DISTRICT CONSUMER DISPUTES REDRESSAL FORUM. BOLANGIR.
……………………………………….
Presents:-
1.Sri A.K.Purohit, President.
2.Smt. S.Rath, Member.
Dated, Bolangir the 30th day of October 2017.
C.C.No.55 of 2016.
Bichitrananda Sahoo, son of Netrananda Sahoo, Prop. Of Angashree Alankar,
At-Daily Market Road, Bolangir Town, P.O/P.S/Dist- Bolangir.
.. .. Complainant.
-Versus-
1.The ;Branch Manager, Utkal Grameen Bank, Bolangir Branch,
At- Bhagirathi Chowk, Bolangir Town, P.O/P.S/Dist- Bolangir.
2.The Divisional Manager, Oriental Insurance Co. Ltd.
At-1st Floor, Basudev Bhawan, in front of Government Girl’s High School,
Bolangir Town, P.O/P.S/Dist- Bolangir.
.. .. Opp.Parties.
Advocate for the complainant- Sri R.K.Mishra & Associates.
Advocate for O.P.No.1 -Sri P.K.Biswal.
Advocate for the O.P.No.2 -Sri J.K.Sai.
Date of filing of the case- 16,11,2016
Date of order -30.10.2017
JUDGMENT.
Sri A.K.Purohit, President.
The case of the complainant is that, he being the proprietor of Angashree Alankar a Jewellery shop is running his jewellery business with the financial assistance of OP. No.1. As per the hypothecation agreement with the financer O.P1, the Jewellery of the complainants shop is insured with the O.P. No.2 and premium for the said insurance will be paid by Op1 by debiting from the loan account of the complainant. Accordingly the jwellery of the complainants shop was insured with the O.P.2 for Jeweller’s Block insurance policy which is valid from 30.10.2012 to midnight of 29.10.13 . The premium amount of Rs. 14,529/- has been paid regularly by the OP.1 by debiting the same from the Ioan account of the complainant . During the subsistence of the said insurance policy on 5/6 night of Dec-2012 burglary was committed to the jwellery shop of the complainant and gold & silver Jwellery was looted. The said incident was reported before the local police & a claim was lodged before the OP.2 for a claim amount of Rs. 16,97.060/-. After submission of final report by the police in G.R. case No. 858 of 2012, the complainant filed protest petition before the S.D.J.M. , Bolangir vide ICC No. 100 of 2014 and after completion of all formalities the complaint requested the OP.2 to indemnify the loss of the complainant but the O.P.2 repudiated his claim vide Ref. No: 1252/2013 dt.31.12.2013. The complainant alleges that, due to the negligence of the OP1 the complainant was not aware with the terms & conditions of the insurance policy and debited the premium amount without the Knowledge of the complainant . The complainant further alleges that, the repudiation of the claim by the OP.2 is without any basis. Hence the complainant.
2 Both the O.Ps have contested the case by filing their written version separately. The OP1 has admitted the sanction of the cash credit loan in favour of the complainant and also admitted the payment of premium for the insurance policy & also admitted the theft of Jewellery shop of the complainant and denied all other allegations of the complainant . The O.P.1 has not come up with a specific case .
3 According to O.P No.2 the repudiation of the claim of the complainant is based upon the statutory requirement of the insurance company and after consideration of the police paper & Surveyor report the claim was repudiated as per the terms & conditions of the policy. Hence there is no deficiency in service on the part of the O.P. No.2.
4 Heard both the parties. Before going to the merits of the case ,relying on a decision of the Hon’ble State Commission, reported in 2009(1) OLR (CSR)-357, Regional manager National insurance co. Vrs Sarataran Pande, the learned advocate for the O.P.2 raised a preliminary objection relating to limitation and submitted that , the cause of action for the case arose from the date of repudiation i.e. dated 26/11/2013 and the case has been filed on dt. 16.11.2016 hence the case has been preferred beyond the period of limitation. The facts & circumstances of the cited case is different from the present case. In the cited case there is delay in filing the case after receipt of the no claim intimation. But in the present case , after submission of the final report by the police the complainant has preferred a protest petition vide ICC No : 100 of 2014 before the S.D.J.M. Bolangir which was disposed of on 27/07/2015 . Therefore the cause of action for the present case is continuing till 27.7.15 and the case has been filed on dt.26.11.2016 which is within the period of two years from date of cause of action. Therefore the present case is within the period of limitation and hence the same is maintainable.
