Ld Advocate for the complainant is present. The facts of the complainant’s case are that he runs a furniture business in the name & style “Nandadulal Furniture and Fixture” at Chowdhuribar, P.O. Basanta, P.S. Contai, Dist. Purba Medinipur within the jurisdiction of this Commission to lead .The complainant took a Term loan under PMEGP scheme to run the said business from the opposite party no. 2. The complainant took burglary insurance policy being no. DG-20-2422-4010-0000354 for the period 17.12.2019 to 16.12.2020 for the said furniture business plan and Machinery + stocks)whose Idv. Are Rs. 9,50,000/- + Rs. 9,53,000/- from the opposite party No. 1 through the opposite party No. 2 who is also agent of opposite party no. 1. The complainant’s said furniture business also is well protected and till with guard always Covid – 19 Pandemic had been started from end of March of 2020.But unfortunately on 20.05.2020 a violent/devastating cyclone (storm) Namely “AMPHAN” across the whole coastal area of South Bengal for which total area of Digha Coastal was damaged electric line and trees were damaged all roads were blocked for four/five days and total area was in dark for more than seven days for want of electricity. In this situation some miscreants took away and made robbery in the factory of the said furniture business by looted all equipments and stock of furniture and fittings of said furniture business.On 24.05.2020 the complainant reached there and saw the said situation and such situation the night guard of the complainant to save his life from said “AMPHAN” left the place and the complainant saw that the furniture and machineries and stocks were not there.The complainant made a complainant before the Contai Police Station regarding said incident on 01.06.2020 where the complainant can not give details of theft of said furniture, fixture and machines and stocks of factory. I/C, Contai P.S. has started Contai P.S. case No. 175/2020 dt. 01.06.2020 u/s. 379 IPC and started investigation. For the said “AMPHAN” all internet connections and telephone lines and mobile connection were damaged for more than 10/15 days from which the complainant could not inform the said incident to the opposite parties in time.After stopping the said storm the complainant on 24.05.2020 found that in his said factory the asbestos shed was removed from its place by said “AMPHAN” and burglary goods have been stolen/theft away by miscreants.Thereafter, the complainant searched for said stolen property in all probable places and asked his night guard, but the complainant was unable to trace out the same, then the complainant lodged complaint before the local P.S. Due to such searching and other re-arrangement the delay is caused to inform about the said burglary loss to local P.S. The complainant on 22.05.2020 informed verbally the aforesaid burglary to opposite party no. 2 and the complainant requested the opposite party no. 2 inform the said matter to the opposite party No. 1 any how as there was no information media was ready for such “AMPHAN”. One Deepak Chowdhury and one Vikash Jha and one Madhusudan Makar were the local authorized agents of Opposite No. 1 who gave advice and took premium from the complainant for said insurance policy. The complainant also informed the said burglary to the O.P. No. 1 through said above mentioned persons by phone after about one month due to said “AMPHAN”. Owing to Covid-19 Pandemic and lock-down through out India the complainant has failed to communicate with O.P. No.1 for said insurance claim (burglary) in time. At last on 21.10.2020 the complainant intimated his claim for burglary insurance to the O.P. No. 1 and there was no intentional latches by the complainant to file the said claim before O.P. No. 1.The complainant also informed the said incident on 21.10.2020 to O.P. No. 2. After receiving the said claim the O.P. No. 1 appointed surveyor “M/s. Mclarens Insurance Surveyors and Loss Accessories”. The said surveyor visited the P.O. on 13.11.2020 and he has failed to assess the loss of the complainant for said burglary and the surveyor till then did not file any report regarding said burglary. In the meantime the I.O. of the Contai P.S. case No. 175/20 dated 01.06.2020 u/s. 379 I.P.C. has filed FRT being No. 230/2020 dt. 30.06.2020 u/s. 379 IPC keeping in view to reopen the case if any positive clue is available near future. The complainant sent the total amount of loss regarding said burglary on 04.03.2021 through g-mail to the said surveyor amounting of Rs. 9,81,074/-.The said surveyor demanded all relevant documents by a letter dt. 16.11.2020 and then the complainant sent the same on 11.12.2020 by email and there was email correspondence with said three persons by the complainant.But last on 25.02.2021 by e-mail three persons had informed the complainant that they O.P. No. 1 has repudiated the said insurance claim (for burglary) for the which the complainant has been suffering from mental agony and the O.P. No. 2 also did not take proper step as agent of O.P. No. 1 to pay the said insurance claim for which the complainant has been failed to pay the loan installments to the O.P. No. 2.In such circumstances, the opposite parties have done deficiency in service for which the complainant has been suffering from mental agony.The cause of action has been arose on and from 25.03.2021.Therefore, the complainant prays for directing the opposite party.
- To pay said insurance claim of Rs. 9,81,067/- with 10% interest from 20.05.2020.
- To pay a compensation of Rs. 11,00,000/- for mental agony to the complainant.
- To pay a litigation cost of Rs. 50,000/- to the complainant for conduct of this consumer case.
- To pass any other orders which the commission may deem fit and proper.
Upon service of notice the op no 1 appears before this commission and contested the case by filing written version thereof. Despite service of notice the op-2 has not contested the case as such the proceeding of the case ran ex- parte against op no 2.
