IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.
CONSUMER CASE NO. : 35/S/2009 DATED : 08.09.2009.
BEFPRE PRESIDENT : SMT. ANITA DEBNATH,
Ex-Member of W.B. Higher Judicial Services and
Addl. Dist. & Session Judge,
President, D.C.D.R.F., Siliguri.
MEMBER : SMT. PRATITI BHATTACHARJEE.
COMPLAINANT : M/S DIP & DIP,
Represented by Shri Pradip Behani,
having its office at 2nd Mile, Siliguri,
P.O. Ektiasal, Dist. Jalpaiguri.
O.P. 1) : The Divisional Managar,
United India Insurance Co. Ltd.,
Hill Cart Road, Siliguri,
P.O. Siliguri, Dist. Darjeeling.
FOR THE COMPLAINANT : Sri K. L. Lohia, Advocate.
FOR THE OP : Sri Chinmoy Chakraborty, Advocate.
J U D G E M E N T
This is a case for realization of compensation of Rs.91,273/-.
The case of the complainant is that the complainant’s firm deals with mobile phones and mobile accessories amongst other items in their shop premises situated at 2nd Mile, Sevoke Road, Siliguri.
The OP is the Insurance Company.
On the approach of the OP in the year 2006-07 the complainant insured their shop premises under the OP on due payment of premium.
Initially they did not ask for any accounts as those were not usually maintained. Even then the OP granted the policy bearing No. 031900/48/7/34/00000566 i.e. Keepers Insurance Policy with effect from 31.08.07 to 31.08.08.
On 06.09.07 some goods as per list were stolen by some miscreants from the shop premises of the complainant. Accordingly, complaint was lodged before the Officer-in-Charge, Bhaktinagar P.S. and the same was registered as Bhaktinagar P.S. Case No.641 of 2007 dated 07.09.07 under Section 380 of the IPC.
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The complainant informed the said incident to the Insurance Company who asked for submission of a claim in prescribed Claim Form supplied by the OP/Company. Accordingly, a complaint was lodged for the amount of Rs.51,293/- and for damages supplying all the documents to them.
Subsequently, the OP engaged their Surveyor Mr. Kantilal Jitani who inspected the shop premises and asked for some documents which was also supplied to him.
Meanwhile Bhaktinagar P.S. submitted FRT against the said criminal case lodged by the complainant.
The further case of the complainant is that theft took place by breaking the shutter which was subsequently repaired and bill was raised to that effect. The OP did not take any effective measure to response to the claim as lodged by the complainant and ultimately their claim was denied under letter dated 10.01.08 on various false flimsy ground. Despite compliance with all formalities against the requirement as sought for they did not responded against the claim made by the complainant. Since the OP did not take any effective measure to perform their contract under the insurance policy and avoided to settle the claim such activities of the OP amounts to Unfair Trade Practice and negligence. Hence, this case supported by affidavit.
The OP contested the case by putting W.V. supported by affidavit denying each and every allegation as made therein with a specific defence that at the time of accepting the proposal for insurance there is no requirement to produce any Stock Registers or
Accounts Book to the insurer because it is the mandatory provision to keep and maintain tock registers and accounts book by all the traders. The complainant lodged the GD to the O.C., Bhaktinagar P.S. with intention to obtain and false illegal claim from the OP. The theft as alleged was a collusive in nature and it has been mentioned there in within 23 days four times were attempted and two times theft took place in the shop premises. Thereby it is clear that prayer for insurance policy as applied for after the incident of alleged theft and for illegal gain the said claim was lodged before the OP on the plea of alleged theft. But the complainant despite repeated request failed to produce the stock in trade or any documents in this regard. Even the Surveyor went to the place of occurrence immediately after the intimation as made by the complainant but at that time the Surveyor was not allowed to acess in the shop room and did not supply any document in spite of repeated demand made by the Surveyor. Mere submission of FRT it does not prove the commission of the allege theft. It has been categorically denied about the non-response of the alleged claim made by the complainant. Rather the complainant
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was asked by several letters dated 07.11.07; 01.01.08 and 23.06.08 for document even then it has not been filed. As a result the claim was not settled by the Surveyor. The Policy was taken suppressing all material facts relating to the cause of action as alleged and as such the claim of the complainant is liable to be dismissed with cost.
Upon consideration of the pleadings of the respective parties the following points are to be determined for solve out the controversies involvement in the instant case.
Points
- Is the case maintainable ?
- Is there any deficiency in service on the part of the OP?
- Is there any Unfair Trade Practice on the part of the OPs ?
- Is the complainant entitled to get compensation as prayed for ?
