Judgment:
J. Bag, ld. Member.
The present appeal is directed against the Order dated 04.02.13 of the Ld. District Consumer Disputes Redressal Forum, South 24 Pgs, in CC Case No.68 of 2012, whereby, the complaint was allowed on contest with cost against OP No.1 and dismissed on contest without cost against OP No.2.
The complaint case, as filed before the Ld. Forum below, was as follows:
The Complainant runs his business as the proprietor of Maa Durga Jewellery. The said business is hypothecated to the United Bank of India , Baruipur, Chowdhury Bazar Branch, Baruipur . He obtained a Burglary Insurance (Policy No. OG 10401000002894) on 05.09.2005 and the said policy was, after renewal, valid from 07. 09. 2009 to 06.09.2010. The policy was issued for Stocks (Mfg.andSale of Gold / Similar Ornaments). Some anomalies being detected by the Complainant in regard to the correct address to be recorded in the policy and the items of risk to be covered as Stock-in -Trade and Stock-in-Transit in place of Stocks (Gold/Similar Ornaments Manufacturing and Sale) OP No. 2 was approached (on 11.05. 2009) to get the same rectified. On 30.01.2010 at about 01.00 hours some miscreants / burglars entered into the house of the Complainant forcefully by cutting the iron lock of the door of the roof of the Complainants house and then breaking the door of the bed room, put the Complainant on the gun point and snatched the keys of the Almirah forcefully and then looted / burgled away several gold ornaments, silver, cash etc worth Rs.18,91,910/-. On 30.01.2010 the Complainant submitted a written complaint before the IC, Baruipur Police Station, stating the fact of burglary and the same was treated as FIR, being Baruipur Police Station Case No. 67 / 10 dated 30.01.2010 u/S 392 IPC. The incident of burglary was informed on 30. 01. 2010 to the OP No. 2 and claim was lodged. Subsequently, OP No. 1 was informed about the incident. The Investigating Officer of Baruipur Police Station started investigation but the looted articles not being recovered inspite of arrest of two persons, FRT was submitted on 27. 05. 2011 vide No. 483/11 dt. 27. 06. 11. A Surveyor ( M/s Riviere Survey and Services Private Limited) appointed by the OP No.1 visited the place of occurrence and inspected the iron lock of the gate cut by hack-shaw blade by the miscreants/ burglars. The said Surveyor got some blank papers signed by the Complainant before leaving the place of occurrence. OP No.1 by their letters dated 20.07.2010/30.08.2010 repudiated the claim of the Complainant on some grounds which appeared to be all false. Thereafter, the Complainant made correspondences with OP No.1 but no positive response was received from them. The claim of the Complainant being finally repudiated on 22.09.2010, a complaint case was filed before the Ld. Forum below.
The complaint was contested by OP No.1 by filing of written version wherein the allegations were denied. It was contended that the Complainant failed to furnish to the Surveyor, the Income Tax Return papers subsequent to the period of 2007-2008 and the Trade Licence issued by the competent authority in respect of the said shop for the alleged period of occurrence. It was also asserted that the Complainant had disposed of all his stocks in September 2007. He had no stock available with him on the alleged date of loss. It was also contended that since there was no forcible entry, that was not a case of burglary. There was no authentic stock statement, as in the FIR it had been stated that the stock statements and ledger were also taken away on the material date. Only two purchase bills about purchase of silver for the year 2004 from one shop, namely, Jayashree Modern Jewellers, which is owned by the Complainants wife could be procured. No reliance may be placed upon such purchase bills. The entire stock of silver was disposed of in the year 2007 and the proceeds thereof were deposited with the OP No.2. There was no stock of silver and gold on the alleged date of occurrence. On the other hand, the Complainant was running his business of mobile phone shop and car rental which has no connection with the said jewellery shop. Further, the alleged occurrence of burglary had taken place from the bed room of the Complainant. But, no coverage was available in respect of any articles stored in such bed room. Though FRT was submitted by the police that can not be treated as proof of the alleged incident. Accordingly, the OP sought for dismissal of the complaint.
Ld. Forum below observed that after snatching away the keys of the Almirah , miscreants entered into the shop room which was on the ground floor of his residence. The report of the Surveyor was not placed before the Ld. Forum below . Going by the fact that the Surveyor took signature on some blank papers and demanded a sum of Rs.50,000/-, and as there was no convincing proof that at the relevant point of time there was no existence of the business of the Complainant Ld. Forum below allowed the complaint with direction upon OP No.1 to pay a sum of Rs.10,000,00/- as insured value to the Complainant , Rs.10,000/- as cost and Rs. 50,000/- as compensation within one month from the date of order , failing which the entire amount shall carry interest @ 10 % p.a. from the date of default till realization.
