J. Bag, LD. Member
1. The present appeal is directed against the Order dated 20. 05. 2010 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata- Unit-1 in CDF/Unit-1 /Case No. 419/2003, whereby the Ld. Forum below allowed the petition of complaint with directions upon O.P. No.1 therein to pay Rs.3,86,970/- (Three lakh eighty six thousand nine hundred and seventy) only + interest @10 % p.a. thereupon w.e.f 10.01.2000 + Rs.50,000/- for causing mental agony and harassment to the Complainant and Rs.5,000/- as litigation cost.
The complaint case, in brief, was as follows :
2. The Respondent/Complainant had purchased a policy of insurance bearing No.100900/46/75/99/4516 for Rs.5,16,000/-(Five lakh and sixteen thousand) only with the O.P. against burglary and housebreaking .While the policy was valid between 22.11.1999 and 21.11.2000, during 8 p.m on 7th January 2000 and morning of 10th January 2000, the office-cum-factory premises of the Complainant was burgled leading to the theft of three units of Embroidery Machines.The Complainant lodged an FIR with Park Street Police Station on 10th January 2000 and also informed the O.P. of the incident of burglary. The Surveyor appointed by the O.P/Appellant asked the Complainant on 14.01.2000 for certain clarifications in the matter of burglary. The Respondent/Complainant on 9th May 2000 gave the clarifications sought for. The Complainant sent a copy of the final police report to the O.P. Thereafter, a second Surveyor was appointed by the O.P./Appellant who again sought for certain documents vide letter dated 12.04.2001. The O.P./Appellant through their letter dated 18th January 2002 repudiated the claim of the Complainant on the ground that the purchase bill relating to procurement of embroidery machines was fictitious , the address of the supplier i.e. M. S. Enterprise , at 37/4 , Arabinda Road, Salkia , Howrah, having been found, on verification by the Surveyor, to be non-existing. Aggrieved by the repudiation letter of the O.P, the Complainant filed a petition of complaint with the prayer to direct the O.P to pay a sum of Rs.3,86,970/- (Three lakh eighty six thousand nine hundred and seventy) only among other reliefs.
3. The complaint was contested by the O.P. with written objection which inter alia contained that the claim was not maintainable in so far as the explanation and documents submitted by the Complainant as asked for by the 2nd Surveyor were neither to their satisfaction nor to that of the Surveyor, particularly in regard to the Surveyor’s query about ‘Process flow chart from the point of receiving order up to the point of delivery of goods with documents fixed at each stage’. The Ld. Forum perused the pleadings of both sides , evidence on affidavit of the Complainant as well as of the O.P. and went through BNAs of the Complainant as well as of the O.P . Relying upon the fact of burglary that took place in the premises of the factory-cum-office of the Complainant, Ld. Forum below held that raising questions about the existence of the supplier of machines was ‘nothing but frivolous’, since the Insurance Company received the premium from the Complainant after taking into account ‘the existence of the machines in question, no matter wherefrom’ such machines were procured.
Decision with Reasons:
4. We have gone through the appeal together with the petition of complaint and the written objection filed before the Ld. Forum below, and perused the impugned order dated 20.05.2010 passed by the Ld. Forum. The LCR called for vide this Commission’s requisition No. 1014/SC/2J-2/07 dated 24.11.2011 has been consulted. BNA filed by the Appellant has been gone through and Ld. Advocates appearing for both the Appellant and the Respondent have been heard at length.
5. Admittedly, there was a burglary at the office-cum factory premises of the Respondent/Complainant and the local police station was informed of such incident. The Appellant/OP was also informed of the incident and a claim for Rs.3,86,970/- (Three lakh eighty six thousand nine hundred and seventy) only against the theft of machines lying insured with the Appellant/OP was raised The Appellant/OP came to know from the report of the second Surveyor that the bill raised by M/s M.T. Enterprises towards purchase of the machines in question i.e., Four units of Micro Computerized PFALL Model 7570 with additional accessories amounting to Rs.5,15,960/- , was fictitious as the existence of the said supplier did not stand verified.
