FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay    President.

Brief fact of this case:-This case has been filed U/s. 12 of the Consumer Protection Act   1986 by the complainant stating that the complainantis bona fide customer/policy holder of OPno.1 taking policy from more than last 20 years and renewing the same time to time.  Accordingly your petitioner has renewed the said policy being no.0307041217p118844078 after paying applicable premium covering risk of store-cum office for Rs.65  00  000/- only (Rs.60  00  000/- for electronic & electrical goods & Rs.5  00  000/- for Furniture   fixtures & fittings) as disclosed herein.  The said policy is valid for the period from 30-March 2018 to 29-March -2019 and on or about 02 April 2018 (after midnight of 01^st April 2018) some miscreants entered into office of the petitioner from wrong side cutting window s iron grill and broken iron safe taken away Rs.3  00  000/- approx. 7 pcs of laptops worth Rs.1  27  615/- and pen drives 161 pieces worth about Rs.78  300/- only.  The miscreants has also damaged office furniture   table and side desk   almirah etc and destroyed some documents and in this regard a written complaint has been lodged by Mr. Rajive Kumar Gupta one of the director of the petitioner/complainant at Bowbazar police station vide FIR no.101 dt.02.04.2018 and GD no.137 dated 02.04.2018 u/s. 380 IPC and it came into notice of the complainant that in typing the complaint letter to the police in hurry incomplete address/spot of the occurrence was put incomplete therein.  But soon after lodging FIR   the attention of police officer concern was drawn towards this error of address and to make it correct the FIR a letter by the complainant was written on dated 07 April 2018 to the Addl. & Jt. Addl. C.P Lalbazar   requesting direction upon O/C Bowbazar PS.

On the other side the incident was also informed to the OPno.1 over phone and by email requesting to lodge the complaint and send surveyor/investigator to visit the spot and assess the loss.  On receiving the complaint the OP no.1 informed over phone that no surveyor is available on that day and stated to send surveyoron the next day (i.e. on 03.04.2018) and accordingly one surveyor visited to spot/complainant s office at 80/81 Bentinck  Street   Kolkata-700001   surveyed theloss   took spot photos and CCTV footage with other necessary documents which he needed except FIR because the copy of FIR was yet dues to receive from Bowbazar police station.  The said surveyor gone away asking to send him copy of FIR as soon as it is received from police station   which was sent by the complainant/petitioner to him later along with a written claim from and complaint letter to OP no.1 lodge claim and the surveyor neither came to your petitioner s office nor needed to contact further regarding any query/or clarification and submitted his report to the OP no.1 without assessing any loss and the complainant received the final report true of the police through ;the Ld. Court and obtained certified copy there of which was sent to the Branch Manager   OPno.1 vide letter dt.28^th February 2019 with a copy to his Howrah Divisional Manager  (on 25.03.2019) and later we also received the copy of the said F.R.T from the   Commissioner of Police   Lalbazar   Kolkata vide his letter dated 11.03.19 through speed post and in reply to the said letter we received repudiation letter dated 25.03.2019 from the OP no.1 stating that   Your premises no.80   Bentinck Street   Kolkata under policy schedule the location covered is 80/81   Bentinck Street.  The said loss location is not covered in the above policy.  Hence we are unable to honour your claim   and the complainant is much astonished that before receiving the FRT of the police   how the OP no.1 has repudiated the claim whereas the policy location as stated in the policy schedule is correctly stated in the FINAL POLICE REPORT.   It is very clear that the; views and intention of the OP no.1 is not good and he has already planned to repudiate the claim for the reason best known to him and letter the complainant tried to explain the same to OP no.1 but he refused to hear anything more.  Alternatively the complainant wrote letter the REGIONAL MANAGER herein called OP no.2 on dated 23.03.2019 and repeatedly on dt.25.04.2019.  Thereafter the complainant received  a letter through email from the Dy. Manager   Customer Care stating that he is looking the matter and will solve as soon as possible.  After this the complainant met the said Dy. Manager and met him personally to explain the fact to avoid confusion vide letter dt.23.06.2019 and submitted (i) policy copy (ii) Photocopy of Trade License (iii) Final Report True.  But he also denied to accept the fact and verbally rejected to settle the claim and thereafter the complainant approached before the   Consumer Affairs Department   Govt. of West Bengal on dated 17-July 2019 to get justice who issued notices to the Concern parties for hearing which was fixed on 16^th Sep. 2019 and respected Dy Asst. Director heard the matter on scheduled date where the Branch Manager of OP no.1 was present who took time for 15 days to solve the matter.  But he not responded and alternate the Dy. Asst. Director delivered an order on dated 19.11.2019.