Being aggrieved by and dissatisfied with the order of the Ld. Forum below, the Appellant has come up before this Commission with a prayer for direction to set aside the order dated 04.02.2013 passed by the Ld. Forum below.
We have carefully gone through the Memorandum of appeal together with the impugned judgment, the petition of complaint, the written version submitted by OP No.1 and other documents including the evidence on affidavit by the Complainant etc. Brief notes of arguments have been filed by the Appellant and the Respondent No.1. Ld. Advocates appearing for both the Appellant and to the Respondents have been heard.
Ld. Advocates appearing for the Appellant submitted that the place of occurrence was not covered by the policy in question. The Complainant/Respondent could not furnish any document in support of his statement that some anomalies were detected by him in the matter of address of items or the risk to be covered by the Insurance Company. It was emphasized that if coverage is available in respect of a certain place and the alleged occurrence takes place at a different place , there is no liability of Insurance Company to reimburse the loss of the Respondent. The trade licence of the policy holder was valid up to 2004 only, the business was closed in 2007 and there was no running business of the Complainant Respondent in the year 2010. There was no evidence as to forcible entry of the burglars into the place of occurrence as alleged by the Complainant / Respondent. Relying upon the order of the Honble National Consumer Disputes Redressal Commission in RP No. 4052 of 2007, the survey report also did not provide for any compensation in favour of the Complainant. In this regard it was stated that the survey report being an important piece of evidence, the same should be relied upon by the courts if no contrary evidence is produced on record. The decision of the Honble Apex Court of India, in the case of United India Insurance Co. Ltd.- vs- Harchand Rai Chandanlal reported in 2004 (8) SCC 644 was referred to and it was held that in case of a burglary claim, application of force and violence has to be proved, but in the present case no such force was found to have been applied and accordingly, the claim of the Respondent does not stand proved. Further, the statement of stock produced by the Complainant is not authentic as submitted by the Surveyor in his report. Honble Apex Court in the case of United India Insurance Company Ltd. “vs- Sony Cherean reported in AIR 1999 SC 3252 and also in the case of Deokar Exports Pvt Ltd “vs- New India Assurance Company Ltd. held that In a contract of insurance, the rights and obligations are strictly governed by the policy of Insurance. No exception or relaxation can be made on the ground of equity. There has been clear violation of the terms and conditions of the policy for which the complaint should not have been allowed by the Ld. Forum below. There was no deficiency in service on the part of the Insurance Company.
Ld. Advocate appearing for the Respondent No.1, submitted that the Complainant had requested the Respondent No.2 vide their letter dated 11.05.2009 to change the address from Umacharan Roy Road, Baruipur 700144 to Madarat , Battala , Baruipur and to change the items of risks from Stocks , Gold / Similar Ornaments Manufacturing and Sale to Stock-in-trade and Stock-in-transit but no action was taken by the Respondent No.2 i.e., United Bank of India , Baruipur Chowdhury Para Branch or the Insurance Company . Monthly statements of stock for the year 2009 were annexed with the examination-in-chief on affidavit of the Complainant/Respondent No. 1 . The investigation report of Baruipur Police Station vide FRT No. 483 / 11 dated 27/06/2011 is very vital as in the said report it was mentioned that after getting sufficient indication / proof of Burglary, 2 suspected persons were arrested but nothing could be recovered from them. All necessary papers were submitted to the OP No.1 and the statement of stock was duly established with supporting documents. The Surveyor having demanded a sum of Rs. 50,000/- as bribe, purposely submitted an adverse report and the Insurance Company repudiated the claim mainly on the basis of such report which was a biased and arbitrary report.
Ld. Advocate appearing for the Respondent No. 2 submitted that they had provided a cash credit loan in favour of the Complainant Respondent and the same was being continued without any interruption. They were not aware of the fact that the business of the insured was closed before the date of the alleged incident of burglary.
Decision with Reasons
There is no dispute that the Respondent/ Complainant purchased one Burglary Insurance from the Insurance Company and the same was valid when the alleged burglary took place in the house of the Complainant. Ld. Forum below observed that the miscreants entered into the shop room which was on the ground floor of his residence and looted silver and gold from the Almirah which was in the shop room (Evidence on affidavit at page 10 para 34).
