Date of filing: 16.3.2016 Date of disposal: 27.02.2017
Complainant: Mahadev Mallick, S/o. Swapan Kumar Mallick, resident of Katwa Siddeswaritala, Ward No. 8, Beside Gobindo Chandra Primary School, PO: Katwa, PS: Katwa, District: Burdwan, PIN – 713 130.
-V E R S U S-
Opposite Party: 1. The New India Assurance Company Limited, represented by its Branch Manager, having its office at Kachari Road, PO. & PS: Katwa, District: Burdwan, PIN – 713 130.
2. United Bank of India, Kshirgram Branch, represented by its Manager, having its office at Kshirgram, PS: Mongolkote, District: Burdwan, PIN – 713 143.
Present: Hon’ble Member: Smt. Silpi Majumder.
Hon’ble Member: Sri Pankaj Kumar Sinha.
Appeared for the Complainant: Ld. Advocate, Suvro Chakraborty.
Appeared for the Opposite Party No. 1: Ld. Advocate, Shyamal Kr. Ganguli.
Appeared for the Opposite Party No. 2: None.
J U D G E M E N T
This complaint is filed by the Complainant u/S. 12 of the Consumer Protection Act, 1986, alleging deficiency in service, as well as, unfair trade practice against the OP-1 as the OP-1 has illegally and whimsically repudiated his legitimate insurance claim.
The brief fact of the case of the Complainant is that being the owner of a jewelry shop namely ‘Khepima Jewelers’ contacted with the OP-2 in the year 2011 for taking loan and the OP-2 agreed to provide him the same. After taking loan from the OP-2 the Complainant opened a new shop namely ‘Khemipa Jewelers’. Before opening the shop the Complainant obtained trade license from the appropriate authority. After its opening the Complainant insured his shop as well as jewelry goods with the OP-1. Upon receipt of the due premium the OP-1 issued Jeweler’s Block Insurance Policy by covering the risk of the property in the custody of the insured being the proprietor of the shop. For the year 2014-2015 the policy number was 5129024613070000003, which was valid for the period from 16.01.2014 to 15.01.2015. It is pertinent to mention that the total sum insured was for Rs.9, 50,000=00. Due to ill luck of the Complainant a robbery took place in the insured shop in the evening of 12.12.2014. The Complainant with the help of other business persons of the locality informed the matter before the Police Station, Mongolkote on the same day i.e. 12.12.2014 and the concerned police station based of such information lodged an FIR being no-288/2014 dated 12.12.2014. The Complainant also intimated the incident to the OP-2 on 15.12.2014 and the Op-1 on 15.12.2014. IT is mentioned that during robbery the Complainant was physically assaulted by the miscreants and due to this reason he was compelled to take admission at the S.D. Hospital, Katwa in the night of 12.12.2014. He got release from the said hospital on 13.12.2014. At the time of robbery the miscreants snatched jewelry, destroyed many documents so maintained by him at the shop. Upon receipt information from the Complainant the OP-1 deputed one Surveyor & Valuer, namely, Souren Chatterjee who performed his survey on 17.12.2014. At the time of survey the Complainant provided all the relevant documents along with sale and purchase records of jewelry stock. Thereafter the Surveyor sought for some documents by issuing letters date 17.12.2014 01.01.2015 to the Complainant, but the Complainant provided all such documents to the Surveyor during his survey on 17.12.2014. The Surveyor again and again continued to seek documents from the Complainant and for this reason the Complainant again on 20.01.2015 sent the entire documents to the Surveyor through speed post. The Complainant made request to the OP-1 on several occasions to settle his insurance claim, but to no effect. After a long period the OP-1 issued two letters upon the Complainant dated 24.09.2015 & 28.10.2015 seeking for the certified copy of the Final Police Report. After getting such letter the Complainant obtained the certified copy of the Final Police Report and sent the same to the OP-1 on 01.12.2015 and the OP-1 duly received the same. But surprisingly the OP-1 instead of settling the claim, repudiated the same by issuing letter dated 17.12.2015. The OP-1 had repudiated the claim of the Complainant on the ground of failure to provide sale and purchase records of jewelry stock just before the loss and violation of the policy condition no-6. After getting such repudiation letter the Complainant became surprised as he had already provided those documents to the Surveyor of the OP-1 during survey. Though the Complainant is a bonafide customer of the OP-1, but the OP-1 has repudiated his insurance claim arbitrarily and illegally, which according to the Complainant is an example of deficiency in service, as well as, unfair trade practice. As his grievance had not been redressed by the OP-1, hence finding no other alternative he has approached before this Ld. Forum by filing this complaint praying for direction upon the OP-1 to pay a sum of Rs.9, 50,000=00 to him towards insurance claim, Rs.2, 00,000=00 as compensation due to mental pain, agony and harassment and litigation cost of Rs.50,000=00 to him.
