This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainant that the complainant is a proprietor of a shop namely M/S. Sri Guru Strores, situated at Vill.-Babuganj, Tamil Para, P.O.&P.S.-Chinsurah, Dist.- Hooghly, Pin.-712101 and the complainant has cash credit account in SBI, Chinsurah branch vide no.11055447114 SBI Chinsurah branch time and again approached and influenced the complainant to take SBI General Insurance Policy for smooth running of the business opposite party no. 2 has introduced the complainant to opposite party no. 1 and after consulting with opposite party no. 1 complainant purchased a policy from SBI General Insurance Co. Ltd. bearing policy no. 4979627 and the said policy is a package Insurance policy which has covered the business of the complainant and the opposite party no. 1 has issued this policy to the complainant on 23.09.2016 and the issuance period is continuing till 19.09.2017 and the said policy period a theft took place in the said shop on 7.11.2016 and the complainant informed the matter to the Chinsurah P.S. and Chinsurah P.S. started a case vide case no. Chinsurah P.S. Case No. 546/16 dt. 8.11.2016 u/s 461/379 I.P.C. and thereafter complainant communicated the matter to opposite party nos. 1 and 2 and opposite party no. 1 stated that S.B.I. General Insurance Company deputed one Surveyor namely Mr. Kalyan Chakraborty in connection of this incident and said Kalyan Chakraborty asked the complainant to deposit some papers and documents relating to the incident and after that the complainant on 9.12.2016 by virtue of registry post sent some documents such as copy of F.I.R., list of stolen item, copy of Balance Sheet for the year 31.03.2016, copy of Tax payment receipt issued by local municipality, copy of loan sanction letter, copy of transaction statement for last 6 months, copy of stock statement claim from and inspite of receiving of those documents by Kalyan Chakraborty on 13.12.2016 but no fruitful result has come out till date and on 20.01.2017 opposite party no. 1 sent a letter to the complainant stating that the claim is duly processed by them for full and final settlement but as per policy statement net claim payable to the complainant is very meager and there is a hell an heaven difference between the reality and there net claim payable amount and the net claim amount payable by the opposite parties are Rs. 8,514.00/- and actual loss of the complainant mentioned in the petition is Rs. 20,000/- so the complainant will be highly prejudice if there net claim payable amount has been accepted by him and the complainant communicated his unwillingness over phone in connection of the letter send by opposite party no. 1 and also asked opposite party to consider total loss sustained by him but opposite parties do not pay any heed thereof and finding no other alternative complainant send an Advocate letter through his Advocate on 4.02.2017 and on 17.02.2017 opposite party no. 3 send a reply to the Advocate of the complainant stating that they hereby call upon the complainant to withdraw legal notice unconditionally with immediate effect but the complainant did not agree with opposite party no. 3 and as claim amount of Rs. 20,000/- has been denied by the opposite partied and as the claim amount of Rs. 8,514.00/- has been annexed by the opposite parties the complainant has been depriving of from getting the sufficient service from the opposite parties and the cause of action of this case arose on 7.11.2016 and aggravated on 20.01.2017 and still continuing.

            Complainant filed the complaint petition praying directions upon the opposite party to pay sum of Rs. 20,000/- for damages which has been caused due to theft and to pay a sum of Rs.20,000/- for litigation cost and to pay a sum of Rs. 20,000/- for mental agony and anguishment and to give any other equitable relief or reliefs.

            The opposite party Nos. 1 and 3 contested the case by filing written version denying inter-alia all the material allegations as leveled against them. These opposite parties submit that the claim was due to an incident of burglary and the insured filed a complaint with police for theft of Rs.20,000/- and the insured failed to substantiate the claim amount through requisite documents and he was offered full and final settlement as per licensed Surveyor’s FSR which he did not agree to and the opposite party nos. 1 and 3 reviewed the file and there was no scope to accede to customer’s demand and he was provided with a detailed communication explaining the basis of settlement which may be found exhaustive and quite self-explanatory and as the file could not be kept open indefinitely it was closed keeping bank informed and there is no scope for any revision in the assessment and more importantly the Insured kept on demanding Rs.20,000/- but he did not substantiate it nor the Surveyor was convinced as to the quantum of the loss and the above fact was duly communicated to the complainant by the opposite party nos. 1 to 3 vide its letter dt. 9.2.2017 and thereby opposite party nos. 1 to 3 thus closed the file from their end with is as per law and equity for which opposite party nos. 1 to 3 have cause no deficiency in service alleged and opposite party Insurance Company relies upon the judgment laid down by the Hon’ble Supreme Court in the judgement of Ravneet Singh Bagga v. KLM Royal Dutch Airlines (2000) 1 SCC 66 wherein the Hon’ble Supreme Court laid down that the test of deficiency in service lay in the complainant lay in the complainant providing that there was some fault, imperfection, shortcoming or inadequacy in the manner of the Insurance Company and further such fault etc must be willful and more importantly the Hon’ble Supreme Court has held that where there is a bona fide dispute between parties and where the service provider has after considering all the material with them and the relevant facts has acted in a particular manner, then such acts will not amount to deficiency in service as stated in column 12, 13, 14, 15 and 16.

