OFFICE  OF  THE  DISTRICT  CONSUMER  DISPUTES  REDRESSAL FORUM, KAMRUP,GUWAHATI-03

                                                                                                    C.C.08/2014

Present:-

1) Md.Sahadat Hussain, A.J.S.         - President

2) Smti ArchanaDekaLahkar            - Member

3) Md Jamatul Islam                         - Member

Shri Prakash Agarwalla                                                - Complainant

S/O- Prem Chand Agarwalla,

Proprietor of M/S Prakash Enterprise ,

Hiren Commercial Shopping Complex,

Basistha Chariali,Guwahati-781029,

Dist-Kamrup Metro,Assam

  -VS-

1) M/S National Insurance Co.Ltd.                              - Opp.party

Regd Office-3, Middleton Street,

Kolkata-700071

2) M/S National Insurance Co.Ltd.

Branch Office at Beltola,

Guwahati-781028,Assam

Appearance:

Ld advocate Mr Mahendra Kr Jain  for the complainant and Ld advocate Mr Samujjal Pratim Sarma for   the opp. party .

Date of argument - 04/09/2018  

Date of judgment - 01/10/2018

JUDGMENT

This is a proceeding U/S- 12 of the Consumer Protection Act, 1986

1. The complaint filed by Shri Prakash Agarwalla, the proprietor of M/S Prakash Enterprise  against M/S National Insurance Co.Ltd.,  Kolkata  and M/S National Insurance Co. Ltd. ,Branch office , Guwahati was admitted on 20/01/2014 and notices were duly served upon the opp. party and they also filed joint written statement on 18/06/2014 . The complainant filed his evidence on affidavit  on 03/12/2014 and he was cross-examined  on 30/03/2016. Before cross examination, the complainant gave additional evidence orally as re-examination. The opp. party  side files evidence of one Smt Jamuna Bhuyan  on 25/01/2017 and she was also cross examined by the complainant side . Thereafter , Ld advocate  Mr Mahendra Kr Jain  on 24/05/2018 filed written argument on behalf of the complainant  and Ld advocate Mr Samujjal Pratim Sarma filed written argument for the opp. parties on 25/06/2018 and finally on 04/09/2018,  we heard oral argument of both sides ld counsels and today we deliver our judgment which is as below-
2. The case of the complainant is that , in  the previous night of 01/05/2011 the burglary and theft committed  by some miscreants in the godown which is in Assam type house situated at Tahbildar compound at Beltola,Guwahati   which was insured with the opp. party vide Policy No-200110/46/10/7500000013 (from 07/05/2010 to 06/05/2011 ) with insured value of Rs.8,00,000/- and the thieves stolen away  goods therefrom of value of Rs.4,35,226/- and knowing about that fact on 01/05/2011 at about 1.00AM,   he informed the Basistha Police Station about the matter over telephone immediately and also lodged one FIR with them at 9.00AM  on 01/05/2011, which was registered as Basistha Police Station Case No-278/11 under Sec-457/380 IPC ; and he also informed Opp.Party No-2 over phone and submitted a written report to Opp.Partry No-2 on 02/05/2011 and the surveyor of the Opp.Party No-2 Mr Rabindra Dey surveyed  the matter and asked him vide letter dtd. 09/05/2011 to submit the necessary documents and accordingly he submitted claim to the opp. parties claiming a sum of Rs. 4,35,226/- as the value of goods stolen from the godown alongwith requisite papers, and before that he also submitted a letter to them on 05/08/2011 narrating the incident. The police of Basistha Police Station submitted final report after doing the investigation. He also  cl;arified to the  opp. parties vide his letter dtd. 09/01/2013 that the  claim is made against the Policy No- 200110/46/10/7500000013 which covers the said godown  complying their query vide letter dtd. 02/07/2012 and 03/01/2013 but they did not settle his claim, and by that act they committed deficiency of service towards him and in consequence they are liable  to pay him Rs. 4,35,226/- as the value of goods stolen alongwith interest @15% per annum  from the date of lodging the claim (Rs.1,41,448/-) as well as Rs.1,00,000/- as compensation for causing harassment and mental agony to him  alongwith the cost of proceeding .
