BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION.
KAMRUP
C.C.No.91/2013
Present: I) Shri A.F.A.Bora, M.Sc.,L.L.B.,A.J.S(Rtd.)-President
II) Smti Archana Deka Lahkar,B.Sc.,L.L.B. -Member
III) Sri Jamatul Islam,B.Sc Former Deputy
Director, FCS & CA - Member
Anamica Traders Pvt.Ltd. - Complainant
526/528,Sreemanta Market,
5th Floor,A.T.Road,
Guwahati 781001
Represented by its director
Sri Santosh Kumar Jain
-vs-
I) Oriental Insurance Company Ltd. - Opposite parties
G.S.Road,Ulubari,Guwahati 781007.
Represented by the Regional Manager
2) The Divisional Manager
Oriental Insurance Company Ltd.
CDO-1 Panbazar, Guwahati 781001
Appearance
Learned advocate Mr.Ashok Kumar Jain for the complainant .
Learned advocate Mrs Swarnali Shyam Choudhury, Sri G.Gogoi, Smti Piyali Mitra for the opp. party
Date of filing written argument:- 30.9.2020
Date of oral argument:- 25.3.2021
Date of judgment: - 7 .5.2021
JUDGMENT
1) This is a complaint filed by one Anamica Traders Pvt.Ltd. under Section 11 of the Consumer Protection Act,1986 for deficiency in service for non-settlement of claim arising out of policy No. 321100/11/2009/445 which was for the period from 3.2.2009 to 2.2.2010. Complainant Anamica Traders Pvt.Ltd. represented by its director Sri Santosh Kumar Jain filed the petition against opp.party Oriental Insurance Company Ltd. its Divisional Manager as opp.parties.
2) The fact of the case is that the complainant obtained a Standard Fire & Special Perils Policy (material damage) vide policy No. 321100/11/2009/445 for the period from 3.2.2009 to 2.2.2010 in respect of their RCC Building bearing House No. 12 situated at Sarboday Path, G.S.Road, opp.to Rajib Bhawan, Guwahati-781005 which consists of ground and first floor with garage and terrace covering seven rooms, modern toilets, drawing hall, kitchen, dining hall etc . The complainant stated that he let out the aforesaid building to one Sri J.P.Singh representing himself as director of the company known as Mahadeo Multilevel Entrade Pvt. Ltd. with effect from 1.1.2009. On 14.1.2009. On agreement of tenancy was executed between the complainant company and the tenant company. The tenant company actually started functioning from 21.1.2009 in the tenanted premises of the RCC Building . On 30.1.2009 Sri J.P.Singh the director of the company informed the complainant company that they wanted to use the kitchen of the RCC Building for their staff and accordingly the complainant company allowed them to use the kitchen. Thereafter the complainant company thought about the insurance coverage of the office cum guest house of the RCC building and on 31.1.2009 the complainant asked the Insurance agent to cover the risk of Fire etc. of the said RCC building.
3) The complainant further stated that on 2.2.2009 the agent contacted the director of the complainant company and thereafter the necessary formalities were observed and on 3.2.2009 midnight to midnight of 2.2.2010 policy No. 321100/11/2009/445 covering the risk of fire, lighting , explosion /implosion, aircraft damage, riot strike and malicious damage etc. in respect of the aforesaid house and a sum of Rs.2,084 /- was paid as premium which included premium for Fire Basic Cover. Terrorism Cover and Earth Quake cover.
4) As per the complaint petition on 4.2.2009 suddenly a mob consisting about 500-600 people assembled unlawfully into the building and criminally trespassed into the building allegedly those were seated by the tenant company belonging to Mr.J.P.Singh and some altercation took place . The mob started causing damage to the furnisher, fixtures and other equipments including valuable decorative sceneries, kitchen and bath room appliances etc. The mob allegedly damage the valuable item worth more than six lakhs and the damage was cause in a nature of terrorism activities .
