Date of Filing: 26/05/2014 Date of Final Order: 03/07/2015
The brief fact of the complaint as culled out from the record is that the complainant runs in cloth/garments shop namely M/S Tapan Stores, which was insured with the Oriental Insurance Company Ltd., Cooch Behar Branch. The O.P issued a Shop Keepers Insurance Policy being No. 313202/48/2013/305 and period from 04/06/2012 to 03/06/2013.
During the validity of the said policy, unfortunately, a theft/burglary committed in the shop room of the complainant on 19/12/2012 at night and over such incident some stock of the complainant amounting Rs.45,412/- as well as there was loss/theft of cash of Rs.3,500/- has been lost. Over such incident the complainant on the following day lodged an F.I.R with the Kotwali Police Station which was registered as Kotwali Police Case No.864 dated 20/12/2012 U/S 461, 379 IPC corresponding to which a G.R Case has been started being G.R Case No.877/12. After lodging such F.I.R the complainant submitted claim against his policy with the O.P, the Oriental Insurance Company Ltd.
Subsequently, the said case the police submitted Final Report on 22/02/2013. The O.P also deputed one surveyor in the said case for assessment of loss and as per their query the complainant submitted all documents and papers as sought for by the surveyor. Though the complainant categorically mentioned about the loss sustained by him which are as follows:
- Cash Rs.3,500/-.
- Cloth amounting Rs.45,000/- (approx) total Rs. 48,500/-.
But unfortunately due to inadvertent the Final Report which was submitted by the Investigation Officer, the I/O, mentioned the value of the cloth as Rs.4,500/- instead of Rs.45,000/- as mentioned by the complainant in F.I.R and the complainant without noticing such fact allowed to accepted the said Final Report and ultimately he submitted the said Final Report to the O.P, insurance company.
Subsequently, when such fact was detected, the complainant then and there approached to the Superintendent of Police intimating him such fact and ultimately the investigation Officer also issued one certificate dated 15/02/2014 stating inter alia therein that he mentioned Rs.4,500/- instead of Rs.45,000/- inadvertent in the Final Report and he accordingly issued one certificate that the value of the Stock garments would be Rs.45,000/- instead of Rs.4,500/-. After getting the said certificate the complainant submitted the same to the O.P, insurance company with a request to proceed with his claim but unfortunately until this day the O.P have not settle the claim on some flimsy ground.
By such willful act of omission & commission, negligence and unfair trade practice on the part of the O.P the complainant has suffered a lot from mental agony, pain and huge monetary loss and unnecessary harassment.
Finding no other alternative the complainant filed the instant Case No. DF/31/2014 with enclosed some original/Xerox copy of documents together with I.P.O. of Rs.100/- before this Forum for redress of the dispute and prayed for direction to the O.P to pay (1) Rs.48,500/- against loss, (2) Rs.10,000/- for mental pain, agony, harassment, (3) Rs.5,000/- for unfair trade practice and (4) Rs.5,000/- as compensation, besides other relief(s) as the Forum deem fit, as per law & equity.
The O.P., Oriental Insurance Company Ltd. has contested the case by filing written version denying all material allegation of the complaint contending inter-alia that the case is not maintainable and the complainant has no cause of action to bring this case.
This O.P contented that the O.P issued a Shopkeepers Insurance Policy bearing No.313202/48/2013/305 and period from 04/06/2012 to 03/06/2013 in the name of M/S Tapan Stoes, Vill. & P.O. Baneswar, Cooch Behar from the Cooch Behar branch of the O.P for it's all kinds of cloths including readymade garments, hosiery, woolen goods etc. & furniture and fixtures.
The further contention of the O.P is that the complainant purposely collected a certificate from the police authority which is not a part of police report/final report and said cash lying in shop was uninsured.
Furthermore, the incident of burglary took place on 19-20/12/2012 at night at the said shop and the claim form submitted by the insured on 08/01/2013 and certified copy of police final report was collected on 15/07/2013. Therefore, this answering O.P was not liable to make any payment of exceeding settled amount under Shopkeepers Insurance Policy and there was no irregularity, negligence and deficiency in service or unfair trade practice on the part of the O.P.
