DEBASIS BHATTACHARYA, PRESIDING MEMBER
Date : 15.06.2016
This is a complaint under Section 17 of the Consumer Protection Act, 1986. It is the case of the Complainant that he has a business under the name and style of M/s Sri Krishna Masala Bhandar at village and P.O. Gobordhanpur, P.S. Pingla, District Pashim Medinipur, dealing in grocery items and distributor of ITC products and carrying on the business with the financial assistance of the OP No. 2 being C.C. A/c No. 0696250020195, which stands at Rs.7,00,888.50 as on 30.08.2011. On the insistence and/or direction of the OP No. 2, he insured his shop with the OP No. 1 being Policy No. OG-12-2410-4010-00001432 valid from 22.09.2011 to 21.09.2012 and sum assured was Rs.9,00,000/-. On 27/28.11.2011, an incident of burglary occurred in the business premises of the Complainant, which was intimated to the local P.S. on 28.11.2011 being FIR No. 95/11 of P.S. Pingla, Paschim Medinipur. In the matter, the OP No. 1 appointed Mr. Souren Chatterjee, Surveyor, to assess the loss, who made the survey on 29.11.2011 and the Complainant submitted the claim form with him and he submitted the final survey report to the OP No. 1. The Surveyor vide letter dated 02.12.2011 informed the complainant that the cigarette items are not covered under the policy. But, the fact remains that the entire stock of the shop including cigarette was insured under the sum assured of Rs.9,00,000/-. The Surveyor whimsically and arbitrarily assessed the loss at a much lower amount and the OP No. 1 have paid Rs.1,00,000/- to the Bank A/c. of the Complainant without intimating him and the Complainant came to know of it from the bank. As such, on 26.08.2013, the Complainant issued a legal notice through his Advocate to the OP No. 1 requesting them to consider the claim of the Complainant and to make payment of Rs. 8,00,000/- together with interest @ 18% p.a. from the date of loss till actual payment or realisation, but without any effect. There has been collusion and connivance by the Bank Authority with the Insurance Company. Such illegal and improper acts of the OPs and the inordinate delay in payment of the claim amount to gross deficiency in service of both the OPs. So, the case.
On the other hand, the case of the OP No. 1 is that Mr. Souren Chaterjee, the Licensed Surveyor, who was appointed to assess the loss in respect of the alleged claim of the Complainant, assessed the liability of the OP to the tune of Rs.1,01,630/- and a sum of Rs.1,01,400/- was paid to the Complainant by way of electronic transfer to his Bank A/c, after making deductions as per the policy conditions. By virtue of the terms and conditions of the policy, only the grocery items were covered, and not cigarette, chocolate, gutka and soaps. Therefore, liability as per the assessment made by the Surveyor has already been paid and there absolutely no liability of the OP No. 1 to pay any further claim to the complainant. Accordingly, it is prayed to dismiss the case.
Further, the version of the OP No. 2 is that the shop of the complaint with its entire stocks was mortgaged and hypothecated with this OP .There is no deficiency in service on the part of this OP. It has acted merely as an agent and not as service provider to the Complainant. So, it is prayed to dismiss the complaint towards this OP.
Over the pleadings, the following points are framed :-
- Is the Complainant a consumer under the OPs ?
- Has theft occurred in the shop of the Complainant as alleged?
- Is the payment of Rs.1,01,603/- by the OP No. 1 to the OP No. 2 in the Bank A/c of the Complainant is full discharge of the liability of the OP No. 1?
- Is the Complainant entitled to get an award in his favour? If so, what is the amount?
- To what other reliefs, is the complainant entitled ?
Decision with reasons
Point No. 1
There can not be any dispute as to the status of the Complainant as a consumer under both the OPs in regard to providing service. So, this point is answered in the affirmative and goes in favour of the Complainant.
Point Nos. 2 to 5
All these points are taken up together for consideration for their inter-connectedness and brevity of discussion.
The fact of the incident of theft has been shown somewhat categorically by lodging of an FIR in the matter on 28.11.2011 before the Pingla P.S. being Case No. 95/11 dated 28.11.2011, under Section 379, IPC and by the subsequent final report filed by the Police before the Ld. Court of Chief Judicial Magistrate, Pachim Medinipur, in which it was submitted that by ASI Jayanta Kumar Dey that the case is a true one but clueless and will be reopened if any clue arises in near future; the value of stolen goods of the shop being Rs. 7,00,000/- in respect of Milan Mondal and Rs.8,00,000/- in respect of the shop of Khokan Mondal. There is no contradictory evidence in the matter of theft.
It is also clear that the OP 1 has paid the amount of Rs.1,01,603/- direct to the Banker of the Complainant without his knowledge and behind his back. So, it can not be taken for granted as full discharge of the liability of the OP no 1 and/or to the extent of full satisfaction of the Complainant in the matter. There is legal notice to that effect by Ms. Soma Roy, Ld. Advocate on behalf of the Complainant to the OP No. 1 dated 26.08.2013 claiming the residual amount of Rs.8, 00,000/- along with interest. There is no denial of receiving such legal notice by the OP No. 1 in their w.v. So, this case is a tenable one.
Admittedly, OP No. 2 acted as liaison for insuring the goods hypothecated to the Bank for taking loan by the Complainant and at his behest, the Burglary Insurance Policy of the OP No. 1 was taken by the Complainant and the whole stock, including cigarette etc. was insured thus. The mention of stock of grocery in the Policy does not and can not take away the insured goods of cigarettes etc. which were also stolen away, and there is no dispute as such regarding theft of such items. The insurance of Rs.9,00,000/- was so taken by the Complainant from the OP No. 1 at the behest of the OP No. 2, who being the Agent of such insurance. The statement of stocks / stores given to the OP No. 2 regularly by the Complainant shows the items of cigarettes, gutka and others also. Thus, these items can not be excluded from the loss assessed by the Surveyor on some flimsy ground. The Surveyor has found the assessed loss in the whole theft of the reported loss of the Complainant to be Rs.6,72,329.50, and the Complainant is entitled to such sum along with interest as specified in the ordering portion. In this respect, the decisions referred by the Ld. Advocate for the OP No. 1 bearing AIR 1999 SC 3252 and (2000) 10 SCC 19 and also in Civil Appeal No. 10784/2014 of the Hon’ble Supreme Court and of the Hon’ble National Commission in RP No. 2968/2011 and in CC No. 36/2014 [I (2015) CPJ 185 (NC) ] are gone into.
Accordingly, these points are answered in the positive and in favour of the Complainant.
Hence, ordered
that the complaint case be and the same is allowed on contest against the OP No.1 with a cost of Rs.25,000/- and dismissed on contest against the OP No.2 without cost. The OP No. 1 is directed to pay Rs. 6,72,329.50 minus Rs.1,01,400/-, already paid, to the Complainant within 20 days, in default to pay an interest @ 18% p.a. from the date of the order till payment.
