KUNDAN KUMAR KUMAI

This is an appeal u/s 41 of the Consumer Protection Act, 2019, preferred against the order and judgement dated 12/04/2022, passed by the Ld. DCDRC, Alipurduar, in CC/12/2020.

Brief fact of the Appellant’s case is that, the Respondent No.1/Complainant had obtained the shop premises through a Notarial Deed of Gift, on the basis of which WBSEDCL had installed electric connection, being Consumer Id 423023005 and the Gram Panchayat had also issued Trade License, in his favour, on 20/07/2016. The Appellants, being Insurance Companies, through Respondent No.2 had made a contract with the Respondent No.1 and accordingly the Respondent No.1 agreed to insure the shop premises, under a Policy being No.153901811910002098 dated 24/07/2019, being valid from 26/07/2019 to midnight of 25/07/2020, on payment of premium, for which the Respondent No.1 became a consumer, under the Appellants.

On 15/10/2019, a thunder-struck at around 2/3 A.M. and a fire accident occurred in the said shop premises where goods like xerox machine, computers, UPs, printers, furniture, etc., had been kept and the same had been destroyed along with the shop premises. On 16/10/2019, the Respondent No.1 informed the facts to IC, Alipurduar PS, as well as the Appellants. On 18/10/2019, the Officer-in-Charge, Alipurduar Fire Station, informed about the above fire accident to the District Magistrate, Alipurduar, stating that the shop premises, belonged to the Respondent No.1. On 28/02/2020, the Appellants issued a letter, requesting the Respondent No.1, to submit the relevant documents of the shop premises, as the claim could not be proceeded in the absence of such documents. The Respondent No.1, submitted all relevant documents to the Appellants and the Appellants investigated the above incident through their own investigator. On 16/03/2020, the Appellants, issued a pre-repudiation letter, stating that there was no evidence regarding the legal ownership of the Respondent No.1. On 17/03/2020, the Respondent No.1 issued a letter and also visited the office of the Appellants on several occasions, but there was no response from the Appellants. Finding no alternative, the Respondent No.1 filed a complaint before the Ld. DCDRF, Alipurduar, with necessary prayers.

The Appellants 1 & 2 contested the claim by filing written version, wherein it was mentioned that the Respondent No.1, had become owner of the said shop premises on the basis of gift deed which was Notarized on 02/7/2014, which was not permissible under the law, for which reason the Respondent No.1, could not be the rightful owner, of the said shop premises. It was also mentioned, that obtaining electric connection or trade license, did not entitle the Respondent No.1 to be the lawful owner of the shop premises. It was, therefore, prayed that the complaint be dismissed.

After going through the materials on record, the Ld. DCDRC, Alipurduar, passed the impugned order directing the Appellants to pay an award of Rs.5,68,050/- (Rupees five lakhs sixty-eight thousand) only, along with interest @ 6% per annum from the date of claim to the date of realization, within 30 days from the date of the order.

Being aggrieved by the impugned order, the Appellants preferred this instant appeal, on the ground that the Ld. DCDRC, Alipurdaur, had erred in law and facts while passing the impugned order.

                                                            Decisions with Reasons

Ld. Advocate for the Appellant at the time of final hearing, had submitted that the contract of insurance was based on utmost good faith as the documents disclosed by the Respondent No.1 was found to be bad in law and non-est in the eye of law and the disclosure of the valid title was a pre-condition in respect of any insurance claim and mere issuance of insurance policy, did not create any right in favour of the Claimant. For the above reasons, the impugned order was erroneous and bad in law. Ld. Advocate for the Appellant, had relied in the judgement passed in LICI Vs. Smt. G. M. Channabasemma, passed by the Hon’ble Supreme Court and reported in (1991) ACJ 303 and in a judgement passed by the Hon’ble Calcutta High Court in Major B. A. S. Chopra Vs. the New Zealand Insurance Co. Ltd., in (1967) ACJ 53.

Ld. Advocate for the Respondent No.1, at the time of final hearing had countered the above argument by submitting that the issue involved, relates to the breach of contract under the Consumer Protection Act and not a transaction of any property under the Transfer of Property Law. He had relied in the judgement passed in Gurmel Singh Vs. Branch Manager, National Insurance Co. Ltd. in Civil Appeal 4071 of 2022 by the Hon’ble Supreme Court, M/s. Usha International Ltd. Vs. United India Insurance Co. Ltd. reported in ILR (2005) II Delhi 419, in Modern Insulators Ld. Vs. Oriental Insurance Co. Ltd. reported in (2000) 3 SCC 734, in Untied India Insurance Co. Ltd. Vs. M/s. Harakh Chand Rai Chandan Lal reported in (2004) SCCL.Com 070, in a Revision Petition No.2033 of 2010 between Oriental Insurance Co. Ltd. & M/s. Shraddha Traders by the Hon’ble NCDRC, in National Insurance Co. Ltd. Vs. M/s. Ishar Das Madan Lal reported (2007) 4 SCC 105, in Gurshinder Singh Vs. Shriram General Insurance Co. Ltd. reported in 2020 (11) SCC 612, in Narsingh Ispat Ltd. Vs. Oriental Insurance Co. Ltd. reported in (2022) SCC on line SC 3535 and WBSCDRC in First Appeal No. 405 of 2009 between Tushar Kanti Shau & National Insurance Co. Ltd.

The only point that needs to be decided is whether the Respondent No.1 was guilty of misleading the Appellants into believing that the shop premises belonged to him, based on fraudulent or manufactured documents. But in the instant case, that is not the position, as the Respondent No.1 rightly or wrongly believed that the title of the shop premises had been transferred to him, on the basis of the Notarial deed of gift dated 02/07/2014. It is nobody’s case that the Respondent No.1 had relied on any other documents apart from the Notarial deed of gift. Hence, such being the situation, the Appellants also ought to have verified the documents on which the Respondent No.1 claimed ownership of the shop premises, before issuing the policy. But this apparently was not done and the dereliction of duty on the part of the Appellants, cannot make the Respondent No.1,  as a scape-goat, by invoking the principles of uberrima fides, as the Respondent No.1 was blissfully unaware of the lack of legal authority of the above mentioned notarial gift deed, which is again quite natural, otherwise it would not have been much of a problem  in procuring the proper gift deed, as his father (Shri Tapan Bagchi) had been alive, on the relevant date of mishap. Under the circumstance, the Appellants’ inability to verify the documents resulted in the penalty to the Respondent No.1, for no fault of his, as there does not appear to be any intention to defraud the Appellants. As a result, the instant appeal fails.

                                                  It is therefore,

                                                   ORDERED

That the instant appeal be and the same is dismissed on contest, but without cost.

The impugned order is hereby upheld.

Copy of the order be sent to the parties free of cost.

Copy of the order be sent to the Ld. DCDRC, Alipurduar for necessary information.

Statutory deposit be returned from whom received.

Jt. Registrar, Siliguri Circuit Bench of WBSCDRC to do the needful.