5 Coming to the merit of the case. citing two decisions of the H0n’ble National Commission in Revision Petition No: 1552 of 2012 Kashmir Singh Vrs. Punjab National Bank and 1 (2007) CPJ 270 NC, Allhabad Bank vrs JDS Electronic Co. the learned advocate for the complainant mainly argued on the point of deficiency in banking service. In the cited decisions the financing Bank has not paid the premium amount for the insurance policy which he is obliged to do the same. But in the present case the O.P.1 Bank has paid the premium amount regularly by debiting the same from the loan account of the complainant, for which the complainant is able to lodge his claim before the insurance company . Therefore the facts & circumstances of the cited decision is different from the facts & circumstances of the present case. In the present case the O.P.1 bank has acted as per the terms & conditions of the loan agreement and there is no negligence in payment of premium amount.
6. In the present case it is an admitted fact that the complainant is running his jwellery shop with the financial assistance of the O.P.No.1 and the jwellery of his shop is insured with the O.P.No.2 under the Jwellers Block policy vide policy No.346000/28/2013/1046.It is also an admitted fact that, during the validity of the said policy there was burglary in the shop of the complainant. It is also an admitted fact that, the complainant has lodged his claim before the O.P.No.2 which was repudiated on dt.26.11.2013. With these admitted facts the point for consideration is whether the grounds of repudiation of the claim is justified or not. It is seen from the repudiation letter of O.P.2 that ,the jwellery of the complainant is not in safe custody and the same are kept inside the display counter. Hence applying the exclusion clause the claim was repudiated. It is seen from the FIR and Surveyor report that, 22 nos of locks were used in the display counter and the culprits damaged and broken the locks and committed burglary. Therefore there was mark of violence in breaking the locks by the culprits and hence it cannot be said that, the jwellery are not in safe custody. It is evident from those evidence that the exclusion clause is not applicable in this case. Further when the insurance company repudiated the claim by applying the exclusion clause the burden lies on him to prove the same. In this case the O.P.2 has not produced any evidence either the affidavit of the Insurance officer or affidavit of the Surveyor to prove that, the jwellery are not in safe custody by the time of burglary.
7. Under the aforesaid facts and circumstances and material available on record, it is believed that, the ground of repudiation of the claim of the complainant is not justified. There is also no evidence on record to show that, the complainant has filed his claim with a malafide intention. Once the Insurance company issued the policy, he is bound to indemnify the loss caused to the complainant.
8. Now coming to the point of loss caused to the complainant due to the burglary committed to his jwellery shop, the complainant has not produced any evidence to show the actual loss. In such a case the surveyor report is an important piece of evidence and hence the same has taken into consideration. The surveyor assessed the loss for an amount of Rs 13,34,942.45 paise and deducted 30% to arrive at purity of gold and silver. The surveyor has not mentioned under what basis he has applied the ratio of 30% deduction for both gold and silver. In general l it is not believed that there was mix of 30% in all jwellery. Therefore the deduction of 30% by the surveyor is high. With these evidence available on record the complainant is entitled to an amount of Rs 13,34,942/- as per the loss assessed by the Surveyor. Hence ordered.
ORDER.
The O.P.No.2, is directed to pay a sum of Rs 13,34,942/- (Rupees Thirteen Lakhs, Thirty four thousand and nine hundred forty two) only, with interest @ 8% P.A from the date of repudiation i.e from 26.11.2013, till payment to the complainant within one month from the date of receipt of this order. Further the O.Ps are directed to pay Rs 2,000/- (Rupees Two thousand) only to the complainant towards cost within the said period.
Accordingly the case is disposed off.
Order pronounced in open forum this the 30th day of October 2017.
(S.Rath) (A.K.Purohit)
MEMBER. PRESIDENT.
