PRESENT:

                 KUNDAN KUMAR KUMAI JUDICIAL MEMBER

This is an appeal U/S 15 of the Consumer Protection Act, 1986 preferred by the appellant against the order and the judgment passed by the Ld. DCDRC, Alipurduar in CC/26/2018.

Brief facts of the appellant case are that a complaint U/S 2 (1) (d) (i) (ii) of the Consumer Protection Act, had been filed by the respondent against the appellants on the ground that the respondent had a partnership business, dealing in Samsung mobiles and had insured the same with the appellants since 1914 by a policy for a sum of Rs. 11,31,500/- (Eleven lakhs Thirty-one thousand Five hundred) only. In this regard the appellants had handed over the policy deed against a payment of Rs. 4454/- (Four thousand four hundred fifty-four) only as premium, with the policy being valid till 09.10.2015.

On 01.02.2015 be respondent came to know about the theft, which occurred in the mid night of 31.01.2015 resulting in the theft on mobiles, tabs, notes and other accessories including cash of Rs. 57,600/- (Fifty-seven thousand six hundred), amounting to Rs. 9,85,352/- (Nine Lakh Eighty-Five thousand three hundred and fifty-two). A compliant before the Alipurduar PS had been filed being Alipurduar PS case No. 35 of 2015 dated 01.02.2015 and on investigation of the same a final report had been submitted on 06.09.2015. In the mean while a claim had also been filed before the appellants. The appellants had appointed one surveyor from M/S Bhadra Insurance Surveyors & Loss Assessors (P) Ltd. But the surveyor had expired and the present surveyors had been appointed and who had conducted the survey and submitted their report. The respondent had then appealed before the appellants but the appellants had reupdated the claim by later dated 15.07.2017. On 17.11.2017 the respondent resubmitted all the relevant papers and also issued legal notice to the appellants on 16.05.2018. the appellants on the other hand replied to the legal notice on the ground that the papers submitted were false and fabricated. Being aggrieved by such act of the appellants the respondents had then filed the case below claiming amounts of Rs. 9,85,352/- (Nine Lakh Eighty-Five thousand three hundred and fifty-two) as the theft amount along with Rs. 1,00,000/- (One Lakh) only and Rs. 50,000/- (Fifty thousand) only as litigation cost. 

The appellants had contested the claim by filing Written Version, wherein they had stated that the respondent had not submitted the necessary documents either to the surveyor or them. More over the respondent was not sole owner of the shop and did not maintain physical inventory of the theft stock register and no IMEI of 42 mobile sets were available and no audit documents of the value of stolen items at Rs. 8,000/- (Eight thousand) were found. They then prayed for dismissal of the case.

After hearing both the sides the Ld. DCDRC, Alipurduar passed the impugned Judgement in dated 17.09.2021 wherein the appellants directed to pay the award of Rs. 9,85,352/- (Nine Lakh Eighty-Five thousand three hundred and fifty-two) as insurance claim in respect of the theft along with the bank interest till the date of payment and Rs. 75,000/- (Seventy-Five Thousand) as compensation for mental agony and sufferings and Rs. 10,000/- (Ten Thousand) as litigation cost, totally amounting to 10,70,352/- (Ten Lakhs Seventy Thousand Three Hundred Fifty-Two) excluding interest.

Being aggrieved by the above order the appellants preferred this appeal on the ground the Ld. DCDRC, Alipurduar erred in law and facts while passing the impugned judgement.

Decision with reason

At the time of final hearing the Ld. Advocate for the appellant has relied on the written notes of argument, submitted by him. By the Written arguments the appellant has assailed the impugned order passed by the Ld. DCDRC, Alipurduar, on the ground the Ld. DCDRC below had without appreciating the case of the appellant, passed the impugned order in favour of the respondent and therefore prays for setting aside the impugned order.

