OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C.44/2011
Present:-
1) Md.Sahadat Hussain, A.J.S. - President
2) Smti Archana Deka Lahkar - Member
3) Md Jamatul Islam - Member
M/S Ganapatti Wine Shop -Complainant
Wireless, Beltola Basistha Road.
P.S.Hatigaon, Guwahati,
Distr: Kamrup, Metro, Assam,
Represented by Proprietor, Sri Naba Lochan Das,
Son of Late P.N.Das, Wireless,
P.S.-Hatigaon , Guwahati,
Distr: Kamrup, Metro, Assam,
-VS-
1) National Insurance Company Ltd. - Opp.Parties
Divisional office at “Rani Sati Sadan” 4th Floor
M.L.Nehru Road, Panbazar,Guwahati-01
Dist-Kamrup(M),Assa,
2) National Insurance Company Ltd.
Registered Office- 3, Middleton Street,
Kolkata-700071
Appearance:
Ld.advocate Mr. Manash Garodia for the complainant. & Ld.advocate Ms . P.M.Dutta for the opp. parties.
Date of argument - 06.08.2018
Date of judgment - 21.08.2018
JUDGMENT
This is a complaint u/s 12 of the Consumer Protection Act, 1986.
1. The complaint filed by M/S Ganapatti Wine Shop , Wireless, Beltola Basistha Road, P.S- Hatigaon , Guwahati against National Insurance Company Ltd., Divisional office at “Rani Sati Sadan”, 4th Floor, M.L.Nehru Road, Panbazar,Guwahati-01 and National Insurance Company Ltd. Registered Office- 3, Middleton Street,Kolkata-700071 was admitted on 29/09/2011 and notice was served on the opp. parties and the opp. parties filed joint written statement on 24/11/2012 . The complainant side filed evidence of Sri Naba Lochan Das and Sri Sanjit Talukdar and they were cross -examined by the opp. party side . The opp. party side filed affidavit of Sri Dulal Ch. Das and Sri Kamakhya Sharma and also filed additional affidavit of Sri Dulal Ch. Das and both of them were cross-examined by the complainant side . After filing written argument by both the parties , we , on 06/08/2018 , heard oral argument of ld advocate Mr Manash Garodia for the complainant and of Ld.advocate Ms . P.M.Dutta for the opp. parties and today , we deliver the judgment , which is given below-
2. The case of the complainant Sri Naba Lochan Das , in brief , is that he deal in business of IMFL by style M/S Ganapatti Wine Shop ,situated at Wireless , P.S-Hatigaon ,Guwahati and during running of his said business on 16/04/2010 at night , theft took place in the said shop premise and 76 cases and 6 pieces of IMFL were stolen away and he lodged FIR with Hatigaon P.S and Hatigaon P.S , by registering a case vide Hatigaon P.S Case No-78/2010 U/S- 461 /380 IPC , investigated the case and submitted the final report to SDJM (S) No-II , Guwahati who accepted the final report on 12/10/2010 and in the said theft he lost Rs.3,54,501.22 ( Rupees three lakhs fifty four thousand five hundred one , paise twenty two) and he claimed the said amount from Opp.Party No-1 as his establishment was insured with Opp.Party No-1 vide Policy No-20600/48/09/9800000518 but Opp.Party No-1 , vide letter dtd. 03/08/2011 , repudiated his claim . There fore , he prays to this forum to direct the opp. parties to pay him the said amount alongwith Rs.1,20,000/- for causing financial loss to him and for causing harassment and mental agony to him.
3. The pleading of the opp. party , in gist , is that their surveyor , by surveying the alleged theft , found that the alleged loss had occurred not of the shop of the complainant but at a nearly store of the complainant with completely a different entrance to the store and after reaching the survey report , they have gone through the relevant record and found that the complainant’s shop only was insured but the store was not insured and as such the policy does not cover the store , and as such they repudiated the claim of the complainant. By repudiating the claim of the complainant they did commit no deficiency of service to the complainant nor caused harassment to the complainant . Hence , the complaint is liable to be dismissed.
4. It is found that both sides admit that theft had in respect of IMFL taken place on 16/04/2010 (at night) and those IMFL belonged to the complainant . Now question is that , whether the theft committed in the shop of the complainant or in the store of the complainant, which is situated in the same place?