Complainant filed the complaint petition praying direction upon the opposite party to pay a sum of Rs. 2  05  915/- along with interest @ 12% p.a. and to pay compensation of Rs.75  000/- due to mental agony   harassment   financial loss/burden and to pay litigation cost Rs.35  000/- and to pass other order or orders as may deem fit and proper.

Defense Case:-The opposite parties contested the case by filing written version denying inter-alia all the material allegation as leveled against them. It is stated that there is nothing in the record of op   insurance company that the complainant is a policy holder of op no. 1 for more than 20 years but from the office record of op   insurance company it is found that the insured GHG Soft Tech. Ltd. made a proposal for a policy for burglary and house braking insurance (business premises) by placing a duly filled in proposal form as executed by said insured company on 23.7.2014 where the location of the policy was specified as godown at premises no. 80/81   Bentink Street   Kolkata. 1 and the said proposal form was received from op   insurer on 28.3.2014 and so it can be said that the insured company is having such policy from 2014 and time to time the said policy has been renewed and finally such a renewed policy was issued for the period starting from 30.3.2018 to 29.3.2019 wherein the location business policy has been clearly mentioned as 80/81   Bentink Street. It is alleged that it is clear case of the complainant that on 2.4.2018 theft and burglary took place in the office of the insured company whereas the policy location was godown as per proposal form situated at 80/81   Bentink Street. It is submitted that the complainant might have its office in 80   Bentink Street and as the said burglary took place in the office   the insurance company has no liability to indemnify any loss. For all these reasons the op has prayed for dismissing this case on contest.

Issues/points for consideration

On the basis of the pleading of the parties   the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

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.

            The answering opposite parties filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite party filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite party heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction   cause of action and whether complainant is a consumer in the eye of law   are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

   Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version   have not filed any petition on the ground of non-maintainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point   jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the op no. 1 is carrying on business at Chinsurah   Hooghly and has its office at Town Guard Road   Chinsurah   Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover   this complaint case has been filed with a claim of below 20 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus   the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover   u/s 11 of the Consumer Protection Act   1986 this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 24A of the Consumer Protection Act   1986 is very important and according to the provision of Section 24A complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (d) of the Consumer Protection Act   1986 it appears that this case is maintainable and according to the provision of Section 2 (1) (d) of the Consumer Protection Act   1986. Complainant is a consumer in the eye of law. It is the settled principle of law that failure of the Insurance Company to comply with the contractual obligation to release claim amount in deficiency in service. This legal principle has been laid down by Hon ble State Commission   Delhi and it is reported in 2022 (2) CPR 13 (Del).

   All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus   the above noted three points of consideration are decided in favour of the complainant.

            The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

            For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions   there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.

            On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that on the following points of this case either there is admission on behalf of the both parties or the parties have not raised any dispute: 

