Orissa

Cuttak

CC/280/2013

Nitai Charan Nanda - Complainant(s)

Versus

Senior Branch Manager,United India Insurance Co Ltd - Opp.Party(s)

M Basu

18 Feb 2015

ORDER

             OFFICE OF DISTRICT CONSUMER DISPUTES REDRESAL FORUM:CUTTACK.

C.C.Case No.280/2013

Sri Nitai Charan Nanda,

Director of NIT FIT,At:Bepari Sahi,

Buxibazar,P.S:Mangalabag,Dist:Cuttack..                               … Complainant.

 

                                                                Vrs.

            Senior Branch Manager,

United India Insurance Co. Ltd.,

Branch Office-1, At:Gopal Bhawan,

Cantonment Road,Near Howrah Motors,

Dist:Cuttack-1.                                                                              ….Opp. Party.

 

Present: Sri C.K.Kar,President.

 Sri B.K.Padhiary,Member.

 

For the complainant:   Sri Manomoy Basu & Associates.

For the Opp.Party:         Sri B.Dasmohapatra & Associates.

 

Date of filing:  25.11.2013

Date of Order: 18.02.2015

                                                                                JUDGMENT

Sri C.K.Kar,President.

 

This is an application U/S-12 of the C.P.Act,1986  filed by the complainant alleging deficiency in service on the part of the O.Ps.

