NATIONAL INSURANCE COMPANY LTD Vs. ARUNKUMAR SAH

JUDGEMENT

(1.) O. P.-NATIONAL Insurance Company has preferred this appeal against the order dated dated 24.4.2003 passed by District Forum, Begusarai in Complaint Case No.08/97 whereby and whereunder directed the appellant to pay 75% of Rs.1,01,000/- on non-standard basis with interest @ 6% per annum and litigation cost of Rs.2,000/-.

(2.) The brief fact of the case is that complainant took insurance policy on 6.12.1995 by the appellant-O. P. for the goods of his shop namely Arun Khad Bhandar situated at Begusarai. The complainant further alleged that he took a loan from Central Bank of India, Teghra Branch under PMRY scheme for the shop. It is further alleged that a theft was committed in his shop in the night of 13/14.5.1996 by unknown person for whom Criminal Case No.78/96 was lodged with Teghra Police under Sec.457/380, I. P. C. The police after investigation submitted final report on 24.6.1996. The complainant alleged that though his shop was insured at a sum of Rs. one lac he made a claim after the occurrence of theft for Rs.1,05,000/- on 19.6.1996 and submitted all the claim papers through Central Bank of India, Teghra Branch. In spite of all efforts the complainant could not get any amount claimed for. Thereafter he filed the complaint case. The O. P.-appellant appeared and submitted rejoinder stating therein that after receipt of the claim papers from the complainant a Surveyor was appointed who visited the spot on 6.7.1996. This Surveyor did primary investigation and submitted the report. Therefore, the Insurance Company appointed a final Surveyor in the month of November, 1996 who by his letters asked the complainant to submit the relevant papers including books of account, stock register, purchase invoice, sale register, cash book, Bank statement and copy of F. I. R. but the complainant did not cooperate with the Surveyor nor supplied with the required papers. He only submitted photocopy of the purchase bills. It was also alleged on behalf of the Insurance Company that complainant should have made Central Bank of India a necessary party through which the insurance was made. The Bank statement regarding his loan and repayment was never produced either with the Insurance Company or before the Surveyor. Therefore, the claim was not settled and the company cannot be held deficient in service.

(3.) After hearing both the parties the District Forum passed the impugned order against which the appeal has been preferred. From the perusal of the impugned order it is clear that most of the facts of the case are not in dispute. The insurance coverage is admitted. The ground for repudiation of the claim is non-filing or production of some important documents by the complainant to enable to settle the claim effectively. The District Forum placed reliance on the copy of the F. I. R. dated 14.5.1996 (Exhibit C/15) and Exhibit C/17 is the copy of the supervision note of the police. This F. I. R. shows that it was a joint F. I. R. by the complainant and one Ajay Kumar Singh in whose shop in the same night burglary were committed. The police found the occurrence of burglary is true. Exhibit C/16 is the petition, which was sent through Branch Manager, Central Bank of India to the police stating that Bank has advanced loan to the complainant in the name of the shop and it has received the information about the occurrence of theft. Thereafter the police submitted the final report (Exhibit C/18), which mentions as occurrence true but no clue. The District Forum also considered Exhibit C/14, which is the copy of the order sheet of the Court of C. J. M. where the police sent the copy of the F. I. R. In view of these documents the District Forum held that complainant has been able to show and prove that a burglary was committed in his shop, which was insured with the appellant. The District Forum further held that from these documents it appears that burglary of 100 bags of DAP and 5 bags of Urea and other articles were stolen. It was fertilizer shop of the complainant. The District Forum held that the complainant has failed to produce the bills, cash memo, purchase receipt, stock register, etc. as per demand by the Surveyor as mentioned in report [exhibit O. P. (5)]. The complainant before the Surveyor produced only photocopy of the cash memo. Exhibit O. P.-4 is the first report of the Surveyor dated 22.4.2001. The District Forum held that before the Surveyor report dated 22.4.2001 was sent the complainant had sent the photocopy of the cash memo and other documents, which have been marked Exhibits C/10 to C/10 C. After perusal of the cash memo the District Forum held that it establishes the purchase of fertilizer, etc. by the complainant for his shop before the alleged date of burglary. The photocopies of these cash memos were also filed before the District Forum and a copy was also sent to the Surveyor before he submitted the report. The District Forum held that complainant before the police and also in his letter addressed to the Insurance Company has intimated that in the case of theft some important registers including stock register, etc. were also found missing, therefore, it could not be produced before the Surveyor. However, the District Forum held that on this ground only the entire claim of the complainant cannot be in negative because from the cash memo and other documents produced by him it is clear that he has purchased articles alleged to be stolen and were kept in the shop before the date of occurrence. The District Forum without discussing the contention of the Insurance Company, which has relied on Clause No.5 (b) of the insurance policy which mentions that complainant has to furnish detail particulars of the amount of loss or damages together with such explanation and evidence to substantiate the claim and if it is not fulfilled by the complainant in that case the insurance becomes voidable. The District Forum held that even if the insurance has become voidable due to non-fulfilment of the condition of Clause 5 (b) of the policy still in view of the admitted fact that complainant's shop was insured and a theft was committed it was open for the Insurance Company to settle the claim as on non-standard basis because on this ground the insurance policy has not become ab initio void. Applying the policy on non-standard basis and in view of the amount of policy and the amount of loss committed in the burglary the District Forum held that 75% of the claim should be settled by the Insurance Company and on this basis directed the Insurance Company to settle the claim @ 75% of the policy amount.