State Consumer Disputes Redressal Commission
Shree Ganesh Enterprises vs Divisional Manager, National ... on 3 September, 2012
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 SC.CASE NO. CC/32/2010 DATE OF FILING : 12.05.2010 DATE OF FINAL ORDER: 03.09.2012 COMPLAINANTS : Shree Ganesh Enterprises 86/1, Dr. Sundari Mohan Avenue Police Station-Entally Kolkata-700 014 Represented by its sole proprietress Smt. Nirmala Garg. OPPOSITE PARTIES 1. Divisional Manager National Insurance Company Limited Division No. XX 1, Shakespeare Sarani Police Station- Shakespeare Sarani Kolkata-700 071. 2. National Insurance Company Limited having its Registered Office at 3, Middleton Street Police Station Shakespeare Sarani Kolkata-700 071. BEFORE : MEMBER : MR. D.BHATTACHARYA MEMBER : MR. J.BAG FOR THE PETITIONER : Mr. Barun Prasad, Ld. Advocate FOR THE OPPOSITE PARTIES : Mr. A.Alam, Ld. Advocate : O R D E R :
Mr. J.Bag, Member The facts of the complaint, in brief, are as follows:
The Complainant, proprietress of Shree Ganesh Enterprises took a Burglary Policy for her Glass Ampoules producing factory located at C-13 , Binod Bihari Ghosh (West) (John Nagar Road), SERAMPORE , District Hooghly, from OP No. 1 i.e. Divisional Manager, National Insurance Company Limited, Division No. XX, 1 Shakespeare Sarani , Kolkata 700071. The policy No. 101800/46/ 01 being non-CR in nature, was valid from 03.07.2001 to midnight of 02.09.2002. The sum assured was 50,00,000 ( Rupees fifty lakhs ) only against the machines installed inside the factory premises. The Complainant also took out a Fire and Special Perils Policy of Rs.50,00,000/-
(Fifty Lakhs) only from the same OP No. 1 the Policy No. being 2001/3100462 for such period as aforesaid. The Complainant paid total amount of Rs. 26250/-(Rupees Twenty Six Thousand Two Hundred and Fifty) only as the premium against the said two policies. The Complainants husband Sri Kuldip Garg used to look after and control the affairs at the factory. But, owing to sudden illness of Sri Garg, operation of the factory remained suspended for about 5/6 months, registered watch and ward staff being deployed. During that time some unknown hoodlums committed burglary at the factory in the wee hours of 28th August 2002.
The extent of the burglary was so daring that the machines for manufacture of Ampoules were taken away along finished goods, furniture etc. by the miscreants by overpowering the two watch and ward staffers. The burglars could not be identified as they were in black masks. On 28th August morning, when the Complainants husband went to the factory, he found that the factory had been burgled. On 29th August the Complainant lodged a complaint with the Serampore Police Station, Hooghly, but it was only on 09.12.2002 that a receipt of the written complaint was acknowledged by the IC, Serampore Police Station. Op No 1 was informed of the alleged burglary, vide a letter dated 30. 08. 2002 along with a copy of the written complaint dated 29.08.2002 addressed to the IC Serampore Police Station, who started Police Station Case No. 324/02 dated 09.12.2002 under Section 461/379 IPC and based on that, filed GR Case No. 964 of 2002 in the Court of the Ld. SDJM, Serampore, Hooghly. In terms of the Final Report of Police Investigation dated 30.11.2003 in the said GR Case No. 964 of 2002 submitted to the Court of the Ld. SDJM, Serampore, no accused persons could be arrested and therefore no charge sheet could be filed. Further, no burgled property and/ or article could be recovered by the local Police. The Complainant alleges that though the OPs were informed of the burglary in time, neither any copy of Surveyors Report, nor a Claim Form has been made available to her, though the Claim Form appears to have been signed on 5th day of December, 2005 as seen with the copy of the Surveyors Report. Moreover, no reply to any of the letters sent by her has been furnished excepting that OP No. 1, vide letter No 101800/Misc.Claim/06-77590000069/gre dated 25.04.2007, informed the Complainant that since their factory was understood to have been closed for 5/6 months when the burglary took place and was uninhabited in violation of the terms of the Insurance Policy (Clause 8A), they would not entertain the claim. The said letter of OP No.1 appeared to the Complainant to be motivated in so far as the factory was very much under guard and no such Clause as 8A was found to have been attached to the Policy Certificate in question. The Complainant moved the Insurance Ombudsman for the redressal of her grievance against the OPs. But, as her claim was for Rs. 34,21,901 and beyond Rs. 20,00,000, she was, as per Rule 16(2) of The Redressal of Public Grievances Rules, 1998 advised by the Ombudsman to seek relief from any other forum as deemed fit. The Complainant accordingly preferred to file the present complaint before this Commission with the allegation that the OPs are guilty of deficiency in service and of unfair trade practice and prays for directions upon the OPs (1) to settle the insurance claim; (2) to pay punitive damage to the Complainant and (3) to pay interest at the rate of 15% on the amount claimed till realization of the claim.
The questions that are associated with the consideration and disposal of the complaint are-
(1) Is the Complainant a consumer?
(2) Is the Complaint barred by the provisions of the Limitations Act?
(3) Is there any deficiency on the part of the Insurance Company?
(4) Has the complaint been proved with evidence?
(5) Is the Complainant entitled to the relief(s) as prayed for in terms of the Insurance Policy?
The Complainant obtained Insurance Policy from the OPs on payment of premium and appears, therefore, to have hired insurance service and accordingly, is a consumer under Section 2(1)(d)(ii) of the Consumer Protection Act 1996.
