Consumer Complaint NO. : 34/2008




M/s. Balurghat Technologies Ltd.,
Khejuria
PO: Pubaran
PS.: Baishnabnagar,
Dist. Malda ………………………………Complainant




V-E-R-S-U-S
Branch Manager,
National Insurance Co. Ltd.
Chowranghee,
PO & PS.: Balurghat,
Dist. Dakshin Dinajpur ………………………Opposite Party












For the complainant ……………… - Sri Nirmal Saha, Ld. Advocate
For the OP/OPs ……………………- Sri Goutam Das, Ld. Adv.






Date of Filing : on 18.07.2008
Date of Disposal : on 29.05.2009


Judgement & Order dt 29.05.2009



Instant CC Case bases upon a complaint u/s 12, C.P. Act, brought by the complainant – M/s. Balurghat Technologies Ltd. on 18.7.2008 against the Balurghat Branch of National Insurance Co. Ltd. alleging deficiency in service.


Shorn of details the case made out in the complaint is that the complainant concern has a petrol pump at a place and has been running a business of petroleum products there. It obtained from the OP Branch of NIC an insurance policy bearing No.150703/7600080/2000 having period of coverage from 22.3.2001 to 21.3.2002 respecting the cash whilst on the business premises during the business hours or in locked safe or locked strong room at the insured’s premises out of the business hours against the risks of burglary, house breaking etc. by making payment of premium therefor. It has virtually been the case of the complainant that on 20.8.2001 at about 1:30 a.m. a number of miscreants entered into the premises adjacent to the petrol pump by breaking the door of the room and took away Rs.1,14,881/- from the almirah and 270 litres of mobil worth Rs.20,000/-. Upon the FIR lodged over the incident Baishnabnagar PS Case No.79/2001 dt. 20.8.2001 was initiated. At the conclusion of the investigation a final report was submitted in the said PS case on 30.11.2001. On 9.10.2001 the complainant submitted before the OP, its claim in the prescribed claim form for the sum assured and pursued the matter sending reminders on 15.10.2001, 17.2.2003, 22.11.2003, 10.3.2006 and lastly on 11.6.2008. The claim was ultimately repudiated by the OP on 24.6.2008.


In the back drop of the such circumstances, the complaint was brought seeking a direction upon the OP to pay to the complainant the assured sum and interest thereon, compensation of an amount of Rs.;50,000/- and costs of the proceeding.


The proceeding has been contested by the OP by presenting a written version on 21.11.2008 disputing the material allegations of the complaint and assailing the maintainability of the proceeding on ground of limitation and contending that the complainant does not have the locus-standii to bring the complaint. The OP in its w.v. disputed the complainant’s case of theft or of taking away of cash etc. by miscreants. It has been stated in such w.v. that it is not believable that after closing of business hours the stated huge amount would have been left at the cash counter or ‘Gaddi Ghar’ instead of keeping the same at locked
safe or strong room. Had there been any incident of theft or taking away of cash, such incident happened at a time after the business hours and whilst such cash was not within the locked safe or strong room and so the OP- Insurer as per condition of the policy, is not liable to indemnify the complainant for the loss caused by stated theft of cash and articles by house breaking. Having received the claim form from the complainant the OP caused an enquiry to be made and that there was never any deficiency in service on the part of OP.


Upon the pleadings of the sides following points come up for determination:-
Points

  1. Is the proceeding maintainable?
  2. Has the repudiation of the complainant’s claim been improper ?
  3. Has there been deficiency in service on the part of the OP – Insurer?
  4. Is the complainant entitled to the reliefs sought for ?
Decision with reasons:
The averments made in the complaint have been supported by verification made by Sri Arun Kr. Sethia - the Executive Director of the complainant concern. Such Arun Kr. Sethia has also been examined as PW-1 in support of the complaint. The complainant -concern in support of its case also brought on record copy of the insurance policy deed as Ext-1, copy of FIR as Ext-3, copy of its letter dt.9.10.2001 forwarding its claim form to the OP as Ext -4 and copies of its daily cash statements as Ext - 2 to 2(h).


The averments made in the w.v. of the OP Insurer have been verified by an Administrative Officer of the Insurer concern. The OP Insurer examined none but brought on record as documentary evidence, beside others, complainant’s to letters addressed to the OP as Ext - A & C, OP’s two letters addressed to the complainant as Ext -B and D, Surveyor’s report as Ext -H, copy of police report including FIR and court’s orders as Ext -F and a form of money insurance policy as Ext -G.