5) Thereafter on 5.2.2009 complainant company gave the information of the damage of their property to op.party No.2 and on that day itself complainant lodged an F.I.R. before Bhangagorh police station Guwahati and a case was registered vide Bhangagorh police station case No. 13/2009 (Ext.3) under sec.447/420/34 IPC and the complainant company also lodged a complaint before the opp.party No. 2 claiming compensation for damages. The complainant further lodged a complaint case No. 601 C/2009 in the court of Sub-Divisional Judicial Magistrate, Kamrup against Sri J.P.Singh and others and the complainant case was taken under section 417/427/506 IPC in which the notice was issued against Sri J.P.Singh , but the summon could not be served against the accused person as he was found absconding. During the pendency of the case on 7.2.2009 surveyor of the insurance company visited the place of occurrence and took the photo graphs of the site and complainant was asked to submit some documents and accordingly complainant have submitted all the documents and the surveyor completed his examination of his documents etc.
6) Subsequent to the above the complainant on 12.2.2009 wrote a letter to op.party No. 2 for allowing the building which has been use by CRPF /Police deputed for the security purpose. The complainant also requested the opp.party No. 2 to complete the investigation so that the building could be repaired immediately for the damage caused in the incident. The complainant thereafter collected the estimated cost of repairing of the building which amounting to Rs.6,90,036/-.(As per the term as Ext.6 & 7).
7) Thereafter the complainant company visited the insurance company many times to know about the status of the claim and requested them to settle the claim at the earliest . But on 17.20.2010 when the complainant went to the office of op.party No.2 a letter dtd. 17.8.2010 was handed over to him which shows that the claim was treated as “No claim” (Ext.10).
8) It is alleged by the complainant that opp.party arbitrarily and illegally closed the matter without settling the claim and without giving any information to the complainant and accordingly the complainant issued a notice on 16.9.2010 to both the opp.parties by registered post through their address. But inspite of receiving the notice the opp.party remain silent and thereafter on 22.5.2-13 a legal notice was issued through the counsel of the complainant to reconsider and review the matter . But the opp.party remain silent. Ultimately it is alleged that op.party took 18 months time to show the word “No claim” in their communication dtd. 17.8.2010. The complainant visited the office of the opp.party many times, but the claim was not decided for a long period of time by the opp.party where the claim is very much maintainable as per policy term and insurance company . The complainant rebutting the allegation of the op.party as baseless claiming that the incident was accidental and is terrorist activity committed by the mob.
9) The matter was brought before this commission as a consumer case and a case was registered long back in the year 2013 and opp.party on receipt of notice appeared and contested the proceeding by filing written statement on 22.4.2014 alleging certain facts as narrated here-in-below.
10) The opp.party stated that the present complaint is frivolous and vexatious and is liable to be dismissed stating that this is a loss arising out of mob consisting of 500/600 people who criminally trespassed into the insured building and damaged the insured building partially. The complainant has obtained policy from M/S Oriental Insurance Co. Ltd. on 3.2.2009 covering the period from 3.2.2009 commencement of risk and under close proximity clause. The opp.aprties begs to state that immediately on receipt of claim intimation letter the op.party deputed heir licensed surveyor Sri M.C.Jain to survey the damaged building and an investigator Sri N.K.Vema to investigate the case. Surveyor Sri M.C. Jain has submitted the survey report dtd. 18.5.2009 on 19.5.2009. As evident from survey report, the surveyor has not given specific recommendation on the admission of liability. Surveyor has also not mentioned in the survey report about the specific cause of loss i.e. the specific peril of SF & SP policy operated therein and responsible for cause of the loss. Hence the opp.parties has obtained a clarification from the surveyor Sri M.C. Jain vide letter dtd. 26.10.2009 and the surveyor Sri M.C. Jain has given his clarification vide his letter dtd. 7.12.2009 in which he has stated that alleged cause of loss is malicious damage.
11) The opp.party further stated that the complainant has obtained policy from M/S Oriental Insurance Co.Ltd. on 3.2.09 covering the period from 3.2.09 to 2.2.2010. The date of loss is 4.2.2009 which is within 5 days from the date of commencement of risk and under close proximity clause. Opp.party vide letter dtd. 27.10.2009 has dputed Sri Dhrubajyoti Dutta investigator to do close proximity investigation including circumstances leading to the damages. Sri Dutta investigated the matter and submitted the investigation report dtd. 29.12.2009 on 30.12.09.
12) The opp.party further stated that the complainant has given the building on rent with effect from 1.1.2009, as per deed of tenancy agreement dtd. 14.1.2009 and the insurance policy was taken from 3.2.09 for one year. The newspaper cutting reveal that disturbances had started from 2.2.09 and on 3.2.09, the tenant fled away by the night after locking the door. As such it is crystal clear from the circumstantial evidence that complainant was well aware of the incident which has occurred on 4.2.09.
