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The Claims Manager, HDFC Ergo General Insurance Co. Ltd. v/s Orient Engineering Works Shyampur

    First Appeal No. A/45/2016

    Decided On, 06 July 2018

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata


    For the Appellant: Debjit Dutta, Swapan Bera, Advocates. For the Respondent: H. Brahmachari., Advocate.

Judgment Text

Instant Appeal u/s 15 of the C.P. Act, 1986 has been filed by the Appellant/O.P challenging the judgment and order dated 30.11.2015 passed by the Ld. District Forum, Unit- I, Kolkata in Complaint Case No. CC/13/479 allowing the complaint on contest with cost against the Appellant/O.P on non-standard basis.

The Appellant/O.P was directed to pay to the Respondent/Complainant a sum of Rs. 1,55,000/- only on non-standard basis and was further directed to pay a compensation of Rs. 40,000/- only for harassment and mental agony and litigation cost of Rs. 10,000/- only within thirty days from the date of communication of this order, failing which, as ordered, an interest at the rate of 10% p.a. shall accrue over entire sum due to the credit of the Complainant till full realization.

The facts, in a nutshell, having relevance with instant complaint were that the Respondent/Complainant, an engineering firm, had his firm insured under the policy sponsored by the Appellant/OP Insurance Company. The policy guidelines detailing therein the terms and conditions which were supplied to him prior to initiation of the policy had no provision of keeping security for 24 hrs. for each room. The policy papers subsequently received by the Respondent/Complainant, however, spoke contradictory to the earlier version recording therein the provision of keeping guard for 24 hrs. mandatory in each room. The Respondent/Complainant, however, managed to provide 24 hrs. guarding of the premises when one security engaged by him used to guard the premises during the day time and Respondent/Complainant himself used to guard his premises at night.

There was an incident of theft on 05.12.2012 during the momentary absence of the Respondent/Complainant for his going to bathroom for attending the nature’s call. The incident reached the Respondent/Complainant a costly financial loss as 40 number of drilling bits lying inside a room were found to have been stolen.

The Respondent/Complainant informed the incident to the Appellant/OP Company which took immediate action for enquiring into the matter by engaging the investigator and for assessing the loss by engaging the surveyor. The Respondent/Complainant also informed the incident to the local PS on a later date.

The Appellant/OP Company ultimately had to close the matter as ‘no claim’ based on the report of the surveyors which was speaking about the Respondent/Complainant’s indifference to provide them with the opportunity to verify the loss in spite of the intimation being sent to the Respondent/Complainant well ahead of above the programme of such verification through formal communication dated 11 July, 2013.

The other reason for repudiation, as communicated, was the breach of warranty in view of the premises being devoid of 24 hrs. security in violation of the terms laid down in the policy guidelines.

The aggrieved Respondent/Complainant, thereafter, filed the Complaint Case before the Ld. District Forum. The impugned judgment and order which was under challenge in the instant Appeal originated from the said Complaint Case.

Heard Ld. Advocate appearing on behalf of the Appellant/OP and the Respondent/Complainant in person.

The first contention which the Ld. Advocate for the Appellant/OP tried to bring to the notice of the Bench was that the FIR was lodged after 12 clear days since the date of the incident. This, as continued, let the Appellant/OP to correctly assume that the big gap between the happening of the incident and lodging of FIR might have been utilized by the Respondent/Complainant to set the incident in a designed manner to misguide the investigating authority to draw conclusion in his favour.

As continued further, there was no document and record which can prove that the investigation was already completed, as claimed. The Ld. District Forum, as contended, passed the judgment and order without considering the fact that the incident’s taking place was not established in absence of any conclusive investigation report from the police confirming the alleged theft.

The Respondent/Complainant mentioned in the FIR that the incident of theft had taken place when he was out of station. After the claim being repudiated for the premises remaining unguarded in violation of the terms of the policy when the theft occurred, the Respondent/Complainant, realizing his mistake, took a different alibi of his going to bathroom for attending the nature’s call at the time of the occurrence of the incident.

The Ld. Advocate continued to submit that the Respondent/Complainant claimed that he had engaged security guard for the day time in the premises while, at night the Respondent/Complainant himself used to guard the premises. Further, in his effort to establish the fact of hiring of services from the security agency, he produced a visiting card which appeared to have been tampered with by some hand written insertions. The false and fabricated visiting card of the Respondent/Complainant agency, as continued, made the disbelief towards non-engagement of any security guard during the day time in the premises even firmer.

The Respondent/Complainant, as submitted, for the last few years had filed Complaint Cases against different Insurance Companies alleging loss at the same place due to fire, storm, thunder, theft etc. All claims were repudiated by the said Insurance Companies on the common ground of non-occurrence of any such peril in the area or in the premises. Instant Complaint also being similar in nature and character, the non-occurrence of the subject theft, as contended, could not be totally ruled out on the instant occasion too. The Ld. Advocate further continued that the Insurance Company engaged ‘Absolute Surveyors Pvt. Ltd.’ as an independent surveyor to assess the loss sustained by the Respondent/Complainant due to the theft as alleged. The surveyors, in their report under head ‘Assessment’, running page-43, expressed their inability to understand the actual situation due to non-cooperation of the Respondent/Complainant who did not allow their entry into the theft location. The case was closed by the surveyor with the advice to the insurer to take similar action.

