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Judgment
V.K. Jain, J
The complainant company, which is engaged in the business of money changing and sale and purchase of foreign exchange, obtained an insurance policy from the opposite party, for the period from 28.3.2002 to 27.3.2002 in respect of the stock etc., kept in shops number 21, 22 and 67 at Firpo's market, Kolkata. A fire broke out in Firpo's market on 23.4.2002, resulting in the destruction or damage of the entire stock, including and Indian and foreign currency, traveller's cheques, share certificates etc., lying in the shop of the complainant. On intimation being given to the insurer, M/s. Mehta Padamsey Surveyors Pvt. Ltd. were appointed as the surveyors. After about 4-5 months, a second surveyor M/s. N. Velayutham & Company was appointed as the second surveyor on 18.5.2004 at the intervention of the Insurance Regulatory & Development Authority. The claim having not been paid, the complainant sent a legal notice to the insurer on 09.11.2005. Since the claim was not paid, despite the legal notice, the complainant approached this Commission with the following prayers:
Pass an order directing the respondents, jointly and / or severally to grant the complainant's insurance claim of a sum of Rs.2.49 crores with interest @ 18% per annum with effect from 1st July, 2005;
Pass an order directing the respondents, jointly and / or severally, to pay to the complainant a sum of Rs.7,68,031.32 together with interest @ 18% per annum from the dates on which the complainant paid the instalments on acocunt of interest to the bank;
Pass an order directing the respondents, jointly and / or severally, to pay to the complainant a sum of Rs.50 lacs as compensation for the deficient service on the part of the respondents;
Pass an order directing the respondents, jointly and / or severally, to pay to the complainant a sum of Rs.50 lacs for harassment, stress, strain, trauma and agony created and perpetuated by the respondents on the complainant on account of non-payment / non-finalization of the dues of the complainant.
The complaint has been opposed by the insurer which has contested the complaint primarily relying upon the reports of the surveyor to dispute the claim. The following primarily are the grounds taken by the insurer for disputing the claim:
(i) The complainant had informed the surveyor that the Hon'ble High Court at Calcutta had issued orders not to enter or disturb the existing state of affairs in the market and that their interests were lying buried in the debris. The Managing Director of the complainant was instructed to arrange inspection of the damaged premises and property, after obtaining the requisite clearance from the Hon'ble High Court of Calcutta. He removed one safe without inspection of the premises and the property by the surveyor and informed about it to the surveyor on 30.5.2002. When Mr. A. Banerjee from M/s. Mehta Padamsey Surveyors Pvt. Ltd. rushed to the spot, the MD of the company was not available and an employee present at the spot expressed ignorance of the matter.
(ii) At about 6-10 pm, on the same day i.e. 30.5.2002, an employee of the complainant informed the office of the surveyor that something was being removed from the spot and wanted his presence. He advised the caller to contact him next day in the morning since the concerned person had already left. This was immediately also documented vide letter dated 31.5.2002 to the complainant. At the time of visiting the site on 31.5.2002, the surveyor found that 75% of the debris of the premises of the complainant had already been cleared. This was recorded and communicated to the complainant vide letter dated 31.5.2002.
(iii) The complainant vide its letter dated 4.6.2002, informed the surveyor that two safes were in the process of recovery and the surveyor had left prior to the said safes being removed. The surveyor was also informed that all the safes removed from the Firpo's market had been kept in their godown at another place. On 26.6.2002, four safes were inspected and a joint memo of inspection was prepared. The size of the safes available at the time of joint inspection do not tally with the specifications noted in the certified issued by the concerned police station.
(iv) The second surveyor M/s. N. Velayutham & Company submitted a report dated 27.7.2005, stating therein that no credibility could be placed on the audited accounts of the complainant, which had failed to substantiate the claim. He also noted that physical evidence has been suppressed by removal of the safe without knowledge of the first surveyor and there was difference between the measurements of the safe as recorded in the police station and the joint inspection memo. The complainant thus, allegedly had tempered with the evidence, besides giving incorrect statements.
The report of M/s. Mehta Padamsey Surveyors Pvt. Ltd. dated 09.12.2003, to the extent it is relevant, reads as under:
"15. .......... Sri Mohan Sen advised us that the Hon'ble High Court at Kolkata had issued orders not to enter or disturb the existing state of affairs of the market and that their interests were lying buried under the building debris. We could not carry out the inspection of the damage during this visit and advised Sr. Mohan Sen clearly and unambiguously to arrange for inspection of the damage immediately after the Hon'ble High Court gave clearance. He was also advised, inspection had to be completed at first prior to removal of any item form the premises."
