State Consumer Disputes Redressal Commission
Sk. Samsul Huda & Others vs United India Insurance Co. Ltd. & Others on 6 January, 2009
D R A F T State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. : 15/O/2005 DATE OF FILING : 10.05.2005 DATE OF FINAL ORDER: 06.01.2009 COMPLAINANTS 1. Sk. Samsul Huda S/o. Late Sk. Habibur Rahaman 15V, Miajan Ostagar Lane Kolkata-700 017. 2. Mrs. Akhtarun Warsi Wife of Sk. Samsul Huda 15V, Miajan Ostagar Lane Kolkata-700 017. 3. Sk. Badraduja S/o. Late Sk. Habibur Rahaman Vill. Tehatta, P.S. Uluberia, Dist. Howrah. 4. Mahiuddin Ahmed S/o Late Taniruddin Ahmed 4B, Radha Gobindo Saha Lane Kolkata-700 017. 5. Rejaul Mondal S/o Rashid Mondal 15V, Miajan Ostagar Lane Kolkata-700 017. OPPOSITE PARTIES 1. United India Insurance Co. Ltd. having its regional office at Himalaya House 38B, Chowringhee Road (2nd Floor) Kolkata-700 071. 2. Survey Superintending Company Surveyor & Loss Assessors Having city office at 10, Kiran Sankar Roy Road Ground Floor, Western Part, Kolkata-700 001. 3. Canara Bank having its office at 5/1, Acharya Jagadish Chandra Bose Road, Kolkata-700 010. BEFORE : HONBLE JUSTICE MR. A.CHAKRABARTI, PRESIDENT MEMBER : MR. S.COARI MEMBER : MRS. S.MAJUMDER FOR THE PETITIONER : Mr. U.C.Jha, Advocate FOR THE O.P.S.: Miss S.Roychoudhury, Advocate (OP Nos. 1&2) Mr. P.R.Bakshi, Advocate (OP No. 3) : O R D E R :
MR. S.COARI, HONBLE MEMBER The present complaint has been filed by the Complainant Nos. 1 to 5, who are the partners of a partnership business engaged in manufacturing cables under the name and style M/s. United Cable Company. The factory premises is situated at Industrial Complex within Panchla Police Station in Howrah district. After the complainants started manufacturing their products they insured the factory including its machinery, raw materials and finished products with United India Insurance Company Ltd. being the OP No. 1 under its Burglary and House Breaking Policy at an annual premium of Rs. 15,827/-. The complainants also availed of Cash Credit facilities and Overdraft facilities to the tune of Rs. 30.00 lacs and Rs. 7.5 lacs respectively upon different terms and conditions from Canara Bank being the OP No. 3 and in the process the complainants had hypothecated the entire factory premises along with raw materials and finished goods with the said OP No. 3. The insurance policy had a coverage to the tune of Rs. 45,62,000/- in respect of the factory premises which was under the name and style M/s. United Cable Company. In the insurance policy the name of the OP No. 3 appeared as Mortgagee while the company of the complainants appeared as Mortgager. The insurance policy was entered into after observing all the legal formalities including spot verification by the Insurance Co. and the insurance coverage commenced from 29.1.99 to the midnight of 27.1.2000.
It is the specific case of the complainants that on 2.9.99 at about 12.30 a.m. there was an armed dacoity at the factory premises of the complainants and the miscreants took away the stock of raw materials, finished products and machinery amounting to Rs. 55.37 lacs.
Immediately after the said occurrence of dacoity, one of the employees of the complainant company lodged FIR with the Panchla police station whereupon the police station instituted a specific case being Panchla P.S. Case No. 56/99 U/S 395 IPC. During the course of investigation police apprehended three miscreants, but they failed to recover the stolen vehicle and ultimately submitted Final Report with a prayer for discharging the accused persons. Immediately after the incident of dacoity the complainants lodged claim before the OP No. 1 for a loss of about Rs. 45.62 lacs on 7.4.2000.
The complainants also informed the matter to the OP No. 3. The Insurance Co. appointed a surveyor to assess the loss sustained by the complainants due to the dacoity. The complainants in all possible way cooperated with the surveyor in all practical purpose by producing records and registers etc. According to the complainants case, OP No. 3 enquired from the police authority about the incident whereupon police confirmed the incident of dacoity and the valuation of the property so robbed from the factory premises. The OP No. 1 delayed the matter for an abnormal period while the surveyor in question, who is OP No. 2, did not submit his report for reasons best known to him within reasonable time.