1. The complaint case in nut shell is that the complainant is carrying on business and also Director of NIT FIT Remedies Pvt. Ltd. and distributing the medicine to local retailers having his office and godown at Bepari Sahi,Buxibazar,Cuttack.  The complainant invested a huge amount of money in the aforesaid business and insured his shop and entire stocks of medicine with the United India Insurance Co. Ltd. namely the present O.P by depositing a premium of Rs.9,460/- in the bank.  After receiving the premium amount from the complainant, the O.P insured his shop as well as the entire stocks of medicines to the tune of Rs.26,00 lakhs and accordingly issued shopkeeper’s insurance policy bearing No.034001/48/10/34/0000562 in which the period of risk covers from 10.8.10 to midnight 9.9.11.  The O.P Insurance Company has insured the stocks of drugs and medicines of the complainant to the tune of Rs.25,00,000/- for covering the risk caused by Burglary and House-Breaking.  Besides that the shop-cum-residence of the complainant has also been insured to the tune of Rs.1,00,000/- in the aforesaid shopkeeper’s insurance policy. It is alleged by the complainant that on 27.2.11 at about 4.30 P.M. some accused persons have broken several things like Air-conditioner, two desktop computers, one HP Laptop, showcase and damaged all the stocks of drugs and medicines kept inside the shop-cum-godown. After the incident the complainant immediately lodged F.I.R before the I.I.C.Mangalabag P.S on 27.2.11 at about 7.40 P.M. and the case has been registered vide Mangalabag P.S. Case No.29 dt.27.2.11 and investigation followed and after completion of investigation, the police has submitted charge sheet on 20.3.12 against the accused persons for the alleged office u/s 451,427,294,323,354,379,506 & 34 of IPC.  At the time of submitting final report it also stated that out of Rs.45,00,000/- stocks of medicines, the accused persons have damaged almost all. During the course of investigation by the Mangalabag police has seized several articles including 80 numbers of cartoons of medicines of different companies on 27.2.11 at about 9.00 pm from the place of occurrence which are in destroyed/damaged condition and handed over to the complainant on Zimanama on the same day.  The complainant immediately after the occurrence informed to the Insurance Company on the very next day and submitted written information on 17.3.11 with due acknowledgement.  On getting the written information from the complainant regarding claim of damage, the O.P, namely Insurance Company deputed a surveyor for the purpose of enquiry and to assess the actual loss sustained by the complainant.  Accordingly the surveyor of the Insurance Company issued a letter to the complainant on 26.3.11 and requested to furnish six numbers of documents.  As per the request made by the surveyor of the Insurance Company the complainant had submitted all relevant documents before the surveyor as sought for in the letter dt.26.3.11.  After receiving all necessary documents from the complainant no steps has been taken by the O.P namely the Insurance Company to settle the claim of the complainant in spite of his repeated requests.  The O.Ps slept over the matter for a long period.  Then the Insurance Company issued a letter on 26.2.12 interalia intimating that the claim of the complainant is in processing stage and the file has been sent to the higher authority.  The higher authority seeks some clarifications from the surveyor and on receipt of the same; the insurance company will settle the claim of the complainant within 30 days.  The O.P gave assurance to the complainant in letter dt.26.2.12 for settlement of his claim within 30 days but surprisingly without settling the claim of the complainant has again issued another letter to him after lapse of near about 10 months dt.28.11.12 wherein the complainant was requested to furnish certain documents.  Subsequently on 21.12.12 another letter has been issued to the complainant by the Insurance Company where request has been made to the complainant to furnish 5 nos. of documents which were mentioned in the previous letter issued by the Insurance Company.  The complainant has submitted all necessary documents before the Insurance Company on previous occasion and in appropriate as per the instruction of O.P.  However the O.P after lapse of long period has requested to the complainant for the first time to furnish the certificate of Drugs Inspector regarding the condition of the damaged drugs and medicines.  After receiving the aforesaid letter from the Insurance Company, the complainant has submitted all the documents as sought for along with his letter dt.4.1.13 to the O.P with due acknowledgement.  The complainant ins letter dt.4.1.13 has clearly stated the certificate from the Drug Inspector could not be furnished as the Drug Inspector disclosed that due to lapse of long time it is not possible for him to give any opinion as to whether the damaged medicines are fit for human consumption or not.  From the letter dt.4.1.13 it reveals that the O.P has received VAT return and audit balance sheet including letter dt.4.1.13 from the complainant with due acknowledgement and also the other documents as sought for by O.P has already been furnished by the complainant earlier.  Though the complainant submitted all the relevant document as required by the O.P from time to time no steps has been taken by the O.P to settle the claimed damage submitted by the complainant even after receiving the report of the surveyor.  The complainant finding no other alternative sent a legal notice through his advocate by registered post and requested the O.P to settle the claim of the complainant within 15 days from the date of receipt of the legal notice.  But inspite of the legal notice, the O.P failed to settle the claim of the complainant and slept over the matter.  The complainant received another letter from the surveyor further seeking necessary clarifications on 18.3.13 in which the surveyor asked for further clarification about the documents produced by him.  The complainant is being harassed due to such conduct of the O.P from time to time.  As the O.P failed to settle the claim amounting to Rs. 19,00,000/- the complainant suffered from mental agony and harassment and finding no other alternative approached this Forum alleging deficiency in service against the O.Ps.  Hence the case.
