West Bengal

Paschim Midnapore

CC/90/2012

Sri Brajagopal Ghosal - Complainant(s)

Versus

The Manager, The New India Assurance Co. Ltd. - Opp.Party(s)

27 Sep 2013

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

 

 Complaint case No.90/2012                                                         Date of disposal: 27/09/2013                               

 BEFORE : THE HON’BLE PRESIDENT :  Mr.Sujit Kumar Das.

                                                      MEMBER :  xxxxxxxxxxxxxx

                                                      MEMBER :  Mr. Kapot Chattopadhyay.

    For the Complainant/Petitioner/Plaintiff : Mr. S. Bhattacharya. Advocate.

    For the Defendant/O.P.S.                           : Mr. M. K. Chowdhury Advocate.

          

Sri Brajagopal Ghosal S/o-late Sudhir Ghosal, proprietors of SARBAMANGALA UDYOG at  Deluli, P.O. & P.S.-Belda, Dist-Paschim Medinipur………Complainant.

                                                              Vs.

1. The Manager, The New India Assurance  Co. Ltd., Kharagpur Br., Inda, P.O.-Kharagpur, P.S- Kharagpur(L), Dist- Paschim Mednipur
2. The Divisional Manager, The New India Assurance Co. Ltd., Divisional Office at Haldia, P.O.-Khajanchak, P.S.-Durgapur, Dist-Purba Mednipur
3. The Manager, State Bank of India, Thakur Chak Br. P., P.O. & Vill-Thakur Chak,  

      Dist-Paschim Medinipur ………Ops.

                       The case of the complainant, Sri Brajagopal Ghosal, in short, is that he runs a business in the name and style of Sarbamangala Udyog under self-employment scheme on loan from S.B.I., Thakurchak Branch Op No.3.  The complainant maintains his godown  having stocks of 1312 quintals of Swarna Paddy, 481 quintals of Badsabog paddy, 305 quintals Husk, 218 quintals of Sesame (till) and 857 quintal of Sankar rice as on 2/04/2011.  The entire stocks of the business was under a valid Insurance Policy Certificate being its no.512602/46/10/04/00000557, w.e.f. 29/09/2010 to 28/9/2011 against sum assured Rs.54,00,000/- (Fifty four lakhs) only.  The complainant stated in his case that he remained away from his business place from 1/3/2011 to 3/3/2011.  During his absence there was a theft taken place in his godown.  It was detected on 4/3/2011 that huge amount of rice i.e. 600 sacks of rice and 300 sacks of till was stolen exceeding its worth of Rs.15,20,505/- (Fifteen lakhs, twenty thousand five hundred five) only.  Information was made to the local P.S.  After investigation charge-sheet was submitted being its no.38/2011.  Simultaneously theft case was reported to the S.B.I., Thakurchak Branch.  Upon this alleged loss,  

Contd………………..P/2

                                                                                                  - ( 2 ) -

the complainant submitted his claimed on 7/3/2011 and one Bararia and association was appointed by the Insurance Company Op no.1.  Accordingly, Bararia and association made inspection and submitted a survey report dated 20/08/2011.  After that, the complainant on several occasions pursued the Op/Insurance Company for settlement of his claim.  After laps of time, the Op/Insurance Company issued a letter dated 19/3/2012 asking the complainant to submit purchase register, sale register together with receipt being cash memo etc.  It is alleged by the complainant that he already submitted all those relevant documents and in spite of that Op issued the aforesaid letter only to delay the settlement of claim.  Being harassed by the Op no.1 Insurance Company in various manner, the complainant filed this case with the prayer for an award of Rs.15,20.505/- (Fifteen lakhs twenty thousand five hundred five) only against the Op no.1 insurance Company and further Rs.50 000/- (Fifty thousand) only for compensation against the Op/Insurance Company on account of their deficiency in service and also litigation cost of  Rs.10 000/- (Ten thousand) only.

                   The Op. no.1 Insurance Company contested the case by filing W/O challenging that the case is barred by limitation and the same is not maintainable for want of cause of action.  It is very categorically denied that burglary of above 900 bags is not possible at one night because of those huge amounts of goods needs five trucks to be removed from the godown to any outside area far away from the of occur area.  It is unbelievable.  The surveyors report is doubtful.  According to Op no.1, night watchman or security guard should be deployed in the godown where goods valued more than Rs.45,00,000/- (Forty-five lakhs) only.  Thus, the case of burglary is false in to with a bad motive for illegal claim against the Op.and thereby the case should be dismissed.