On 30th May, 2002 around 3 pm, Sr. Mohan Sen advised us that one safe had been taken out of the collapsed market building, and also cleared from the area. One of our surveyors Sri A. Banerjee rushed to the market and Sr. Sen was not available but met one of the employees of the Insured. When questioned about the whereabouts of Sr. Mohan Sen, the Insured's employee Sri Mullick could not give us any satisfactory answer. In the presence of other employees of the Insured, Sri Mullick pleaded complete ignorance about the items removed already. Neither could anyone of the employees state the whereabouts of Sri Mohan Sen, the M.D. nor where he could be contacted. In the absence of any definite information from the employees, we had to return. On the very same evening (30th May 2002) around 6.10 pm, while closing, our office for the day, we received a phone call from one of the employees of the Insured, who identified himself as Sri Amit, advised us that something was being, removed and wanted our presence. We advised him to contact us the next morning, since the concerned person had left. There was no response at all form the Insured until about 11.00 a.m. on 31.5.2002. The Insured were also advised that their silence in not advising us at the appropriate time and pretending absence of any activity when we were present at the site was certainly not desirable for causing a proper enquiry and processing the claim."
The facts discussed in the foregoing paragraph was recorded and conveyed to the Insured by our letter No. C/1395/077 dated 31.5.2002."
Notwithstanding, the absence of any response by the Insured, we were at Firpo Market between 11.50 hrs. and 14.00 hrs on 31.5.2002. During the visit, none of the items said to be retrieved from their premises at Firpo Market on 30.5.2002 was produced for our inspection. We also found about 75% of the debris of the Insured's shop premises were cleared. We advised on the spot Sr. Mohan Sen that we had no means to verify any of the property reportedly damaged in the fire. These facts were recorded and communicated to the Insured by another letter No. C/1395/079 dated 31.5.2002."
Sri Mohan Sen again called at our office on 18th June, 2002 and wanted that the Safes held at their godown should be examined. Sri B.C. Chatterjee, the senior surveyor proceeded to the godown at Kabitirtha Sarani (Watgunge Road) and examined the so-called safes reported to be removed from the gutted location."
After fixing up a firm programme, we proceeded to the godown at 41B, Kabitirtha Sarranni (earlier known as Watgunge Road) on 26th June, 2002. Arrangements were made to open the safes and the state of affairs recorded in a joint Memo drawn up after the verification of the safe and their contents. This was also followed by our letter No. C/1395/110 dated 27th June, 2002 addressed to the Insured......"
It would thus be seen that when the first surveyor met Mr. Mohan Sen, MD of the complainant company in Firpo Market, the surveyor was informed that the interests of the complainant were lying buried under the debris and an order had been passed by the Hon'ble High Court not to enter or disturb the existing site. The surveyor who could not inspect the damage on account of the order alleged to have been passed by the High Court was specifically instructed the complainant to get the inspection completed before removing any item from the premises. The aforesaid position recorded in the report dated 19.12.2003, has not been disputed by the complainant. In other words, the complainant does not dispute that its Managing Director had been advised by the surveyor to get the premises inspected before removing any item from there. Despite specific instructions given by the surveyor, the complainant removed one safe and cleared substantial portion of the area in the absence of the surveyor and without even asking him to remain present at the time the complainant was proposing to remove the safe and clear the area. No satisfactory explanation is forthcoming from the complainant for not requesting the surveyor to remain present before removing the first safe from premises and clearing the area. Though, an employee of the complainant contacted the office of the surveyor at about 6.10 p.m. on 30.5.2002, and was informed that the concerned person had already left, the complainant did not wait even till the next day to remove the other safes. When the surveyor reached the spot in the forenoon of the 31.5.2002, the remaining safes were not there, meaning thereby that the same had been removed in the absence of the surveyor either after 6.10 pm on 30.5.2002, or early in the morning of 31.5.2002. Again, no convincing explanation has been given by the complainant for not waiting even for one day for the surveyor and removing the safes in his absence in the late evening of 30.5.2002 or early in the morning of 31.5.2002. It has to be kept in mind in this regard that the fire had taken place on 23.4.2002. The complainant obtained permission from the concerned police station for removal of the two safes form the site on 21.5.2002. Despite having obtained the requisite permission on 21.5.2002, the complainant did not try to contact the surveyor and remove the safes in his presence form 21.5.2002 to 29.5.2002. This clearly shows that there was no tearing hurry to remove the safes from the site where the same were allegedly buried under the debris Therefore, the complainant could easily have given atleast one clear day's advance notice to the surveyor before removing any safe from the premises where they were allegedly lying buried under the debris. The removal of the safes from the insured's premises in the absence of the surveyor and without giving any advance notice to him, resulted in the surveyor being unable to witness and verify the alleged removal of the safes from the premises and identify the safes, which were allegedly taken out from under the debris. If the insured does not give a reasonable opportunity to the insurer to physically verify the claim and choses to remove the physical evidence of the alleged loss in the absence of the surveyor and without any advance intimation to him, that by itself, should be sufficient to deny the claim. The safes, which were allegedly removed from under the debris in the absence of the surveyor and without any advance notice to him, in my opinion, could not have formed the basis of the claim alleged by the complainant. In fact, removal of the safes in such a clandestine manner betrays lack of bonafides on the part of the insured and creates serious doubt with respect to the genuineness of the claim itself.
