State Consumer Disputes Redressal Commission
Smt Lata Sanai. vs National Insurance Company Ltd on 30 July, 2012
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. SC/71/O/2002 DATE OF FILING : 29.07.2002 DATE OF ORDER: 30.07.2012 COMPLAINANTS : 1. Smt. Lata Sanai, Proprietor of M/s. G.S. Laminators, At Poddar Point Block-A , 1st Floor, 113, Park Street, P.S. Park Street, Kolkata- 700 016. OPPOSITE PARTIES : 1. National Insurance Company Ltd, A subsidiary of General Insurance Corporation Ltd, having its registered Office at 3, Middleton Street, P.S.Shakespear Sarani, Kolkata- 700 071. 2. The Chairman, National Insurance Company Ltd., 3, Middleton Street, P.S. Shakespear Sarani, Kolkata- 700 071. 3. Sr. Divisional Manager, National Insurance Company Ltd, Calcutta Divisional Office No. XI, 19, R.N. Mukherjee Road, P.S.-Hare Street, Kolkata- 700 001. BEFORE HONBLE MEMBER : Sri Debasis Bhattacharya. HONBLE MEMBER : Sri. Jagannath Bag. FOR THE COMPLAINANTS : Mr. G. Gupta Roy, Mr. Sovik Das, Advocate. FOR THE OPPOSITE PARTIES : Mr. Afroze Alam, Advocate. Debasis Bhattacharya ,Member.
The case of the Complainant is that it deals with manufacturing of different laminated jute bags, hessian/gunny bags and different types of LD polythene products and has its factory at Bandel Station Road, P.S. Chunchura, Dist. Hooghly. It took an insurance policy of the O.P. No. 3 against payment of premium of Rs.1,148/- for a total coverage of Rs.5,75,000/- under cover note no. 1011501/2000/75 vide policy no. 101100/75/01400 commencing from 21.2.2001 at 12.30 p.m to 20.2.2002. On 22.2.2001 morning, the Manger of the Complainant /Company, Tapan Kumar Mukherjee was informed of a burglary at its Bandel Factory on the night of 21/22.2.2001 by some unknown miscreants who entered into the factory premises crossing the backside boundary wall and forcefully snatched the keys of the main gate of the factory from Radhayashyam Ojha, a Darwan on duty of the Complainant/ Company and forcefully consigned the said Darwan in the office room. Thereafter, the said miscreants by opening the main gate took away the entire stock of raw and finished materials, other materials and machinery and motors worth Rs.4,50,000/- approx. with the help of a truck. The said Manager immediately rushed to the factory and met Darwan and thereafter went to Chinsurah P.S. along with the said Darwan and lodged a written complaint dated 22.02.01 and accordingly Chinsurah P.S. Case No. 41 dated 22.02.01, u/s 461/379,I.P.C was started. On 26.02.01, the said Manager intimated the OPs about the said incident of robbery being covered under the burglary insurance policy and that delay thereof was caused as the Complainant and her Manager were busy with the police enquiry and other related matters. On 28.02.01, her Manager submitted a list of items and their values burgled from the factory. On 1.3.01, she had also submitted a list of items with quantity/number in detail with the local P.S. The O.P.s by their letter no.101100/Misc/PKS:BG:PKD/01 dated 5.3.01 asked the Complainant to keep certain records in order for the purpose of inspection/verification and valuation of items for Mr. S.K. Mitra, the surveyor appointed by them for this purpose and demanded explanation from the Complainant regarding the delay in reporting the incident to the insurance company. M/s. S.K. Mitra and Company vide its letter no. SKM/1518/2001 dated 6.04.01 made certain queries regarding said Radhyashyam Ojha, Darwan/Nightguard and sent another reminder dated 7.5.01 to which the Complainant replied vide letters dated 21.6.01 and 26.6.01. On receipt of the said informations, the said surveyor by its letter no. SKM/II/03/2001 dated 2.7.01 requisitioned certain documents and also certain queries to which the Complainant replied by her letter no. GSL/01-02 dated 3.7.01. The said night guard/darwan, Radhayashayam Ojha was in no way connected with the incident of robbery and all along cooperated with the police regarding the investigation conducted by the police. He was compelled to leave the locality without giving any whereabouts as some unknown persons started threatening him of his life and person unless he leaves the place. The police authority submitted F.R.T. on 30.6.01 to S.D.J.M, Hooghly Sadar in G.R. Case No. 185 of 2001, without making any comment as regards the involvement of said Radhyashyam Ojha. Lastly, the said surveyor visited the office of the Complainant and thoroughly checked the relevant documents on 6.9.01, and thereafter the OPs have neither intimated the result of such survey nor took any effective steps towards the settlement and/or repudiation of the claim, though the Complainant sent a reminder letter to it on 12.09.01. As the O.P.s neither settled the claim nor repudiated the same, so this case.