Ultimately, the O.P. prayed for dismissal of the case with compensatory costs.
In the light of the contention of both parties, the following points necessarily came up for consideration.
POINTS FOR CONSIDERATION
- Is the Complainant a Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Has the Opposite Party any deficiency in service as alleged by the Complainant and is liable in any way?
- Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully, peruse the entire documents in the record also heard the argument advanced by the parties at a length.
Point No.1.
Evidently, the Complainant obtained a Shop Keepers Insurance Policy from the O.P, Oriental Insurance Company Ltd. on payment of premium. So, the Complainant is consumer of the O.P U/S 2(1)(d)(ii) of the C.P. Act, 1986.
Point No.2.
The Opposite Party has its Branch office at Cooch Behar town within jurisdiction of the Forum and total valuation of this case is Rs.68,500/- which is far less than maximum of pecuniary limit of this Forum i.e. Rs.20,00,000/-.
So, this Forum has territorial and pecuniary jurisdiction to try this case.
Point No. 3 & 4.
It is the case of the complainant that he runs in cloth/garments shop namely M/S Tapan Stores, which was insured with the Oriental Insurance Company Ltd., Cooch Behar Branch. The O.P issued a Shop Keepers Insurance Policy being No. 313202/48/2013/305 and period from 04/06/2012 to 03/06/2013.
Xerox copy of the receipt dated 04/06/2012 shows that the complainant obtained a Shop Keepers Insurance Policy from the O.P, Oriental Insurance Company Ltd. w.e.f. 04/06/2012 on payment of premium of Rs.1,436/- P.A. The O.P, insurance company has not denied the factum of insurance of the said policy.
It is the further case of the complainant that during the validity of the said policy, unfortunately, a theft/burglary committed in the shop room of the complainant on 19/12/2012 at night and over such incident some stock of the complainant amounting Rs.45,412/- as well as there was loss/theft of cash of Rs.3,500/- has been lost. On the next day the complainant lodged an FIR before Police and Police started Kotwali P.S. Case No.864 dated 20/12/2012 U/S 461, 379 IPC (G.R Case No.877/12) and after lodging of the said case he submitted claim application before the O.P ,insurance company and police submitted Final Report in the said case on 22/02/2013.
It is the further case of the complainant that the O.P also deputed one surveyor in the said case for assessment of loss and as per their query the complainant submitted all documents and papers as sought for by the surveyor.
It is the next case of the complainant that though he categorically mentioned about his lost i.e. cash Rs.3,500/- and cloth amounting Rs.45,000/-, totaling Rs.48,500/- but unfortunately due to inadvertent in the Final Report which was submitted by the Investigation Officer, the I/O, mentioned the value of the cloth as Rs.4,500/- instead of Rs.45,000/- as mentioned by the complainant in F.I.R and the complainant without noticing such fact allowed to accepted the said Final Report and ultimately he submitted the said Final Report to the O.P, insurance company.
It is the further case of the complainant that when such fact was detected, the complainant then and there approached to the Superintendent of Police intimating him such fact and ultimately the investigation Officer also issued one certificate dated 15/02/2014 stating inter alia therein that he mentioned value of the stock garments as Rs.4,500/- instead of Rs.45,000/- due to inadvertence in the Final Report. After getting the said certificate the complainant submitted the same to the O.P, insurance company with a request to proceed with his claim but unfortunately until this day the O.P has not settle the claim on some flimsy ground.
It appears from the copy of the FIR in Kotwali P.S. Case No.864 dated 20/12/2012 u/s 461/329 IPC that the complainant, Suranjan Kar alleged that cash of Rs.3,500/- and cloths amounting Rs.45,000/-. Total valuation of Rs.48,500/- has been stolen from his shop room by unknown miscreants. Copy of the lists of stolen sari, genji, pant piece and shart piece also show that valuation of the stolen articles is Rs.45,412/-. It is also appears from the certified copy of the FRT that Investigation Officer mentioned the value of the stolen cloths as Rs.4,500/-.