            Opposite party nos. 1 to 3 also states that the deficiency of service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to  any service and the burden of proving the deficiency in service is upon the person who alleges it and the complainant has on facts been found to have not established any willful fault, imperfection, shortcoming or inadequacy in the service of the respondent and the deficiency in service has to be distinguished from the tortures acts of the respondent and in the absence of deficiency in service the aggrieved person may have a remedy under the common law to file a suit for damages but cannot insist for grant of relief under the ACT for the alleged acts of commission and omission attributed to the respondent which otherwise do not amount to deficiency in service  and in case of bona fide disputes no willful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in the service can be informed (sic) and if on facts it is found that the person or authority rendering service had taken all precautions and considered all relevant facts and circumstances in the course of the transaction and that their action or the final decision was in good faith, it cannot be said that there had been any deficiency in service and if the action of the respondent is found to be in good faith, there is no deficiency of service entitling the aggrieved person to claim relief under the ACT and the rendering of deficient service has to be considered and decided in each case according to the facts of that case for which no hard and fast rule can be laid down and inefficiently lack of due care, absence of bona fides, rashless, haste or omission and the like may be the factors to ascertain the deficiency in rendering the service.

            Opposite party nos. 1 to 3 also states that as per Section 11 of C.P. Act, 1987 inter alia, provides as follows:

“(2) A complaint shall be institute in a District Forum within the local limits of whose jurisdiction, -

1. The opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personality works for gain; or
2. any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or voluntarily resides or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given or the opposite parties who do not reside, or carry on business or have a branch office or personally work for gain as the case may be, acquiesce in such institution; or
3. The cause of action, wholly or in part, arises.

and the complainant did no fulfill the above conditions and by suppressing the actual material facts and with malafide intention only to gain illegally filed the above petition before the ld. Forum and in the above premises the complaint case is liable to be dismissed with costs for the lack of jurisdiction otherwise these opposite party nos. 1 and 3 will suffer irreparable loss and injury.

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

           Despite receiving notice opposite party no. 2 did not turn up. So, the proceedings runs ex parte against opposite party no. 2 vide order dt. 9.12.2019.

           Complainant and opposite party nos. 1 and 3 filed written notes of argument. The evidence on affidavit of complainant and written notes of argument of both sides are taken into consideration for passing final order.

     Argument as advanced by the complainant and the agent of opposite party nos. 1 and 3 heard in full.

    From the discussion herein above, we find the following issues/points for consideration.

Issues/points for consideration

1. Whether the complainant is the consumer of the opposite party or not?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3. Whether there is any deficiency of service on the part of the opposite party?
4. Whether the complainant is entitled to get relief or not?

DECISIONS WITH REASONS

All the points are taken together for easiness of the discussions of this case.

1. In the light of the discussion hereinabove and from the materials on record, it transpires that the complainant is a Consumer as provided by the spirit of Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986, the complainant herein is a consumer of the opposite party.
2. Both the complainant and the opposite party are residents/having their office addresses within the district of Hooghly. For mental agony and other expenses which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
3. Complainant in his written notes of argument stated that he has a cash credit account in SBI, Chinsurah Branch. After consultation with the opposite party no. 1 the complainant purchased a policy from SBI General Insurance Company Ltd bearing policy no.4979267. It is a package insurance policy that covered the business of the complainant. During the policy period a theft took place in the shop of the complainant on 7.11.2016. On the basis of the complaint lodged by the complainant Chinsurah P.S. started a P.S. case no. 546/2016, u/s 461/379 IPC. Complainant also communicated the matter to the opposite party no. 1 and 2 on 20.1.2017. Opposite party no. 1 by sending a letter informed the complainant that the claim is duly processed by them for full and final settlement. According to the complainant, actual loss is Rs. 20,000/- but the opposite party no. 1 paid a sum of Rs. 8,514/-. The opposite party no. 1 deputed one Mr. Kalyan Chakroborty as surveyor who on his turn asked this complainant to deposit some papers and documents relating to the incident. After getting the said papers opposite party no. 1 informed this complainant through letter dt. 20.1.2017 that his claim is duly processed by them. According to this complainant that the opposite parties are completely deficient in providing service and committed unfair trade practice.

