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Judgment
THE complainant before us is a public sector undertaking of the Government of Bihar and registered as a company under the provisions of the Companies Act. The complainant company had taken an insurance policy from the opposite party, covering the risk to the extent of Rs. 13,95,00,000/ - in respect of the electrical/mechanical equipments (plant and machinery) and stores, against fire including STFI, terrorism, burglary and house breaking for a period of one year commencing from 20.02.2006, in respect of a project namely North Koyal Hydro Electric Project (2x2, M.W).
THE case of the complainant company as stated in para no. 10 of the complaint is that on 22.12.2006 it came to know that attempts had been made by the terrorists equipped with fire arms to take away the equipments from the project site at Mandal, Palamu Jharkhand and the miscreants were successful in removing the valuable articles from the site; the site incharge of the complainant company lodged a complaint with the concerned SHO on 24.12.2006 and a copy of the said complaint was annexure P -9 to the complaint. According to the complainant company the value of the aforesaid stolen equipments was about 7 Crores, though the value of the equipments lying there was Rs. 1261 lakhs. This is also the case of the complainant company that the Superintending Engineer Cum Nodal Officer of the company informed the opposite party, about the loss, vide his letter dated 26.12.2006. No surveyor having been appointed to assess the loss, the complainant company is before this Commission for a direction to the Insurance Company to pay an amount of Rs. 706.66 lacs alongwith interest and the costs of the proceedings.
THE complaint has been contested by the Insurance Company primarily on the ground that the complainant company neither lodged a report with the police nor intimated the insurance company or lodged the claim with it in accordance with the terms and conditions, subject to which the insurance policy was issued by it. Clause 4 and 5 of the conditions attached to the policy issued to the complainant read as under: - Upon the happening of any loss or damage, likely to claim under this policy the Insured shall forthwith give notice thereof to the Police and notice thereof in writing to the Issuing Office of the Company stating the circumstances of the loss or damage.
THE Insured shall deliver to the Company within seven days after any loss or damage shall have come to his knowledge or such further time as the Company may allow a claim in writing for the loss and damage containing as particular and account as may be reasonably practicable of the several articles lost or damaged stating the value thereof and the amount of damage thereto respectively and the insured shall give to the Company all such further particulars information assistance proofs and explanations as may be reasonable required." 4. It would be seen from a perusal of the aforesaid two clauses contained in the policy that in the event of any loss or damage, the complainant was required to forthwith give notice not only to the police, but also to the Insurance Company disclosing therein the circumstances in which the said loss took place. It would also be seen that the complainant company was required to submit claim to the Insurance Company within seven days of the loss unless the time for lodging such a claim was extended by the Insurance Company. 5. As noted earlier, the case of the Complainant Company is that the theft of the equipment etc. took place in the night of 22.12.2006 and a report in this regard was lodged by the site Incharge with the concerned police station on 24.12.2006. A perusal of the report dated 24.12.2006, which is annexure P -9 to the complaint, would show that as per the information given to the concerned SHO, in the night of 22.12.2006, the culprits armed with fire arms attacked the store and while firing, made an unsuccessful attempt to break/open the door of the store by firing bullet on the gate, which resulted in a hole in the gate. Thus, no theft as per this report actually took place in the night of 22.12.2006 and the culprits left being after having made an unsuccessful attempt to break/open the door of the store.
WE have also perused the letter dated 26.12.2006, purporting to have been sent by Mr. P. N. Singh, Superintending Engineer Cum Nodal Officer of the project to the Insurance company. The aforesaid letter to the extent it is relevant reads as under: - "With reference to the subject mentioned above, it is to inform that on 22.12.2006 at 11.30 pm, a group of active dacoits/terrorist equipped with fire arms attacked on stores of North Koel H.E. Project, Mandal (Distt. -Latehar) and fired around the stores and threatened/terrorized our security men to quit the place otherwise they will have to face the consequence including their life. It is therefore, requested to depute your surveyor immediately for assessment of loss for worth Rs. Crores due to fire, burglary and miscellaneous damage."
THOUGH , the first paragraph of the letter does not claim any theft in the night of 22.12.2006, the second paragraph does contain an allegation that there was loss worth crores of rupees due to fire, burglary and miscellaneous damage. This letter is based upon the incident which took place on 22.12.2006. We fail to appreciate how the complainant company could have alleged theft of equipment worth crores of rupees in a letter sent on 26.12.2006 when it is clearly stated in the report lodged with the police on 24.12.2006 that there was no loss and only an unsuccessful attempt to commit theft was made by the culprits. This is not the case of the complainant company that they had received any information other than the complaint dated 24.12.2006 from the officers posted at the project site, informing it that in fact the incident of 22.12.2006 had resulted in theft of equipment worth crores of rupees. No report to this effect from any official has been filed by the complainant company.