Though the fact goes that in the policy document the insured address was written as Umacharan Roy Road, Baruipur, Kolkata-700 144 , the Complainant sent a letter on 11.05.2009 with a request to change the address as well as the items of risk. The letter appears to have been duly received on 11.05.2009 by the OP No.2 who is also Respondent No.2 in the present appeal. Ld. Advocate appearing for the Respondent No.1 submitted that the Insurance Company were aware of the fact that change of address in the Insurance Policy was sought for, but for reasons best known to them they neglected to record the change of address in the Insurance Policy for the year 2009-2010 . It is important to note that in the letter of repudiation of the claim there was no mention of any ground that the place of occurrence where the alleged burglary took place was different and therefore the claim was repudiated. On the contrary, the Surveyor appointed by the Insurance Company visited the place of occurrence i.e,. the house of the Complainant at Madarat, Battala and the Surveyor himself in his report mentioned the address of the insured as Maa Durga Jewellery , Madarat , Battala . He visited the Complainants house instead of the Insured Address as recorded in the Policy. This is corroborative of the fact that the Insurance Company accepted the version of the Complainant about the change of address in the Insurance Policy, though not recorded as such. Again, the letters of repudiation dated 20.01.09 /22.09.2010 were sent to Maa Durga Jewellary, Proprietor-Gopal Pramanik , Village, Madarat , P.O. Madara, P.S, Baruipur, 24 Pgs (South) 743610. It can very well be presumed that the Insurance Company neglected to change the address of the insured in due course .Further, though requested for by the complainant, copy of the proposal form, on the basis of which the policy was issued to the Complainant / Respondent for the period from 07.09.2009 to 06.09.2010 could not be produced by the Insurance Company. It is hard to belive that the paper which was submitted to the Insurance Company at the time of renewal of the policy with effect from 07.09.2009 could not be retrieved. In all correspondences with the Complainant / Appellant it is seen that the Insurance Company used the changed address of the insured , instead of the address as recorded in the Insurance Policy. The fact, that the Complainant / Respondent had requested the Insurance Company to change its address in the Insurance Policy does not stand disproved. Hence, the plea of the Insurance Company that the Complainants Insured Address was different from the place where the alleged burglary took place does not stand.
It is seen that the OP -1 / Appellant heavily relied all through his written version upon the report of the Surveyor appointed for the purpose of survey and assessment of the loss suffered by the Respondent / Complainant , but such report of the Surveyor is said to have not been placed before the Ld. Forum below as part of evidence. Ld. Forum below observed as follows:
The report of Surveyor is not coming before us and we should not forget that the Complainant has alleged that his signature was taken by Surveyor on blank paper and demanded a sum of Rs. 50,000/- for which a letter dated 18.08.2011 (Annexure-K ) was issued. There is no convincing proof that at the relevant point of time there was no existence of such business . The OP -1 is not expected to snatch money by way of receiving premium of insurance for a closed business . If he had done so , it was their laches for which they are to face the consequence and consumer can not suffer. There is also no convincing proof that annexure D “ series to the complaint are manufactured . It is true that in the said statement there is no mention for any gold ornaments but the charge sheet has accepted about the burglary of articles .Even for the sake of arguments if it is assumed that there was no gold ornaments but the claim was Rs.10,00,000/- and the calculation of silver ornaments stated in the statement would be more than that as mentioned in complaint ( at page -4).
The above noted observations of the Ld. Forum below are no doubt important but had the Survey report been made available to them as part of evidence or had the Ld. Forum below asked the OP No. 1 to produce the said Survey report as per Section 13(4)(ii) of the Consumer Protection Act,1986, they would have got important material for consideration which did not happen.
In our considered view the report of the Surveyor is very vital in the present case and the Ld. Forum below should have a thorough look at the said report for adjudication of the matter . Accordingly, we deem it fit to send the case back on remand to the Ld. Forum below for fresh hearing upon submission of the copy of the Surveyors report before a fresh order is passed. Hence
Ordered, that the appeal be allowed and the impugned order be set aside. The case shall be sent back on remand to the Ld. Forum below for fresh hearing upon submission of the Surveyors report by the Appellant/OP-1 and such other evidence as may be adduced by both parties. There shall be no order as to cost.
A copy of the order be sent to the Ld. Forum below immediately.