State Consumer Disputes Redressal Commission
Lokenath Agency vs Chairman Managing Director, National ... on 24 March, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/39/2015 1. Lokenath Agency Represented by Sri Monoranjan Das, sole Prop., 19, Garfa Main Road, Ramlal Bazar, Kolkata-700 078, P.S. Garfa. ...........Complainant(s) Versus 1. Chairman Managing Director, National Insurance Co. Ltd. 3, Middleton Street, P.S. Shakespeare Sarani, Kolkata-700 071. 2. The General Manager, National Insurance Co. Ltd. 3, Middleton Street, P.S. Shakespeare Sarani, Kolkata-700 071. 3. Deputu General Manager, National Insurance Co. Ltd. Regional office no.I, Ruby House, 8, Indian Exchange Place, 6th floor, P.S. Hare Street, Kolkata-700 001. 4. Br. Manager, National Insurance Co. Ltd. M.G. Road Br., 6A, Sambhu Chatterjee Street, Kolkata-700 007. 5. ICICI Bank Ltd. 36, Chowringhee Road, Chowringee Br., Kolkata -700 071. ............Opp.Party(s) BEFORE: HON'BLE MR. SHYAMAL GUPTA PRESIDING MEMBER HON'BLE MR. UTPAL KUMAR BHATTACHARYA MEMBER For the Complainant: Mr. Ashish Chakraborty Mr. Samrat Sinha , Advocate For the Opp. Party: Mr. Shyamal Sengupta., Advocate Dated : 24 Mar 2017 Final Order / Judgement Sri Shyamal Gupta, Member
This is a case over repudiation of Complainant's claim by the OP Insurance Company.
In a nutshell, case of the Complainant, is that, in order to protect his business stock, godown and office from unforeseen peril, he took 6 insurance policies from the OP Insurance Company. It is the further case of the Complainant that on 23-06-2012, at 10-30 p.m., he closed his office-cum-godown and went to his house. In the early morning on 25-06-2012, he got information that breaking the gate and padlock of his godown, some unknown miscreants forced their entry inside and escaped with his business stock, namely, cigarettes of different brands of ITC. The Complainant lodged FIR with the local Police Station on the very same day. Thereafter, Complainant lodged insurance claim with the OP No. 4 on 25-06-2012. On the basis of said information, the OP deputed a Surveyor-cum-Loss Assessor. The said Surveyor by a letter dated 03-07-2012 sought for certain documents. He also visited the place of occurrence several times and collected papers and documents as desired by him. However, the OP No. 4, vide its letter dated 05-02-2014 repudiated the claim of the Complainant. Hence, this case.
On notice, OP Nos. 1 to 4 appeared by filing W.V., whereby they denied all the material allegation of the complaint. The specific case of these OPs is that the alleged peril occurred beyond the currency of the policies in question. Therefore, the Complainant is not entitled to any insurance benefit.
Points for consideration Whether the nature of peril was covered under the insurance policy?" In other words, whether the peril can be termed as 'burglary'?
Whether the peril occurred during the validity period of insurance policies?
Whether repudiation of Complainant's claim by the OP Insurance Company was justified?
Whether the value assessed by the Surveyor was in order?
Whether the Complainant is entitled to any relief?
Decision with reasons Point No. 1:
Ld. Advocate appearing on behalf of the OP Nos. 1 to 4 drawing our attention to the fact that FRT was filed only u/s 379, IPC, contended that since the said Section deals with 'theft' and not 'burglary', it was a clear pointer of the fact that the peril was outside the purview of the insurance policy.
It is not in dispute in this case that the miscreants forced their entry inside the office-cum-godown of the Complainant and escaped with business stock of the Complainant. The Surveyor noted in his final survey report that locks of the gate were broken and the said broken locks were seized by the Police. In its FRT, the Police has admitted the factum of stealing of cigarettes from the godown of the Complainant.
According to Oxford Advanced Learner's Dictionary, 7th edition, 'Burglary' means, 'the crime of entering a building illegally and stealing things from it'. WordWeb defines 'burglary' as, 'entering a building unlawfully with intent to commit a felony or to steal valuable property'. Collins Dictionary defines 'Burglary' as, 'the crime of either entering a building as a trespasser with the intention of committing theft, rape, grievous bodily harm, or damage, or, having entered as a trespasser, of committing one or more of these offences'. Thus, going by the literal meaning of the word 'burglary', it can reasonably be inferred that the peril occurred was nothing but a case of 'burglary'.
