Sri Shyamal Gupta, Member

Challenging the Order dated 22-09-2017, passed by the Ld. District Forum, Hooghly in CC/201/2015, whereby the complaint case has been dismissed, this Appeal is moved by the Complainant, Sri Nirmal Kumar Guchhait.

In short, case of the Complainant before the Ld. District Forum was that an incident of burglary took place at his business place on 16/17-02-2012.  Besides reporting the matter to the local Police Station on 17-02-2012, the Complainant also intimated the matter to the OP No. 1 through letters on 17-02-2012 and 21-02-2012.  The subject claim being not settled despite vigorous follow up, the complaint case was filed.

In its WV, the OP No. 1 admitted that it is acting as an agent of the OP No. 2 bearing agency Code No. 8E0000001340PNB, Gopinagar/2072.  The concerned branch, in order to secure the business stock of the Complainant, took insurance policy from the OP Insurance Company.  On 17-02-2012, this OP lodged claim with the OP Insurance Company, but the latter rejected such claim as the nature of claim was outside the purview of the subject insurance policy. This OP denied any laches on its part.

The OP No. 2, on the other hand, submitted that the claim made by the OP No. 1 on behalf of the Complainant was not tenable since no premium was paid for burglary coverage.  

Decision with reasons

It appears from the postal track report that the Respondent No. 1 received notice of this Appeal on 05-07-2018.  However, as it did not turn up to defend its case before us, the matter was heard ex parte against this Respondent.  However, other parties duly contested the Appeal, who were heard at great length at the time of hearing.  We have also gone through the documents on record.

Undisputedly, initially the insurance policy taken from the Respondent No. 2 to secure the business stock of the Appellant was having coverage for burglary.  However, the subsequent policy did not have this coverage.  

While the Appellant squarely blamed the Respondent No. 1 for not taking burglary coverage, the latter refused to accept any responsibility in this regard by passing the buck upon the Appellant.

Now, the moot point for determination is who was at fault for not taking burglary coverage while renewing the subject policy.

On going through the materials on record, it appears that the Respondent No. 1 did a volte face while answering the questions so put forth by the Appellant against its Evidence-in-Affidavit.   

Notwithstanding the Respondent No. 1 admitted in its WV that it was an agent of the Respondent No. 2 and in order to insure the business stock of the Appellant, took the insurance policy from the Respondent Insurance Company, while answering the questionnaire of the Appellant, stated under affidavit that it did not act as anyone’s agent.  Not only that, on going through the various questionnaire of the Appellant, we find that the Respondent No. 1 mostly remained evasive and avoided giving any direct reply to the same.  It is clearly evident, therefore, that the Respondent No. 1 did not appear before the Ld. District Forum with clean hands.

We have also taken due note of the fact from the WV of the Respondent No. 2 that it issued the subject policy according to the proposal form received from the Respondent No. 1 on behalf of the Appellant.

The loan sanction letter issued by the Respondent No. 1 also clearly stipulated that requisite insurance premium in respect of the subject loan account would be directly debited from the concerned CC account of the Appellant.

In this regard, the Appellant denied issuing any cheque towards insurance premiums of the subject policies or signing the proposal forms which has not been disputed by the Respondent No. 1.

All these facts sufficiently prove that the Respondent No. 1 was instrumental in the matter of issuance of the subject policies.  Thus, while the initial insurance policy was having burglary coverage, given that, the interest of the Appellant was at stake, the Respondent No. 1 ought to take due consent of the Appellant before altering the nature of the subsequent policy which was not done by it for some obscure reasons.

That being not done leading to repudiation of the subject claim of the Appellant, in our considered opinion, the entire liability to mitigate Appellant’s loss has to be borne by the Respondent No. 1 and none else.

By overlooking this important aspect, we find, the Ld. District Forum derived at an erroneous decision which is not tenable in law.

The Appeal, thus, succeeds.

Hence,

O R D E R E D

The Appeal stands allowed ex parte against the Respondent No. 1 with a cost of Rs. 25,000/- being payable by the Respondent No. 1 to the  Appellant and dismissed on contest against the Respondent No. 2. The Respondent No. 1 shall settle the instant claim by crediting an amount of Rs. 5,15,138/- to the subject loan account of the Appellant. The Respondent No. 1 is further forbidden from realizing any interest or other charges in respect of the subject loan account w.e.f. 17-02-2012 till the aforesaid amount of Rs. 5,15,138/- is credited to the concerned loan account of the Appellant.  The impugned order hereby stands set aside.