On the other hand, OP No. 3 put pressure upon the complainants for repayment of the loan thereby putting the complainants in unnecessary pressure. The OP No. 3 has also filed a litigation against the complainants for recovery of dues.
The complainants knocked all possible corners and even approached the Honble Court for seeking reliefs, but the Honble Court has directed the OP No. 1 to consider the case of the complainants after giving opportunity to the complainants of being heard. After consuming much time ultimately the surveyor submitted his report thereby concluding that there was no incident of dacoity at the factory premises as claimed by the complainants supported by police authority and finally the OP No. 1 has repudiated the claim without any rhyme and reason. According to the complainants, the surveyor is the appointed person of the OP No. 1 and he is an interested party. No reliance should be placed upon the surveyors report thereby ignoring the police report which is an independent Government agency and the police report being in favour of the complainants. The complainants are Consumers in terms of the Consumer Protection Act and there is deficiency in service at the instance of the OP No. 1 and hence, the complaint for a claim of Rs. 45.62 lacs being the sum assured in the policy in question together with compensation and litigation cost.
The OP No. 1, i.e. United India Insurance Co. Ltd., is contesting the case by filing a written objection thereby denying all the material averments mentioned in the petition of complaint contending inter alia that the case is not maintainable and the same is vexatious, speculative, harassing, malafide and misconceived.
There was no dacoity as alleged in the factory premises of the complainant, nor there was any robbery in respect of the articles, machineries, finished goods, etc. from the factory premises of the complainants. The OP after getting intimation from the complainants in due course of time appointed a surveyor for assessing and/or investigating the case of dacoity, etc. as claimed by the complainants in its own way. But as there was total non-cooperation from the side of the complainants, there was delay in submitting the assessors report, for which the complainants are responsible. From the surveyors report it has become evident that there was actually no commission of dacoity in the factory premises as claimed by the complainants. After observing all the legal formalities the Insurance Co. after getting the matter enquired through the proper agency and the surveyor report being not in support of the complainants claim, there was no alternative left before the Insurance Co. but to repudiate the claim. The police investigation report without any corroborative evidence as regards the alleged dacoity in the factory premises cannot constitute a valid ground for substantiating a claim for such a huge amount as preferred by the complainants. The complainants must substantiate their case of alleged dacoity by adducing and proving cogent and reliable evidence. The alleged claim of the complainants was repudiated by the OP No. 1 after observing all the legal formalities and as such, question of deficiency in service at the instance of the OP No. 1 does not arise at all. The complainants are not Consumers in the true sense of the Act. The present matter can only be adjudicated through a regular trial before a court of civil nature, the present forum being not the proper place for proper adjudication of the present controversy between the parties. The complainants are not entitled to any relief whatsoever as claimed by them and the petition of complaint is liable to be dismissed with cost.
The OP No. 3, Canara Bank, is also contesting the present case by filing a separate written objection thereby denying all the material averments of the petition of complaint contending inter alia that the OP No. 3 is not at all a necessary party in the present complaint case. According to the OP No. 3, the dispute is in between the complainants and the OP No. 1.
The present OP having no role to play in such a controversy and dispute has unnecessarily been dragged into this case for no reason whatsoever. The complainants are not entitled to any relief from the OP No. 3 and that the complaint should be dismissed with cost.
Upon pleadings of the parties the followings are the points framed for proper adjudication of the case.
1. Are the complainants Consumers as defined under the Consumer Protection Act?
2. Was there a commission of dacoity in the factory premises of the complainants as alleged?
3. Was there any deficiency in service at the instance of the OP No. 1 as claimed by the complainants?
4. Are the complainants entitled to the reliefs as prayed for and what other relief or reliefs, if any, the complainants are entitled to?