Presumably, there was no such stipulation in the insurance policy to the effect that the nature of peril would be solely guided by the section(s) under which Police Authority would file the charge-sheet. Since the OP Insurance Company has not placed on record any stipulation in the policy schedule defining the term 'burglary, and most importantly, as because the Surveyor has noted in his Final Survey Report that, 'Loss due to Burglary during any time.....', we feel, there should be no ambiguity as to the fact that it was an incident of 'Burglary', and nothing else.
This point is, thus, decided in favour of the Complainant.
Point No. 2:
Ld. Advocate for the OP Insurance Company averred that circumstantial evidences, newspaper reports, Memorandum of Ramlal Bazar Babsayi Samiti, and a part of the FIR clearly establish the fact that the alleged incident of theft took place only after expiry of the insurance policies in question. Stretching further his argument, the Ld. Advocate contended that as per newspaper reports, siphoning of such huge quantity of stocks would require at least 2/3 hours time and since the office-cum-godown of the Complainant is situated in the main road, where people/shop owners stay till midnight, there is every reason to believe that the peril occurred after expiry of the validity period of the insurance policies at midnight on 24-06-2012.
On going through the photocopies of newspaper clippings on record, we find that save and except one vernacular, according to reports of all other vernaculars, the incident took place at midnight on Sunday (24-06-2012). Further, it is specifically stated in the Memorandum submitted by the Ramlal Bazaar Babsayi Samiti that the incident took place on the night of Sunday (24-06-2012). Thus, we find, the very documents based upon which the OP Nos. 1 to 4 sought to drive a wedge in respect of their decision to repudiate the Complainant's claim, makes it almost certain that the peril occurred on Sunday, 24-06-2012. As regards the contention of the Ld. Advocate of the OP Insurance Company that as the place is situated in a market place, where people/shop owners stay up to midnight, it bears mentioning that Sunday being observed as a holiday by shop-owners of the market place, there was very feeble possibility of presence of shop-owners till 12 on the fateful night at the said market place. Moreover, it appears from the newspaper reports (Aajkal) that on that day there was downpour in the locality. In such a situation, it was most unlikely that people would venture out at midnight braving incessant rain. Since the insurance policies were valid till midnight (23:59:59 hrs.) of 24-06-2012, we find no justification behind abrupt repudiation the Complainant's claim. It is also noteworthy here the Surveyor neither made any whisper to the effect that the peril occurred after expiry of the validity period of insurance policies nor recommended repudiation of the claim of the Complainant on this score.
Since the OP Nos. 1 to 4 repudiated the claim, the burden of proof was upon them to advance immaculate documentary proof/evidence to support their contention which they miserably failed to discharge. Surmises and conjecture cannot be the basis of repudiation of a claim.
This point is, thus, also goes in favour of the Complainant.
Point No. 3:
It appears from the repudiation letter of the OP Insurer that the claim of the Complainant was turned down over the solitary point of expiry of the validity of insurance policies concerned. In the light of our aforesaid findings, we are inclined to hold that the repudiation of Complainant's claim by the OP Insurer had no justification whatsoever.
This point, accordingly, answers in favour of the Complainant.
Point No. 4:
The Surveyor assessed the net loss at Rs. 24,10,230/-. On a reference to the said report, we find that the Surveyor has elaborately discussed every aspect that was taken into consideration by him while assessing the loss. Notwithstanding the Complainant claimed a sum of Rs. 29,51,358/- as insurance benefit, significantly, he has made no endeavour to pick hole with the survey report by placing on record any counter-assessment being prepared by another competent value/loss assessor. The settled position of law being that unless the survey report suffers from any sort of inherent defects, it should get precedence over other documents/reports, we have no hesitation holding that the survey report was fully in order.
Point No. 5:
In the light of our foregoing discussion, we hold that the Complainant is entitled to get a sum of Rs. 24,10,230/- from the OP Nos. 1 to 4. Considering the facts and circumstances of the case in its entirety, we refrain from awarding any compensation or litigation cost in favour of the Complainant.
Hence, O R D E R E D that CC/39/2015 be and the same is allowed on contest against the OP Nos. 1 to 4 and dismissed ex parte against the OP No. 5. OP Nos. 1 to 4 are directed to pay jointly and severally a sum of Rs. 24,10,230/-. These OPs shall comply with this order within 40 days from the date of this order, i.d., OP Insurer shall be liable to pay interest @ 9% p.a. over the aforesaid awarded sum from this day till full and final payment is made. [HON'BLE MR. SHYAMAL GUPTA] PRESIDING MEMBER [HON'BLE MR. UTPAL KUMAR BHATTACHARYA] MEMBER