A. K. BHATTACHARYYA, PRESIDENT
Version of the Complainant may be briefly stated as follows:
Complainant took a burglary insurance policy being no. 512600/46/10/04/00000062 for a risk coverage of Rs. 7 lakhs in respect of his business shop under the name and style ‘M/s Panda Jewellery Works’ from the OP insurer and the said policy was valid from 09-11-2010 to 08-11-2011. In the intervening night of 28/29-12-2010 a burglary took place in his business shop whereby the miscreants escaped with 205 g. gold ornaments and 3 kgs. of silver ornaments worth Rs. 5,42,000/-. The complainant filed a written FIR before the Tamluk P.S. against such burglary and they initiated Case No. 41/10 dt.29-12-2010 u/s 380 IPC in respect of such FIR. It is alleged by the complainant that Mr. Indrajit Debray, Surveyor appointed by the OP, during inspection of his shop, demanded Rs. 20,000/- to process his insurance claim and also obtained his signature on some blank sheets by misleading him and as such, the complainant filed a complaint against the said surveyor at Tamluk P.S. on 02-02-2011 (GDE No. 102). Subsequently, the complainant received a letter from Mr. Debray asking for some documents which were lying with the Investing Officer (I.O.). He could not provide the same to the surveyor at the time of survey for the above reasons. However, although the complainant forwarded copies of those documents to the surveyor later on, he took no endeavour to ensure timely submission of his report before the insurance company. The complainant though apprised the insurer about the harassment being meted out to him by the surveyor; they took no positive step to redress his grievance. It is stated by the complainant that all his perseverance with the opposite party-Insurance Company for making good the loss indemnified under the policy went in vain. Hence the case.
In support of his claim, the complainant filed a bunch of documents viz Policy Certificate, FIR, Seizure list, series of correspondence exchanged between the insurance company/surveyor and the complainant, Stock register, Balance Sheets of the Complainant’s business shop, I.T. Returns, Lawyer’s notice etc.
Version of the OP:
Respondent Insurance Company, on being served notice, entered appearance and filed its written version resisting the claim of the complainant mainly on the ground that as per the report of their surveyor submitted on 08-02-2012 the claim of the complainant was inadmissible on the ground that – (a) there was no physical damage found in iron safe or in shutter as a mark of forced entry which may be defined as a burglary (b) insured-complainant did not purchase anything (gold or silver) from authorized/unauthorized seller and no documents could be found nor produced to that effect (c) cash book not produced for the financial year 2009-10 and 2010-11.Therefore, in terms of ‘Shopkeeper’s Insurance Policy’ they had no other alternative but to repudiate the claim so falsely made by the complainant and accordingly, they denied any wrongdoing/illegality on their part and prayed for dismissal of the case against them.
The OP insurance company submitted Survey Report dt.08-02-2012 in support of their contention.
Points for consideration
- Whether there was any deficiency in service on the part of the OP on account of non-settlement of complainant’s claim?
- Whether the complainant is entitled to get any relief as sought for?
Appreciation of the facts
Point nos. 1 & 2:
Both these points are taken up together for the convenience of discussion.
We have perused the entire record including the above mentioned documents produced by the parties and heard the arguments advanced by the ld. Counsel of both sides.
Accusing the surveyor of impropriety, ld. lawyer for the complainant stated that the surveyor submitted the arbitrary report before the insurer with an ulterior motive. It is alleged by the ld. lawyer for the complainant that since the complainant refused to pay any bribe to the surveyor as per his demand, the latter intentionally prepared the false and baseless report to frustrate his legitimate claim. In furtherance of his contention, ld. lawyer for the complainant pointed out that although the surveyor went hammer and tongs to prove the incident of burglary as a concocted story on the strength of the report of one Sreekanta Paroi having criminal antecedents, he remained tight-lipped about the observation of other persons being interrogated by him during the course of enquiry. It is further stated by the ld. lawyer that the surveyor smelt rat over non-production of some documents viz Cash Book and General Ledger, Purchase Bill, Sale bill etc. totally ignoring the fact that those documents were seized by the police authorities for the purpose of investigation. Ld. lawyer for the complainant also alleged that the surveyor obtained copies of some documents (FIR, FRT) through RTI in a pick and choose manner to suit his sinister purpose. It is, however, anyone’s guess why, he did not choose to collect copies of other documents like Purchase Bill, Sale Bill, daily purchase + sale register through RTI before levelling baseless allegations. Ld. lawyer also stated that the inability of police authority to make any headway in a case does not in any way infer that it is a cooked up story, as suggested by the surveyor.
