This is a complaint U/s 12 of the Consumer Protection Act, 1986 with the prayer for direction upon O.P./ Insurance Company to pay compensation of Rs.3,00,000/- for loss sustained for theft in his godown and also Rs.50,000/- for deficiency in providing service.

The case of the complainant in short is that the petitioner purchased insurance policy for safety and security of his business articles stored in his shop/ godown of M/s Raj Enterprise at Tungidighi, Uttar Dinajpur. The said policy being No.150701/46/13/7500000390 was covered from 02.09.2013 to 01.09.2014 and the premium Rs.3,227/- was paid on 30.08.2013 against receipt. That during 3rd week of April, 2014 he noticed some of his business articles stored were missing from the godown and he started to keep close watch for such theft. On 28.04.2014 in the morning he found 2/3 miscreants to commit theft of grocery articles like sugar, mustered oil etc. He was able to apprehend one of the thieves inside the godown. He then lodged complain at Karandighi PS on 28.04.2014 and Karandighi PS 264/2014 dated 28.04.2014 U/s 379/411 of IPC was started against Tinku Das and 2/3 others. On 30.04.2014 he submitted claim application before O.P. intimating loss sustained by him for such theft in the night of 27/28.04.2014 and claimed for compensation in terms of the policy. In the meantime Karandighi PS completed investigation and submitted charge-sheet against Tinku Das, dated 30.05.2014 U/s 379/411 of I.P.C. 

On 26.09.2014 O.P. intimated the petitioner that petitioner would not get any claim amount on the basis of the report of surveyor that the incident of theft was committed by the employee of the petitioner. The petitioner alleged that he was not supplied with the copy of the surveyor’s report. He never acknowledged the accused as his employee. He alleges that O.P. illegally and arbitrarily turned down the claim in spite of his compliance of the direction and instruction of the O.P./ Insurance Company. Therefore he files this case before this Forum with the above mentioned prayer.

O.P./ Insurance Company appeared and contested the case by filing W.V. and stated therein that the case is not maintainable. That the claims are all false for wrongful gain. That petitioner violated the policy condition by pilferage of articles from his godown. On 19.06.2014 during preliminary intimation, petitioner admitted that the offender Tinku Das is the employee of his godown at the material time of theft. That his employee pilfered the stock from his godown in the span of 15 days, which is clear violation of the terms and conditions of the policy as envisaged in the ‘Exclusion’ terms of the policy. Moreover, the petitioner did not maintain any register of stock during the material period to ascertain how much stock was lost/ stolen. Complainant made some fictitious and baseless claim over loss of stock in his claim petition. Lastly, under the policy as is mentioned in para-2 of EXCLUSION the loss or damage by any member of his staff of business lawfully in the premises where actual theft or damage have expedited or assisted by such person, therefore disentitled the complainant to make any claim. O.P. prays for dismissal of this case particularly on this ground. 

To establish the case, the complainant has relied upon an affidavit-in-chief sworn by him as P.W.1. Complainant files documents Xerox copy of the FIR of Karandighi PS Case No.264/2014, dated 28.04.2014 U/s 379/411 IPC, copy of Charge-sheet, copy of intimation of theft, dated 30.04.2014 and policy papers.

O.P. filed examination in chief of one Ujjal Sarkar, Branch Manager and who was examined and cross examined as O.P.W.-1. O.P. filed documents, preliminary information report, dated 19.06.2014 and copy of policy condition of Burglary Insurance (Business Premises) Policy.  

DECISIONS WITH REASONS

Giving due consideration to the contents of the complaint petition, documentary evidence on record, hearing, argument advanced by the lawyers of both sides, the Ld. Forum has come to the findings as follows: -

It is admitted by O.P. that petitioner purchased the policy, the Xerox copy of the policy paper is filed, single premium of installment of Rs.3,227/-, receipts filed by the petitioner. Sum assured Rs.5,00,000/- on stock and period of coverage from 02.09.2013 to 01.09.2014. The FIR of the Karandighi PS being No.264/2014 sated 28.04.2014 goes to show that the accused Tinku Das caught red-handed by the complainant inside the godown in the wee hours of 28.04.2014 while 3/4 other miscreants were found fleeing away from the godown room. That the theft was continued about last 15 days previous to the occurrence. In the preliminary investigation report submitted by O.P., following the incident goes to show that complainant stated this fact of theft before the valuer surveyor about theft of grocery articles by Tinku Das, his employee engaged in the duty in the godown, had been committing theft during April, 2014 and was caught red-handed on 28.04.2014 by the complainant. Cause of damage for theft by the employee from the godown, where the age of the premises is for 20 years old and value of item stolen was of Rs.3,35,000/-. Complainant made prayer for compensation of Rs.3,00,000/- for loss sustained for theft in the godown. Complainant did not file any document to ascertain the value of the articles stocked in the godown that were allegedly stolen away. No stock register of any such grocery articles or any other document is filed by the complainant. As PW-1 he was cross examined and deposed that he maintained stock register, but did not produce the same. Though he deposed that for last 15 days he noticed grocery articles missing from godown at the relevant time. That, preliminary information and survey by the company depicts that he stated that he employed watchman, Tinku Das, who committed theft in the godown. The preliminary information report also bears signature of the complainant. O.P. has been able to prove that the valuer/ surveyor prepared the report in presence of complainant. There is nothing to discard the surveyor’s report regarding the statement of complainant that his employee Tinku Das committed theft and was caught red-handed in the godown. The complainant did not challenge this report of surveyor/ valuer as per law. After investigation having found prima-facie materials and involvement of the accused Tinku Das and others the Karandighi PS submitted charge-sheet against the accused.

Now, complainant cannot deny this fact that Tinku Das employed as watchman in the godown is his employee, who committed theft of grocery articles at the relevant time, as alleged. He admitted this fact before the surveyor at the time of preliminary investigation and before the police during investigation in criminal case but he is denying this fact in examination in chief that Tinku Das was never his employee of the godown. In cross examination he again deposed that he cannot remember whether he stated before the surveyor/ valuer during preliminary investigation, that Tinku Das was employed by him as watchmen in the godown. On the other hand O.P./ Insurance company filed the report of the surveyor’s and the terms and conditions of the policy in ‘exclusion’ clause that the loss or damage caused by the insured’s staff is concerned as from any act committed by any other person lawfully on the premises. Complainant, therefore, admits that Tinku Das was employed, named in the FIR, was in the godown on duty and allegedly caught red-handed by the insured from the godown premises. In such circumstances the O.P./ Insurance Company on the basis of preliminary investigation sheet of the surveyor that offender is the employee of his godown pilfered stock from his godown, repudiated the claim. It is clear violation of the terms and condition of the policy, falls within the ‘Exclusions’ and O.P./ Insurance Company rightly repudiated the claim. Petitioner with his own admission, that the theft committed by his staff, admitted before the surveyor and his failure to prove the loss by any stock register of the godown to ascertain the actual loss due to alleged theft, he has not been able to prove this case before this Forum by sufficient and cogent evidence. Therefore, the complainant is not entitled to any relief from O.P./ Insurance Company in the light of our above discussion.

Fees paid is correct. Hence, it is

ORDERED,

That the consumer complaint being No. CC-79/2015 be and the same is dismissed on contest but without cost.

Let copies of this order be supplied to the parties free of cost.