IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No.CC/46/2016.
Date of Filing: 29.03.2016. Date of Final Order: 12.04.2017.
Complainant : M/S Mousumi Indane Gramin Vitarak,
Prop. Smt. Mousumi Chowdhury, W/O Partha Chowdhury,
Vill.&P.O. Gokarna, P.S. Kandi, Dist. Murshidabad. Pin 742136.
-Vs-
Opposite Party: 1. The Divisional Manager, National Insurance Co. Ltd,
26/23/1, Sahid Surya Sen Road, P.O. Berhampore, Dist. Murshidabad.
Pin-742101.
2. Indian Oil Corporation Ltd.(Marketing Division),
Indane Area Office, 34A, Nirmal Chandra Street, Kolkota-700001.
Present: Sri Anupam Bhattacharyya ….................................. President.
Smt. Pranati Ali ……….……………….……………. Member
FINAL ORDER
Sri Anupam Bhattacharyya, Presiding Member.
The instant complaint has been filed by the complainant u/s 12 of C. P. Act, 1986 praying for an award of Rs.3.26 lacs for theft of the filled in gas cylinder from the insured Godown of the complainant gas distributor and litigation cost of Rs.10, 000/- and compensation of Rs.10, 000/- towards harassment and mental agony and Rs.30, 000/- towards cost of damaged Asbestos shade of the complainant.
The complainant’s case, in brief, is that the complainant was a dealer of Indane Gas under the name and style “M/s Mousumi Indane Gram Vitarak” and used to sell to the customers on booking purchasing the filled in gas from Op No.2 and the same was insured with Op No.1 Insurance Company for Rs.9 lakhs under Policy No. 154000/48/14/200001712 on 19.12.14 for the period from 21.12.14 to 20.12.15. On 09.01.2015 at the dead of night some unknown miscreants broke aside the Asbestos roof of the godown and they stole some 142 refilled gas cylinders and the same was informed to Kandi P.S. on 10.1.15 G.R. Case No. 118/15 was started on 10.1.15 u/s 461/279, IPC and FRT was submitted by the I.C on 21.7.15. On the date of happening of such mischief and theft in the godown the complainant informed verbally in the office of the OP No.1 then and there and the Divisional Manager told the complainant that the matter shall be investigated by the loss assessors. The complainant has sustained a loss of Rs.3, 26,600/- for the above theft and it was duly informed to the Op No.1 that by the D.D. No. 407656 dt. 11.2.15 of the Union Bank, Berhampore Branch the said value was tendered to the Indian Oil Corporation Ltd. The OP No.1 made no efforts to access the value of loss for a long time and for that the complainant was compelled to write a letter on 12.8.15 to the OP No.1 along with several documents. The OP No.1 in his letter dt. 13.8.15 wrote that theft matter was informed to them on 29.7.15 after lapse of seven months only to avoid the responsibility to compensate the loss. The complainant issued demand notice but no result. Then, the complainant has filed this complaint. Hence, the instant complaint case.
The written version filed by OP No.1, in brief, is that the OP No.1 has denied the allegation of theft of 142 refill gas cylinders at night opening the roof of the godown in presence of Night Guard who did not see such theft. These statements are false and for wrongful gain. The OP No.1 has also denied the statement that complainant informed the alleged incident of theft on the very night of incident, 9.01.15 verbally. The complainant first informed the incident of theft of 142filled gas cylinders on 29.7.15 after lapse of seven months which is breach of condition of policy. The OP informed the complainant by letter dt. 13.8.15 about repudiation of claim for delayed information. There is no deficiency in service on the part of Op No.1 and for delayed information about 142 filled in cylinders breaking the roof of godown violating the terms and conditions of policy the claim has been rightly repudiated and for that the complainant is not entitled to get any relief and for that the complaint is liable to be dismissed. Hence, the instant written version.
Considering the pleadings of both parties the following points have been raised for disposal of the case.
Points for decision.
- Whether the case is maintainable in its present form and in law?
- Whether the case is barred by the law of limitation?
- Whether the case is barred by the law of estoppels, waiver and acquisance.
- Whether the complainant is entitled to get relief as prayed for?
- To what other relief/reliefs the complainant is entitled to get?
Decision with reasons.
Point Nos. 1 to 5.
All the points are taken up together for the sake of convenience.
The instant complaint is for payment of insurance claim of Rs.3.26 lakhs for theft of 142 filled in gas cylinders from the insured godown and for compensation.
The complainant’s case is that the complainant is an Indane Gas Dealer having insurance policy with OP-Insurance Co. for theft and fire for 9 lakh and her 142 re-filled gas cylinders were stolen from her godown on 9.1.15 night breaking open the tileshed of her godown and for the
Loss she paid Rs.326000/- by D.D.No. 407656 dt. 11.2.15 to OP No.2. FIR was lodged on 10.1.15 and FRT dt. 21.7.15 was submitted by the I.O. The repudiation letter dt. 13.8.15 on the ground of delayed intimation on 29.7.15 after seven months from the date of alleged incident on 9.1.15.