It is the case of the complainant that when he came to know that instead of Rs.45,000/-, Rs.4,500/- has been mention in FRT as valuation of the stolen articles he approached to the Superintendent of Police such fact and ultimately, I/C, Kotwali issued a certificate mentioning such mistake. Certificate dated 15/02/2014 reveals that I/C, Kotwali issued said certificate admitting that I/O, ASI, Pronoy Kr. Basumata at the time of submitting FRT instead of Rs.45,000/-, Rs.4,500/- has been mentioned as value of the stolen articles. We find that the said certificate was duly forwarded to the Court.
During argument the Ld. Adv./Agent of the O.P raised a question that whether I/C, Kotwali can issue such certificate after completion of the investigation and the complainant purposely collected such report.
But we find from the FRT that the Investigation Officer of the case started the investigation on the basis of wrong conception that valuation of stolen articles was Rs.4,500/- instead of Rs.45,000/- dropping one figure “0”.
There was also no mention that how he assessed valuation of the stolen articles as Rs.4,500/- instead of Rs.45,000/-. So, there is every chance that Investigation Officer due to inadvertence mention the valuation of stolen articles as Rs.4,500/- instead of Rs.45,000/-.
It is settled law that report of surveyor is an important and substantial piece of evidences in respect of insurance cases and has to be relied on unless it is controverted by cogent and convincing reasons.
In this context reliance may be place upon ruling cited in 2014 (4) CPR 48 (NC), 2014 (3) CPR 568 (SC).
In a ruling reported in 2014 (3) CPR 568 (SC), Hon’ble Apex Court also pleased to hold that when the case of theft is established the complainant is entitled to value assessed by the surveyor. But in the present case the O.P, insurance company has not filed any survey report.
In a ruling reported in AIR 1968 SC 1416, Hon’ble Apex Court pleased to hold that even if burden of proof does not lie upon the party and even he is not called upon to produce, the Court may draw adverse inference if he with holds important document in his possession which could have throw light on facts in issue.
In the present case it is clear that the O.P, insurance company has withheld the survey report of the case, from which it can be seen that the actual assessment regarding valuation of articles theft away, made by the surveyor.
Considering over all matter into consideration and materials on record we are constrained to accept contention of the complainant that actually he sustained financial loss of Rs.48,500/- due to theft (but in his claim application he has filed claim of Rs.45,412/- and cash money of Rs.3,500/- has been excluded there) in his shop room and there was deficiency in service on the part of the O.P, insurance company by not paying the claimed money and the O.P, insurance company is liable to pay of Rs.45,000/- as loss sustained by the complainant under the policy and Rs.10,000/- as compensation for harassment, mental pain, agony and unfair trade practice.
Accordingly, both points are decided in favour of the complainant. Thus, the complaint succeeds.
ORDER
Hence, it is ordered that,
The present Case No. DF/31/2014 be and the same is allowed on contest with cost of Rs.5,000/- against the O.P. The O.P, Oriental Insurance Company Ltd., Cooch Behar is also directed to pay Rs.45,000/- as loss sustained by the complainant under the policy and Rs.10,000/- as compensation for harassment, mental pain, agony and unfair trade practice to the complainant, Suranjan Kar. The ordered amount shall pay to the Complainant directly within 45 days failure of which the O.P shall pay Rs.100/- for each day’s delay and the amount to be accumulated shall be deposited in the “State Consumer Welfare Fund”, West Bengal.
A plain copy of this order be made available and be supplied to the parties by hand/Registered post, free of cost with A/D.
Dictated and corrected by me.
President President
District Consumer Disputes District Consumer Disputes
Redressal Forum, Cooch Behar Redressal Forum, Cooch Behar
Member Member
District Consumer Disputes District Consumer Disputes
Redressal Forum, Cooch Behar Redressal Forum, Cooch Behar
