1. M/s Ashadeep Gas Serviced,

A-2/22, CIT Market,

28, Deshpran Sasmal Road,

Tollygunge, Calcutta-33.

2. Anup Kumar Biswas,

59/1, Garfa Main Road, 1^st Floor,

P.S. Kasba, Kolkata-75._________ Complainants

____Versus____

1. National Insurance Co. Ltd.

Division No.VII, Brooke House,

9, Shakespeare Sarani, 4^th Floor,

Kolkata -1.

2. The Managing Director,

Division No.VII, Brooke House,

9, Shakespeare Sarani, 4^th Floor,

Kolkata -1.________ Opposite Parties

Present :           Sri Sambhunath Chatterjee, Hon’ble President

                                    Smt.  Samiksha Bhattacharya, Member

Order No.   22    Dated   18/08/2016.

       The case of the complainants in brief is that the complainant no.1 is a proprietorship firm engaged in a business of distributorship of LPG under the name and style of M/s Ashadeep Gas Service. The complainants for the purpose of keeping empty gas cylinder of Indian Oil Corporation Ltd. insured against burglary, theft etc. and entered into an insurance policy with o.ps. being policy no.10070/48/102000001589.

            It was further stated that on 10.1.10 while arranging to dispatch a lorry of empty cylinders it was found that an incident of theft had taken place in the godown of the complainant and on inspection it was found that 234 nos. of empty cylinders were missing. The complainant stated the said incident of theft to o.ps. and claimed the amount of Rs.4,68,000/- but o.ps. denied the said reimbursement of the aforesaid amount. Subsequently on 31.3.10 o.ps. repudiated the claim of the complainant contrary to the terms and conditions agreed by the parties. It was claimed by the complainants that o.ps. are liable to pay the said amount of the complainants for reimbursement of the loss sustained by the complainants to the tune of Rs.4,68,000/- in terms of the said insurance policy.

            Since the complainants were denied to provide the amount of Rs.4,68,0000/- by o.ps. therefore complainants have prayed for relief for the said amount of Rs.4,68,000/-, interest as well as compensation.

            The o.ps. contested the case by filing w/v whereby they denied all the material allegations of the complainants. It was specifically stated that the complainant no.1 took a policy for non traditional business vide policy 10070/48/10/102000001589 for the period 00 hours on 8.7.10 to midnight of 7.7.11 wherein insured name M/s Ashadeep Gas Serviceand the alleged incident took place on 9.1.10 and the complainant no.2 vide their letter dt.9.1.10 informed the Officer in charge of Sonarpur P.S. wherein it was mentioned that 234 nos. of empty cylinders were found missing and on the basis of the said information Sonarpur P.S. case was started being no.Sonarpur P.S. Case no.33/2010 dt.10.11.10. After coming to know of the said fact a surveyor was appointed by o.ps. and he after considering the materials and inspecting the godown of the complainants submitted a report and he observed that file may be closed treated as no claim. After receiving such report o.ps. informed the said fact to the complainants and it was also stated that it is a settled law that the surveyor’s report carries vital significance and cannot be brushed aside on untenable ground and as such, o.ps. prayed for dismissal of the case.

            On the basis of the pleadings of the parties the following points are to be decided:

1. Whether the complainants had valid insurance policy at the relevant point of time.
2. Whether a theft took place in the godown of the complainants.
3. Will the complainants be entitled to get the reimbursement of the amount which caused loss to the complainants for the said theft.
4. Whether there was no deficiency in service on the part of the o.ps.

Decision with reasons:

            All the points are taken up together for the sake of brevity and avoidance of repeatition of facts.

