State Consumer Disputes Redressal Commission
Sales Emporium (South) vs The Deputy General Manager, The ... on 28 August, 2015
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/1057/2014 (Arisen out of Order Dated 12/08/2014 in Case No. Complaint Case No. CC/96/2014 of District Kolkata-II) 1. Sales Emporium (South) Represented by its partner Manoj Kumar Jain, 226, Diamond Harbour Road, Kolkata-700 060, P.S.- Parnasree. ...........Appellant(s) Versus 1. The Deputy General Manager, The Oriental Insurance Co. Ltd. Regional office, 4, Lyons Range, Kolkata - 700 001, P.S. Hare Street. 2. The Sr. Divisional Manager, The Oriental Insurance Co. Ltd. Division-5, 33, Stephen House(2nd Floor), 4, B.B.D. Bag(E), Kolkata - 700 001, P.S. Hare Street. 3. Mr. Sukrit Sarkar, Surveyor and Loss Assessor Investigator 122/1K, Monohar Pukur Road, Kolkata - 700 026, P.S. Bhowanipur. ...........Respondent(s) BEFORE: HON'BLE MR. DEBASIS BHATTACHARYA PRESIDING MEMBER HON'BLE MR. JAGANNATH BAG MEMBER For the Appellant: Mr. Ashish Chakraborty , Advocate For the Respondent: Mr. Kamal Krishna Das., Advocate ORDER 28-08-2015 HON'BLE MR. DEBASIS BHATTACHARYA, PRESIDING MEMBER
Being aggrieved by and/or the dissatisfied with the order dated 12-08-2014 passed by the Ld. District Forum, Unit-II, Kolkata in CC/96/2014, the Complainant thereof has preferred this appeal. By the impugned order, the case has been dismissed against the OP but without any cost.
The case of the Complainant is that it deals in selling of various electronic items and obtained a Shopkeepers Insurance Policy from the OP No. 2 bearing Policy No.311500/48/2011/6253 for covering risks against burglary and theft of the electronics and other consumable items of the Showroom situated at 226, Diamond Harbour Road, P.S. Parnasree, Kolkata-700 060 and Godown situated at 23/B, Dwijen Mukherjee Road, P.S. Parnasree, Kolkata-700 060, for a sum insured of Rs.15,70,000/- and Rs.50,00,000/-, respectively, for the period from 05-12-2010 to 04-12-2011 and from 09-12-2010 to 08-12-2011, respectively. In between 31-08-2011 and 02-09-2011, a burglary/theft took place in the Showroom of the Complainant, which was closed at around 20.30 hrs. on 31-08-2011,and closed on 01-09-2011 and 02-09-2011 being holidays for Thursday and for Jain Festival, respectively, and on 03-09-2011 around 11.00 hrs., it was found that the lock of the rolling shutter broken and the panel of the rolling shutter tampered with, and that entire stock of Laptops and Cameras were missing. The Complainant immediately informed the Parnasree P.S. by filling a written complaint on 03-09-2011 and an FIR drawn u/s 461/380, IPC and FRT was submitted. The OP No.2 was also intimated by a letter dated 03-09-2011 regarding the loss of 11 Laptops and 43 Digital Cameras totaling an estimated loss of Rs.6,41,000/-, and thereafter a claim form along with inventory of lost items submitted to the OP No.2, who engaged OP No.3 for conducting survey, investigation and loss assessment, who submitted his report on 28-03-2012 assessing the loss to the tune of 5,95,335/- for payment. But, abruptly and surprisingly, the Complainant received a letter dated 19-3-2013 from the OP No.2 enclosing discharged voucher of Rs.63,313/- as full and final settlement of the claim, which was refused by a letter dated 19-3-2013 requesting for fresh settlement. Lastly, by a letter dated 18-11-2013, the OP No.2 asked the Complainant to send the discharged voucher duly complying with it within 7 days, otherwise the file will be closed as "No Claim". So, after making a legal notice dated 11-06-2013, this case has been filed.
On the other hand the case of the OP Nos. 1 & 2 is that after investigating the matter, the investigator, Mr. Sukrit Sirkar, an independent Surveyor, Loss Assessor and Investigator submitted a report before the OPs on 28-03-2012 assessing the amount of loss to the tune of Rs.5,95,335.42. Thereafter, Mr. Subrata Ghosh submitted his opinion only on accounts portion of the stolen stocks and the value of stocks at risk of the insured to the tune of Rs.63,710/-. Accordingly, after deducting the reinstatement premium of Rs.397/-, the Complaint is entitled to Rs.63,313/- . So, the complaint be dismissed.
It is to be considered if the impugned order suffers from any kind of incongruity as to facts and law for making an intervention thereto.
Decision with reasons Ld. Advocate for the Appellant has submitted that there are two independent and separate policies, one under Shopkeepers Insurance Policy in respect of the stock-in-trade of electronic, electrical and household appliances in respect of the Showroom-cum-Sale Centre at 226, Diamond Harbour Road, Kolkata-700 060 for a sum of Rs.15,70,000/- and the other under Standard Fire and Special Perils Policy for the Godown at 23/B, Dwijen Mukherjee Road, Kolkata-700 060 for a sum of Rs.57,70,000/-. The instant theft-cum-burglary happened in the Showroom-cum-Sale Center. There is a vivid description of the articles stolen in the FIR lodged on 03-09-2011, and the Police conducted search of those articles but failed to recover the same, and , accordingly, filed final report. Also, on 03-09-11, the OP No.2's office was also intimated about it and claim form accordingly filed. Thereafter, the Surveyor appointed by the Insurance Company visited the spot and made his report as per the available documents. So, he has also been made a party in the case. The only purpose for which one Chartered Accountant was appointed in the matter by the Insurance Company is to deny the legitimate claim of the Complainant with an evil intention in the form of reassessing the claim, and a paltry sum given of Rs.63,313/- was given and it was refused by the Complainant. Such Chartered Accountant used an average clause and an effort was made to show higher under-insurance by bringing godown in the ambit. It is an arbitrary decision of the Insurance Company to sanction Rs.63,313/-. He has relied upon two decisions of the Hon'ble National Commission reported in IV (2013) CPJ 342 (NC) and III (2011) CPJ 297 (NC).
Ld. Advocate for the Respondent Nos. 1 and 2 has supported the impugned judgement in regard to acceptance of the report of the said Chartered Accountant. He has relied on a decision of the Hon'ble National Commission reported in IV (2013) CPJ 38 (NC).
A vivid and explained report has been made by Mr. Sukrit Sirkar, the Surveyor & Loss Assessor and Investigator. There is no flaw in such report. The Insurance Company has not explained any reasoning behind non-acceptance of this report. The concerned report of the Charted Accountant does not show that he visited the office of the Complainant, but only scrutinized the loss assessed by the Surveyor, which he himself said as a Limited Review Report. There has been a correct assessment by the Surveyor concerned, including the factor of under- insurance and salvage, which stands at Rs.5,95,335/-. Accordingly, the Complainant/Appellant will be entitled to such sum from the Insurance Company.
In the result, the appeal succeeds. The impugned order is liable to be set aside.
Hence, it is O R D E R E D That the appeal be in the same is allowed on contest against the Respondent Nos. 1 and 2. The impugned order is set aside. The Complainant will be entitled to receive a sum of Rs.5,95,335/- from the OP Insurance Company, which should be paid within 40 days from the date of this order, in default to pay an interest @ 12% per annum till payment.
[HON'BLE MR. DEBASIS BHATTACHARYA] PRESIDING MEMBER [HON'BLE MR. JAGANNATH BAG] MEMBER