BEFORE THE DISTRICT CONSUMER REDRESSAL COMMISSION

UNAKOTI DISTRICT : KAILASHAHAR

 

                             C A S E   NO. C. C. 03 of 2019

 

Sri Prabhashish Nath,

S/O- Lt. Chittaranjan Nath

Of Vill.- Kalipur,

PO - Paiturbazar, 

PS & Sub- Divn.-  Kailashahar 

Dist.- Unakoti Tripura

                                                                                      …......COMPLAINANT.  

          

           V E R S U S

 

SBI, General Insurance Company Limited

   Ground floor, Sriram Plaza, Ker Choumuhani,

TG. Road Agartala, 

West Tripura 

 

    …… Respondent

                                                     

               P R E S E N T

 

                                             SHRI A. PAUL

                                               PRESIDENT

                   DISTRICT CONSUMER REDRESSAL COMMISSION

                                 UNAKOTI DISTRICT::KAILASHAHAR

          A N D

                                     SHRI P. SINHA, MEMBER

       SMT. M. DATTA, MEMBER

 

                         C O U N S E L

 

                      For the Complainant :- Mr. B. K. Sinha, Advocate

 

      For the OP No. :- Mr. Sunirmal Deb, Advocate

 

                                     

                    ORIGINAL DATE OF INSTITUTION :07-02-2019

 

JUDGMENT DELIVERED ON : THE 8TH DECEMBER, 2021

 

                        J U D G M E N T

 

This is a complaint preferred by the complainant Sri Prabhashish Nath U/S 12 of the C.P. Act, 1986 against the opposite party praying for passing necessary direction to the opposite party to pay compensation of Rs. 5,50,000/- (Rupees five lacks fifty thousand) with adequate interest for the deficiency of service by not paying the insured amount. 

 

2. The facts leading to the filing of the instant complaint petition are that the complainant started a food packaging business, namely, “Swasti Food & Packaging Industry” by installing various costly machineries at Bhadranagar, under Kailashahar police station. On the approach of the complainant, the opposite party, SBI General Insurance Company Ltd. agreed to insure all the articles of the unit, including machineries and goods. For the purpose of burglary total sum insured was settled at Rs.4,50,000/- (Rupees four lakhs fifty thousand) only and after accepting the amount of premium Rs.2,730/- on 09.08.2017 the opposite party issued the policy vide No.0000000006885503 on 09.08.2017 in favour of the complainant. While the complainant had been running his business a burglary was committed in his unit on the night of 17.12.2017/18.12.2017 and the complainant could detect the incident of burglary in the morning of 18.12.2017. Thereafter the complainant lodged a complaint at Kailashahar PS and on the basis of his complaint Kailashahar PS case No.35/18 u/s 457/380 I.P.C. was registered and after conducting investigation I/O submitted final report on 26-05-2018 for want of evidence. Learned Chief Judicial Magistrate, Unakoti District, Kailashahar upon receipt of the final report accepted the final report vide order dated 19-11-2018. It is further stated in the complaint petition that on 19-12-2017 the petitioner informed the incident of burglary through the customer care No. 1800-102-1111 over mobile phone to the opposite party and claimed payment of the sum insured. In response to the petitioner’s demand, he received a letter dated 02-01-2018 issued by surveyor Sri Samiran Ghosh. In that letter the surveyor asked the petitioner to submit a list of documents, including final Police Report, but due to non-completion of investigation the petitioner could not submit the same in time, though he submitted the same on 06-07-2018. Thereafter the petitioner received another letter from Regional Claim Manager of SBI General Insurance Company Ltd. wherein the Regional Claim Manager pointed out some facts and requested the petitioner to send the certified copy of the Police investigation report within 20th July, 2018. It is also stated by the petitioner that due to some personal family affairs he could not collect the certified copy of the police report within the stipulated period of 20-07-2018 as asked by the Regional Claim Manager and on receipt of the certified copy of police report on 18-08-2018 the complainant sent the said police report to the Regional Claim Manager of SBI General Insurance Company Ltd. on 27-08-2018. It is urged by the petitioner that he did not receive any response either from the Regional Claim Manager of SBI General Insurance Company Ltd. or from the opposite party. It is claimed by the petitioner that he is entitled to the insured amount of Rs. 4,50,000/-(four lakhs fifty thousand) from the Opposite Party since burglary has been commuted in the business unit of the petitioner which was covered by the policy bearing No. 0000000006885503 issued by SBI, General Insurance Company Ltd. It is also stated by the petitioner that opposite party did not take any steps towards the payment of total sum insured amount in favour of the petitioner and as such, the complainant has been harassed by the opposite party badly for which the petitioner claimed a sum of Rs. 1,00,000/- (one lakhs) as compensation. 