Ld. lawyer for the OP, on the other hand, tried to establish their action citing the findings of their Surveyor and also on account of non-production of requisite documents by the complainant as per their demand.
Since the OP insurer repudiated the claim of the complainant picking a thread from the findings of the surveyor, let us consider the merit of surveyor’s findings to arrive at a decision.
On going through the report of the surveyor we find that it took more than 1 year for the surveyor to complete his enquiry and submit report thereof to the OP Insurer recommending rejection of complainant’s claim pointing out several inconsistencies viz cloud over occurrence of any burglary at the insured’s shop, non-availability of documents, irregularities in the police report etc.
The surveyor disputed complainant’s claim as regards occurrence of any burglary in his business shop on the ground that he did not notice any mark of damage to the shutter and collapsible gate or in the iron safe. The complainant refuted such contention by stating that all the broken locks were seized by the police. Besides, the concerned I.O. visited the place of occurrence (P.O.) on several occasions for conducting investigation into the matter. For this purpose, the shutter had to be lifted up and down on several occasions. Therefore, when the Surveyor visited the P.O. after a week from the date of occurrence of the incident, he did not feel any discomfort in moving the shutter. Moreover, the said I.O. also made arrangements for repairing of the collapsible gate, shutter etc. to gain easy access into his business shop. The complainant also denied the fact that the iron safe was not damaged. On going through the Final Report (FRT) submitted by the Tamluk P.S. we do not find any adverse remark on the part of the concerned I. O. calling in question the occurrence of the incident. In our considered opinion had there been no trace of any damage to the shutter and collapsible gate, as alleged by the surveyor, it is quite unlikely that such basic yet crucial aspect would have gone unnoticed by the concerned I.O. Moreover, it defies logic why the surveyor did not discuss such aspect with the concerned I.O. to clear his doubt when he met the I.O. as well as the O.C. to enquire into the matter. Therefore, we do not find any cogent ground to entertain the surveyor’s objection in this regard.
It is alleged by the Surveyor that both the FIR as well as FRT were issued u/s 380 IPC and not u/s 461/380 as claimed by the complainant. It is stated by the surveyor in his report that during scrutiny of the concerned file at the court of ld. CJM, Tamluk he observed that in the FRT, Sec. 380 IPC was illegally changed to Sec. 461/380 IPC by hand without any endorsement or amendment advice of Police Station. Surprisingly, however, the OP has neither placed the copy of concerned FRT before us which was procured by their surveyor through RTI nor adduced any evidence to corroborate such allegation as made out by the surveyor. From the certified true copy of the FRT issued by the Copying Dept. of ld. CJM, Tamluk, produced by the complainant on record we find that the police submitted Final Report dt. 16-05.2011 u/s 461/380 IPC in this case with observation that “if any clue about the crime is found in near future, this case will be reopened”. Moreover, considering the fact that in order to insert section 461 before section 380 in two places of the FRT, it would have required corrections in both places which is not the case of the surveyor, we are constrained to discard surveyor’s objection in this regard.
Be that as it may, we find from the seizure list that the police picked up several locks from the P.O. which clearly points out the entry of stranger(s),in all probability, after cutting/breaking locks those were put on the shop doors, collapsible gate etc. Once a thief enters the premises after cutting or breaking locks, it can very well be presumed that the entry has been made after applying force and thus, the alleged incident falls within the definition of burglary or house-breaking. Thus, it cannot be believed that it was a simple case of theft.
Admittedly the complainant opened a current account in the name of the company on 28-10-2010. There is nothing on record to suggest that the complainant availed of cash credit facility in respect of his business shop based on hypothecation of stock and book debts prior to 28-10-2010. Therefore, the reason behind seeking six months stock statements submitted to bank by the surveyor from the complainant is not understood. It is also alleged by the surveyor that stock statements for the months of Oct. and Nov. 2010 were submitted just before the alleged theft though admittedly, the stock statements for the months of October and November 2010 were submitted before the bank on 02-11-2010 and 14-12-2010 respectively which is not at all abnormal. Thus the surveyor’s objection in this regard is also unsustainable.