DECISION WITH REASONS At the time of hearing one witness on behalf of the complainants has been examined and cross-examined by the OP No. 1. On the other hand, the OP No. 1 has examined one of its officers and also a representative of the surveying and superintending company which undertook the surveyor of the factory premises in question. Subsequently another witness was examined on behalf of the OP No. 1 and he was duly cross-examined by the complainants. From the written notes of argument filed on behalf of the complainants we understand that the complainants witness has corroborated the complaint version of the case. It is emphatically mentioned therein that immediately after the occurrence of dacoity in the factory premises the complainant lodged an FIR with the Panchla police station and also informed the Insurance Co. and other connected persons.
Police instituted a specific case over the FIR lodged by the complainants and the complainants cooperated with the investigators as far as practicable. But ultimately the case ended into FIR. But at the same time it is the complainants specific stand-point that the officer-in-charge of the concerned police station duly informed the OP No. 3 about the occurrence of the dacoity in the factory premises of the complainant. As regards surveyors report, which does not support the complainants case of robbery in their factory premises, it is submitted that the surveyor did not survey properly and he was appointed on behalf of the OP No. 1, i.e. the Insurance Co. It must be taken into account that he is an interested witness who would certainly not speak on behalf of the complainants. It is also mentioned in the written argument that the police case being a state case there was no scope on the part of the complainants to challenge the same and that in the matter of submission of final report the complainants had no role to play. While substantiating the claim of the complainants it is mentioned that just immediately on the preceding date of commission of dacoity the complainants submitted written stock report to the banking authority thereby disclosing existence of machineries, finished articles and other articles in the factory premises. There being no challenge on this aspect of the complaint case legal presumption should be in favour of the complainants so far it relates to commission of dacoity in the factory premises and that the miscreants were successful in taking away huge amount of machineries and other articles from the factory premises in a truck.
At the time of advancing his submission the Ld. Advocate on behalf of the complainants has urged befoe us that in this case the complainants have submitted their case in the manner as it took place. There is no hide and seek policy adopted by the complainants in this regard. From the very nature of the complaint case it would be evident that the complainants did not withhold or manufacture any incident or occurrence so as to facilitate the complainants in obtaining claim from the Insurance Co. In this regard, according to the Ld. Advocate, the materials on record will clearly show that the complainants have come before this court with clean hands. According to the Ld. Counsel, it is extremely unfortunate that though the complainants have placed their objection against the surveyors report, which is extremely one-sided for some obvious reasons, but the Insurance Co. never appreciated the stand-point of the complainants and has arbitrarily repudiated the claim which is not sustainable under the law. While elaborating on this point the Ld. Advocate for the complainants has urged before us that from the materials on record it would be evident that the surveyors report does not depict the actual state of affairs at all.
In this connection, attention of us is drawn to the effect that the surveyor is totally silent on the point that he was duly informed by police as regards commission of dacoity in the factory of the complainants including the value of the commodities robbed therefrom.
According to the Ld. Advocate, curiously enough, all these facts are not mentioned in the surveyors report.
Rather, on the other hand, the OP No. 1, i.e. the Insurance Co., has taken a plea that nothing was informed to the Insurance Co. or the surveyor by police or any other agency about commission of dacoity in the factory premises. The Ld. Advocate for the complainants has also drawn our attention to the documentary evidence on record namely, the monthly stock statement of the factory in question sent to the OP No. 3 which is before the day of commission of dacoity in the factory premises and also the written intimation given to OP No. 3 at the instance of Panchla police station as regards commission of dacoity in the factory premises and the value of the robbed commodities. According to the Ld. Advocate, the documentary evidences remain unchallenged and not rebutted by any alternative evidence at the instance of the Ops and if that be the position, there should not be any hesitation to form a legal presumption that there was actually an incident of robbery in the factory premises of the complainants as claimed by them and that there was actually presence of commodities, articles and machineries therein which had a value of about Rs. 53.00 lacs. It has further been submitted by the Ld. Advocate for the complainants that from the very beginning the Insurance Co. is trying to avoid payment of compensation and in connivance with the OP No. 3 is trying to put unnecessary pressure upon the complainants by not releasing the genuine claim of the complainants. It has further been submitted that when there is no denial on the part of the Insurance Co. that the commodities were duly insured and that the dacoity took place within the coverage period, there is practically no point on the part of the Insurance Co. to repudiate the claim of the complainants which is arbitrary and not warranted under the law of the land.