 

 

3. On receipt of the notice OP appeared and contested the claim by submitting written statement stating, inter alia, that the complaint is not tenable as there is no deficiency of service or unfair trade practice on the part of the opposite party. On getting the information from the complainant the Opposite party appointed one Surveyor and the Surveyor after inspection of the industry premises of the complainant opined that he did not find any evidence of forcible entry or exit from the premises and as the insurance policy only covered the burglary following violent entry and exit of the premises. Moreover, the alleged burglary took place in the night of 17-12-2017 whereas FIR was lodged by the police on 01-05-2018 and this inordinate delay has not been explained by the complainant. It is also contended that the complainant has also failed to establish theft of machinery by producing any documentary evidence and as such, the Surveyor did not recommend any amount for theft of machineries and final report of the case was also not submitted by the complainant in support of his claim and ultimately, for want of clarification from the complainant and the supportive documents, the claim was declined by the opposite party vide letter dated 09-08-2018. Hence, the present complaint deserves to be dismissed in limine. 

   

4. Complainant has adduced evidence by way of examination-in-chief on affidavit as PW-1 recapitulating the fact as has been stated by him in the complaint petition and as such, for the sake of brevity his evidence is not repeated. However, during re-examination, complainant has exhibited the following documents: -

Received photo copy of GD entry dated 18-12-2017 addressed to the OC, Kailashahar PS and GD Entry dated 18-01-2018 in 02 sheets – Exbt. 1/1 & 1/2.

Information letter addressed to the complainant by SBI General Insurance dated 06-07-2018 and letter dated 02-01-2018 issued by Samiran Ghosh, Surveyor to the complainant in 02 sheets – Exbt. 2/1 & 2/2

Copy of postal receipt dated 27-08-2018 in 01 sheet – Exbt. 3

Photocopy of B.P. Form No. 43 dated 26-05-2018 in 01 sheet- Exhbt.4.

Certified copy of order dated 19-11-2018 and certified copy of final report dated 26-05-2018 in 03 sheets- Exbt. 5/1, 5/2 & 5/3

Original policy document bearing policy No. 0000000006885503 dated 19-08-2017- Exbt.6

Copy of letter addressed to the Regional Claim Manager dated 27-08-2018 in 02 sheets- Exbt. 7/1 & Exbt. 7/2.

Original receipt copy of FIR vide Kailashahar PS Case No. 35/18 U/S 457/380 of IPC in 05 sheets – Exbt. 8/1 to Exbt. 8/5

Format for sponsoring the Beneficiary for undergoing training by the complainant dated 11-01-2017 in 01 sheet – Exbt. 9

Letter of Loan sanction under PMEGP dated 07-01-2017 in 01 sheet – Exbt. 10

Letter issued by CJM, Unakoti District, Kailashahar for submission of WO dated 25-06-2018 in 01 sheet – Exbt. 11

Prayer addressed to the Pradhan, Gournagar GP dated 18-01-2018 in 01 sheet – Exbt. 12.