On the other hand the OP’s case is that the OP No.1 has denied the allegation of theft of 142 refill gas cylinders at night opening the roof of the godown in presence of Night Guard who did not see such theft. These statements are false and for wrongful gain. The OP No.1 has also denied the statement that complainant informed the alleged incident of theft verbally on the very night of incident on 9.01.15 verbally. The complainant first informed the incident of theft of 142 re-filled gas cylinders on 29.7.15 after lapse of seven months which is breach of condition of policy. The OP informed the complainant by letter dt. 13.8.15 about repudiation of claim for delayed information. There is no deficiency in service on the part of Op No.1 and for delayed information about 142 filled in cylinders breaking the roof of godown violating the terms and conditions of policy the claim has been rightly repudiated and for that the complainant is not entitled to get any relief.
In this case both the complainant and OP No.1-Insurance Co. Ltd have adduced their respective evidence on affidavit separately along with relevant documents including Xerox copy of news paper cuttings with the caption “ Late Insurance claim valid” filed by the complainant.
In this case allegation is for theft of 142 filled- in gas cylinders from the godown on 9.1.15 at night.
Where, FIR shows that the date and time of occurrence Friday, 09.01.15 at 10;10 hrs and information received on 10.01.15 at 17:35 hrs.
From the documents filed by the complaint it appears that the written complaint addressed to I.C, Kandi P.S. with the subject regarding the incident of theft of 142 gas cylinders took place on 09.01.15 at 10-10 A.m. breaking open asbestos roof of godown and the said written complaint was received on 10.01.15 at 17:35 hrs and Kandi P.S. Case No. 28/15 dt. 10.01.15 u/s 461/379 IPC was started and ultimately FRT was submitted on 21.7.15.
In the FIR, written complaint and FRT the date and time of theft has been categorically mentioned as 9.1.15 at 10-10 A.M in the morning and the same has categorically challenged and denied by the OP-Insurance Company.
Also, the Ld. lawyer for the OP-Insurance Co. has advanced argument against the alleged incident of theft that how 142 filled in gas cylinder can be stolen in the open d ay light at 10-10 A.M. breaking open the asbestos roof of the godown when FRT had to file being the alleged 142 filed gas cylinders were not recovered and concluded his argument saying that this is not possible and the allegation of theft is false one.
But, in the claim petition of this case the period of incident of theft on 9.1.15 has been categorically mentioned as dead of night.
The instant complaint has been filed on 29.3.16 long after lodging FIR but there is no whisper in the complaint petition that the time of incident has been mentioned mistakenly in FIR, written complaint and FRT. Also, the mistake if any, ought to have been detected during investigation and the same be reflected in the FRT.
Also, the complainant has not adduced any cogent evidence to establish the complaint case according to the averment in the complaint petition that the incident of theft took place in the dead night of 9.1.15.
Further, the Ld. Lawyer for the OP-Insurance Co has advanced argument referring two reported decisions in I(2013) CPJ-62(NC) and I(2013)CPJ-69(NC) that delayed intimation is violation of terms of policy and for that the Insurance Company has correctly repudiated the claim.
On the other hand the complainant has filed only Xerox copy of paper cutting with the caption “Late Insurance Claim Valid” but not the reported decision in this regard.
Sufficient opportunities have already been given for further hearing argument on the aforesaid reported decisions and paper cutting but ultimately decided on merit.
The fact of the case referred in the paper cutting is relating to payment of insurance claim with compensation to the widow of the person who died in the accident on 31.12.2006 and the Insurance Co. repudiated the claim for delay in filing the claim on 18.01.2008 for more than one year.
The fact of the case referred above in the paper cutting is quite different from the instant case for theft of 142 filled in gas cylinders breaking open the asbestos sheet of the roof of the godown in daytime at 10-10 A.M. but the complainant informed the incident to OP-Insurance Company in writing on 29.07.2015 where question of investigation by the OP-Insurance Co. is involved.
Regarding the application of reported decisions the settled principle is that the particular fact of the case to be decided is to be considered carefully.
Considering the above we have no other alternative but to conclude that in this particular case delayed intimation to OP-Insurance Co is vital factor and also the allegation of theft is very much doubtful and for that the complainant is not entitled to get any relief. Accordingly, the complaint be dismissed on merit but there will be no order as to cost.
Hence,
Ordered
that the Consumer Complaint No. 46/2016 be and the same is hereby dismissed on merit.
There will be no order as to cost.
Let a plain copy of this order be made available and be supplied free of cost, to each of the parties on contest in person, Ld. Advocate/Agent on record, by hand under proper acknowledgment / be sent forthwith under ordinary post to the concerned parties as per rules, for information and necessary action.