The complainant in his evidence states that the said theft had taken place in his shop (M/S Ganapatti Wine Shop) situated at Wireless, Beltola Basistha Road, Guwahati, . In the cross-examination ,CW-1 denies a suggestion of the opp. party that there is one extension of a building adjacent to his shop and the theft had taken place in the said extended portion, which is not covered by the policy . CW-2 Sri Sanjit Talukdar states that on 16/04/2010, an incident of theft had taken place in the wineshop (M/S Ganapatti Wine Shop) of the complainant and on 17/04/2010, the police entered into the said wineshop .
In the cross-examination CW-2 states that , he knew about the incident on next day when the complainant asked him to visit the wine shop and that he did not enter the wine shop while police was inside there and he also did not knew about how many entrances are there in the said wine shop. From the statement of CW-2, it is clear that CW-2 did not have any clear idea about the shape of the wine shop of the complainant and he also did not enquire about the place of the wine shop where the theft took place . We have found that CW-2 has no clear idea whether theft committed either in the wine shop or in the store of the wine shop . So , it must be held that , CW-2 does not corroborate evidence of CW-1 . It is also found that the complainant has not adduced evidence of any nearby person, who has shop or house nearby his wine shop to corroborate his evidence .
OPW-1 Shri Dulal Ch. Das ,Surveyor appointed by the opp. party , states that , he surveyed the alleged buglary claim of the complainant on 20/04/2010 in presence of the complainant and that when he arrived the said wine shop on that day the staff of the said shop led him to another shop made of sand-bricks-cement situated near the insured’s shop and the complainant himself also informed him that he keeps overloaded stocks in the said bricks cement shop; and he found that the said sand, bricks , cement shop is used as store of M/S Ganapatti Wine Shop and both are separated by another shop namely M/S Giribala Hardware situated in the same building; and the complainant informed him that stocks from that store cum godown were taken away by thieves and that was also confirmed by his sale staff and others. He further states that , the insured shop is having two doors , one at front and the other at back side and the front is having a rolling gutter having two inbuilt locks and the door is further protected by two locks across the door frame by an iron bar, and the rear door is an iron plate single lift door locked from inside and the front door is protected by iron grill having locking arrangement, which was highly protected and the burglary occurred in the store cum godown of the complainant but not in the wine shop .By cross examining this witness , the complainant has not succeeded to prove that version of this witness was a concocted story, which is not factually true. We have perused the survey report which is Ext-C , it is found that the survey report lays support to the evidence given by OPW-1 Shri Dulal Ch. Das (Surveyor) .We have also perused the said survey report and found that the surveyor Shri Dulal Ch. Das states that the lost occurrred not at the shop but at nearby store of the insured having different entry to the shop . This survey report is not objected by the complainant nor he has prayed to the opp. party to depute another surveyor to investigate the matter so such conducts of the complainant infers that , he has accepted that survey report without objection . Secondly, the surveyor is an independent person appointed as per insurance laws and hence the report of surveyor has to be accepted in toto if not it is otherwisely proved . The survey report is found to have been accepted by the complainant without objection. Hence, we can not go beyond the findings of the surveyor . Therefore, the finding of the surveyor that , the theft was not committed in the M/S Ganapatti Wine Shop belong to the complainant, which was insured with Opp.Party No-1 ; but it took place at a separate godown belong to the complainant situated in a separate place i.e. in the side of Maa Giribala Hardware situated in the same building is accepted as factually proved . Thus , it is crystal clear that the alleged theft had not taken place in the wine shop of the complainant i.e. M/S Ganapatti Wine Shop situated at Wireless,Hatigaon which was insured with opp. parties but taken place in a separate godown made of sand-brick-cement situated separately from the wine shop but at the side of Maa Giribala Hardware. We have perused Ext-C-1 (the policy) and found that , by that policy M/S Ganapatti Wine Shop only which belongs to the complainant was insured by the opp. party but the godown where the theft committed is not covered by the said policy . Accordingly , we hold that by virtue of Ext-C-1 (Policy No-200600/18/09/9800000518 dtd. 28/12/09 , the complainant can not claim any compensation for suffering loss due to theft committed in his said godown/ store, which is separately situated from his wine shop. Hence , the complainant is not entitled to get any relief as prayed . In such premises we have also declined to go into the quantum of the loss suffered by the complainant for a theft committed in his godown. Accordingly , we also hold that , be rejecting the claim of the complainant , the opp. parties has committed no deficiency of service toward the complainant and their rejection order is lawfull one.
5. Summing up our discussion as above , we hold that , the complainant has no cause of action for filing the present complaint . Hence , the complaint against the opp. parties is dismissed on contest .
Given under our hands and seals today on this 21th August,2018.
(Smt Archana Deka Lahkar) (Md.Jamatul Islam) (Md.Sahadat Hussain)
Member Member President
