Date: 24-04-2015

Sri Debasis Bhattacharya

This appeal is directed against the Order dated 27-03-2014 in C. C. No. 109/2012, passed by the Ld. District Forum, Burdwan, whereby the complaint case has been dismissed on contest.  Being aggrieved by and dissatisfied with the same, the Complainant thereof has preferred this appeal.

Complainant’s case, in short, is that he submitted an insurance claim with the OP No. 1 on 09-08-2011 against an incident of burglary that took place in his godown on 06-08-2011, but the latter repudiated his claim.  So, the case.

Case of the OP No. 1 is that the claim of the Complainant does not come under the provisions as laid down in clause (a) and (f) of Sec. 6 of the Act and as such, the Complainant is not entitled to get any protection.

Case of the OP No. 2 is that the actual consumer relationship in this case stands in between the OP No. 2 and the OP No. 1.  Therefore, the Complainant is not entitled to get any relief against the OP No. 1. 

We are to consider in this appeal whether the impugned order suffers from any factual and/or legal lacunae and thereby calls for our intervention, or not.

Decision with reasons

Ld. Advocate for the Appellant has submitted that on 06-08-2011, some unknown miscreants broke down the locks of the door at night and escaped with his motorbike and some stock of cosmetics and electronic goods from the godown.  He lodged an FIR at the Burdwan P.S.  stating the entire fact and accordingly, one police case being no. 556/2011, u/s 380, IPC was initiated, but the police could not make any headway and therefore, the I.O. submitted final report, u/s 457/380, IPC before the Ld. CJM, Burdwan and closed the investigation.  He submitted claim form before the OP No. 1 on 09-08-2011 and upon its receipt, the OP No. 1 engaged one Surveyor to assess the loss and damage, who submitted a report regarding such incident.  He submitted photocopy of FIR along with a copy of the complaint to the OP No. 1, and on the basis of said FIR, the Surveyor observed that the alleged incident was merely a case of theft and not burglary and opined that the claim did not come under the purview of the policy and based on such recommendation, the OP No. 1 repudiated his claim.  When his repeated plea with the OP No. 1 to reconsider such decision did not yield any positive result, he filed the instant case before the Ld. District Forum.  However, although he filed requisite documents before the Ld. District Forum, it did not appreciate the fact that the incident was indeed a case of burglary and not theft simpliciter and dismissed the case.  The impugned order is bad in law and as such, the same be set aside.

Ld. Advocate for the Respondent No. 1, on the other hand, has submitted that it is the admitted position of the Appellant that he merely filed photocopy of an FIR, u/s 380, IPC, i.e., theft in dwelling-house etc., but no certified copy of the FIR or the FRT was submitted by the Appellant.  From the contents of the FIR, it is clear that it was merely a case of theft and not burglary.  Since theft was not covered under the policy, the Surveyor rightly observed that the instant claim did not qualify for indemnification.  The Respondent No. 1 is not liable to entertain the claim of the Appellant and as such, the instant claim was rightly repudiated by them.  Moreover, the Respondent No. 2 is the actual insured.  So, the Appellant has no right to stake any claim against the alleged incident of theft.  So, the instant case has rightly been dismissed by the Ld. District Forum which be upheld for ends of justice.

Ld. Advocate for the Respondent No. 2 has submitted that the Appellant took a cash credit facility to the extent of Rs. 10,00,000/- from them against hypothecation of stock of cosmetics goods and other consumer durables.  They insured the said hypothecated goods with the Respondent No. 1, who issued a policy in their name, i.e., Dena Bank, A/c Partha Pratim Mondal and not in the personal name of the Appellant.  However, the Appellant, instead of submitting detail estimate of loss of goods due to theft and/or burglary before them, directly lodged a claim with the Respondent No. 1 behind their back.  There was, in fact, no consumer and service provider relationship in between the Appellant and the Respondent No. 1.  So, the Appellant is not entitled to claim/recover anything towards insurance claim from the OP No. 1. 

Admittedly, the insurance policy stands in the name of ‘Dena Bank, BDN, A/c Partha Pratim Mondal’.  Also admitted is the fact that premium thereof was debited from the cash credit account of the Appellant.  Further, it is not disputed that business material of the Appellant was insured with the Respondent No. 1 and as against cash credit facility of Rs. 10,00,000/- extended by the Respondent No. 2 to the Appellant, the value of stock kept in the godown of the Appellant used to be more than Rs. 13,00,000/-.  That being the admitted/undisputed position, as a beneficiary, the Appellant is definitely a bona fide consumer of the Respondent No. 1 and the objection raised by the Respondent No. 2 is not tenable in this regard.   

Now, let us concentrate on the focal point of dispute, i.e., whether the instant incident qualified as a burglary or not.  It is a fact that initially an FIR was lodged u/s 380, IPC.  However, subsequently the Police in its final report submitted before the Ld. CJM, Burdwan incorporated another penal section, i.e., Section 457, IPC. It is also not in dispute that the Police recovered broken lock from the place of occurrence, which is a clear pointer of the fact that the miscreants entered the godown forcibly.  The Operative Clause No. (a) stipulates that theft following upon an actual forcible and violent entry of and/or exit from the premises comes under the purview of the instant policy in question. Therefore, in our considered opinion, the Ld. District Forum has erred in dismissing the complaint petition. 

It appears from the Surveyor Report dated 13-02-2012 that vide letter dated 26-12-2011, the Surveyor directed the Appellant to submit host of documents, including the FRT.  From the photocopies of order sheets of the Ld. Court of the CJM, Burdwan it transpires that FRT dated 31-12-2011 was submitted to the said Court on 12-03-2012.  As the Respondent No. 1 repudiated the claim on 15-02-2012, virtually there was no scope for the Appellant to submit a copy of the FRT to them.

However, it is also a fact that the Appellant has not placed on record any documentary proof to show that he submitted other requisite documents to the Surveyor as per his purported letter dated 26-12-2011. Therefore, it cannot be said with certainty that despite submission of requisite documents, except the copy of FRT, the Respondent No. 1 repudiated the claim of the Appellant. True, papers on record is suggestive of the fact that there has been an element of truth in the claim of the Appellant.  However, mere assertion is not suffice to sail through a claim.  Rather, it is the cogent documentary proof that plays catalyst to aid settlement.  Towards this end, one would find it strange that the Appellant has not placed on record copies of sale and stock registers. 

Be that as it may,  taking due notice of the fact that the Police authority has submitted FRT, u/s 457/380, IPC, where nothing adverse has been mentioned against the Appellant or the alleged incident of theft and that the Surveyor did not dispute the fact that stock of cosmetic and electronic goods were stolen from the godown after breaking lock of the door at night and from the photocopies of bank statements submitted by the Appellant to the Respondent No. 2 during the period from March, 2011 to July, 2011, it transpires that the closing stock figure during these period at the end of each month used to hover around Rs. 13 lakh on an average. 

Considering all these facts into consideration, we are of view that the instant appeal merit settlement on non-standard basis @ 75% of the total claim. 

In the result, the appeal succeeds in part.

Hence,

ORDERED

that the appeal be and the same is allowed in part on contest against the Respondent No. 1 and dismissed on contest against the Respondent No. 2.  The impugned order is hereby set aside.  Respondent No. 1 is directed to pay a sum of Rs. 4,91,250/- to the Appellant in full and final settlement of claim within 40 days from the date of this order, i.d., they shall be liable to pay interest @ 9% p.a. over the aforementioned awarded amount from this date till full and final payment.