No other evidence was adduced in the case. Let us now enter into the determination on the different points formulated above:-
Point No.1:
In course of hearing the Ld. Counsel appearing for the OP insurer drew our attention to Ext.-B namely OP’s letter dt.22.3.2006 under which the complainant concern was informed about the repudiation of the claim and urged that the instant proceeding having been filed on 18.7.2008, i.e. after expiry of a period over 2 years since the repudiation of the claim, has been barred u/s 24A of the CP Act. To strengthen his such submission reference was made by him to a decision of the Hon’ble National Commission reported in 2008 (2) CPR 324 (NC). Making reference to a decision of the Hon’ble National Commission reported in 2008 (4) CPR 360 (NC) it was further urged by him that the complainant’s letter dt. 11.6.2008 (Ext.-C) addressed to the OP seeking reopening /reconsideration of the claim or the OP’s letter dt. 24.6.2008 (Ext.-D) turning down the said prayer for reconsideration cannot be regarded to have the effect of extending the period of limitation.


Ld. Counsel appearing for the complainant, on the other hand, urged that as the said prayer for reconsideration was turn down under the OP’s letter dt.24.6.2008 instant complaint having been brought within a month from the issuance of that letter, cannot be said to be barred u/s 24A CP Act.


Ext.-B – OP’s letter dt. 22.3.2006 goes to indicate that under such letter the OP informed the complainant that they were unable to entertain the complainant’s claim for the reasons stated therein. The complainant’s letter dt. 11.6.2008 brought on record as Ext.-C shows that under such letter the complainant prayed before the OP insurer for reopening of the claim and for reconsideration. OP’s letter dt. 24.6.2008 brought on record of Ext.-D goes to show that under such letter the OP Insurer virtually turned down the complainant’s prayer for reconsideration and stated that the repudiation had been made not only basing upon the police report but from a consideration of the surveyor’s recommendation too.


In paragraph-6 of the judgement made in the case of M.S. Subramaniam -vs- Institute of Costs and Works Accountants of India reported in 2008 (4) CPR 360 (NC) relied upon from the said OP insurer it has been observed by the Hon’ble National Commission that the exchange of correspondence does not extend the period of the limitation. In that case the complainant prayed for compensation from the ICWAI alleging that even though he had passed certain examination in June, 1991, marks sheet had not been sent to him prior to December, 2003. The complaint was brought by the complainant in July, 2006. In that case the complainant’s grievance was OP’s failure in sending mark-sheet in time. The complainant brought the complaint after elapsing of about 15 years since the stated date of passing the examination.


In our opinion the said decision relied upon from the said of the OP Insurer cannot be applied aptly in the circumstances appearing in the case in hand before us. In this case the complainant sought for reconsideration within about 2 years 3 months from the repudiation i.e. before complainant’s action for relief under the ordinary law of land became barred. Under the letter dt. 24.6.2008 the complainant was, virtually, informed of the rejection of the prayer for reconsideration. Such rejection of the prayer for reconsideration, we think, enures in favour of the complainant a fresh cause of action. In such a situation, the complainant’s complaint having been brought within about 2 months since that rejection, cannot be regarded have been barred by time.


In paragraph-3 of its written version the OP insurer appears to have taken the plea that the complainant does not have the locus standii to bring the complaint. Here it remains admitted that the complainant concern has been running a business. Obtaining of the insurance policy was for indemnification of the loss. The obtaining of the insurance policy was not for generating the profit of the complainant concern. The obtaining of the policy, in other words, the availing of the service of the OP insurer was not intended to generate profit. It, therefore, cannot be regarded that the service of OP insurer was obtained by the complainant for any commercial purpose. So the complainant concern despite its having been a business concern, can very well be regarded to have been a “consumer “ within the meaning of Sec.2(1)(d), CP Act, and can be said to have the locus standii to bring a complaint u/s 12 of the CP Act. Instant proceeding, therefore, cannot be said to be untenable u/s 24A CP Act or in view of complainant’s not being a consumer. On the materials on record, we do not find anything else which may render such proceeding untenable. We, thus, decide the Point No.1 by holding that the proceeding is maintainable.
Points Nos. 2 & 3:
These two points are taken up together for consideration for convenience of discussion.
Copy of the letter of the repudiation namely letter dt.22.3.2006 issued from the OP brought on record as Ext.-B purports that the OP insurer under such letter informed the complainant that as per final report submitted by police in the concerned PS Case the stated incident of taking away of cash became doubtful and so they were unable to entertain the claim. Copy of the complainant’s letter dt. 11.6.2008 seeking reconsideration over the claim for the sum assured brought on
record as Ext.-C and that of the OPs’ letter dt. 24.6.2008 brought on record as Ext.-D reveal that under the OP’s letter dt.24.6.2008 the OP informed the complainant that they repudiated the claim of the complainant taking into account the report of the surveyor appointed by them.