The petition of complaint has been contested by the OP-1 by filing written version contending that the Complainant obtained a policy for Jewelers Block Insurance under the name of UBI, Khirgram Account Khepima Jewellery by the proprietor, Mahadev Mallick. The policy was issued by the OP-1 which was valid for the period from 16.01.2014 to 15.01.2015 under the terms and condition as laid down under Jewelers Block Insurance Policy. An FIR was lodged by the Complainant registered with the police Station, Mangolkote being no-288/2014 dated 12.12.2014. a letter was sent to the Branch Manager, UBI Khirgram Branch on 15.12.2014 intimating the incident of robbery by miscreants resulting loss of Rs.2,40,000=00 in cash along with 3 kgs of silver and 10 vories of gold. The OP-1 immediately appointed one Surveyor & Loss Assessor Mr. Souren Chatterjee who visited the place of occurrence of incident on 17.12.2014 and requested by issuing letter dated 01.01.2015 to provide necessary documents within a period of 7 days by the Complainant. On 24.09.2015 the OP-1 requested the Complainant to provide certified copy of the Final Police Report. The Surveyor submitted report on 23.07.2015 stating that “I am in the opinion that insured failed to prove ownership of the claimed/reported lost items by providing purchase bill in Jewelers Block Insurance in condition no-6 wherein it is specifically mentioned that the insured shall keep proper stock and accounts book in which all sales and purchase are recorded. In this case the insured fails to provide the same and categorically confirmed that he is not maintaining the same which is a violation of the policy terms and conditions. Considering all above I am recommended to close the file treated as ‘No Claim’ ”. Again on 28.10.2015 the OP-1 requested the Complainant to provide certified copy of the final police report and on 01.12.2015 the Complainant forwarded the same along with copy of the FIR, charge sheet and seizure list to the OP-1 in compliance with the request. The OP-1 by issuing letter dated 17.12.2015 had repudiate the claim of the Complainant after proper verification and on the basis of the Surveyor’s report and the same was intimated the banker UBI. According to the OP-1 as the complaint is devoid of any merit the same is liable to be dismissed with cost.
The Complainant has adduced evidence on affidavit along with several documents in support of his contention and as per the prayer of the OP-1 the written version of the said OP has been treated as its evidence on affidavit. The record reveals that the OP-2 inspite of receipt of notice did not turn up and hence this complaint is running ex parte against the OP-2.
We have carefully perused the record; documents and papers submitted by the contesting parties and heard argument at length advanced by the Ld. Counsel for the parties. It is seen by us that there are some admitted facts in the case in hand i.e. the Complainant obtained Jeweler’s Block Insurance Policy from the OP-1 covering the property of his shop namely Khepima Jewelers, the policy was valid for the period from 16.01.2014 to 15.01.2015, for such business the Complainant took financial assistance from the OP-2, the policy was issued in the name of the OP-2, stock was maintained by the Complainant with the OP-2, sum insured was of Rs.9,50,000=00, on 12.12.2014 during the validity of the said policy robbery took place in the shop of the Complainant, matter was intimated to the Mongolkote Police station on 12.12.2014, FIR lodged, the OP-1 and the OP-2 was intimated on 15.12.2014, surveyor was appointed by the OP-1, the Complainant lodged the claim form along with the relevant papers and documents with the OP-1, survey was made by the Surveyor, certified copy of the Final Police Report was sought for by the OP-1, the same was provided accordingly, several request was made by the Complainant to settle his legitimate insurance claim, the claim of the Complainant was repudiated by the OP-1 by issuing repudiation letter dated 17.12.2015 based on the Surveyor’s report stating that the Complainant has violated the policy term and condition no-6 as he did not submit the sale and purchase register. The allegation of the Complainant is that the OP-1 has repudiated his insurance claim illegally and arbitrarily, which reveals the deficiency in service, as well as, unfair trade practice on the part of the OP-1 and for this reason by filing this complaint he has prayed for certain reliefs. The contention of the OP-1 is that the claim papers of the Complainant was duly processed and it was noticed by the OP-1 as well as the Surveyor that as the Complainant has violated the terms and conditions of the policy, he is not entitled to get any amount towards his insurance claim. It is further submitted by the OP-1 that as during taking out the policy the Complainant and this OP have put their signature, hence the terms and conditions of the policy are binding upon the parties. According to the OP-1 as the Complainant did not bother to abide by the policy terms hence he cannot get any relief as sought for and moreover repudiation of any claim cannot be termed as deficiency in service on the part of the Insurance Company because the information of repudiation was duly been intimate to the Complainant by issuing letter.
