Order No. 22 dt. 09/01/2017
The case of the complainants in brief is that the complainant is a company in the name and style of M/s Spencer Manufacturers and Traders and the complainant had a policy with o.p. A theft was committed in the factory of the complainant for which valuable stock worth Rs.4,83,000/- was stolen. The said fact was informed to the police and a case was started. After the said incident the fact of theft was informed to o.p. no.2 claiming the insurance amount of Rs.5 lakhs. The complainant on various occasions asked the o.p. no.2 to settle the claim of the complainant but no action was taken, subsequently whenever a lawyer’s notice was sent a reply was given the o.p. no.2 thereafter replied the said letter asking for some documents and in spite of providing those documents the claim of the complainant was not considered for which the complainants filed this case.
The complainants also stated that complainant no.2 is a house wife and used to do some casual and nominal freelance work and she had a car loan in Corporation Bank and her husband, complainant no.1 was the guarantor of the said loan. The o.p. no.2 transferred an amount of Rs.7212/- from the S.B. A/C of complainant no.2 without her consent and adjusted the said amount with car loan EMI. The complainant no.2 never gave any instruction to deduct the said amount from the said account. Subsequently o.p. no.1 sent a notice upon o.p. no.2 under SARFAESI Act, 2002 claiming the entire due towards the said car loan from complainant no.2 which was claimed by complainant no.2 as an illegal act on the part of o.p. no.2. In view of the facts and circumstances as stated above the complainants filed this case against the o.ps. praying for direction upon o.p. no.1 to pay the loss sustained by complainant no.1 in respect of theft committed in his factory amounting to Rws.4,83,000/- and also for compensation and litigation cost. The complainant also prayed for direction upon o.p. no.1 not to proceed as per provision under SARFAESI Act and other relief.
The o.ps. contested this case by filing w/v and denied all the material allegations of the compliant. It was stated that o.p. no.2 requested the complainants to assist the surveyor viz. A.K. Saha & Co., Chartered Accountant and IRDA approved license insurance surveyor and loss assessor for survey. The said surveyor and loss assessor after completion of his survey submitted a final report dt.10.5.12 in respect of the claim of the complainant to o.p. no.2 and in t he survey report surveyor inter alia made following observations: (i) There was no apparent trace of forcible entry / exit into the factory even the police final report failed to establish forcible entry / exit (ii) No stock register was maintained by the insured (iii) No record of material shifting was found pursuant to shifting of factory.
The said surveyor also pointed out in the final report that the broken lock could not be produced before him or the police. After receiving the said report o.p. no.2 asked the complainant to provide some documents including challan for shifting of materials on 21.8.12 and the said document was handed over to the surveyor and the surveyor in a letter informed the o.p. no.2 that there was no forcible entry and/or violent entry or exit from the premises, alleged loss is clearly out of purview of insurance policy and accordingly o.p. no.2 informed that the insurer had no liability to make good the alleged loss. After considering all those documents o.ps. informed that the claim of the complainant was not admissible since there was no substantive material to allow the claim of the complainant, o.p. no.2 denied the claim of the complainant.
So far as the w/v filed by o.p. no.1 is concerned it was stated that the amount for repayment of EMI in respect of the car purchased by complainant no.2 remained unpaid therefore the notice u/s 12 of SARFAESI Act was sent and there was no illegality committed by o.p. no.2. In view of the facts and circumstances as stated above o.ps. prayed for dismissal of the case.
On the basis of the pleadings of parties the following points are to be decided:
- Whether there was any theft committed in the factory of the complainants.
- Whether the claim made by the complainants and denial of the said claim was justified.
- Whether for non payment of car loan amount and the adoption of procedure of SARFAESI Act was illegal.
- Whether the complainants will be entitled to get any relief as prayed for.
Decision with reasons:
All the points are taken up together for the sake of brevity and avoidance of repetition of facts.
Ld. lawyer for the complainants argued that complainant no.1 is the owner in respect of the factory situated at 53, Girish Ghosh Road, Bally, Howrah and the said factory was insured with o.p. no.2. A theft was committed on 17.12.11 in the factory of complainant no.1 and since the said factory was insured with o.p. no.2 the complainant no.1 claimed the loss sustained by the said factory to the tune of Rs.5 lakhs. The o.p. no.2 denied the said claim though complainant no.1 provided all the documents to o.p. no.2, but those documents were not considered for which the complainants had to filed this case.
Ld. lawyer for the complainants further argued that complainant no.1 was the guarantor in respect of the car loan obtained by his wife, complainant no.2, since she failed to pay the EMI that an amount of Rs.7212/- was deducted from her savings bank account and subsequently o.p. no.1 issued a notice u/s SARFAESI Act. The act committed by o.p. no.1 was illegal for which the complainants prayed for a direction upon o.p. no.1 so that the bank cannot proceed in accordance with the SARFAESI Act. Since both the o.ps. harassed the complainants, therefore the complainants prayed for realization of the claim amount of Rs.5 lakhs and also for other reliefs.
Ld. lawyer for o.p. no.2 argued the claim made by the complainants was considered by o.p. no.2 and as per the guideline of IRDA appointment of surveyor was made and he submitted a report whereby the surveyor expressed his dissatisfaction regarding the claim of the complainant no.1 since there were several irregularities in respect of theft as alleged by complainant no.1 as there was no substantive material before o.p. no.2, therefore the claim was not entertained, accordingly the claim was repudiated.
So far as the claim of complainant no.2 that o.p. no.1started a proceeding u/s SARFAESI Act wa illegal and the same cannot be accepted since complainant no.2 failed to pay the loan amount and as per SARFAESI Act o.p. no.1 is entitled to recover the loan amount as per said Act. The complainant no.2 has made such claim in order to get rid of the liability of her husband who stood as a guarantor in respect of the car loan obtained by his wife, complainant no.2. The entire claim made by the complainants was on wrong footing, as such, the claim of the complainant cannot be entertained.
Considering the submissions of the respective parties it is an admitted fact that complainant no.1 is the owner of the factory and a policy was taken by complainant no.1 and the assured sum was Rs.5 lakhs. The complainants claimed that a theft was committed in the factory of complainant no.1 and 27.12.11 for which the complainant sustained loss of Rs.4,83,000/-. After getting such information IRDA approved surveyor was appointed and he found that there were several inconsistences in respect of the claim made by complainant no.1 and in order to eradicate those inconsistences o.p. no.2 informed the complainant and to substantiate his claim the documents filed subsequently were also not convincing for which the surveyor did not believe those documents. On the basis of the said fact o.p. no.2 repudiated the claim of complainant no.1.
It is also found from the materials on record that complainant no.2 took car loan from o.p. no.1 and complainant no.1 stood as a guarantor. Since complainant no.2 failed to repay the loan amount and at the time of obtaining loan the savings bank account was shown and accordingly the bank deducted the EMI from the said account. Moreover, complainant no.2 failed to clear the EMI afterwards for which the bank had no other alternative way but to issue a notice under SARFAESI Act for realization of the loan amount. From the materials on record it is found that in order to safeguard the interest of the husband of complainant no.2, such manufactured story was created by the complainants to claim the compensation from the insurance company alleging that theft was committed in their factory as well as the proceeding started by the bank for realization of the amount due to the bank was illegal, such claim is not at all convincing one and the case started by the complainants was based on some manufactured facts which are not reliable and accordingly, we hold that the complainants will not be entitled to get any relief as prayed for. Thus all the points are disposed of accordingly.
Hence, ordered,
That the CC No.444/2013 is dismissed on contest without cost against the o.ps.
Supply certified copy of this order to the parties free of cost.