3. The pleading of the opp. party is that there is no cause of action for filing the complaint . The  complaint is filed beyond the period of limitation  as prescribed under Sec-24/A of the Act. Having the theft took place on 01/05/2011 at night / early  morning but complaint was  filed in the year of 2014 i.e after three years of actual incident and hence the complaint is not maintainable being barred by limitation . Opp.Party No-1 is no way related to this present dispute. The complainant delayed the settlement of the claim by not submitting the relevant documents in time and in proper manner . The complainant mislead them by giving wrong policy number . The claim is not repudiated by them and opp. party no-2 was processing the claim  but by filing this complaint , the complainant delayed the matter further . There is no negligence or deficiency of service on their part having  the process of settlement of the claim is delayed by the complainant by not doing his part of duty . The complainant is not entitled to any compensation  from them. The complaint is pre-matured . The settlement of the claim will be as the policy  condition  and deduction will be made as per the guidelines given under the Insurance Act. The  complainant has failed to make out any case against them. The complaint is liable to be dismissed.
4. After  perusing the pleading as well as  evidence of the parties , it appears to us that , burglary / theft was committed in the Assam type godown situated at the Tahbildar compound at Beltola ,Guwahati ,which was insured with the opp. parties vide Policy No-200110/46/10/7500000013 (effective from 07/05/2010 to 06/05/2011 ) on 01/05/2011 before 1.00AM  regarding the said incident  ,Basistha Police Station was investigating the case  by  registering a case vide Basistha Police Station Case No-278/11 and the opp. parties also got the matter investigated  and the loss assessed by deputing surveyor and their surveyor assessed the loss at Rs. 1,32,561/- and opp. parties offered the said amount to the complainant but the complainant refused to accept the same claiming that , the  loss suffered by him is Rs. 4,35,226/-. This very fact of offering Rs.1,32,561/-  by the opp. parties to the complainant as  settled amount of loss suffered by him  due to commission of burglary and theft  in his said godown  proves that the complainant suffered loss as the thieves had taken away  goods from his said godown on that day . Now , question is that what is the actual value of goods stolen from the godown  of the complainant. The complainant states  in his complaint and affidavit that he is claiming Rs. 4,35,226/-  as the value of the goods stolen  from his godown but he doesnot speak any word about the kinds of the goods stolen away from his godown . He has also not submitted list of goods stolen as well as the prices of stolen goods.  . In the FIR (Ext-2),the complainant states that , the value of stolen goods was  Rs. 4,57,990/- but it is found that no authority or the police after investigation reported that  the value of stolen goods is Rs.4,57,990/- . In the  final report also, the police has not given any assessment of the value of the stolen  goods . Secondly, the complainant side adduces no further evidence so is to support his assertion of value of the lost goods . Thirdly, he himself admits that , the surveyor  of opp. parties surveyed the matter with his knowledge. It is also found that but he never requested the opp. party to depute another surveyor to re-survey and re-assess his loss although he had right to do so. In such situation , we must hold that , the assessment made by the  surveyor is the actual assessment as to the value of stolen goods and the complainant has failed to prove his assessment of loss i.e. value of the stolen goods as Rs. 4,35,226/- . In result,  we hold that the value of the lost goods is Rs. 1,32,561/- only and the complainant is entitled to get the said amount only  from the opp. parties against his claim . The complainant in his cross examination admits that the opp. parties offered him Rs. 1,32,561/- to him  but he refused to accept the said amount .So, we are of opinion  that the complainant has no cause of action  to file the present complaint .
5. Because of what has been discussed as above  we hold that the complainant has no cause of action for filing this  complaint. Accordingly the complaint against the opp. parties is dismissed on contest reserving the right  of the complainant to accept Rs. 1,32,561/- offered  by the opp. parties as compensation for loss of goods in the said theft against his claim from the opp. parties.

          Given under our handsand sealstoday on this 1^stOctober, 2018.

         (Smt Archana Deka Lahkar)   (Md.Jamatul Islam)        (Md.SahadatHussain)                                                                                                              Member                               Member                             President