13) The opp.party further stated that after receiving claim intimation letter dtd. 14.5.2009 claim was started processing immediately by appointment of investigator and surveyor and after due verification and following official procedure claim was repudiated and informed to the complainant accordingly vide letter dtd. 17.8.10. The opp.party submits that the they have taken the decision after due application of mind, the said decision cannot said to be have taken otherwise than in good faith. On the fact of the present case decision taken by insurance company/op.party was not arbitrary and unreasonable as such the complainant is not entitled to any compensation as claimed by the complainant.
14) From the pleading of the parties it appears to us that matter of dispute can be resolved to arise at a decision on the following issues which has been emerged from the pleading of the parties.
Discussion and decision
I) Whether there is any terrorist activities causing damage to the property of the complainant , Anamica Traders Pvt.Ltd. ?
II) Whether the building in question was used for commercial purpose ?
III) Whether the insurance policy of the complainant covers the present incident as per policy condition ?
IV) Whether complainant is entitled for any relief as prayed for ?
Issue No. I
- Whether there is any terrorist activities causing damage to the property of the complainant , Anamica Traders Pvt.Ltd. ?
15) After due consideration of the materials on record it is found that complainant examined one witness as P.W.1 Santosh Kr.Jain, one of the director of the complainant company. According to him the building concern was given on rent in the month of Dec.2008 to one Mr.J.P.Singh who was doing business of tea, mustard oil etc. and the complainant company gave the building on rent to M/s Mahadeo Multilevel Entrade Pvt. Ltd. w.e.f. 1.1.2009. According to P.W.1 a mob of 500/600 to be assemble and criminally trespassed to the building allegedly cheated by the tenant of the company belonging to Mr.J.P.Singh and altercation took place . It is further stated that the mob suddenly cause damage to the furnisher , fixtures and other equipments chairs, tables etc. and the damage is claimed to be more than Rs. 6,00,000/- and P.W. 1 alleged the above act of destruction as terrorism activities . Apparently , there is no such terrorist act as alleged as because the group allegedly entered into rented house of the complainant having some business transaction with alleged cheating committed by the tenant of the complainant.
16) We have taken notice of policy cover where there is a specific condition at policy clause (e) which read as under “ the burden of proving loss and damage is upon the complainant .´Here in this case the mere statement of P.W.1 is not sufficient to hold a view safely that there was any loss or damage caused by any terrorist activities to claim a compensation under the policy concerned.
17) From the evidence on record it is found that tenant concerned is not examined as a witness to establish the fact regarding the damage and lodging of F.I.R. etc. The evidence brought on record by the complainant referring Bhangagorh Police Station case No. 13/2009 under section 447/420/34 IPC and we are also of the opinion that prima facie there is no evidence of any mischief or damage caused to the property of the complainant. We have taken notice of the evidence of opp.party testified through Madhu Chandra Dhar, the Assistant Manager of the Oriental Insurance Company Ltd, Ulubari where she has referred Ext. J, F.I.R. dtd. 4.2.2009 and Ext. K, Ext.L first information report,( F.I.R. under 154 CRPC) which does not justify any damage caused by any person as alleged as because any of these 3 documents there is no offence of mischief u/s 427 IPC and the offence were registered including an F.I.R. u/s 447/ 420 and 406 I.P.C.. So there is no offence as alleged mischief committed by any group . On the other hand documents attached with the police report reveals further that there was an allegation against the tenant of the complainant for cheating some public by collecting money etc. in which the case u/s 420/ 406 IPC was registered by police against the tenant of the complainant. The allegation of the complainant regarding any mischief caused by any mob has not been prima facie proved through these documents.
18) We have again taken considered view of the surveyor report Ext.D testified by the opp.party No.1. The report is not clear enough that there were some damage for the reason of a mob attack as the occupant of the house (tenant ) was involved in certain business with alleged cheating of the public. The said surveyor is not examined as a witness by the op.party to give an opportunity to the other side to contradict the testimony on findings. As such it has no such evidentiary value to hold any opinion that any mischief was caused by the mob or by any terrorist group.