                   Op. no.3 S.B.I. denied the case of burglary.  The complainant is bound by the loan agreement.  Thus, it is claimed by the Op no.3 that the bank is not responsible for any claim of the complainant as in the case.

Decisions with Reasons

                    The complainant, has in order to prove his case, gave evidence as PW-1 and submitted certain documents namely Xerox copy of policy, claim form, charge sheet, seizure list, zimbanama and some other letters on admission of Op.  Besides, original money receipt issued from a hotel of Jaga Balia Lodge, Puri, Railway ticket for journey from Puri to Belda showing 02/03/11 as date of Journey. FIR dated 4/3/2011. Statement dated 7/3/2011 furnished by the complainant before the Op/Insurance Company claiming Rs.15,64,500/- (Fifteen lakhs sixty four thousand five hundred) only. Letters issued by Op no.1 Insurance Company dated 20/12/2011 and 19/3/2012. Advocate’s letter dated 28/3/2012. Letter dated 28/6/2012 issued by Branch Manager. Referring those documents, the complainant as PW-1 has submitted Chattered accountants Assessment report in details justifying the value of loss of Rs.9,17,453/- (Nine lakhs seventeen thousand four hundred fifty three) only. Certified copy of charge sheet.  In the context of the documentary evidence, it is

Contd………………..P/3

 

- ( 3 ) -

argued by the Ld. Advocate for the complainant that there is a clear case of loss of goods out of the godown of the complainant for the cause of burglary taken place during the absence of the complainant.  No latches on the part of the complainant regarding necessary steps to be taken in respect of the alleged occurrence.  FIR was lodged. Accordingly final report has been submitted by the competent authority in support of the occurrence of burglary.  Over and above, the surveyors report has supported in favour of the complainant which should be accepted by the Forum.  The complainant maintains a valid policy at least for the purpose of indemnification of actual loss due to certain unforeseen occurrence as alleged, not intended to generate profit. In this subject the decision report in 1(2005) CPJ27(NC) has been very widely discussed by the Ld Advocate while making his argument. In such a case, it is accepted policy of the Insurance Company to accept the surveyors report for the purpose of granting the claim as the complainant prayed for in this case but the Insurance Company committed delay on the plea of settlement of claim and as such the act  from the end of the Op no.1 Insurance Company goes to amount their deficiency in service.  Thus, the Forum should come to the conclusion that the complainant suffered huge loss of materials due to burglary which covers the terms and conditions of the policy maintained by the complainant and similarly the claim was not merited to be a subject to repudiate by the Op/Insurance Company.

                     Ld. Advocate for the Op/Insurance Company in reply submitted that it is not a fit case to believe that huge quantum of paddy was taken away easily at a night.  Moreover, there is no purchase documents to show the actual stock to convince the Forum to believe that the godown was retaining with those materials as claimed by the complainant.  Moreover, proper valuation was not assessed by verification of the documents by the Chartered accountants namely Bararia and Associates.  So without valid documents it is not wise to accept the stocks report against the missing items.  The stock register should not be considered as a dependable record for the purpose of assessing the actual loss. Stock register is based on purchase register upon which actual difference regarding the stock of materials and quantum of loss could be assessed.  Thus, the assessment report furnished by the chartered accountants is nothing but paper work which should not be considered  to be full proof evidence for the purpose of granting claim of the complainant.  In this way, Ld. Advocate for the Op no.1 Insurance Company claims that there is no occasion to decide that the Op no.1 Insurance Company is guilty of deficiency in service.  Thus, the case should be dismissed.

                   No remarkable argument we have received from the Ld. Advocate for the Op no.3 S.B.I.