The case of the complainant is that as many as four irons safes were removed by it from the premises where they were lying buried under the debris. However, the complainant has placed on record the permission applied for and granted by the Officer Incharge, Anti-terrorist Cell only in respect of two safes. In its application dated 21.5.2002, the complainant sought permission to remove two irons safes from the debris. There is no explanation as to why the permission was not sought to remove four iron safes if that was the number of the safes, lying buried under the debris. This is not the case of the complainant that there were only two safes in the premises of the complainant and that is why the permission from the concerned police station was sought for removal of only two safes. The inference therefore would be that the remaining two iron safes had been removed in a clandestine manner without even obtaining the permission from the concerned police officer.
There is yet another circumstances, which leads to the inference that the safes produced by the complainant / before the surveyor were not same safes, which the complainant had removed in the absence of the surveyor, thereby denying an opportunity to him to identify the safes removed from the premises of the complainant. A perusal of the permission obtained by the complainant from the concerned police officer for removal of the safes from the site would show that the permission was accorded in respect of one safe measuring 2' x 3' and other safes 3' x 2' x 4'. No safe measuring 2' x 3' was produced for inspection before the surveyor. The size of one safe , Chest No.1 was 41''x 25" x 25". The size of the second chest was 49" x 35" x 23 ½". The size of the third Chest was 18" x 15 ½" x 25" and the size of the fourth chest was 23" x 19" x 13".
This clearly shows that alteast one safe removed by the complainant from the insured premises was not produced before the surveyor for inspection. Though, the learned counsel for the complainant submitted that there could be a mistake on the part of the police officer in recording the size of the safe, no such averment is made in the consumer complaint and no attempt was made by the complainant to get the size recorded in the permission accorded by the concerned police officer. The aforesaid discrepancy in the size of the safe / chest needs to be viewed in the backdrop that none of the safes were removed from the site in the presence of the surveyor. As noted earlier, the permission from the police officer was obtained only in respect of the two safes whereas the four safes were produced before the surveyor for inspection.
A perusal of the joint inspection report dated 26.6.2002 would show that though some currency notes and coins were found in chest No.1, only ash was found in the racks and drawers of chest No.2. Only a small quantity of ash was found in Chest No.3. Chest No.4 was found almost empty. Had the complainant kept currency in all the four chests, which were produced for joint inspection on 26.6.2002 only ash would not have been found in chest No.2 and 3 and atleast some unburnt / partially burnt currency notes and / or some coins would have been found in those safes. In these circumstances, it appears to me that most of the chests / safes produced by the complainant before the surveyor on 26.6.2002, were not the same, which the complainant had retrieved from four debris.
During the course of arguments, the learned counsel for the opposite party placed on record the Standard Fire and Special Perils Policies, which according to him, contains the terms and conditions that were applicable to the insurance policy taken by the complainant from the opposite party. Clause-8 of the General Conditions of the aforesaid policy, reads as under:
"8. If the claim be in any respect fraudulent, or if any false declaration be made or used in support thereof or if any fraudulent means or devices are used by the Insured or any one acting on his behalf to obtain any benefit under the policy or if the loss or damage be occasioned by the wilful act, or with the connivance of the Insured, all benefits under this policy shall be forfeited."
Since the complainant removed the safes from the insured premises in the absence of the surveyor and without giving a reasonable opportunity to him to witness the said removal and thereby identify the safes removed from the site, and thereafter they produced for joint inspection the safe(s) other than the safes removed from under the debris, they used fraudulent means and devices for the purpose of obtaining a claim from the insurer. Such a claim, in my opinion would be a fraudulent claim besides involving use of fraudulent means. Therefore, In view of Clause-8 extracted hereinabove, all the benefits which were available to the complainant under the policy stand forfeited. Consequently, I hold that no amount is payable by the insurer to the complainant. The consumer complaint is therefore dismissed, with no order as to costs.