 

In cross the complainant admitted that he submitted GD Entry on 18-12-2017 to the OC, Kailashahar PS, but he did not file any FIR on that day. The complainant further stated that on 18-01-2018 he again made GD Entry to the OC, Kailashahar PS, but did not file any complaint on that day also. The complainant denied that after making GD Entry on 18-12-2017 he changed the amount of loss and that no theft took place in his shop industry and for that he only made GD Entry, did not file any FIR. Complainant further admitted that after a lapse of five months on 01-05-2018 he filed case in the court of learned Chief Judicial Magistrate for the first time. He denied that he only made GD Entry so that the real truth did not come out and that he did not inform the insurance company after the incident. He also denied that he informed the insurance company after long time and on arrival of the Surveyor he only submitted the loss statement to the tune of Rs 47,900/-. He once again denied that the Surveyor did not find trace of theft in his shop industry and also denied that he could not submit any document as asked by the insurance company and that the Regional Claim Manager asked him to submit required documents on 06-07-2018 and also on 20-07-2018, but he did not submit the same.

From the side of the complainant another witness, namely, Sri Binay Kumar Nath has also been examined as PW 2, who supported the PW 1 (complainant) on the point of burglary and lodging of information in the Kailashahar PS.

 

Cross of the PW 2 is nothing but denials of the suggestions given from the side of the opposite party.

From the side of the Opposite party one Sri Subhadeep Banerjee, Regional Claims Manager- MACT & Consumer Litigation, Eastern Region of the opposite party has adduced his evidence OPW No.1 in line with the written statement submitted by the opposite party and finally stated that in case the claim of the complainant would have fallen within the four corners of the policy, the insurance company would have been liable to pay Rs.47,900/- as recommended by the Surveyor after deducting all the expenses as per the policy terms and conditions as in the insurance claim cases the Surveyor’s evolutions is final and this apart the opposite party is not liable to pay any compensation on account of fictionalized an alleged claim of deficiency of services. 

 

    5. During the course of argument Learned counsel Mr. B. K. Sinha appearing on behalf of the complainant submitted that burglary took place in the shop premises of the complainant and a good number of machineries and articles were taken away and as burglary was also one of the items of the insurance policy issued by the opposite party, the complainant is entitled to compensation for an amount of Rs.4,50,000/- from the opposite party. But the opposite party rejected the claim of the complainant upon receipt of the report from the Surveyor, who opined that no burglary took place in the shop premises of the complainant. To get compensation the complainant approached the opposite party and submitted his claim dully and walked from pillar to post, but no redress was given from the part of the opposite party and as such, for harassment apart from the insured amount the complainant also prayed for compensation for an amount of Rs.1,00,000/- from the opposite party. 

 

On the contrary, learned counsel Mr. Sunirmal Deb appearing on behalf of the opposite party submitted that after the alleged incident of burglary the complainant only made G.D. Entry with the police, no FIR was submitted. The complainant did not file FIR as he knew that it was a false case for getting compensation. Moreover, in the policy of insurance issued by the opposite party burglary was not included and as such, the complainant is debarred from getting the amount of insurance for burglary. However, learned counsel submitted that the opposite party is ready to pay the amount of Rs. 47,900/- to the complainant, as assessed by the Surveyor.

 

     6. The only point required to be adjudicated in this case is whether the complainant is entitled to get an amount of Rs. 4,50,000/- being the insured amount for burglary and also entitled to any amount of compensation for alleged harassment on the part of the opposite party?

 

DECISION AND REASONS FOR DECISION

 