The Consumer having been served with the letter of repudiation of her claim vide Ref.101800/Misc. Claim/06-7590000069/gre dated 25.04.2007, long after the receipt of the report about the alleged burglary, approached the Insurance Ombudsman with a prayer for settlement of her claim, and hearing from his office vide their letter No. 414/11/ 003/Nl/09/1008-09 dated 31.03.2009, that she would have to move appropriate forum for relief, decided to file and actually filed on 12.05. 2010 the complaint before this Commission for redressal of the consumer dispute she raised. Such filing of complaint appears to be within the stipulated period of 2 years from the date of issue of the letter of the Insurance Ombudsman i.e.31.
03. 2009 and hence the Complainants case deserves to be taken up for consideration and has, accordingly, been admitted.
From records it reveals that that the OPs had received intimation about the alleged burglary at the factory covered by the Burglary Insurance Policy after detection of such incident by a letter dated 30.08.2002, which was received on the same day in the office of the OP No.1. The said letter by itself, however, does not provide any details about the incident and only reports that there occurred a burglary at her factory premises for which Diary was lodged, though such Diary /Complaint is found to have been Received on 9/12/02 at 13.10 hrs by the IC, Serampore PS, who started Serampore case No. 324/02 dt. 9/12/02 u/s 379 IPC. The silence of the OPs in not providing reply, not to speak of the Surveyors Report, can not but be viewed as deficiency in service in the face of the fact that the Complainant purchased Insurance Policy from the OPs on payment of premium. The OPs are at fault on that count.
Whether the burglary took place or not and whether the Complainant has proved his point with adequate evidence are more important than anything else and we consider those issues dominate the fate of the complaint.
The Petitioner in her complaint says that during suspension of affairs at her factory which lasted for 5/6 months (exact period with dates not furnished) some unknown hoodlums committed burglary at the factory in the wee hours of 28th August 2002. The extent of the burglary was so daring that all machines for manufacture of Ampoules were taken away along with finished goods, furniture etc. overpowering the two watch and ward staffs. The burglars could not be identified as they were in black masks. This part of the complaint is very vital. The statement is indicative of quite a big operation by the burglars and the same would have taken a few hours for dismantling and / or removing a large number of articles as named in the letter addressed to the IC, Serampore PS and as given hereunder-
1. Automatic Ampoule Making machine with 16 Head Ampoule Cutting Machine .6
2. Air Blower with 2 H.P. Electric Motor and pipelining for all machines with valves and fittings 2
3. L.P.Gas Manifold system installed in two rooms with valves and regulators and control system and pipelines for full factory premises.
4. Air Compressor with 1H.P.Electric Motor and Air Tank ..1
5. Electric Generator of 12 KVA with control panel, switches/ starters, for 440 volts1
6. Glass Tube Diameter Guaging devices4
7. Glass Tube Weighing machine1
8. Raw material, semi-finished and finished goods lying in the factory.
9. Office Furniture- one steel Almirah, Four steel Chairs, one Type Machine The burglary, if the Complainants statement is to be believed, also took time for loading the stolen goods one by one onto some carrier(s).
The whole incident is said to have taken place in the wee hours of 28th August 2002 and two watch and ward staffs being overpowered by the hoodlums could do nothing. The names of such staffs, though not mentioned in the letter dated 29.08.2002 addressed to the IC, Serampore are found in the Duty Chart.. annexed to the evidence on affidavit filed by the Complainant on 30.06.2011 and it reveals therefrom that (1) Ajay Datta and (2) Ashok Samanta were on duty on the date of the incident (and also after that incident). They were overpowered by the burglars according to the Complainant, but they must have been aware for sure when and how the burglary happened and when and how the miscreants left after the operation. Not a single word is heard from either of the two and nothing about any injury sustained by either of the two is on record. They were crucial eyewitnesses, but, as pointed by the Ld. Advocate of OPs during final hearing by this Commission, were never contacted by the Investigating Police and the OP-appointed Surveyor during his visit immediately after the incident and later observed that There were no security guards employed by the insured. The Complainant too took no initiative to produce the watch and ward staffs to get their statements /version recorded as evidence in support of her complaint, although the said two security personnel were marked (P) in the Duty Chart on 28. 08. 2002 and thereafter. While the Police Report is silent on the actual happening of the burglary during the wee hours of 28th August, 2002 the Surveyors Report holds that the incident appeared to be true. The Surveyor reported to have made some local enquiries and had taken some statements of them. No such statement is found to have been enclosed and we are constrained to take the Surveyors Report with a grain of salt. The Complainants version of the fact of burglary suffers from lack of adequate evidence and she fails to explain as to how and exactly when the alleged burglary took place at her place of business, as pointed by the OPs in their written objection filed before this Commission.
The Complainant argues that there was nothing as Clause 8A in her copy of Burglary Policy, though such Clause 8A was referred to in the repudiation letter issued by the OP No.1 on April 25, 2007. But, that any material change in the risk insured under the Policy would make the Policy devoid of force and that there shall be no claim under the Policy in respect of any article merely because it can be found until evidence satisfactory to the company is adduced that it has been stolen, were clearly written, inter alia, as conditions of the Policy in question. The OPs Advocate mentioned during final hearing that as per Honble National Consumer Dispute Redressal Commissions verdict in the matter of Sudesh Gupta vs- ICICI Prudential Insurance Co. Ltd. and anr. (2011/3-CPR 148/NC) In construing terms of Insurance Policy words used therein must be given paramount importance.
Having considered the complaint from all aspects we are of the view that the Complainant failed to prove with adequate evidence that the burglary took place at her factory premises during the wee hours of 28th August 2002. We are inclined to disallow the complaint on contest.
Hence, it is ORDERED that -
The complaint be and the same is dismissed on contest. There shall be no order as to costs.
MEMBER MEMBER