- To what other relief/reliefs, if any ?
Point No.1
This point has not been challenged by the Ld. Advocate on behalf of the parties to the instant case.
This is a case of denial of the claim of the complainant by the Insurance Company and no response was made against the claim lodged by the complainant as alleged.
Considering the nature of the dispute the complainant comes within the ambit of Consumer and such dispute comes within the purview of Consumer Disputes as provided under Section 2(1)(d)(ii) and 2(1)(e) of the C.P. Act, 1986 and therefore the case is quite maintainable.
The issue is thus disposed of in favour of the complainant.
Point No.2 – 5
All these issues are taken up together for the shake of convenience as they are interlinked.
The complainant let evidence through one of the partner of the said firm Sri Pradip Behani who denied the allegation as made by the Op. In support of the case of the complainant several documents were filed namely Copy of the complaint as lodged by the complainant before the Officer-in-charge, Bhaktinagar P.S. dated 07.09.07; Certified copy of Final Report in connection with Bhaktinagar P.S. Case No.641 of 2007 dated 07.01.07 in relation to Final Report No.587 of 2007 dated 13.11.07 as submitted by the Investigating Officer before the Court of ld. C.J.M., Sadarm Jalpaiguri; letter dated
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21.11.07 issued by the complainant’s firm to the Divisional Manager, United India Insurance Co. Ltd., Original Bills, Cash Memo and the letters dated 10.01.08; 23.06.08 issued by the Surveyor to the partners of the complainant’s firm; the copy of the burglary Claim Form.
The Ld. Advocate on behalf of the complainant advanced argument that the incident took place on 06.09.07 and on the self same date complaint was lodged before the Bhaktinagar P.S. and despite service of requisite documents the claim was not responded or repudiated by the OP. It has been further urged that it is the duty of the Surveyor to quantify the loss as launched under the Claim Form and the Surveyor on proper investigation is to submit the report within the stipulated period as provided under the law. It has been further urged that complaint as lodged was not settled on the plea of non-production of stock registers which is not at all essential for settlement of the claim lodged by the complainant. When the claim was not settled despite repeated request and no action was taken it amounts to deficiency in service and relied several decisions reported in AIR 2001 Supreme Court 549; 2004 CPJ N.C. Vol.-I Page 82; 2005 CPJ Vol.-I Page 66 N.C.
On the other hand the OP did not file any document to substantiate their defence and according to the OPs despite repeated request no documents were furnished before the Surveyor concerned for which the claim can not be settled up.
Sole defence to attack the claim of the complainant is that the alleged claim is false one, no such burglary took place and no such registers were produced to the Surveyor resultant with refusal of the claim.
It is evident that the Surveyor did not submit his report rejecting or in favour of the complainant. Cause of non-service of Surveyor’s report is non-furnishing stock registers and other documents. It is evident that all the bills and cash memos were annexed with the Claim Form. The amount of Rs.51,273/- was claimed in terms of claim form. From the FIR dated 07.09.07 there is mention of loss of articles. In caption subject it has been alleged “within 23 days four times attempt and two times theft at my above mentioned shop”. Just in the first line of the complaint it has been mentioned that again this night the theft broke the shutter and theft the following articles. The very word ‘again this night’ it means that save and except other incident uinder caption subject another incident of theft took place on that night. It does not mean that all other incidents of alleged theft as mentioned is related with the said incident as taken place on 07.09.07. Whether all other incidents of theft or attempt was intimated to the local P.S. or
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not that can not be correlated with the present incident in question. That can not be one of the cause of the refusal of the claim in question. The said incident dated 07.09.07 was investigated by the Police authority and when it was not found any improvement there is no chance of recovery the said case ended with submission of final report and the same was accepted. In this context the defence case is that no such incident took place. How it has come to that conclusion has not been explained by any means by furnishing any cogent evidence and their defence is that when there was other incident as taken place in his shop premises and when it has not been informed to the local P.S. even to them also it was not mentioned at the time of making proposal for obtaining insurance policy. Policy is obtained for the safety and security of the goods in question or the building in question or the shop premises whatever it may be. So, when there was repeated incident of alleged theft the policy is to be taken for safety and security of the shop premises. Therefore, the defence as taken is nothing but an avoiding tendency in order to frustrate the claim of the complainant.
The article as mentioned in the Claim Form, if those two documents be compared there is no difference with the Claim Form rather there is consistence with the articles as mentioned in primary document i.e. the complaint.
It is the duty of the Insurance Policy to make enquiry about the existence of any registers or any kind of register maintained by the shop keepers but in this regard it has been avoided by taking such defence that it was not so necessary at the time of obtaining policy. This also one kind of avoiding tendency and they have not performed their duties under the law initially.
