The titled firm aggrieved at the repudiation of its 'theft-claim' has filed the present complaint (through its proprietor Ajay Kumar) arraying the titled Insurance Company (the OP1) and the titled Bank (the OP2) as the opposite parties praying for issuance of appropriate directives to them to settle the impugned 'theft-claim' @ its full amount of Rs.4,00,000/- (Rupees Four Lac only) along with interest @ 18% P.A., besides Rs.10,000/- as cost and compensation.

2.       The complainant firm has been engaged in fabrication of Gates, Grills and Windows and had availed of cash credit working capital loan of Rs.8 Lac from the OP2 Bank against the primary security of stocks of current assets viz: raw materials, under work-in-process and finished goods besides fixed assets of Furniture, Fixtures, Plant & Machinery etc. The OP2 Bank had got the borrowing firm's assets (stocked at its Works at village Behri Bajurag, Ferozepur Kalan Pathankot) insured from its tie-up associates the OP1 insurers and used to pay insurance-premium from the firm's account.

3.       The above arrangement worked well till the year 2012 when the firm did shift its works to nearby village Kanpur near Defense Road and informed of the shifting of its works to the OP2 Bank orally as well as in writing. The OP2 Bank did change complainant firm's change-in-address in its records but somehow ignored/overlooked to get the change recorded with the OP1 insurers. However, the said lapse on the part of the OP2 Bank could only be uncovered/noticed in the year 2015 and that too at the incident of 'theft' of one computerized welding set and stocks worth Rs.4.0 Lac from the firm's new premises at village Kanpur, on the night of 6/7 October' 2015, as got duly recorded vide FIR # 65, with the police.

4.       The OP1 insurers upon receipt of the theft-claim had deputed its Surveyor (to assess the theft-loss etc) and who reported no theft-occurrence and/or loss at the insured premises at Ferozepur Kalan Village and the stocks stolen from the Kanpur village site were not insured, qua the related policy. On the strength of the Surveyor's above report, the OP1 insurers refused/repudiated the complainant's theft-claim, for no default on its part. It has been the duty of the OP2 Bank as well as the OP1 insurers to have checked the presence of assets at the insured premises/ site before renewal of insurance every year but both have been renewing the insurance year after year in the most mechanical fashion sans checking/inspection/confirmation of goods at the recorded site of the borrowing firm/complainant. That amply proves deficiency in service on the part of both the opposite parties hence the present complaint seeking the above reliefs. The complaining firm has also filed the hereunder listed documents, in support of its prosecution as:

i)   Ex.C1 – Affidavit of the complainant;

ii)  Ex.C2 – Basic Report U/s 154 of the CRPC;

iii) Ex.C3 – Reporting of theft to the SHO PS Shapurkandi;

iv) Ex.C4 – Policy Cover Note;

v)  Ex.C5 – Letter (12.10.2015) by the OP2 Bank to the OP1 insurers intimating theft;

vi) Ex.C6 – Report of theft to SHO PS Shahpurkandi;

vii) Ex.C7 – Bank's certificate 06.03.2017 stating change of works by the complainant;

viii) Ex.C8 – Repudiation Letter 24.10.2016; 

ix)   Ex.C9 -  Statement of Loan A/c.

5.       The OP1 insurers upon summoning appeared through counsel and filed the written reply stating therein the preliminary as well as other (on merits) objections as:  That, the present complaint is not maintainable as in the theft-claim assessed loss of Rs.2,50,200/- has been alleged whereas the Co.'s Surveyor & Loss Assessor Rajeev Sharma has assessed the net payable loss in terms of the policy @ Rs.45,000/- as per average clause. Further, M/s S A Investigating & Consulting Agency has reported that 'no-claim' was payable as the business place of the alleged theft was not insured by the OP1 insurers. Thus, the theft -claim has been rightly repudiated. On merits, also the OP1 insurers have stuck to its prime reason of rejection of claim that the change in business premises was never reported to them either by the complainant or by the OP2 Bank and thus the complaint deserves to be dismissed, against them. The OP1 have filed the listed documents to support its defense.

          i) Ex.OP1/1 – Affidavit of Karam Singh Sr. Div. Manager;

          ii) Ex.OP1/2 – Statement U/s 154 CrPC

          iii) Ex.OP1/3 – Query letter by the OP1;

          iv) Ex.OP1/4 – Report S A Investigating Agency;

          v) Ex.OP1/5 - Report of Rajeev Sharma Surveyor & Loss Assessor.

6.       Similarly, the OP2 Bank upon summoning appeared through its counsel and filed the written reply stating therein the preliminary as well as other (on merits) objections as: That the complaint is not maintainable in the present form as no cause of action has ever arisen in his favor and the firm has not come to the court with clean hands. On merits, the OP2 Bank has denied that the complainant firm did shift its premises under the Bank's notice/knowledge and/or intimation etc. No change of address was ever advised to the OP2 Bank. Lastly, the complaint has been addressed as false, frivolous, without merits and deserves dismissal with costs, in the interest of justice. The OP2 Bank has filed its lone affidavit Ex.OP2/1 by its Manager Sh.Parshant Kumar in prosecution of its defense.

7.        We have carefully examined the documents/evidence produced on record (along with the scale and scope of ‘adverse inference’ for those ignored to be produced) in order to determine the respective ‘claims’ as pleaded forth by the opposing litigants in the light of the arguments as advanced by their respective learned counsels representing their respective sides.

8.       We observe that the OP1 insurers have been renewing the insurance policy of the borrowing firm year after year at the instance of the OP2 Bank but never cared to inspect the financed assets at the recorded address that exhibits gross-negligence at their end amounting to deficiency in service on the part of both the opposite parties. The OP2 Bank has miserably failed to prove that the complainant/borrowing firm never intimated them of its shifting to new place of business from village Ferozepur Kalan to village Kanpur and thus they in turn could not get the insurance corrected at the end of the OP1 insurers. We find that the complaining firm's bank account statements post 2012 year do exhibit their new  village Kanpur address and that amply proves that the OP2 Bank were duly advised/had notice of the changed address of the complainant firm. Further, we observe that the OP1 insurers had been renewing the insurance policy pertaining post 2012 year sans site-inspection as well as presence of the bank-financed assets that again exhibits gross negligence coupled with dereliction of duty. Interestingly, the OP2 bank has not produced any cogent evidence in support of its pleadings and in absence of the same these are just bald statements. We also observe that the OP1 insurers have neither filed the requisite affidavits of its Surveyor cum Loss Assessor and nor of its investigators M/s S A Investigating Agency and in absence of these the related reports stay back as inadmissible in the proceedings.    

9.       In light of the above findings as manifested during the present proceedings and in the absence of direct non-rebuttal of the complainant firm's assessed theft-loss @ Rs 4 Lac we partly allow the present claim and thus ORDER the opposite parties to pay the theft-claim @ its filed amount, in full, along with interest @ 6% PA w.e.f. the date of filing of the complaint till paid in totality besides to pay the lump sum amount of Rs.10,000/- as cost of litigation and compensation within 45 (forty-five days) of the receipt of certified copy of these orders otherwise the aggregate amount shall attract an additional interest @ 3% PA with effect from the date of orders till actual payment. Both the opposite parties shall be jointly and severally liable to pay compliance to the present orders.                                             

10.      The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.

11.      Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.           

                                                          (Naveen Puri)

                                                                 President.

ANNOUNCED:                                (B.S.Matharu)

AUG. 10, 2022.                                          Member.

YP.