs. 20, 00,000=00. But in the instant case as the value of the service is related to Rs. 27,50,000=00, hence we are not in a position to entertain the complaint as the policy has exceeded the pecuniary jurisdiction of this ld. Forum. Be it mentioned that the manufacturing unit was entirely covered by this insurance policy for Rs. 62, 50,000=00 in total, which also exceeds the pecuniary jurisdiction of this ld. Forum. It is argued by the ld. Counsel for the complainant during argument that some of the finished or semi-finished items and raw materials were stolen on the said night, valued at Rs. 1, 05,300=00. But in views of the specific Section of the C.P. Act we cannot break-up the amount as stated in the policy as per argument of the complainant. In a very recent judgment passed by the Hon’ble National Commission where it is observed that in case of entertaining the complaint entire value of cost or service and compensation should be taken into account for determining the pecuniary jurisdiction of the complaint. As this complaint has exceeded the pecuniary jurisdiction of this ld. Forum, hence we are not in a position to adjudicate the case of the complainant.
Going by the foregoing discussion hence, it is
O r d e r e d
that the Consumer Complaint being No. 79/2015 is dismissed on contest against the Ops without any cost.
The complainant is at liberty to approach before the appropriate forum/Court/commission, if not barred otherwise.
Let plain copies of this order be supplied to the parties free of cost as per provisions of law.
(Asoke Kumar Mandal)
Dictated and corrected by me. President
DCDRF, Burdwan
(Pankaj Kumar Sinha)
Member
DCDRF, Burdwan
(Silpi Majumder) (Pankaj Kumar Sinha)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