Be it mentioned that within the four corners of the petition of complaint no allegation has been made out by the Complainant against the OP-2 and no relief has been sought for from the said OP. Upon careful perusal of the complaint and other related papers it is evident to us that there is no deficiency in service on behalf of the OP-2 from which the Complainant obtained financial loan for opening his business and as the property was mortgaged with the OP-2, hence the policy was issued in the name of the OP-2. Therefore we are inclined to dismiss this complaint against the OP-2 without any cost.
Now we are to see as to whether there is any deficiency in service on behalf of the OP-1 or not. Admittedly the insurance claim of the Complainant was repudiated by the OP-1 by issuing repudiation letter date 17.12.2015 based on the Surveyor’s report wherein it is observed that as the Complainant has violated the terms and condition no-6 of the concerned policy, hence he is not entitled to get any amount towards his insurance claim. The Ld. Counsel for the OP-1 has attracted our notice to the said terms of the policy and we have noticed that it is mentioned therein that ‘the insured shall keep proper stock and account books in which all sales and purchases are recorded. The insured shall also maintain a separate register for deposit and withdrawals of stock from bank/private locker.’
It is seen by us that the Surveyor Mr. Souren Chatterjee by issuing letter dated 01.01.2015 to the complainant sought for purchase documents i.e. bills etc. of lost articles (from 01.4.2014 to up to date), and stock sells and purchase register from 01.4.2014 to 12.12.2014. In connection with this letter the complainant has submitted that the same was transmitted to the Surveyor but no evidence is adduced by the complainant to satisfy us that actually the Surveyor received those documents from the complainant. During argument the complainant has submitted that by filing one Misc. Application the complainant produced from the OP-2 in respect of stock sells and purchase reregister, but we have noticed that the said documents show the transaction till 05.12.2014, not 12.12.2014 on the date when robbery took place at the insured’s shop. The complainant has further submitted that during robbery several documents were snatched by the miscreants and some documents were also destroyed by the said persons. Hence, it is not possible for him for production of the sell and purchase register of the required date i.e. 12.12.2014. In this connection the ld. Counsel for Op-1 has attracted the copy of the FIR along with the seizure list. It is seen by us that there is no story in the copy of FIR, as well as, in the seizure list that the sell and purchase register was destroyed /misplaced by the miscreants. As no allegation has been made out before the concerned police authority by the complainant in respect of stock sells and purchase register from 01.4.2014 to 12.12.2014, hence it is not possible for us to come to a conclusive conclusion that those documents were snatched or destroyed by the miscreants. Such submission reveals that the complainant had failed to submit the documents as required by the Surveyor. Moreover, the complainant was directed to submit the Final Police Report, charge sheet to the OP-1 before settlement of the claim and from where it was evident that the complainant did not possess any sell and purchase register on 12.12.2014. As it is earlier mentioned that in connection with the policy condition no. 6 that the insured shall keep proper stock and account books in which all sells and purchases are recorded and the insured shall also maintain a separate reregister for deposit and withdrawal of stock from bank/private lockers, as the complainant inspite of accepting the said terms of the policy has willfully violated, hence his claim was repudiated by the OP-1. There are several judgments passed by the superior court wherein it has been held that in case of violation or breach of any terms and conditions of the policy, repudiation cannot be termed as deficiency in service. Therefore, in our view the repudiation as made by the Op-1 cannot be an example of deficiency in service on its part.
In support of the contention the OP-1 has relied on some rulings i.e. 2015 (1) CPR 821 (NC) and 2016 (4) CPR 215 (NC). Upon perusal of the said ruling it is seen by us that Their Lordships have held that report of Surveyor has to be given due weightage and it has much evidentiary value. In our view it is the settled legal proposition that report of the Surveyor cannot be brushed aside without assigning proper reason. In respect of these rulings the ld. Counsel for the complainant has submitted that as the report of the Surveyor has not been filed on affidavit, hence the same cannot be given due weightage and the same does not possess evidentiary value. We got much substance in the submission of the complainant. Inspite of this it is clear to us that as the complainant have violated the terms and condition no. 6 of the concerned policy, the complainant is not entitled to get any insurance claim from the OP-1. As the complainant has failed to prove that there is deficiency in service on the part of the OP-1, he is also not entitled to get any compensation as sough for. Hence the complaint fails.
Going by the foregoing discussion, hence it is
O r d e r e d
that the Consumer Complaint being No. 41/2016 is dismissed on contest against the OP-1 and ex parte against the OP-2 without any cost.
Let plain copies of this order be supplied to the parties free of cost as per provisions of law.
Dictated and corrected by me.
(Silpi Majumder)
Member
DCDRF, Burdwan
(Pankaj Kumar Sinha) (Silpi Majumder)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