    7. While submitting final report in Kailashahar PS case No. 05/2018 the IO Sri Swapan Sinha, then SI of Police, Kailashahar PS concluded that in the intervening night of 17/18-12-2017 at any time some unknown miscreants entered into the Swasti Food & Packaging Industry owned by the complainant Sri Prabhashish Nath through north side by breaking/cutting of the iron net fencing of the industry and stole away many grocery items and tools and machines from the industry. It is iterated on behalf of the opposite party that after alleged burglary in the industry premises of the complainant no FIR was registered with the police, the complainant only made GD Entry and as such, the case of the complainant is doubtful as the complainant aimed to have illegal gain by manufacturing a false case. The complainant may be a petty businessman, but may not be conversant with the law. He may be a layman and does not have any knowledge in regard to the difference of GD Entry and FIR. The police authority with which he submitted GD should have advised him to submit formal FIR. The police can also act on GD, but even after filing of GD for the second time police remained as a spectator and ultimately when no action was taken by the police on the information of the complainant, the complainant was resorted to file complaint with the learned Chief Judicial Magistrate, Unakoti District, Kailashahar and the learned Magistrate after registration of the complaint vide CR No. 57/2018 sent the complaint to the Kailashahar PS u/s 156(3) CrPC and then only the later registered Kailashahar PS case No. 35/2018 U/S 457/380. In the complaint petition, submitted with the court, marked Exbt. 8/2 to 8/4, it is found that the complainant submitted two petitions on 18-12-2017 & 18-01-2018 with the Kailashahar PS for making GD Entry narrating the incident of burglary, but while making FIR police indicated no reference in Column No.3 in relation to the GD entry, which proves that the police did not make any GD Entry getting prayer from the complainant. It is a very sorry state of affairs on the part of the police. Therefore, the latches, as referred to by the learned counsel of the opposite party, are on the part of the police, not on the part of the complainant and this legal complexity should not be a ground to discard the claim of the complainant. From the report of the Surveyor, as submitted by the complainant, it is found that surveyor assessed the compensation for an amount of Rs. 47,900/- excluding the cost of machinery as the complainant could not show theft of any machinery installed in his industry by placing supporting documents on record. But from the said report of the surveyor, it is also found in column No. 12  under the heading ”Assessment of loss” that the value of the stock at the time of loss as worked out by him was Rs. 1,92,070 and stock value stood after the burglary was      Rs. 56,435/- and the claim amount was worked out by him at Rs. 1,35,635/- and this amount was accepted by him, but while recommending the payment the surveyor deducted 50% of the amount and also deducted 5% as compulsory deduction as per the policy condition and finally an amount of      Rs. 47,900/- was recommended by the surveyor for payment. In the final report, marked Ext. 5/3, the IO mentioned the value of the stolen articles as Rs. 2,00,000/- approximately and did not mention loss or theft of any machinery. The complainant also could not prove theft of any contents by adducing cogent 

    and documentary evidence, and as such, he is not entitled to any amount for loss of content. Since burglary is admitted by the surveyor and it is covered by the policy of insurance and burglary insurance in relation to stocks stands at Rs. 1,50,000/-, on deduction of 5% (Rs. 5000/- maximum) as compulsory one, the complainant is entitled to get Rs. 1,45,000/-. 

 

From the policy document, marked Ext. 6, it appears that the industry of the complainant was covered by insurance, which also includes burglary and premium was also paid for the particular “burglary”. The surveyor also on inspection of the industry of the complainant found that burglary was committed, which is covered by the policy issued by them and for that, an amount of Rs. 1,50,000/- was allotted. The opposite party could have paid that amount to the complainant, but they did not do so and repudiated the claim of the complainant on one pretext or another, but in between the complainant had to move from pillar to post. For proper redress, the complainant ultimately approached this Commission after enormous sufferings. Therefore, this Commission is of the view that the complainant is entitled to get a hefty amount of compensation and award Rs. 30,000/- for pain and sufferings, which the opposite party rendered to the complainant. Since the complainant could not show that after the mishap could not run his business, he is not entitled to any more amount apart from the amounts, as awarded above. 

The issue is decided accordingly.

 

ORDER

                            

  

      9.   In the result, it is ordered that the complainant is entitled to amount of Rs. 1,75,000/- (Rupees one lac seventy five thousand) from the OP-insurance company with 7% interest per annum from the date of filing of this claim petition, i.e. on and from 28-03-2019. The OP No. 1 has to pay the amount with interest to the complainant within a period of 2 (two) months, falling which the OP has to pay penal interest @ 9 % p.a till the date of actual payment. 

 

     10.

  With this observation, the complaint filed by the complainant stands disposed of on contest.

 

     11.  Furnish copy of this judgment to the complainant and O.P free of cost through their respective learned counsels.

 

                          ANNOUNCED

                                                                                                (A.PAUL)

                                                                                               PRESIDENT

         (P. SINHA)            (M. DATTA) 

         MEMBER               MEMBER