6. A close look at the records placed with LCR reveals that a quotation (No.M.T/144/99-2000) for Rs.5,15,960/- was dispatched by M/s M.T. Enterprises on 15.09.99 and the payment was made through A/C payee cheque in favour of M/s M.T. Enterprises. The Verification Report of Sri Sarodindu Patronovis dated 20.02.2001shows that the purchase bill of M/s. M.T. Enterprises was attempted to be verified through spot visit to their place of business at 37/4 Arabinda Road and it was found that there was no premises having No. 37 Arabinda Road . He tried to contact Salkia Post Office and ascertained from them that no premises as 37/4 Arabinda Road, Salkia was existing. Accordingly, the Surveyor concluded that the bill of M/s M.T. Enterprise was not genuine. On the basis of that report the Appellant/OP repudiated the claim on the ground that the machines which were insured were not actually purchased and hence non- existing .
7. The Appellant Insurance Company , by their own submissions, appears to have given the notion that they insured some machines whose existence was taken for granted on good faith . They accepted premium against the insured articles. The payment of the bill for procurement of such articles ,as claimed by the Complainant / Respondent , was made through an account payee cheque and the Senior Manager (Deposit) Kolkata Main Branch UCO Bank certified on 18.09.2001 under their letter head that the cheque bearing No. 190481 dated 04.10.1999 for Rs.5,15,960/-favouring M/s M.T. Enterprises was cleared on 08.10.1999 . The transaction of the said amount was not questioned by O.P. There was no evidence to show that the supplier M/s M.T. Enterprises paid for some other purpose . It was the Surveyor who, in his report, stated that premises Nos. 34,35,36 and 50 Arabinda Road, could be located but no such No. as 37 was traced . The statement, anyway, appears to be fallacious. If the premises Nos. 34, 35, 36 and 50 are there, there must be 37, 38 and the other consecutive numbers at least upto 50 as well . Hence, the Surveyor’s report viewed as such does not look to be foolproof and reliable.
8. The Ld. Advocate appearing for the Appellant submitted that the Ld. Forum below by their order No. 43 dtd 04. 01. 2010 agreed to appoint a Pleader Commission ‘to ascertain the ground reality by 29.01.10 in presence of both parties’ but subsequently no such Commission was appointed and no cogent reason for that was given by the Ld. Forum in their order. The Ld Forum , as seen from LCR, held that attempt to find out the existence of M.T Enterprises by appointing a Pleader Commission would be ‘mere wastage of time’ .
9. It is true that the matter was pending for long before the Ld. Forum below for adjudication since 28. 08. 2003 . But that fact would not justify defying a chance to ascertain the truth for the sake of justice . We do not agree with the Ld Forum below in holding that appointment of a Pleader Commission would be ‘mere wastage of time’ simply because they were then ‘writing draft judgment’.
10. The fact remains that the very existence of the supplier of the machines which were said to have been procured on 15. 09. 99. insured w.e.f. 22.11.99 and alleged to have been stolen on or about 10. 01.2000, has been put to serious question and the Surveyor’s report appears to be fallacious. A Pleader Commission as was proposed by the OP/Appellant before the Ld. Forum below could
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adequately help dispel the doubt about the genuineness of the purchase of the articles in question for fair process of adjudication . 11. Going by the facts and circumstances we are of the considered view that the Appeal deserves to be allowed on merit . The Appeal succeeds and we order that- 12. The Appeal is allowed on contest . The case be sent back on remand to the Ld. Forum below for order as regards appointment of a Pleader Commission in the matter of the disputed purchase of the Embroidery Machines from M/S M. T. Enterprises situated at 37/4 Arabinda Road, Salkia , Howrah and for fresh decision taking into consideration the report of the Pleader Commission within a reasonable period of time. 13. The impugned order is set aside . There shall be no order as to cost. 14. LCR be returned to Ld. Forum below along with a copy of this order.