Ld. Advocate for the respondent on the other hand has challenged the appeal, on the ground that the respondent had satisfied all the criteria for obtaining the award under the CP, Act. He has relied on the judgements in M/S Usha International Limited Versus United India Insurance Co. Ltd. ILR (2005) II Delhi 419, In Modern Insulators ltd. Versus Oriental Insurances Co. Ltd.(2000) 3 SCC 734, In United India Insurance Company Ltd. Vs. M/S Harakhchand Rai Chandanlal, 2004, S.C.C.L. com.070, Revision Petition No. 2033 of 2010, Oriental Insurance Co. Ltd. Vs. M/S Shraddha Traders, National insurance Co. Ltd. Vs. M/S Isha Das Madan Lal, (2007) 4 SCC 105, In United India Insurance co. Ltd. Vs Pushpalaya Printers(2004) 3 SCC 694, M/S peacock Plywood Pvt. Ltd. v. The Oriental Insurance Co. Ltd. 2006 (14) SCALE 3001 and United India Insurance Co. Ltd. v. Kiran Combers & Spinners (2007) 1 SCC 368, Gurshinder Singh v. Shriram General Insurance Company Ltd., 2020 (11) SCC 612, In Gurmel Singh vs. Branch Manager, National Insurance Co. Ltd. in civil appeal no. 4071 of 2022, In Narsingh Ispat Ltd. v. Oriental Insurance Co. Ltd., 2022 SCC Online SC 535.  

The undisputed facts of this case are that, during the subsistence of the Insurance policy between the appellant and the respondent, a theft had occurred in the shop premises of the respondent, in the midnight of 31.01.2015, resulting in the loss of mobile, tabs, notes and other accessories including the cash Rs. 57,600/- (Fifty-seven thousand six hundred), totally amounting to Rs. 9,85,352/- (Nine Lakh Eighty-Five thousand three hundred and fifty-two). The respondent had thereafter lodged a written F.I.R., upon which Alipurduar P.S. case No. 35 of 2015 dated 01.02.2015 had been registered and investigation had been started. Due to lack of evidence, final report had been submitted. On the other hand, the appellant on receiving the claim application had appointed the surveyor from M/S Bhadra Insurance Surveyors & Loss Assessors (P) Ltd., who in turn had submitted a report. But the appellant had failed to entertain the claim and had repudiated the claim.

The Ld. DCDRF, Alipurduar, had after considering the matter had passed the impugned judgement, allowing an award of Rs. 9,85,352/- (Nine Lakh Eighty-Five thousand three hundred and fifty-two) along with bank interest till the date of payment and also awarded Rs. 75,000/- (Seventy-Five Thousand), as compensation for mental agony and sufferings and also Rs. 10,000/- (Ten thousand) as litigation cost, totally amounting to Rs. 10,70,352/- (Ten Lakhs Seventy Thousand Three Hundred Fifty-Two), excluding interest.

In this respect, the aspect of theft need not be elaborated upon as the same has not been disputed and therefore the Ld. Commission bellow rightly accepted the same and proceeded the case. Moreover, the investigation conducted by the police, resulting in the submission of the FRT, hence in this case also, as the investigation was done by govt. officer and therefore there is no reason to suspect the result. Furthermore, there is no evidence forth coming from the appellant side to suggest of any misdoings. Under the circumstance the Ld. Commission rightly accepted the same and allow the award.

Perhaps the only grievance, may be, in respect of the quantum of award, arrived at by the Ld. Commission, when it granted Rs. 9,85,352/- (Nine Lakh Eighty-Five Thousand Three Hundred and Fifty-Two), allowing the claim made by the respondent, in respect of the loss, suffered by the respondent, during the theft. Save and except the line “We find that the total loss of the Complainant is 9,85,352/- the complainant has filed his stock register up to 31th January 2015”. But how the above amount was arrived at, is not mentioned in the judgement. Therefore, the above observation of the Ld. Commission below does not justify the granting of the above amount, to the respondent. On the other hand, the survey report Annexure C, is an elaborate analysis of the survey, arrived at, on the failure of the respondent to provide the IMEI Nos. of the sets, lost due to theft and also from the amounts of purchase and sales of the mobiles from August 2014 till January 2015. Hence, the Ld. Commission below, failed to consider this survey report and therefore erred in arriving at the conclusion arrived at. Under the circumstance, in the absence of any other evidence, the survey report, submitted by an independent agency, needs to be accepted, while computing the loss suffered from such theft. Hence, this appeal succeeds in part.

                                                It is therefore,

                                                               Ordered

That the instant appeal succeeds in part and the impugned order stands modified to the extent that the respondent will get an award amounting to Rs. 8,32,465/- (Eight Lakh Three Two Thousand Four Hundred and Sixty-five) as Insurance claim only with the remaining portion of the order being an affirmed, with the total amount being changed to Rs. 9,17,465/- (Nine lakh Seventeen thousand four hundred and sixty-five).

Copy of the order be handed over to the parties free of cost.

Copy of the order be also send to the Ld. DCDRC, Alipurduar.