In the written version op-1 has stated inter alia that at the very outset the opposite party insurance company denies all the allegations, averments stated in the complaint filed by the complainant except to the extent they are expressly admitted therein. The non-traversal on any paragraph should be read as categorical denial.The present complaint is not maintainable and is liable to be dismissed as no cause of action every arose in favour of the complainant and against the opposite party insurance company to file the present complaint and hence, the complaint under reply is an abuse of the process of law .The present complaint is very complex in nature, involves intricate questions of facts and law and requires perusal of voluminous documentary evidence for determination of dispute at hand. It is not possible to weigh the evidence properly in summary procedure as followed by this Hon’ble Forum. Therefore, this Complaint may please be returned to competent civil court for proper adjudication of the matter through a full-fledged trial. The answering party states and submits that, the contents of the said complaint, unless specifically admitted, are not true and correct and hence are denied by this opponent.The Complainant had approached to the OP No. 1 through agent for the purchase of the burglary insurance policy being no. OG 20-2422-4919-00003574. After receiving of the signed proposal form of the complainant, op no. 1 has accepted his proposal. The op-1 has denied the averments para-wise. The op-1 has prayed that the complaint shall be dismissed with heavy costs.
Points for determination are:
- Is the case maintainable in its present form and in law?
- Is the Complainant entitled to the relief(s) as sought for?
Decision with reasons
Both the points I and II, being inter related to each other, are taken up together for discussion for sake of brevity and convenience.
We have carefully perused the Petition of the Complainant and WV of OP No. 1 , evidence and documents on record.
Having regards had to the facts and circumstances of the case in the light of evidence, it is evident that there is no dispute that Complainant is a consumer having grievances against the Ops, as such the case is maintainable in its present form and in law.
On evaluation of the evidence and other materials on record, it appears that there is no dispute that the complainant took a term loan PMEGP scheme to run the said business from the OP No. 2 he took burglary Insurance Policy being No. DG-20-2422-4010-0000354 for the period from 17.12.2019 to 16.12.2020 for the said furniture business plant and machinery plus stocks whose IDV are Rs. 9,50,000/- plus Rs. 9,53,000/- from the OP No. 1 through the OP No. 2 who is also agent of opposite party No. 1.
It is fact that Covid-2019 pandemic has been started from the end of March, 2020 but unfortunately on 20.05.2020 a violent/devastation cyclone(storm) namely, ‘AMPHAN” across the whole coastal area of south Bengal. Damages of electric line were caused due to the said natural calamity ,roads remained blocked for 4/5 days and total area was in dark for more than seven days. In the situation some miscreants took away and looted all equipment , furniture and fittings of said furniture business. On 24.05.2020 the complainant reached there and saw the said situation and such situation the Nightguard of the complainant to save his life from said ‘AMPHAN’ left the place and the complainant saw that the furniture and machineries and stocks were not there. Thereafter the complainant made a complaint before the Contai P.S. regarding said incident on 01.06. 2020. The IC Contai P.S. has started a case u/s. 379 I.P.C. case No. 175/2020 dated 01.06.2020 and started investigation. The IO has filed FRT being No. 230/2020 dt. 30.06.2020 u/s. 379 IPC keeping in view to reopen the case if any positive clue is available near future.
It is further evident that after receiving the claim, op no 1 appointed the surveyor M/S Mclarens insurance surveyors and loss accessories’. The surveyor visited the place of occurence on 13.11.2020 and filed the report on 23 march 2021.On 25.02.2021 by email that the op no 1 has repudiated the said insurance claim( for burglary) .
It is the case of the miscreants had entered inside the furniture shop which was devastated by cyclone, the miscreants entered the shop taking the unguarded situation created due to AMPHAN. The local police on investigation found the complaint as true so the IO has Final Report as True starting a case under section 379 of the IPC. In the facts and circumstances of the case the IC would have started the case under section 453/379 of IPC; Putting section by the understanding of the police can not be conclusive or sacrosanct. The surveyor, noted in his report about the breaking of padlock by the miscreants.After bare perusal of the FIR and investigation report it is clear that theft took place after entering of exist from the door of shop, it is clear that theft took place from shop which falls under the definition of house breaking.
In the facts and circumstances , it was clear cut case of house breaking ie, burglary. As the house breaking falls within the definition of burglary and theft took place in complainant shop by house breaking. Hence, it is clear this theft falls within the definition of burglary and it is not justified and legal not to consider this theft as burglary by opposite party. The Hon’ble Supreme Court settled the law that the Insurance company can not repudiate a claim merely on the ground that there was a delay in intimating the insurance company about the occurrence of the theft if the FIR was lodged immediately. There was a night guard of the complainant but he could not perform his duties on the alleged time of occurrence in the circumstances arose out of the cyclonic storm AMPHAN. Thus the op-1 ought to have settle claim of the complainant. By not settling the claim of the complainant even as per report of the surveyor the op-1 has committed deficiency of service.The complainant is entitled to get Rs.5,21,517/- (Rs. Five lakh twenty one thousand five hundred seventeen) from op no-1. The complainant is not entitled to get any relief from op-2.
Both the points are decided in favour of the complainant.
Thus, the Complaint case succeeds.
Hence, it is
O R D E R E D
that the CC- 06 of 2022 be and the same is allowed on contest against OP No. 1 and dismissed ex-parte against the OP.-2.
The OP No. 1 is hereby directed to pay Rs.5,21,517/- (Rs. Five lakh twenty one thousand five hundred seventeen) and Rs.10,000/as towards litigation costs to the complainant within 45 days from the date of this order.
In default , the complainant would get simple interest @8% over the said amount of Rs.5,21,517/- after the date of expiry of said 45 days till realization.
Let a copy of this judgment be supplied to the complainant and Ops free of cost.