The case of the O.P. No. 3 in the W.V. is that the Complainant deliberately did not lodge any complaint against the said Radhyashyam Ojha which proved the falsity of the claim of burglary. The list of items was not supported by any document, such as stock register, purchase bills etc. On 28.02.01, the O.P. appointed their surveyor, M/s. S.K. Mitra and Co. and asked them to survey, investigate and assess the loss. Pertinently, Radhyashyam Ojha, the night watchman at the factory premises of the Complainant on the night, when the alleged act of burglary was committed has been absconding from the date of the incident. It is the bounden duty of the Complainant to give a true disclosure of the fact both to the surveyor and the insurer. The sudden disappearance of Radhyamshyam Ojha gives rise to a serious doubt about his involvement in the alleged act of burglary and although he has absconded since the date of the incident, no police case has been lodged against him, which proves that the Complainant is trying to protect him and has given a false statement regarding alleged act of burglary. Neither Radhyasaham Ojha nor the Complainant lodged any complaint before the police authority against such alleged act of threatening. There is no reason why Radhyashyam Ojha did not give any information about his whereabouts before he left the place. The report dated 20.6.01 of the I.O. of Chinsurah P.S. is an incomplete report and no reliance can be placed upon it. In fact, the Complainant failed to produce any of the documents as asked by the O.P. by their letter dated 5.3.01 and by the Surveyor by a series of letters dated 2.7.01, 5.7.01 and 31.8.01. The Complainant deliberately, willfully and with malafide intention did not produce any of the documents before the surveyor for his verification. The Complainant has made a false representation and suppressed the material fact. The Complainant also did not submit his claim form before the OP which is an essential requirement for getting the compensation against the loss, if any. Accordingly, the complaint is false, concocted and the same made with malafide intention is liable to be dismissed with exemplary cost.
It is to be considered if the Complainant is rightfully entitled to the claim, or not.
Decision with reasons At the first instance, this case was dismissed but considering the circumstances without any cost vide order dated 28.6.05. Thereafter, the Complainant preferred appeal before the Honble National Commission being First Appeal No. 393 of 2005 in which it was the findings that the State Commission dismissed the complaint on the ground that the Appellant did not cooperate with the surveyor and did not furnish the documents which had been asked for by the surveyor, but the Appellant sought permission in the said appeal to file additional documents which had been filed there by the Appellant, and the Honble Commission allowed the same as it was of the opinion that the documents were material evidence without which proper adjudication was not possible, and in view of the agreed submissions made by the Ld. Counsels for the parties, the impugned order was set aside and the case remitted back to the State Commission for a fresh decision in accordance with law, after permitting the parties to lead additional evidence. Accordingly, the Complainant files additional documents. Thereafter, O.P. filed evidence on affidavit, to which questionnaires filed by the Complainant and replied by the O.P. Considering all such facts and materials, it is clearly found that there had been a case of burglary in the factory premises of the Complainant at Bandel in the district of Hooghly under P.S. Chinsurah on 21/22.02.01 and there had been police investigation of such incident where police filed F.R.No. 150 dated 30.6.01, u/s 392, I.P.C. stating that during investigation of the case, the I.O. visited the P.O. and drew up rough sketch map of the same with index, examined available witnesses and recorded their statements u/s 161, Cr.P.C. and engaged source and made all possible efforts to fix up the gang and to trace out the stolen articles but to no good. As there is no chance of further development in the case in near future and useless to drag the case without any achievement, he concluded the investigation and to reopen the same if detected in future and the F.R.T. was accepted by the Ld. S.D.J.M., Hooghly Sadar. There is as such no dispute regarding the occurrence of an offence of aggravated theft being robbery in the said premises. The moot point raised is that the darwan of the factory on duty at that time, Radhyashyam Ojha has left since the incident, whose appearance is very much necessary for the purpose of proper survey and investigation by the surveyor of the O.P. It can not be denied that he is a vital witness in the matter, more so because of the fact that the incident took place just on the date of commencement of the instant insurance policy and that said employee is an old-timer and the Complainant must be having his full address and that it can not be said without verification that he is untraceable. His presence is a necessary element in the making of the surveyor report .
Considering all aspects, there is found to be viability of the claim of the Complainant. But, for the acts of omission or commission on the part of the Complainant, there is found to be no deficiency of service on the part of the O.P. Accordingly, the Complainant is given opportunity to prima facie establish its case before the surveyor appointed by the O.P. by producing all relevant papers and persons , including said Radhyashyam Ojha on an appointed date ,within three months, to be fixed conveniently by both the parties positively, so that the O.P. may further proceed with the claim of the Complainant and dispose the same by another three months time, as the instant incidence is a long-drawn one. Accordingly, the complaint case is disposed in favour of the complainant.
Hence, Ordered that the Complaint case be and the same is allowed on contest with the aforesaid directions towards both the parties for compliance and in the facts and circumstance of the case without imposing any costs to any of the parties.
Jagannath Bag.
Debasis Bhattacharya (Member) (Member)