THE learned counsel for the complainant has drawn our attention to a letter dated 14.04.2007, sent by Superintendent and SHO, Ramanujganj to the Chief Engineer, Irrigation District -Latihar (Jharkhand), informing him that during naxalite patrolling in the night of 05.04.2007, two vehicles having illegal iron goods which seemed to cut from the machinery parts were seized on the ground of suspicion of theft goods and they had arrested five persons named in the said letter. It was further stated in the aforesaid letter that in the investigation all the accused revealed that they committed theft of the seized iron goods from the Katuk Mandal Dam, Jharkhand and converted the machinery parts into iron. The aforesaid letter dated 14.04.2007, obviously could not have been the basis of the letter dated 26.12.2006 purporting to have been written by Mr. P. N. Singh, Superintending Engineer Cum Nodal Officer of the complainant company to the opposite party, since it came to be dispatched for more than 3 1/2 months after the letter dated 26.12.2006 purports to have been written. Thus, the complainant company has miserable failed to explain as to on what basis, it was alleged in the letter dated 26.12.2006 that there was loss of crores of rupees due to fire, burglary and miscellaneous damage.
THE case of the Insurance Company is that the letter dated 26.12.2006 was never received by it. When we asked the learned counsel for the complainant company as to how the aforesaid letter was delivered to the Insurance Company, he stated that the said letter was sent by ordinary post after making an entry of dispatch of the said letter in the dispatch register. He has drawn our attention to paragraph no. 6 of the rejoinder filed by the complainant company. In our opinion, it was highly unlikely that a letter seeking appointment of surveyors to carry out survey related to loss of goods worth crores of rupees would be sent by ordinary post. Such a letter, would at least be sent by speed post or registered post so as to preserve the documentary proof of its dispatch to the Insurance Company. Alternatively, the letter would have been delivered by an official in the office of the Insurance Company. In fact, the letter does not purports to have been dispatched even under a certificate of posting. Therefore, no statutory presumption of service is attached to the aforesaid letter dated 26.12.2006. The complainant company has not filed affidavit of any official who may have actually pout the envelope containing the aforesaid letter dated 26.12.2006 in the letterbox, to prove the alleged dispatch of the said letter.
IT would thus be seen that the complainant company committed three breaches of the mandatory terms of the policy. Firstly, it did not forthwith report the alleged theft to the police after 22.12.2006. As noted earlier, the report which was lodged with the police two days later, contains absolutely no allegation of theft of any property whatsoever from the project site or elsewhere. Secondly, the complainant company did not forthwith, after the alleged theft, give intimation of the loss to the Insurance Company in terms of condition no. 4 extracted hereinabove. Thirdly, the complainant company did not lodged claim with the Insurance Company within seven days of the date in which, it claims to have come to know of the loss of the equipment from the project site. In view of the aforesaid breaches of the terms and conditions on which the insurance policy was issued, the opposite party stands relieved of its obligation under the policy issued by it. Consequently no directions to the Insurance Company can be given for reimbursing the complainant company for the loss allegedly sustained by the complainant in the night of 22.12.2006.
IN New India Assurance Co. Ltd. vs. Trilochan Jane,2012 4 CPJ 441, the condition no. 1 of the Insurance Policy required the insured to give notice in writing to the Insurance Company immediately upon any accidental loss or damage. It was found that there was delay on the part of the insured in giving information of the incident of theft of the vehicle to the Insurance Company. The vehicle came to be stolen in that case on 08.04.2000. The incident of theft was reported to the police on 10.04.2000 and the insurance company was informed of the theft on 17.04.2000. Allowing the appeal filed by the insurance company, it was held that it was incumbent upon the insured to inform the police immediately, within 24 hours otherwise valuable time would be lost in tracing the vehicle. Similarly, the insurer should also be informed within a day or two so that the insurer can verify as to whether any theft had taken place and also to take immediate steps to get the vehicle traced. It was also noted in this regard that the insurer can coordinate and cooperate with the Police to trace the vehicle. Holding that the delay of nine days in reporting the incident to the Insurance Company was a violation of condition of the insurance policy, this Commission held that the Insurance Company was not liable to reimburse the insured for the loss of the vehicle. In the case before us, not only that the complainant company did not inform the Insurance Company forthwith about the alleged loss, the case of the opposite party is that no intimation of the loss at all was given to them before this complaint was filed in June, 2007. Moreover, the report made to the police two days after the incident of the alleged theft itself belies the case set up by the complainant since no theft is alleged in the said report.
FOR the reasons stated hereinabove, we find no merit in the complaint and the same is dismissed with costs assessed at Rs. 25,000/ -.