Debasis Bhattacharya, Member:
This appeal is directed against the order dated 30.08.2012 passed in Case No. 36A/2010 by the Ld. District Forum, Unit-II Kolkata. By the impugned order, the Ld. District Forum has dismissed the said complaint case without cost.
Being highly aggrieved and dissatisfied with the same, the Complainant thereof has preferred this appeal.
By the petition of complaint, it has been made out that it is proprietorship firm. Proprietor, Sukdeb Mustafi, a dealer of medicine, and for smooth running of the business, he obtained cash credit facility from the OP No. 4 for an amount of Rs. 6,00,000/- (Rupees six lakhs) by hypothecation of stock of business , and also obtained one insurance policy from the OP National Insurance Co. Ltd being no. 150/07/48/04/980-1085 for the period from 21.03.2005 to 20.03.2006 and the policy risk covered was stocks, furniture and fixtures to the extent of Rs. 8,00,000/- ( Rupees eight lakhs).During the policy period, an incident of dacoity took place in the godown of the Complainant by snatching of the keys of the godown at gun point, which was informed to the local P.S. vide G.D.D. No. 1685 dated 29.07.2005 and also a criminal proceeding bearing no. C/928/2005 was started in the Ld. Court of the CJM, Krishnanagar, and the Ld. Court took cognizance of the offences and issued process against the accused persons, namely, Partha Mustafi, Benu Dutta and Sujit Sarkar, which is still pending. The Complainant intimated the incident of loss of medicine by dacoity to the Insurance Company on 18.08.2005 and in reply the Insurance Company sent one Burglar Claim Form, which has been dly submitted on 15.09.2005 for a claim of Rs. 6,00,000/- ( Rupees six lakhs). As the Insurance Company failed to perform their duties the Complainant instituted one complaint case on 07.07.2008 which was dismissed as not maintainable by an order dated 23.10.2009, and thereafter this State Commission has passed an order dated 29.03.2010 setting aside the ordre with direction upon the Insurance Company to appoint one Surveyor or conducting necessary survey and investigation in the matter, and if the Complainant finds the decision of the Insurance Company is detrimental, it can move the Ld. District Forum once again. Thereafter, the Insurance Company has appointed one Surveyor, namely, Sharandendu Patrnabis, who submitted his report to the Insurance Company on 25.06.2010. Thereafter, the Insurance Company has repudiated the Complainants claim through a letter dated 15.07.2010 on certain grounds. Against such repudiation , the Complainant by a letter dated 13.09.2010 intimated grievances against such decision. Accordingly, the case.It is to be considered if the impugned judgment/order suffers from any kind of infirmity so as to reverse the same in this appeal.
Decision with Reasons:
Ld. Advocate for the Appellant has submitted at first that it is untrue as stated in the impugned judgment that the OP Nos. 1 to 3 have contested the case by filing W.V. stating their case, and also that the parties adduced evidence and also furnished Surveyors report and submitted BNA, as stated in pages 2 and 3 of the said judgment, which will be apparent from the record of the Ld. District Forum which has been called for . In fact, the Insurance Company did not at all appear before the Ld. District Forum, in the matter of Case No. 436A / 2010, inspite of notice. He has also referred the judgment made in the earlier complaint case bearing No. 717/2008 , which being dismissed, there was an appeal by this Complainant being FA No. 457/2009, by which the impugned order was set aside and the appeal allowed in part on contest without cost, and the Insurance Company was directed to engage one Surveyor for conducting necessary survey and investigation into the alleged complaint of the Complainant firm and then come to a decision regarding payment of the claimed amount. In case, the Complainant firm finds the finding and decision of the Insurance Company to be detrimental to their interest, the Complainant would be at liberty to move the Forum below once again seeking justice when both the parties should leave their respective evidence to help the Forum below to reach a decision, just and proper. Thereafter, the present case evolved and initiated by the Complainant before the Ld. District Forum being No. 436A/2010, as the claim was repudiated by the Insurance Company vide a letter dated 15.07.2010, to which a reply was made through an Advocates letter dated 13.09.2010, to which no reply was made. It is a proprietorship firm, and no partnership is involved therein, as wrongly made out in the repudiation letter. The Complainant as proprietor of M/s Medico Distributor was granted trade licence dated 29.07.2004 for the year 2004-05 by Ranaghat Municipality and drug licence dated 14.04.2002 for the period from 28.08.2001 to 27.08.2006, which are previous to the incident. In the matter, there has been criminal case and also criminal revision before the Honble Calcutta High Court, by which the medicines stored were seized by the police under a seizure list.
Ld. Advocate for the Respondent Nos. 1 to 3 has submitted that the claim does not come within the ambit of the present Insurance Policy of the Complainant and further the case is also bad on the ground of territorial jurisdiction of the Ld. District Forum, Unit-II, Kolkata, as the business of the Complainant was located at Ranaghat within the district of Nadia and also the Branch office of the Insurance Company is located there.
Ld. Advocate for the Respondent No. 4 has supported the contentions of the Ld. Advocate of the Insurance Company, i.e., the Respondent Nos. 1 to 3.
In fact , there is lack of any proof of a police case in the matter, but a complaint case lodged by this Complainant before the Ld. Additional Chief Judicial Magistrate, Ranaghat being No. 197/C/2005, which was taken cognizance and, amongst others, process of summons was issued against the named accused persons u/s 379 /384 /34, IPC, vide order dated 23.11.2005. In the burglary claim form submitted by the Complainant, in Column“10, he obliquely stated that the office premises is now occupied by trespasser who forcefully entered his business place by kicking him out. Further, in his letter to the OP No. 3 dated 18.08.2005, he mentioned, œ..
"that huge amount of stock may be theft or loss from my office godown. I am not living in Ranaghat due to insecure my family and also myself from 29.07.05?. In it, though it was stated that there was an FIR , but only G.D. No. 1685 dt. 29.07.2005 was mentioned. It is also found that by a seizure list dated 20.07.2007 a huge number of medicines was seized by the police of Ranaghat P.S, on the basis of an order dated 17.07.2007 by the Ld. Addl. Chief Judicial Magistrate, Ranaghat in Case No. 197C/2005, being so directed by the Honble Calcutta High Court in C.R.R. No. 2016 /2006 . In the said order dated 17.07.2007, ibid, it is found that the case was already dismissed for non-prosecution on 15.09.2006 as no steps were taken by the Complainant, which more than anything else shows that there was rather a civil dispute than a criminal dispute. It is also the spirit of the Honble High Courts order. Such materials do not in any way lead us to presuppose any case of burglary in the matter. So, the claim of the theft or loss is not proved satisfactorily. Accordingly, the claim on account of burglary of an amount of Rs. 6,00,000/- does not hold good. The Insurance Company is found not wrong in repudiating the claim as per its letter dated 15.07.2010. There is no infirmity in the judgment/order assailed . As regards territorial jurisdiction , it is found that the policy document was issued by the O.P. No.2 being located in Kolkata.
In the result, the appeal fails.
Hence,
Ordered
That the appeal be and the same is dismissed on contest against the Respondent, but without any cost. The impugned judgment/order is affirmed.