                   Considering the case and argument made by the parties it appears that the complainant sustained loss of certain quantity of rice and sesame due to burglary taken place within the days between 01/03/2011 to 3/03/2011 and the matter was detected on 4/3/2011. On the same day complainant rushed to the police station and made F.I.R being its no.38/2011 dated 4/3/2011 under

Contd………………..P/4

- ( 4 ) -

Section 461/379 IPC.  Following the F.I.R., police investigated the case and submitted charge sheet being its no.130/2011 dated 31/07/2011.  For the purpose of claim of the loss, the complainant furnished in prescribed form which has been received by the Op/Insurance Company on 7/3/2011.  Upon receipt of the claim application Op. no.1 appointed surveying-party, Bararia and associates, the chartered accountants who submitted their survey report being its no.022/2011-12 dated 20/8/2011.  This survey report is very much carefully scrutinized and it appears, ultimately, that amount of loss of Rs.13,27,955/- (Thirteen lakhs, twenty seven thousand, nine hundred fifty five) only as assessed by the team in that connection it has also been calculated that difference of stocks value at Rs.4,10.502/- (Four lakhs, ten thousand five hundred two) only based on audit report at the material point of time and the stock report as per record.  Thus, taking into account the value of difference, the survey-party made their final assessment on loss to the extent of Rs.9,17,453/- (nine lakhs seventeen thousand four hundred fifty three) only.  From the letter dated 28/6/2012 issued by the OP no.1, it appears that the survey report of Bararia and associates has been served upon the complainant. This is a very notable aspect that the report dated 28/6/2012 has taken time about ten months to be served upon the complainant from the end of Op. no.1 without any remarks or findings contradicting the final report of the report.

                     In view of the fact of the assessment report, there is no legal evidence denying the report dated 28/8/2011 of Bararia and associates nor is there any sufficient material to point out any defect or error in the said report dated 20/8/2011.

                      During the period between 20/8/11 to 28/6/2012 being the date of survey report and the date of sending the same to the complainant respectively, the Op. no.1 is found to have taken time for examination of documents.  The letters dated 14/09/2011, 20/12/2011 and 19/3/2012 so far available on record issued by the Op no. 1 demanding relevant documents from the complainant.  This conduct of the Op no.1 towards the demand of loss as claimed by the complainant amounts unnecessary delay in giving proper service to the complainant.  So there is sufficient ground to hold and decide that the allegation of deficiency in service as raised by the complainant against the Op no.1 has been established.

                       Admittedly, the date of occurrence is within the valid period of Insurance maintained by the complainant by virtue of making payment of premiums on regular basis.  Under the given facts and circumstances as discussed hereinabove it is held and decided that there is deficiency in service against the Op/Insurance Company in payment of the compensation for loss of rice and sesame due to theft taken place in the godown of the complainant as described in the F.I.R. As to the quantum of loss sustain by the complainant, the submission of Ld. Advocate of the complainant in the light of decision reported in 20/11(1) CPR 9(NC) that it is the general practice of the Insurance Company to accept the survey’s report, and that apart there is no material denial in the case of the Op/Insurance Company as they pointed out in their W/O supported by affidavit.

    Contd………………..P/5

 

- ( 5 ) -              

                    Following the discussion and decision above, we hold that the complainant should be entitled to get an award of Rs.9,17,453/- (nine lakhs seventeen thousand four hundred fifty three) only  and of Rs.30,000/- (Thirty thousand) only for compensation against the sufferings due to deficiency in service against the  Op/Insurance Company. There should be on order of litigation cost of Rs.10,000/- (Ten thousand) only payable by the Op. in favour of the complainant.

                          Hence

                                     It is ordered,

                                                          that the complaint case be and the same is allowed on contest with cost.

                            The complainant, Sri Brajagopal Ghosal do get an award of Rs.9,17,453/- (nine lakhs, seventeen thousand, four hundred fifty three) only on account of his claim for loss of goods stolen from his godown of Rs.30,000/- (Thirty thousand) only on the ground of compensation for deficiency in service and of Rs.10,000/- (Ten thousand) only for litigation cost against the Op/Insurance Company

                          Op/Insurance company is hereby directed to make payment of award of  Rs.9,17,453/- (nine lakhs seventeen thousand four hundred fifty three) only on account of loss of goods  Rs.30,000/- (Thirty thousand) only on account of compensation and  Rs.10,000/- (Ten thousand) only on account of litigation cost within sixty days from the date of petition of complaint in default, the complainant shall get 9% interest till its realizations.

   Dic. & Corrected by me.

              

         President                                             Member                                                President

                                                                                                                              District Forum

                                                           Paschim Medinipur.