The surveyor cried foul over non-presentation of stock book before him by the complainant for verification. We find from the seizure list that the police seized the daily purchase + sale register of complainant’s shop. It is not clear why the surveyor did not look over the said register to verify the authenticity of complainant’s claim. Insofar as the observation of the surveyor that the documents/books of accounts were not reliable, we find that the same quite vague which has got no substance. Thus, even this ground has no legs to stand.
Overall, we find the issues/objections raised by the surveyor are all unfounded and hence not tenable.
It is always desirable that a surveyor should be a person of impeccable character since the report submitted by him carries immense significance in determining the admissibility of a claim. We find it bit strange that although the complainant levelled grave allegations of bribery against the surveyor long before submission of the report by the surveyor; the insurer did nothing to alley his fear; on the contrary repudiated the claim of the complainant based on the recommendation of the surveyor. There is no denying the fact that the principal driving force behind taking an insurance policy is to protect one’s interest from unforeseen eventuality. It is always expected of an insurer to take a human approach while considering a claim and make every endeavour to relieve the distress and miseries of victims of incidents, we find that in the instant case, the surveyor took more than one year to submit his report and the OP took more than seven months after receipt of surveyor’s report before repudiating the claim in a very casual manner. No doubt, if an insurer takes so long time to decide a claim, the very purpose of taking an insurance coverage gets defeated. This was not expected from a service provider like the opposite party-Insurance Company and, therefore, they are liable for the deficiency in service.
Although the Surveyor made strong recommendation for rejection of complainant’s claim alleging that the claim was lodged on the basis of doctored books of Accounts and supplementary thereof, however, on going through the Seizure List we find that the police seized the Stock Register and Sale Register on 29-12-2010 itself while the incident took place in the intervening night of 28/29-12-2010. Therefore, we do not find any tangible ground to disbelieve the contents of Stock Register and Sale Register being maintained by the complainant which were seized by the police. Besides, appreciating the fact that the value of claim lodged by the complainant is quite less vis-à-vis value of Stock Statements submitted with the bank during the months of October and November 2010, the claim of the complainant does not seem to be inflated.
It appears from the photocopy of certified true copy of the Stock Register that as on 28-12-2010, there was 205.190 g. gold ornaments in his stock while the stock register for silver ornaments shows a closing stock of 2567.360 g. as on 30-11-2010. From the photocopy of certified true copy of the Sale register it appears that he sold 61.250 g. silver ornaments during the period from 01-12-2010 to 27-12-2010. Thus, it can reasonably be concluded that as on 27-12-2010, there was a closing stock of 2506.110 g. silver ornaments in the shop of the complainant. However, since the sale register does not contain sale particulars of 28-12-2010 and no supportive document has been placed before us by the complainant to ascertain the sale figure of silver ornaments as on that date, we find it difficult to arrive at the exact figure of closing stock of silver ornaments as on 28-12-2010. Moreover, the complainant has also not placed any corroborative document to find out the value of gold and silver ornaments as on 28-12-2010 as also the category/variant of gold/silver to determine the actual value of ornaments. However, taking into consideration all aspects of the instant case, as also materials on record, in our considered view, it would be just and proper to award a sum of Rs. 3,50,000/- in favour of the complainant against the loss suffered by him together with compensation Rs. 35,000/- on account of deficiency in service on the part of the OP and litigation cost Rs. 3,000/-.
These two points are thus disposed of in favour of the complainant.
Hence, it is,
ORDERED
that the instant Consumer Case 36/2012 be and the same is allowed on contest against the OP. The OP is directed to pay Rs. 3,50,000/- to the complainant as insurance benefit along with compensation Rs. 35,000/- and litigation cost Rs. 3,000/- within 45 days from the date of communication of this order i. d. the complainant is at liberty to execute the order in accordance with law in which case, the OP shall be liable to pay interest @ 8% p.a. over the total awarded amount from this date till compliance of this order in toto.
S.S. Ali Dr. S. Dutta A.K. Bhattacharyya
Member Member President
