Shyamal Gupta, Member
The complaint case filed by M/s BCPL Railway Infrastructure Ltd., in a short compass, is that, M/s U.K. Construction and Bapi Construction are the units of M/s BCPL Railway Infrastructure Ltd. Two Storage cum Erection Insurance Policies vide Nos. 500700/44/10/04/40000031 and 500700/44/10/04/40000032 were taken in the names of U.K. Construction and Bapi Construction, respectively. Both the policies were valid for the period from 19-11-2010 to 18-02-2012 with further extended period up to 18-08-2012. During subsistence of the said policies, an incident of theft took place on 20/21-11-2011 at the godown of the Complainant. The matter was duly communicated to all concerned, including the OP Insurance Company. Accordingly, the OP deputed its Surveyor, who carried out extensive survey for days together. The claims of the Complainant being repudiated by the OP subsequently, feeling dejected, the Complainant filed the complaint case.
On notice, the OP turned up before this Commission through its Ld. Advocate. It was submitted by the OP that the policies were taken by both U.K. Construction and Bapi Construction almost two years since dissolution of the said firms. According to the OP, the said policies were taken by the concerned firms as juristic persons albeit those entities did not have any independent existence and none of the entities had any Balance Sheet and on the contrary both the entities provided documents stating that they merged with a new company called Bapi Construction & Electrical Engineering Pvt. Ltd. w.e.f. 01-04-2008. A Deed of Dissolution of Bapi Construction was notorized on 05-05-2008 and an agreement of takeover of business by U. K. Construction was also notorized on the same day. As the said policies were taken in the names of non-existent firms, according to the OP, the said policies stood void and accordingly, no liability under the subject policies could be impounded upon it. Further case of the OP was that, the Surveyor noted various anomalies in respect of the subject claims of the Complainant. Therefore, considering all aspects, the instant claims were repudiated.
The moot point for determination is whether the Complainant deserves any relief or not.
Ld. Advocate for the OP argued that admittedly, M/s U. K. Construction and Bapi Construction were dissolved in the year 2008 and therefore, it was highly improper on their part to take the subject insurance policies in the said names in the year 2010.
It appears that the Complainant obtained legal opinion from M/s Mukherjee & Biswas, Solicitors & Advocates in this regard. In the opinion of the said Solicitor firm, communicated vide its letter dated 03-03-2009, the Complainant could do business in the names of Bapi Construction and U. K. Construction provided description was given as BCPL Railway Infrastructure Ltd. Unit Bapi Construction and BCPL Railway Infrastructure Ltd. Unit U. K. Construction, respectively. The only bar was that it could not operate the bank accounts stood in the names of Bapi Construction and U. K. Construction.
It appears from the record that the insurance policies were taken in the names of Bapi Construction and U. K. Construction incorporating further therein that the same were unit of BCPL Railway Infrastructure Ltd.
Admittedly, the Complainant made frank and candid disclosure about the actual state of affairs while taking the policies in question. Despite knowing such developments, as it did not raise any objection, I am of opinion that, at this stage, the OP cannot rake up this technical issue.
Ld. Advocate for the OP also disputed the admissibility of the subject claims on the ground that there was palpable discrepancy in the contents of FIR lodged with concerned Police Station vis--vis Complainant’s letter addressed to M/s S. N. Associates dated 29-01-2013.
On a reference to the entire case record, however, I did not come across the purported letter dated 29-01-2013, as alleged by the OP. Thus, I could not formulate any opinion in this regard.
Pointing out that, in the FIR, the place of occurrence was mentioned as ‘Krishnachak, Anchal-IV, J.L. No. 267, Block-I, P.S. Contai, Purba Medinipur’, Ld. Advocate for the OP claimed that the said place was not covered under the policies and accordingly, no relief was payable to the Complainant. He also questioned the rationale of lodging complaint with local Police Station instead of GRP.
In this regard, Ld. Advocate for the Complainant submitted that at midnight on 20/21-11-2011, some unknown miscreants broke open the main door of the godown and overpowered the authorized person of Complainant’s Kanthi godown and thereafter, escaped with OHE materials. He further asserted that it hardly makes any difference whether the complaint was lodged with local Police Station or GRP concerned. If the concerned local Police Station had no jurisdiction, it could refer the matter to the GRP.
It transpired from the FRT that in course of investigation, the IO succeeded in recovering some of the stolen materials, but could not arrest any miscreant and ultimately submitted FRT/Charge Sheet u/s 379, IPC. The competent Criminal Court accepted the said FRT. Therefore, to my mind, there should not have been any dispute as regards the authenticity of the incident of theft of insured materials, as alleged by the Complainant.
It appears from the record that the Complainant wrote several letters to the Surveyor clarifying its position regarding the various issues raised by him from time to time. It is significant to note that, the Surveyor did not take those clarifications into his consideration while finalizing the Surveyor Reports. This is highly questionable. If he was so determined to attach no importance to the clarification of the Complainant and went ahead with his pre-determined mindset, there was no point seeking those clarifications from the Complainant in the first place. As an independent Surveyor, in my considered opinion, while sincere attempt was made from the end of the Complainant to satisfy the need of the Surveyor, even if the same was not acceptable to him, he should have blunt those clarifications by giving proper explanation in his report.
I do not wish to cast any unwarranted aspersion upon the Surveyor. However, on due scrutiny of the documents on record, particularly the explanations as provided by the Complainant from time to time, I feel that there was no valid reason to turn down the claims of the Complainant.
The Surveyor assessed the loss in respect of
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U. K. Construction and Bapi Construction as Rs. 12,55,894/- and Rs. 10,77,854/-, respectively. No abnormality being detected with the valuation process being adopted by the Surveyor, in my considered opinion, the OP must settle the subject claims by paying the aforesaid assessed value along with simple interest @ 9% p.a. from the date of filing of the complaint case, i.e., 01-06-2015 till full and final payment is made. I also allow a litigation cost of 25,000/- in favour of the Complainant being payable by the OP. In case the aforesaid decreetal sum is not paid within 40 days from this day, Complainant shall be at liberty to execute this order in accordance with law. The complaint case, accordingly, stands allowed in part.