Utpal Kumar Bhattacharya, Hon’ble Member
This Appeal under Section 15 of the C. P. Act, 1986 has challenged the judgment and order dated 18.08.2017 passed by the Ld. District Forum, Hooghly, in Complaint Case No. CC/129/2014 dismissing the complaint on contest without cost.
The facts of the case, in a nutshell, were that the Appellant/Complainant, the Director of a large scale manufacturer of transformer and other similar equipments under the name and style “M/s. Trans Electric Energy System Private Limited” was the holder of the policy sponsored by the Respondents/O.Ps against theft and burglary in respect of his factory premises.
An incident of theft and burglary had taken place at the factory premises at 02.00 a.m. on 29.11.2013 during validity of the above-mentioned policy. The Appellant/Complainant informed the Polba P.S., Hooghly under its No. TESPL/13-14/476, running page 25, and an FIR, based on that information was recorded under No. 112/2013 dated 29.11.2013 by the said P.S. under Section 379 of IPC, running page 24. The Respondent/O.P. Insurance Company was also informed about the incident on the same day, running page 26.
The Polba P.S. ultimately filed an FRT in respect of the said FIR with a conclusive observation that all efforts towards recovery of the stolen articles went without any positive result. Investigating Officer recommended for dropping the investigation as the case was clueless and left no hope of opening the case once again based on any information likely to be obtained in near future.
The insurance company, on receipt of information of the subject incident, engaged one surveyor for assessing the loss. The surveyor, allegedly, was provided with all relevant information and documents but, he demanded from the Appellant/Complainant some more documents having no relevance with the subject incident and at the same time observed and communicated to the Respondent/O.P. Insurance Company that the loss in money value would not exceed Rs.4,50,000/- against the claim of Rs.14,80,788/- submitted by the Appellant/Complainant on 15.12.2013.
Peculiarly enough, as alleged, the Respondent/O.P. Insurance Company informed that the claim of the Appellant/Complainant was being treated as “No Claim” due to non-furnishing of the demanded documents to the surveyor within the given deadline communicated to him by the Respondent/O.P. Insurance Company in its letter dated 18.03.2014.
Being aggrieved with the allegedly arbitrary decision taken by the Respondent/O.P. Insurance Company, the Appellant/Complainant filed the complaint case before the Ld. District Forum which the impugned judgment and order was related to.
Heard Ld. Advocates appearing on behalf of both sides.
The Ld. Advocate appearing on behalf of the Appellant/Complainant submitted that the surveyor engaged by the Respondent/O.P. Insurance Company visited the place, verified the documents, conducted stock taking and collected papers showing book stock vis--vis physical stock, running page 31.
The Ld. Advocate went on to refer to the running page 37, being an enclosure to the mail of the surveyor, running page 36, addressed to the Appellant/Complainant where the Respondent/O.P. Insurance Company placed a requisition of an absurd list of documents hardly having any relevance with the instant incident. What was peculiar, as he continued, the surveyor without having received or examined the desired documents, endorsed the copy of the said letter to the Respondent/O.P. Insurance Company with a preliminary observation regarding maximum loss likely to have sustained by the Appellant/Complainant should not exceed Rs.4,50,000/-.
Since such assessment was made without examining the documents demanded by the surveyor himself, the suspicion existed that the surveyor was absolutely biased while assessing the loss much less than the claimed amount and that too without completing the survey.
Ld. Advocate submitted that the impugned judgment and order was passed by the Ld. District Forum without application of mind and accordingly, it should be set aside. He concluded with the prayer for allowing the appeal with the direction upon the Respondents/O.Ps to pay the claim already placed with them.
The Ld. Advocate appearing on behalf of the Respondents/O.Ps submitted, per contra, that the BNA that he had submitted containing all the points justifying the denial of the claim submitted by the Appellant/Complainant.
As submitted, the Appellant/Complainant did not submit documents demanded by the surveyor in spite of repeated persuasion.
The police report against the FIR lodged with the Polba P.S. under Section 179 IPC also could not establish the alleged incident of theft.
With the above submission, the Ld. Advocate prayed for the appeal to be dismissed in affirmation of the impugned judgment and order.
Perused the papers on record, considered the submission made on behalf of both sides, the FRT submitted in the police report was categorical about the fact that there was not even the remote possibility of the lost articles being recovered and the miscreants apprehended. The same was, however, never explicit as to the denial of the happening of the incident. Therefore, the validity of the incident and its coverage under the Policy should not be questioned.
The surveyor’s mail at running page 36-37 appeared to be confusing as the surveyor himself, on one hand, demanded copies of certain documents in order to arrive at a conclusive findings for preparing the report and on the other hand, without obtaining the desired papers, framed an imaginary ceiling of Rs.4,50,000/- towards the loss sustained by the Appellant/Complainant. The papers themselves were indicative of the fact that the survey was not completed and therefore, no conclusive report forming the sustained loss could be made available with the record.
The surveyor’s report, in view of its above finding, communicated through the e-mail, running page 26, was, however, speaking about the happening of the incident and sustaining certain amount of loss due to the alleged theft-cum-dacoity by the Appellant/Complainant. The Respondents/O.Ps had, therefore, committed deficiency in rendering services by not getting done the survey report completely by their appointed surveyor assigning in his report the reason for his preliminary views as to the loss sustained by the Appellant/Complainant to the maximum of Rs.4,50,000/-.
The Appellant/Complainant, on the other hand, as it is evident from his response to the letter of the Respondent/O.P., running pages 39, 40 and 41, was more concerned about the justification of submission of papers demanded by the surveyor which, as the Director of a huge manufacturing unit of electrical equipments, he was supposed to carefully preserve. The security guard of the subject premises was not allowed to be examined by the surveyor when the guard’s statement was an essential evidence to ascertain the nature of the incident.
The running page 31 being the statement of book stock vis--vis physical stock which the Appellant/Complainant intended to establish as a document of substantial evidentiary value for assessing the exact quantum of theft article, was, in fact, an unsubstantiated evidence since the statement was not supported by the sale figure against the book stock.
From the facts and circumstances narrated above, it was clearly evident that there was contributory negligence from both sides. So the Respondents/O.Ps cannot evade their liability in respect of an incident, happening of which has been established beyond doubt and which squarely fits in the permissible coverage as per policy. The Appellant/Complainant, at the same time, is not entitled to his claim to be entirely reimbursed since there were laches on his part too.
Apart from the above, the surveyor’s demand of certain documen
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ts were of more relevance with the legal existence of the firm and supportive to the legal discharge of its activities. The Appellant/Complainant should have shown more promptitude in production of the documents which were supposed to be available with him rather than questioning the justification of the desired documents for conducting the survey. Hence, ordered, that the appeal be and the same is allowed in part. The Respondents/O.Ps are directed to pay to the Appellant/Complainant an amount of Rs.7,40,394/- being 50% of the total claim of Rs.14,80,788/- on non-standard basis within 45 days from the date of instant order, failing which, a simple interest @ 9% per annum shall accrue to the amount directed to be paid from the date of default till the entire amount is fully reimbursed. The impugned judgment and order is set aside. No order as to cost and compensation.