1. It is admitted fact that the complainant has been running the business at Premises no. 80/81   Bentink street   Kolkata-1.
2. It is also admitted fact that the complainant has its trade license  issued by Kolkata Municipal corporation.
3. There is no dispute over the issue that the complainant is a bona fide policy holder under opposite parties.   
4. There is no controversy that the said insurance policy has been continuing for last 20 years.
5. It is admitted fact that the said insurance policy number is 0307041217p118844078.
6. It is also admitted fact that the complainant is paying premium of the said insurance policy.
7. There is no dispute over the issue that the said insurance policy is covering risk of store-cum office for Rs.65  00  000/- only (Rs.60  00  000/- for electronic & electrical goods & Rs.5  00  000/- for Furniture   fixtures & fittings).
8. There is no controversy over the issue that on 2^nd April   2018 (after the mid night of 1^st April   2018) an incident of burglary has been committed in the above noted premises.
9. It is admitted fact that the complainant has filed a complaint over the said incident before the Bowbazar P.S.
10. It is also admitted fact that one FIR being no. 101 dt. 2.4.2018 and GD no. 137 dt. 2.4.2018 for the offence u/s 380 IPC was initiated.
11. It is admitted fact that the said incident was investigated by investigating agency.
12. There is no dispute over the issue that FRT (final report) has been submitted by Bowbazar P.S. over the said incident.
13.  There is no controversy that the investigating agency affirmed that the incident was taken place at the above noted premises number.
14. It is admitted fact that the complainant also lodged complaint before the op   insurance company and op   insurance company investigated the said matter by engaging surveyor.
15. It is also admitted fact that the op   insurance company repudiated the entire claim of the complainant on the basis of the surveyor s report.

Regarding the above noted admitted facts and information there is no necessity of passing any separate observation as it is the settled principle of law that fact admitted need not be proved. This legal principle has been embodied in Section 58 of the Evidence Act.

On the background of the above noted admitted  facts and circumstances the parties of this case are differing on the point and/ or apple of discord between the parties of this case is that the complainant adopting the plea that the repudiation of the settlement of insurance claim by the ops is absolutely erroneous and it has been done with the intention to deprive the complainant from its legitimate claim and it is undoubtedly the act of negligence and deficiency of service on the part of the op but on the other hand the op   insurance company has taken the defense alibi that according to the case of the complainant the theft and burglary took place in the office of the insured on 2.4.2018 whereas policy location is godown as per proposal form which is situated at premises no. 80/81   Bentink street   Kol- 1 and so the complainant is not entitled to get any claim and for that reason the op   insurance company has right to repudiate the claim of the complainant.

          In the matter of arriving at the just and proper decision in respect of the above noted difference of point of contention of the parties   this District Commission after going through the evidence on record as well as documents filed by the parties it appears that the premises no. 80 and 80/81   Bentink Street   Kol.1 are one and same premises as per trade license issued by the Kolkata Municipal Corporation. Thus   it is crystal clear the defense alibi taken by the op   insurance company has no legs to stand upon and so it cannot be accepted. It is settled principle of law that merely on technical ground the insurance claim cannot be denied. So   in this instant case the act of opposite parties in the matter of repudiation of the insurance claim of complainant on technical ground is highly illegal on the part of the opposite parties and it is a clear instance of gross deficiency of service.This vital matter is clearly indicating that there is gross violation of service on the part of the opposite party   insurance company. Over this issue the definition of expression   service   in Section 2 (O) of Consumer Protection Act   1986 was wide enough to comprehend services of every description and the District Forum has the jurisdiction to entertain and try such compliant. This legal principle laid down by the Hon ble Apex Court and it is reported in 2022(2) CPR 249 (SC).

In the result it is accordingly

ordered

that the complaint case being no. 9 of 2020 be and the same is allowed on contest but in part.

It is held that the complainant side is entitled to get the claim amount of Rs. 2  05  915/- along with interest @ 9% from the date of filing of this case. It is also held that the complainant side is also entitled to get compensation of Rs. 20  000/- and litigation cost of Rs. 5000/- from the op   insurance company.

Opposite parties are directed to pay the said amount within 45 days from the date of this order otherwise complainant is given liberty to execute this order as per law.

            In the event of nonpayment/ noncompliance of the above noted direction the opposite parties are also directed to pay and/ or deposit Rs. 10  000/- in the Consumer Legal Aid Account of D.C.D.R.C.   Hooghly which is to be utilized for the purpose of poor litigant public.

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.

            The Final Order will be available in the following website www.confonet.nic.in.

Dictated and corrected by me.