Opposite party nos. 1 and 3 in their written notes of argument averred that the complainant obtained an insurance coverage from the opposite party nos. 1 and 3 to cover the risk of loss and by virtue of such policy the opposite party nos. 1 and 3 undertook to indemnify the loss to the complainant during the period of such coverage. Facts remains that the claim was due to an incident of burglary. The insured filed the complaint with police for theft of Rs.20,000/- but the insured failed to substantiate the claim amount through requisite documents. He was offered full and final settlement as per license to surveyor FSR which the complainant did not agree. Then the opposite party nos. 1 and 3 reviewed the file and there was no scope to accede the customer’s demand. As the file could not be kept open indefinitely it was closed keeping bank inform and there is no scope for any revision in the assessment. But the complainant kept on demanding Rs. 20,000/- but he neither substantiate it nor the surveyor was convinced as to the quantum of the loss. The opposite party nos. 1 and 3 assailed that there is no deficiency on the part of insurance company and relied the judgement of Hon’ble Supreme Court in Ravneet Singh Bagga vs. KLM Royal Dutch Airlines (2000) 1 SCC 66. Hon’ble Supreme Court held that where there is a bona fide dispute between parties and where the service provider has after considering all the material with them and the relevant facts has acted in a particular manner then such acts will not amount to deficiency in service. The answering opposite party further assailed that the complainant failed to make the issuing office as necessary party in this case. Opposite party no. 1 and 3 had no branch office or carries on business or personally works for gain within the territorial jurisdiction of this Forum. And prayed to dismiss the case for lack of jurisdiction.

After perusing the complaint petition it appears that complainant has grocery shop and that has been insured before the opposite party no.1, Insurance Company after paying the insurance premium but no premium receipt filed in the case record. However, the opposite party admitted the insurance before them. The complainant alleged that a theft took place on 7.11.2016 and the complainant immediately lodged a police complaint before the Chinsurah P.S. and on the basis of that complaint Chinsurah P.S. started a P.S. case no.546 of 2016 dt. 8.11.2016, u/s-461/379 IPC treating the written complaint as FIR. Subsequently, the complainant informed the incident of theft to the opposite party Insurance Company who on their turn appointed investigator to assess the loss. Complainant in his police complaint stated that the loss for theft is Rs.20,000/- and he subsequently claimed the said amount from the opposite party. Opposite party vide letter dt. 20.1.2017 informed this complainant to settle the claim of the complainant. Letter dt. 20.1.2017 of the opposite party Insurance Company speaks that they deputed Mr. Kalyan Chakroborty an independent and licensed surveyor who inspected the premises of complainant and carried out the survey on 13.11.2016. Therefore, the deputed surveyor sought certain documents towards substantiation of the claim. But the complainant furnished very few documents against his claim. The company in receipt of final survey report along with enclosures from the concerned surveyor who has recommended a net liability in terms of the policy based on his physical findings and records have submitted by the complainant. In the tabular form it is described that the gross assessed loss is Rs. 20,000/- and net claim payable is Rs. 8,514/-. After a deduction in different heads including less 10% for non documentation. So, the complainant is debarred from getting the whole loss following the reports of surveyor. This Forum/ Commission upon perusing the case record hold that the complainant suffered the loss amounting to Rs. 20,000/- for theft in his grocery. The said grocery shop was insured during the period of occurrence of theft. Although the surveyor deputed by the opposite party assessed the loss amounting to Rs. 20,000/-. Then why his meager claim has been deducted on lame excuse for which the complainant filed the instant complaint before this Forum praying directions as incorporated in the prayer portion of the complaint petition.

Upon the above observation this Forum/Commission is in the opinion that the claim of the complainant is meager and not exorbitant and the said loss also been admitted by the opposite party. So, there is no hesitation to allow the claim of the complainant which is suffered for theft. This Commission leans in favour of the claim of the complainant. As such the complaint petition is deserved to be allowed with cost and interest in the form of compensation.

Hence, it is ordered that the complaint case being no. 88 of 2017 be and the same is allowed on contest with a litigation cost of Rs. 8,000/- against the opposite party  nos. 1 and 3 and dismissed against the opposite party no. 2.

            The opposite party nos. 1 and 3 are directed to pay Rs. 20,000/- as loss amount, if not paid Rs. 8,514/- if the complainant received Rs. 8,514/- then he is entitled to get remaining (Rs. 20,000/- Rs.8,514/-) Rs. 11,486/- along with interest @ 10% since 20.01.2017 within 45 days from the date of passing this order.  

At the event of failure to comply with the order the opposite party shall pay cost @ Rs. 50/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.

Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.