19) We have taken notice of the Ext. B, the policy document in which at clause V(d) which read as under “ riot, strike and malicious damage loss or visible physical damage or destruction by the external violent means directly caused to the property insured by excluding this caused by burglary, house breaking , theft, larceny or any attempt or any omission or any kind of any person (whether or not such act) is committed in the course of disturbance or public peace in the malicious act. “
20) If we look at the aforesaid policy condition it is found that complainant have totally failed to establish any kind of damage or destruction caused by external violence means by the alleged mob. As such , issue No. I is decided in negative.
Issue No. II
21) Whether the building in question was used for commercial purpose ?
Whether the building is used in commercial purpose. It is very clear from the evidence of the complainant itself that he rented out the house to one J.P.Singh for the purpose of running business of Mahadeo Multilevel Entrade Pvt. Ltd. for use as their office who have started business of tea , mustard oil etc.
22) The opp.party have categorically mentioned in the w.s. that the building was used for commercial purpose for which they cannot take protection under the provision of the Consumer Protection Act. The complainant have failed to rebut the testimony of opp.party no. 1 by cross examining o.p.w.1 nor have suggested any fact to prove that the building concern was used for residential purpose etc. Hence this issue is also decided in affirmative. Holding a view that building concern was used for business purpose of one Sri J.P.Singh the representative of the tenant of the complainant and issue no . II is decided accordingly. .
Issue No. III & IV
23) We have gone through Ext.1 the policy documents by policy No. 321100/11/2009/445 covering the period from 14.49 of 3.2.2009 to midnight of 2.2.2010. The policy condition as reveals is from fire to natural calamities including bush fire with some exclusion clause. The present claim is made under clause V which is for “riots, strike and malicious damage and complainant claim that there was a malicious damage caused to the property of the complainant. But as per the policy clause as already mentioned in clause V(d) of the policy excluding burglary, house breaking, theft etc. in any malicious act. The complainant have failed to establish the malicious act for causing damage to his property to the extent of Rs.6,00,000/- or more. The police report does not indicate that there was any offence of mischief or damage caused to the property of the complainant by inserting the provision of sec.427 IPC in the F.I.R. As such, we are of the opinion that the present incident is not covered by the policy for the reason of not proving any mischief committed to the property of the complainant as already discussed .
24) It is alleged by the complainant in his evidence that opp.party arbitrarily closed the matter without giving any information to the complainant and he issued notice to the opp.party by registered post on 16.9.2010, but op.party remain silent and have not settle the claim.
25) We have gone through Ext.11 and 13 as referred by the complainant and also gone through the letter dtd. 17.8.2010 “No claim” closure of the file is treated as deficiency in service on the part of the opp.party insurance company by the complainant . There was a point raised by the opp.party that claim was made within 24 houses of the issue of policy and the same is that claim proximity is not referred under malicious damage is based on some extraneous consideration and complainant submits that such observation is legally not maintainable.
26) On the other hand counsel of the opp.party submits that the claim has been closed recording “No claim” and information was given to the complainant on 17.8.2010 stating that claim of the complainant has not merit waiver of close proximity as caused of loss i.e. house breaking is not referred under malicious damage caused to the building of the complainant by mob as already discussed. Bhangagorh police has registered a case under section 447/420 /34 IPC which are for the offence of criminal trespass and cheating committed in furtherance of common intention . There is no offence recorded by police for malicious damage or mischief.
27) We have already discussed and pointed out that in case of malicious damage burden of prove of loss and damage is upon the complainant /insured. In this case the complainant have miserably failed to establish any fact that damage or loss has been caused to his property by any mob and in the incident of trespassed and cheating etc. was first information.
28) Hence we are of the opinion that no cause of malicious damage has been proved to establish a claim under the policy of the complainant and hence complainant is found not entitle for any relief and both the above issues are decided against the complainant .
ORDER
In the result the case is dismissed on contest . Parties will bear their own cost.
Given under our hand and seal of the District Commission, Kamrup, this the 7th day of May ,2021.
(Md J.Islam) (Smt A.D.Lahkar) (Shri A.F .A Bora)
Member Member President
Dictated and corrected by me
(Shri A.F .A Bora)
President,
District Consumer Commission, Kamrup.
Typed by me
(Smt Juna Borah )
Stenographer, District Consumer Commission, Kamrup.