The ground of refusal is non-production of stock registers. But there is no denial that the bill and challans have not been produced or not shown to the investigator. If that be so, why the investigation would not be completed by furnishing primary report based upon the bill and challans. It is the duty of the investigator and submits his report within the specified period. It is not the defence case that OP was not satisfied upon the primary report if at all be furnished and he was asked for final report. In that occasion the refusal or repudiation of the claim arises. But in the instant case report was not at all submitted on the plea of non-furnishing of other materials and registers. Although the defence as taken in such a manner from which it can not be gathered that a primary report was submitted before the authority concerned i.e. the OPs in terms of 3rd paragraph of the Paragraph 11 of the W.V. From the copy of the letter dated 10.01.08 issued by the Surveyor to the complainant that several documents were received by the
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investigator. Even by letter dated 23.06.08 the complainant was asked for production of stock registers, books of accounts for the month April and March. Some of the documents as relied by the complainant in support of their claim have already been submitted before the investigator who also received the same. If that be so, why the investigation would not be completed on the basis of those documents like bills and challans and other Income Tax Return.
But in the instant case report was not at all submitted on the plea of non-furnishing of other materials and registers. But no where it was alleged that all those bills and challans were not sufficient to assess the loss as alleged.
Whether the complainant did not maintain the registers for their business or non-production of stock registers and thereby the complainant violated the mandatory provision it is to be looked into by other departments and establishment and violation of mandatory provision, if any, duty casts upon that establishment so formed under the law. But in computation of the loss or damage the stock registers are not at all necessary and the alleged loss can be assessed based upon the primary documents i.e. bills and challans. It is the case of the complainant that initially there was no talk of maintaining accounts registers and they have not looked into or asked for even then the policy was granted in their favour. In 2004 CPJ Vol.-I 82 N.C. Hon’ble National Commission held that fully of stocks can be decided from the General Ledger of the Sales and purchase, stock registers are not essential to decide claim.
When the loss has been assessed by the complainant on the basis of primary documents, it is to be considered whether it was sufficient or not. In 2005 CPJ Vol.-I 66 N.C. in the case of United India Insurance Co. Ltd. Vs. Lal Singh it has been held that Exclusion Clause not incorporated in terms and conditions, not part of the policy. In absence of evidence Company can not avoid its liability. Admittedly, Insurance Company is under the possession of the OP. Xerox copy has been given therein. There is no terms and conditions appended in the said insurance policy. The coverage of insurance policy was 31.08.07 to 30.08.08 and the incident took place on 07.09.07 which is within the valid coverage of the insurance policy. When the Surveyor did not furnish the report on such ground is nothing but a flimsy ground which is not entertainable in law.
Under these facts and circumstances and on careful consideration of the decisions as relied by the complainant coupled with the materials on record we are of the view that the refusal of the claim under the claim form is a flimsy one and it can not be entertainable. Further more, the OP did not refused the claim of the complainant by way
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of any refusal notice. It means the investigation is still pending. Incident took place on 07.09.07 and up till now no report is produced even before the Forum also for appreciation. So, non-furnishing of report it amounts to deficiency of service on the part of the OP concerned and for which the claim could not be settled reused the claim is nothing but the lame excuse in order to frustrate the claim and there by the OP is found negligent and deficiency of service as provided under Section 2(1)(g) and (o) of the C.P. Act, 1986 is proved beyond doubt.
When it reveals that the claim mentioned in the Claim Form and these are in consonance with the bills as produced the claim as claimed for is justiciable contrary of which has not been proved by documentary evidence and as such the claim including the repairing charge is entertainable and it has been proved by documentary evidence.
Further, we are of the view the cause of refusal creates a mental pain, agony and harassment to the complainant.
In the result, the case succeeds in part.
Hence, it is,
O R D E R E D
that the Consumer Case No.35/S/2009 is allowed on contest but with cost of Rs.1,000/-.
The complainant is entitled to get an amount of Rs.51,273/- since the claim has been denied on such defence as not maintainable.
The complainant is further entitled to get a sum of Rs.5,000/- towards mental pain, sufferings and harassment.
The OP is directed to pay the said total amount of Rs.(51,273/- + 5,000/-) = Rs.56,273/- with cost to the complainant within one month from the date hereof failing which the amount shall carry interest @ 9% p.a. from the date of institution of the instant case i.e. 05.05.2009 till realization of the Awarded sum.
In default the complainant is at liberty to put the Award in execution.
Let Xerox copies of this Judgement and Order be supplied to the parties free of cost.
