M/s Paul & Co. & Anr vs New India Assurance Co. Ltd. & 3 Ors

Deepa Sharma, Presiding Member

The present Appeal has been filed by the Appellant (hereinafter referred to as “the Complainant”) against the order dated 23.12.2015 of the State Consumer Disputes Redressal Commission, West Bengal (for short “the State Commission”) in Complaint No.89 of 2011 whereby the Complaint was dismissed.

The brief facts as made out by the Complainant in its Complaint are that it purchased one Fire and Allied Perils Burglary & House Breaking Insurance Policy of ₹50 Lakhs valid for the period from 15.09.2009 to 14.09.2010.  It is submitted that the Complainant was running a wholesale medicine business by way of hypothecation to SBI, Srerampore Branch.  On the night of 20.09.2009, there was a burglary in its shop and valuable medicines worth ₹38,33,353/- were stolen.  The complaint was lodged with the Police Station and an FIR No.291/09 was registered which ended in closure of the FIR since the miscreants could not be arrested and no recovery could be made.  The Insurance Company was informed about the said incident on 23.09.2009.  The Bank was also duly informed.  The Insurance Company appointed a surveyor.  The contention of the Complainant is that the surveyor did not submit proper report and had wrongly rejected its claim for non-submission of the papers.  It is further submitted that the relevant papers were also submitted to the Insurance Company on 17.08.2010 vide receipt of even date.  It is submitted that despite submission of these documents on that day, the Insurance Company did not consider those documents and relied on the surveyor’s report dated 25.03.2010.  It is further submitted that the Insurance Company could have reopen the case on submission of the documents and assessed the loss but since it had failed to do so, it amounts to deficiency in service.  It is submitted that the State Commission has also erred in rejecting its Complaint on the ground that the matter cannot be dispose of in a summary procedure and needed full course trial before the Civil Court.  It is submitted that the State Commission ought to have decided the case on merits after considering the documents filed by the Complainant in support of its claim before the Insurance Company and since it has failed to do so, the impugned order suffers with illegality, infirmity or perversity.

It is argued by learned Counsel for the Insurance Company that there is no deficiency in service on their part.  It is submitted that the Complainant was given several opportunities to supply the requisite documents which it failed to do so.  It is submitted that the surveyor in the absence of documents could not have assessed the loss himself and accordingly gave its report.  It is submitted that the claim was repudiated on 06.08.2010 and till then requested documents were not submitted by the Complainant.  The documents were manufactured by the Complainant later on and submitted and the case could not have been reopened once the claim was repudiated vide letter dated 06.08.2010.  It is submitted that there is no illegality, infirmity or perversity in the findings of the State Commission.  The State Commission is not required to assess the loss suffered by the Complainant since it requires examinations and cross-examinations and extensive inquiry was needed to be done into the genuineness of the documents and could not have disposed of the case in summary manner and therefore the findings of the State Commission cannot be found fault with.  It is submitted that the Appeal has no merit and is liable to be dismissed.  It is further submitted that the surveyor in his report has reported that the Complainant had confirmed vide its letter dated 06.10.2009 that they did not have any stock register and therefore, they were unable to produce it.  It is argued that the surveyor in his report has reproduced a letter written by the Complainant wherein they had admitted that they do not have any books and record of the stock and had shown their inability to produce the same to show the value of the closing stock on 19.09.2009, i.e. prior to the loss due to burglary.

I have heard the arguments and perused the record.

It is an admitted fact that the claim of the Complainant had been repudiated by the Insurance Company vide its letter dated 06.08.2010 based on the surveyor report dated 25.03.2010.  It is also an admitted fact that till the surveyor gave its report, the Complainant had not filed any document with the Insurance Company or the surveyor in support of its claim.  The surveyor report finds mention of the letters written by the Complainant which is dated 06.10.2009 whereby the Complainant had confirmed that it did not have any books or record of the stock.  The surveyor report also finds mention of the letter dated 30.09.2009 of the Complainant wherein the Complainant had confirmed that it did not have any stock register available with them.  It is admitted fact that the Complainant could not supply any document in support of its claim to the surveyor.  The Insurance Company has relied on the report of the surveyor who has opined that in the absence of any document, the Complainant could not have proved any loss since it did not produce any document which could show the existence of the stock in the shop on the night of the burglary and also the value of the stock in the shop on that night.  In view of this, the finding of the State Commission that there is no deficiency in service on the part of the Insurance Company cannot be found fault with since it is based on the evidences on record and there is no perversity in the impugned order.

It is argued on behalf of the Complainant that the State Commission ought to have considered the documents filed by it.  It is argued by learned Counsel for the Complainant that after repudiation vide letter dated 06.08.2010, when they submitted the documents to the Insurance company on 19.08.2010, the Insurance Company ought to have reopened the case and consider those documents given.  This argument has no merit as once the claim is repudiated, the Insurance Company cannot be expected to reopen merely because the claimant had filed certain documents.  The State Commission has held that the matter cannot be disposed of by way of summary trial and needed full civil trial.

The admitted facts are that the Complainant had confirmed to the surveyor that they did not have books of accounts or the stock register nor any other record of the stock to prove the value of stock.  According to the Complainant they had got the documents prepared on the basis of the information collected from the various sources regarding their stock.  Since these are not the primary evidences as these documents are not the documents maintained in ordinary course of business, these are the secondary evidences and needed to be proved as per the rules and law.

The State Commission has rightly held that the matter cannot be disposed of by summary trial.  The Appeal has no merit and is dismissed with no order as to costs.