While countering the case of the complainants the OP No. 1 has taken a stand-point to the effect that there was nothing wrong on the part of the Insurance Co. to repudiate the claim of the complainants as the same has been done after observing all the normal procedures and formalities. The story of alleged dacoity in the factory premises has been seriously challenged by the Insurance Co. and it has put much doubt about the relevancy of the letter in question through which Panchla Police Station informed the OP No. 3 about the alleged commission of dacoity and giving a valuation of the properties alleged to have been robbed. The Insurance Co. has seriously challenged the basis of fixing up the valuation of the properties so robbed. The submission of final report, according to the OP No. 1, is of no help to the complainants as the case in question remains unsolved and no one could be apprehended.
As no stolen property or robbed property has been recovered at all, the authenticity and genuineness of complainants case of miscreants taking away huge amount of machineries and finished goods definitely remains doubtful. No reliance should be placed upon the stock statement information of the commodities and articles of the factory premises in question as the same was never verified by the banking authority or any independent authority. The OP No. 1 has also challenged the actual purchase of the commodities and machineries kept and installed in the factory premises as claimed by the complainants on the ground that no documentary evidence in support of such purchase or installation has been produced and proved by the complainants.
As regards complainants expressing helplessness in the matter of FRT as the case was instituted on behalf of the state, it is mentioned on behalf of the OP No. 1 that the de facto complainants have always the option of challenging the FRT by filing a separate Narazi petition which has not been done in this case. It has been also mentioned in the written argument that no independent and corroborative evidence has been produced at the instance of the complainants so as to substantiate the alleged case of dacoity in the factory premises. On the other hand, the Insurance Co. after considering the facts and circumstances of the case and also taking into account the surveyors report has rightly repudiated the claim of the complainants which is not supported by any cogent and reliable evidence.
At the time of advancing her submissions the Ld. Advocate on behalf of the OP no. 1 has submitted before us that some curious sequence of incidents that have come up during trial is very much astonishing and proper note should be taken in this regard.
According to the Ld. Advocate, the sequences/timings of events namely, submission of stock statement report and alleged dacoity appears to be so arranged that it fits in very much with the complainants case. It is also submitted that on a careful consideration it can be safely presumed that such incidents can be very well manufactured and fabricated. As regards complainants depending upon the written information of the Panchla P.S. so far as it relates to commission of dacoity and valuation of properties so robbed, it is found that the said letter is not based on any separate investigation, but on the investigation on FIR and, therefore, on FRT filed, no extra weight can be given to the said letter. In this connection, the Ld. Advocate for the OP No. 1 has also submitted that from the police papers it would be evident that FIR has been carefully prepared inasmuch as the Darwan in question has mentioned that the miscreants could be identified if produced. But no one could notice the registration number of the vehicle in question and that not a single accused could be identified during I.T. parade and for the rest accused persons the witnesses declined to turn up.
According to the Ld. Advocate, all these factors clearly suggest that there was clear concoction and fabrication of events and documents for the purpose of substantiating a non-existent dacoity as claimed by the complainants. While concluding her submissions, it is submitted by the Ld. Advocate for the OP No. 1 that there was absolutely no deficiency in service at the instance of the Insurance Co. and that the repudiation of claim was just and proper as in absence of any bonafide and genuine grounds there was no alternative left before the Insurance Co. but to repudiate the claim.
We have duly considered the submissions put forward by the Ld. Advocates of both sides and also perused the pleadings of the parties, the evidences on record and other documents and the WNAs as mentioned and discussed above. We find that while the complainants have put forward a case of dacoity in the factory premises having insurance coverage, the Insurance Co. has denied the alleged dacoity and repudiated the claim of the complainants.
First of all, we take up the Point No. 1, i.e. whether the complainants are consumers as defined under the Consumer Protection Act. Now, in this connection, the decision referred to on behalf of the complainants reported in (2005) CPJ 27 (NC) is very much relevant, wherein its has been observed, Where goods purchased or services hired should be used in activity directly intended to generate profit which is the main aim of commercial purpose. Keeping in mind this proposition we are of confirmed view that in this case though the complainants were engaged in manufacturing business, but as they have hired service of the Insurance Co. which has got no connection with the generation of profit, the service so hired comes under the purview of the Consumer Protection Act and as such, while preferring a claim for property claimed to have been robbed off, the complainants are Consumers as provided under the provisions of the Consumer Protection Act. This point is accordingly disposed of in favour of the complainants.