In the final report submitted by police in the concerned PS Case (included in Ext.-F) it has been observed that the incident of taking away of cash stated in the FIR appeared to be doubtful. In note-(ii) recorded in the surveyor’s report – Ext.-H, it has been observed that the insurer suffered loss of an amount of Rs.1,04,754/- instead of Rs.1,14,881/- stated in the claim form.


In course of hearing Ld. Counsel appearing for the complainant drew our attention to note (ii) & (iii) recorded in the surveyor’s report – Ext.-H and urged that the OP ought to have allowed the complainant’s claim basing upon the surveyor’s assessment of the actual loss to an amount of over Rs.1,00,000/- and that OP’s repudiation of the claim virtually placing reliance upon the FRT submitted by police, has been improper. He also made reference to a decision of the Hon’ble Orissa High Court reported in 1994 ACJ 1303 to contend that the contents of the charge sheet submitted by police should not be treated as evidence in a proceeding before a Tribunal. It has further been urged by him that since no witness has been examined in this case from side of the insurer, complainant’s claim as to its suffering loss in the incident of taking away of cash and articles by miscreants warrant to be accepted by this Forum.


Contention advanced from side of the OP Insurer, on the other hand, was that a surveyor is a loss assessor and not a person competent to investigate over the stated incident of taking away of cash and articles by miscreants and so in view of expressing of doubt by police as to the occurrence of the incident of taking away of cash in the final report submitted in the police case, the OP insurer was right in repudiating the complainant’s claim for the assured sum. Drawing our attention to different terms and clauses in the policy deed. It has also been urged by the Ld. Counsel appearing for the OP insurer that as per the terms of the policy after the business hours the cash monies were to be kept in locked safe or in locked strong room but according to the complainant’s version of the incident, the miscreants took away the cash from the cash counter and from the almirah even though such
incident has been alleged to have taken place at a time after the business hours and so the complainant cannot be said to be entitled to the sum assured in view of violation of the terms of the policy on the part of the complainant.

In the case reported in 1994 ACJ 1303 (Mataji Bewa & Ors.-Vs- Hemanta Kumar Jena & Anr.) referred to from side of the complainant the Hon’ble Orissa High Court while determining an appeal arising out of an award of an MAC Tribunal observed that the Tribunal committed a gross error of law in relying upon a charge sheet to come to the conclusion that the victim had been travelling on the truck involved in the accident and held that the contents of the charge sheet could not possibly be treated as an evidence in the claim proceedings.


Agreeing that the contents of the charge sheet submitted by police in the concerned PS case cannot be regarded to be an evidence in this case we curiously note that the evidence on record in this case is not sufficient to inferthat the incident of theft of cash had actually taken place.


Here on the point of taking away of cash and articles complainant’s reliance is, virtually, upon the evidence of the PW-1 - Arun Kumar Sethia who claimed to have been the Executive Director of the complainant-concern. In his affidavit submitted by way of examination-in-chief this PW-1 appears to have averred that on 20.8.2001 at about 1:30 AM some miscreants had entered the premises of the petrol pump by breaking door of the room and took away Rs.1,14,881/- from the almirah and cash counter and 271 litre of mobil worth Rs.20,000/- and that Sushil Kumar Jain – Manager of the complainant-concern lodged with the local PS an FIR over the incident. In course of his cross examination this PW-1 has been stated that the incident of the theft was brought to his notice while he was away in Kolkata and that he did not pay visit to the place of occurrence soon after the incident had been reported to him. The person who remained entrusted to keep watch over the premises at the stated hour of the incident, has not been examined. In fact, in course of cross examination PW-1 – the only witness examined from side of the complainant said that he cannot remember the name of the night guard who remained entrusted to keep watch over the premises at the relevant time.