The Ld. Advocate relied upon some citations of which the following citations appeared to be having more relevance.

1. The observation of the Hon’ble Apex Court reported in AIR 1999 SC 3252 and AIR 2009 SC 2834 wherein the Hon’ble Apex Court was pleased to hold that the terms and conditions were strictly binding and the insured was not entitled to anything more than what was covered by the policy.

2. The observation of the Hon’ble Apex Court in 2000 (10) SCC 19 wherein the Hon’ble Court enlightened us observing that the contents of survey report would be binding and could not be discarded automatically in absence of other expert’s opinion contrary to it.

3. The observation of the Hon’ble Bombay High Court reported in I (2006) 169 wherein the Hon’ble Court observed that watchman warranty was a special warranty and adherence to that condition would entitle the plaintiff to recover the amount in the insurance policy for the risk covered by theft.

With the above submission, the Ld. Advocate prayed for the Appeal to be allowed setting aside the impugned judgment and order.

The Respondent/Complainant did not submit anything but prayed for considering his BNA as his submission and for passing necessary order based on his BNA.

Perused the papers on record and considered submissions of both sides before arriving at the findings narrated hereunder. The policy entailed engagement of security for 24 hrs. per premises, not per room as claimed by the Respondent/Complainant.

The Respondent/Complainant, allegedly, engaged a security staff from ‘Venus Security Services’, a security agency, Hooghly, during the day time when he personally used to guard the institution premises at night. As a mark of proof of engaging a security from the said agency, the Respondent/Complainant attached one hand written certificate issued in his name by one Dibyendu Das affixing on the top of it a copy of the visiting card of the said agency as Letter Head where the name of the said Dibyendu Das, written in hand, was seen to have been figuring in. The certificate which did not have any office seal, not issued under proper letter head of the agency and was not having the designation of the issuing authority, did not, in fact, fulfil any of the required criteria for considering the same as a valid document. The question of non-engagement of any security in the premises in violation of the terms of the guidelines left no reason to disbelieve in the given circumstances.

The copy of the FIR collected by the Respondent/Complainant from the Police Station moving the said authority under RTI Act, appeared to be lacking in all required and relevant information for conducting an investigation. The FIR was only indicative of the fact that the theft had taken place in absence of the Respondent/Complainant. Since the available document indicated that the theft had taken place at night, it was an obvious inference that the theft took place when the premises remained unguarded. I found contents in the submission of the Appellant/OP when it was explained that sensing the snag that the Respondent/Complainant had already stepped in, the Respondent/Complainant changed his alibi stating that the theft’s taking place at the time of his going to bathroom for attending the nature’s call.

The forwarding letter ( running page 21) of the copy of the FIR by the PS was categorical about information towards initiation of a Police Case No. 580/12 dated 17.12.2012 under Section 379 IPC with its investigation yet to be completed. This meant the claim against the theft was preferred when it was not conclusively decided about the happening of any theft at all.

The Appellant/OP had engaged one investigator first. The said investigator, in its report at running page 49, made an observation that the subject business premises was a residential complex which, at present, was occupied by two sisters of the Respondent/Complainant. The Respondent/Complainant being a shareholder of the building used to pay visit to the said house once a month. The subject premises was having no get up of workshop. No infrastructure other than some small iron tools and a small table was seen inside the room.

Subsequently, the surveyor who was engaged by the Appellant/OP for assessing the loss sustained by the Respondent/Complainant submitted a report conveying to the insurer his inability to assess the loss as he was denied entry into the theft location by the Respondent/Complainant. He, accordingly, recommended for the matter to be closed as ‘no claim’.

The Ld. Advocate for the Appellant/OP submitted a list of cases from which it became evident that the Respondent/Complainant was in the habit of insuring the same premises on the pretext of his varied type of business in different year with different insurance company and thereafter, used to lodge claims against loss of business on account of some imaginary perils allegedly sustained by his business.

I, althoug

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h appreciated that there was lapse on the part of the Appellant/OP for providing policy coverage to a business without ascertaining on spot verification as to its entitlement to such coverage, am also of the view that the lapses mentioned below on the part of the Respondent/Complainant were far more grave and therefore, had outweighed the same on the part of the Appellant/OP. 1. Violation of the warranty provision by not ensuring 24 hrs. guarding of the premises which the Respondent/Complainant was bound to provide as per policy terms. 2. Extending no cooperation to the surveyor for inspecting the location for making a case study to ascertain the loss sustained by the Respondent/Complainant and above all 3. Not coming before this Commission in clean hand which was eminently evident from his contradictory statement and from other papers prima facie appeared to be not genuine and far from having any evidentiary value. I, in view of the above, am of the considered view that the Complaint has no merit to be entertained. Hence, ordered That the Appeal be and the same is allowed. The impugned judgment and order stands set aside and consequently the Complaint also stands dismissed. No order as to costs.