Point Nos. 2, 3 & 4 - We take up these three points together for the sake of convenience. In this case, as we gather from the pleadings of the parties and the materials on record, it is the specific case of the Insurance Co. that they got the factory premises surveyed through a recognized surveyor of a reputed surveying agency and only after considering the report of the said surveyor, which has clearly revealed that the complainants case so far it relates to commission of dacoity in the factory premises and removal of machineries and finished goods have not been substantiated, they repudiated the claim.
Much has been agitated before us as regards arbitrary repudiation on the part of the Insurance Co. But from the materials on record we find that the surveyor did not find any sign of removal of any machinery, etc. from the factory premises of the complainants or that the complainants have not been able to examine any independent neighbouring witness in support of their case. If that be the position, the observation of the Honble National Commission in a decision reported in Divisional Manager, LICI Vs. Sunita (1994) 1 CPR 31 (NC), wherein it has been observed that when the claim has been repudiated with reasons which are not irrelevant and extraneous, then it does not cause any deficiency in service. Similarly, in a decision reported in Life Insurance Corporation Vs. Swarnalata (1993) CPR 1652 Orissa, wherein the Honble Court has held that there can be no doubt that a reasonable view taken on enquiry before repudiation of claim cannot be said to be deficiency in service. Redressal agency under the Act would not examine the correctness of such finding as an appellate forum to reverse the repudiation.
That being the legal position we do not find any deficiency in service on the part of the Insurance Co. while dealing with the claim of the complainants thereby repudiating the same.
Much has been agitated before us on behalf of the complainants that though the complainants were able to substantiate their claims by producing and adducing cogent and reliable evidence, there was no reason on the part of the Insurance Co. to repudiate their claim. In this regard, attention of us were drawn to the final report and written information at the instance of the Officer-in-Charge of Panchla Police Station as regards commission of dacoity and valuation of the properties robbed together with the monthly stock statement information sent at the instance of the complainants with the further submission that all these factors clearly indicate that the complainants were able to substantiate their claim reasonably well. We have given due weight to this sort of submissions and necessary aspects of the present case, but are unable to accept the proposition as submitted on behalf of the complainants inasmuch as the legal position so far it relates to evidentiary value of the final report is practically nil. We find much substance in the submission put forward by the Ld. Advocate on behalf of the OP No. 1 as regards authority and jurisdiction of the concerned police officer to send a written information as regards commission of dacoity and valuation of the properties robbed. In this regard, we find that the legal position does not appear to be in favour of the complainants. From the contents of the said letter of the police officer it is very much evident that the valuation of the alleged robbed property was obtained by him from the FIR itself and nothing else. Moreover, when it is an admitted position that the case ended in Final Report and neither the actual miscreants could be apprehended nor the alleged robbed property could be recovered. We are unable to give much weight upon the presumptive value of the Final Report. Similarly, the letter of the Police officer as mentioned above is of no help of the complainants. Considering the case from all possible aspects and angles we find that the sequence of events having placed before us in the form of the case as made out by the complainants appears to be extremely curious. In this regard, the doubt raised on behalf of the OP No. 1 is not easy to discard. In fact, from the facts and circumstances of the case and materials on record we are of considered opinion that the complainants ought to have produced something more in the form of independent and corroborative evidence so as to constitute a case of dacoity as claimed by them. Weighing the respective partys case in the balance of probability we are of opinion that a claim amounting more than a half crore should not be considered and accepted on the basis of final report and police officers letter as mentioned and discussed above. In this regard, we also hold that though the contents of the FIR has got some sort of evidentiary value, but it is to be considered along with the final report for the purpose of the present case and in this regard it is also an established principle that final report does not have any evidentiary value at all and that it amounts to an opinion of a particular police officer only.
Having considered the present case in the light of above observation we do not find any merit in the complainants case at all. All the three points are accordingly disposed of in the negative. In the result, the complaint case fails.
Hence, ORDERED that the complaint case stands dismissed on contest with cost of Rs. 1,000/- (Rupees one thousand only) payable by the complainants to the Ops.
MEMBER MEMBER PRESIDENT