Sushil Kr. Jain – Manager of the complainant-concern who, it has been testified by PW-1, lodged FIR over the incident, has also not been examined.
It is true that the PW-1 in course of his cross examination said that Sri Jain does not have any relation with the complainant-concern since after 2.10.2001 but here there is no evidence that the said Sri Jain is not available at present for securing his attendance before the Forum for examination. Police, at the conclusion of the investigation ultimately, submitted an FRT in the concerned PS case. PW-1 during his cross-examination stated that he remained aware about submission of FRT but no written objection was presented over the submission of FRT by police.
Though, the Ld. Counsel appearing for the complainant strongly urged that the surveyor in his report inferred as to the theft of cash of Rs.1,04,754/-, we curiously note that even though the surveyor in his report – Ext.-H stated that the loss suffered amounted to Rs.1,04,754/-, no where in such report, it has been expressly stated that the materials could be collected by him for drawing of an inference that the incident of theft of cash had actually taken place. Rather, it has been claimed in such report that the OC of the concerned PS was requested to get them informed about the development of the case.


It is true that none has been examined as witness from side of the OP insurer in this case yet in the back drop of the circumstances apparent from the materials on record the defence case that the incident of the theft of cash did not actually take place on 20.8.2001, preponderates.


Further here in this case we find materials to infer that the complainant concern contravened the terms of the policy. In fact, it has been averted in Paragraph-3 of the complaint that the concern policy was in respect of “***cash whilst on the premises during the business hours or whilst secured in locked safe or locked strong room on the insured’s premises out of business hours against the risk of burglary, house breaking and hold up ***”. Copy of the concerned Money Insurance Policy brought on record from side of the complainant as Ext-1 appears to be in consonance with the said averment. In fact, at Sec. 2(II) of the policy schedule included in Ext-1 “Premises” and “Limit of any Loss” appear to have been narrated as under:-
Premises Limit of any one loss
Cash (other than described in Sec “1”A above) whilst Rs. 1,00,000/-
on the premises during business hours or whilst
secured in locked safe or locked strong room on the
insured’s premises out of business hours, against the
risk of burglary, house breaking and hold up.


That apart, from item no.4 of the “exclusion” clauses appearing in the policy deed brought on record by the complainant as Ext.-1, it appears that it was a stipulation of the contract of the insurance that the OP insurer shall not be liable in respect of loss occurring on the premises after the business hours, unless the money is in a locked safe or strong room.


The OP insurer on Paragraph-15 of its written version also advanced the plea that “if anything happened at all that happened after business hour and if anything was lost (if at all) it was not within the locked safe or strong room” and that “there will be no liability to pay the claim as it is a gross violation of the policy condition”.
Despite presentation of such a case put forward from side of the OP insurer, the PW-1 – the only witness examined from side of the complainant during his examination, does not appear to have denied that the stated incident of theft took place within the business hours or that the cash had actually been taken away from the locked safe or strong room. Rather, it has been the claim of the PW-1 made in his affidavit submitted by way of examination-in-chief that at about 1:30 AM the miscreants entered the premises adjacent to the petrol pump by breaking the door of the room and took away the cash from the almirah and cash counter.


The repudiation of claim for indemnification, therefore, cannot be said to have been improper and so it cannot be inferred that failure on the part of OP insurer in indemnifying the complainant for the loss suffered if at all, tantamount to deficiency in service.


It is true that the OP insurer neither in its letter of repudiation dt. 22.3.2006 (Ext.-B) nor in their letter dt. 24.6.2008 (Ext.-D) stated that they repudiated the claim on account of violation of the said policy term but since such a case has been taken by the OP insurer in its written version, we think, we can safely take into consideration the said case put forward by the OP in its written version.


From a consideration of the materials on record and the circumstances, we thus decide the Point No.2 by holding that the repudiation of the claim by the OP insurer cannot be said to have been improper and the Point No.3 by holding that there was no deficiency in service on the part of the OP insurer.


Point No.4
In view of our above determination on Points No.1 to 3 the complainant cannot be said to be entitled to any of the relief sought for by it.
The four points are thus decided.
In the result the complaint fails.


It appears from the case record that the notice over the complaint was issued to the OP on 14.8.2008. The OP appeared in the case on 25.8.2009. It took about 9 months since the appearance of the OP in the case, to get the complaint decided. This is, as it appears from the case record, in view of a good number of adjournments sought for mainly from side of the OP insurer.
It is thus.
O R D E R E D


That the complaint u/s 12 CP Act, brought by the complainant on 18.7.2008 be dismissed on contest.