            Ld. lawyer for the complainants argued that there is no dispute that the complainants had no insurance policy under the o.ps. and during the continuation of the period of policy a theft / burglary took place on the way of carrying the cylinders to the godown. In order to corroborate the said fact a FIR was lodged and Sonarpur P.S. case was started. Police submitted charge sheet against the driver of the vehicle and he is sent for trial for the said case. Considering the said fact it was emphasized by ld. lawyer for the complainant that the prompt action taken by complainant vis a vis information given to o.ps. regarding the theft committed in respect of the gas cylinders was duly informed to o.ps. claiming the amount of Rs.4,68,000/- to reimburse the loss sustained by the complainants. But it is curious enough that the insurance company without considering the cogent evidence adduced before the o.ps. failed and neglected to pay the said amount and the surveyor submitted the report on the basis of wrong decision arrived at by him. Ld. lawyer for the complainants emphasized that the only point in dispute in this case is that whether the insurance covered the office of the complainants or the godown. In this respect ld. lawyer pointed out that since the complainants took the view that the shop in question was covered with the insurance company not the godown. In order to fortify the claim of the complainants ld. lawyer for the complainants in support of his said contention relied on decision as report in 2015 SCC NCDRC 3346 whereby it was held by Hon’ble Commission that the shop measuring 11 ft x 11 ft cannot be used for goods worth Rs.15 lakhs. This is only the place where the meetings are held and orders are placed and the actual goods lie in the godown. The insurance company should have been vigilant and should have written that the godown does not fall part of the insurance policy.

            Since the said case cited by ld. lawyer for the complainants is similar to the case which is being dealt with by us as such ld. lawyer emphasized on the said decision in support of his contention to substantiate the claim against the o.ps.

            Ld. lawyer for the o.ps. argued that only bone of contention here in the case is whether the policy taken by the complainants, their addresses mentioned in the said policy speaks that the shop in question was covered with the insurance policy not the godown. Apart from the said fact ld. lawyer also argued that the report of the surveyor cannot brushed aside since he visited the spot and assessed the loss sustained by the complainants and thereafter he submitted the report that no claim is established and accordingly on the basis of those materials on record the o.ps. repudiated the claim of the complainants.

            Considering the submissions of the respective parties it is an admitted fact that the complainants were insured with the insurance at the relevant point of time and the policy was valid during the time the theft took place in respect of the gas cylinders while those were being transported to godown the total nos. of 234 empty cylinders were found missing and immediately a case was started at Sonarpur P.S. being Sonarpur Case no.33/2010 dt.10.11.10 u/s 379 IPC and the driver of the vehicle was found involved in the said theft for which charge sheet was submitted against him and he faced trial. It is also an admitted fact that the complainants after the incident of theft informed to o.ps. regarding the said theft in respect of those cylinders which have not been disputed by o.ps. The only bone of contention between the parties was whether shop in question of the complainants was insured with the o.ps. or godown and the stock in the said godown. In this respect we can rely on the decision as cited by the ld. lawyer for the complainants that was reported in 2015 SCC NCDRC 3346 wherein at the concluding part of the said judgment Hoin’ble Forum held that the shop is meant for the placed for meeting or orders are taken but the actual goods lie in the godown. Insurance company should have been vigilant and should be written that godown does not fall part of the insurance policy. Here in this case no such mentioning was made in the policy itselt on the contrary the policy covers the cylinders in transit burglary and house breaking are also covered in the said insurance. Therefore the insurance company cannot shirk off its responsibility with regard to the monitory loss sustained by the complainants and since the complainants have been harassed unnecessarily for which the complainants will be entitled to get compensation from the o.ps. Thus all the points are disposed of accordingly.

            Hence, it is ordered,

            That the CC No.409/2012 is allowed on contest with cost against  the o.ps. O.ps are directed to pay to the complainant a sum of Rs.4,68,000/- (Rupees four lakhs sixty eight thousand) only and to pay compensation of Rs.30,000/- (Rupee thirty thousand) only for harassment and mental agony and litigation cost of Rs.5000/- (Rupees five thousand) only and o.ps. are also directed to deposit a sum of Rs.10,000/- (Rupees ten thousand) only to the Consumer Welfare Fund as punitive damage within 30 days from communication of this order, i.d. an interest @ 10% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.          

            Supply certified copy of this order to the parties free of cost.