2. Upon notice, the O.P entered appearance and filed written version and interalia contended that the present dispute is not maintainable.  It is further contended that the present complaint is also barred by Limitation.  It is further contended that on 17.3.11 the complainant submitted information that some miscreants have opened the shutter of his office-cum-godown at Bepari Sahi and took away Air Conditioner, Two Desktops, One Laptop and damaged all stock of drugs and medicines on 27.2.11 It is further contended that on getting the said information, the O.P appointed one Surveyor and Loss Assessor Dr. M.K.Nanda to assess the extent of loss caused to the complainant, if any on 23.3.11.  On 10.7.12 the Surveyor and Loss Assessor submitted his final survey report.  It is further contended that after getting the said survey report certain discrepancies were found in the said surveyor’s report for which the O.P clarified some clarifications from the said surveyor on the ground stated therein.  It is further contended that the surveyor and Loss Assessor submitted his clarification as required by O.P No.2.  It is further contended that as the Surveyor’s clarification was not satisfactory, the O.P requested the complainant to produce the relevant documents.  It is further contended that as the complainant did not responded to the said request reminder was sent to him on 21.12.12 to furnish necessary information and documents.  It is further contended that there were some clarifications sought by the O.P from time to time and as the clarification given by the surveyor was not satisfactory he was again asked to relook his assessment and based on documents enclosed.  It is further contended that the policy of insurance obtained by the complainant is not disputed but the said policy is subject to certain terms and conditions.  It is further contended that the complainant violated his terms and conditions of the policy and claim procedure also indulge in giving fraudulent documents.  It is further contended that the claim has been repudiated for violation of terms and conditions of claim procedure and there is no deficiency in service on the part of the O.Ps and therefore prayed the complaint petition being devoid of any merit should be rejected out rightly.
3. We have heard the Learned counsel for the complainant and the O.P.  Perused the relevant documents filed by both the parties in this case.
4. Now the point for determination in this case is whether the O.P committed any deficiency in service in repudiating the claim of the complainant?
5. The O.P’s stand is that the complainant had not furnished the necessary documents and clarification as sought for by the O.P.  But the complainant’s stand is that he has complied all the requirements and clarification sought by the O.P and furnished all necessary documents to the O.Ps  as asked for.  The complainant’s further stand is that the O.P on getting information from the complainant about the incident by both oral and written immediately appointed it’s surveyor for assessment of actual loss.  On getting the appointment from the O.P the surveyor issued a letter to the complainant dt.26.3.11 for production of 6 nos. of documents.  Then subsequently the surveyor issued a letter to the complainant on 18.3.13 for certain queries and the complainant submitted details of queries in respect of damage claim of M/s. NIT FIT Remedies Pvt. Ltd. before surveyor vide letter dt.19.3.13 (Annex-11).  The complainant’s stand further is that the O.P without any rhyme or reason even though the surveyor submitted the loss assessed report and quantified the liability of payment on the part of the insurer to the insured complainant amounting to Rs.12,44,801/- and this report of the surveyor is based on the documents provided by the insured complainant as sought from time to time in respect of the incident.  The O.,P received the surveyor report appointed by them to assess the loss and damage rejected the surveyor report without assigning any reason for the same and the reason assigned by the O.P is not tenable in the eyes of law.  Admittedly there is no dispute in respect of the alleged occurrence by the O.P.  Though the O.P taken the stand that the complainant has not given any clarification required by them but on the other hand the complainant in his complaint petition stated that he has given all the clarification to the O.P from time to time.  Admittedly this is burglary insurance.  The definition of burglary given in the policy is binding on both the parties.  As per the definition word “burglary” and theft should necessarily precede with violence.  In order to substantiate a claim an insured has to establish that the theft or burglary took place precede with force or violence and if not established, the Insurance Company is justified in repudiating the claim.  In the present case soon after the burglary the complainant reported the matter in writing before the Mangalabag P.S and immediately on getting the information from the complainant Mangalabag P.S Case No.29 dt.27.2.11 was registered U/S-451,427,294,323,354,379,506 & 34 of IPC and the police started investigation and after completion of investigation submitted charge sheet against the accused persons under the above sections.  So it is crystal clear that the complainant has fully established the theft, which took place in his shop premises preceding with force and violence.  Therefore under the circumstances, the O.P cannot repudiate the claim of complainant.  (2005) 1 CPR 64(S.C).  In another decision reported in 2007 CTJ 942(NC) TEX Ceones Tubes Company Vrs. Oriental Insurance Ltd. and another where it is held “where a smoke fire broke out in a factory causing extensive damage, the Insurance Company after wait of more than a year offered a very low amount of Rs.4,53,966/- whereas the surveyor assessed the damaged at Rs.21,64,140/-.  The National Commission directed the Insurance Company to pay Rs.21,59,500/- with interest of 12% per annum and cost.
6. In the present case, the surveyor appointed by the O.P submitted the final survey report on 10.7.12 to the O.Ps and assessed the liability of payment on the part of the insurer O.P to the insured complainant is Rs.12,44,801/- and also the surveyor given an opinion that the facts and figure mentioned in the reports are true in accordance with  documents provided by the insured complainant.  The surveyor never doubts the genuineness of the documents produced by the complainant in any manner.  The O.P on receiving report from the surveyor on 10.7.12 wait about 1 year i.e. 18.3.13 and sought further necessary clarification from the insured complainant produced by him and the complainant wrote a letter to the O.P stating that he has submitted all the necessary documents in his custody and the claim application has to be decided accordingly.  So in view of the position of law as stated in the above decision, the O.P is duty bound to accept the surveyor report and to pay a sum of Rs.12,44,801/- to insured complainant and the claim application of the complainant has been repudiated by the O.P is not tenable in the eye of law and the O.P committed deficiency in service as alleged by the insured complainant.

In the result, the complaint petition is allowed on contest against the O.P.  The O.P is hereby directed to pay a sum of Rs.12,44,801/- to the insured complainant along with 9% interest per annum and further to pay a sum of Rs.5000/- as compensation for mental agony and harassment and Rs.1000/- towards litigation cost within three months from the date of this order, failing which the complainant is at liberty to proceed against the O.P U/S-25 & 27 of the C.P.Act,1986.

Typed to dictation, corrected and pronounced by the Hon’ble President in the open Court on this the 18^th day of February, 2015 under the seal and signature of this Forum.

                                                                                                                                                      (Sri C.K.Kar )

                                                                                                                                                        President.

 

                                                                                                                                                 (Sri B.K.Padhiary ) 

                                                                                                                                                         Member.