J.BAG,LD.MEMBER - (1.) THIS application has been filed under Section 17 of the Consumer Protection Act, 1986, seeking redressal in the matter of a dispute raised by the Complainant against the OP Insurance Company following repudiation of the claim preferred for about a sum of Rs. 42,86,293/ -( Forty two lakh eighty six thousand two hundred and ninety three ) only .
(2.) THE Complainant is a registered company engaged in the business of Gold Jewellery Hallmarking along with testing of jewellery , refinery and testing of gold. Since the business transaction of the Complainant involves some risk factors , a Jeweller's Block Policy for a total coverage of Rs.4,52,00000/ - (Four crore fifty two lakh) only was obtained from the OP Insurance Company on yearly basis for a premium of Rs.101885/ - + Service Tax. The policy was valid between 04.05.2009 and 03.05.2010 . On 01st December, 2009, an employee of the Complainant, named, Mr. Jogesh Todkar was returning to the shop of the Complainant after collection of jewelleries which were kept in a bag . Two unknown persons snatched the bag at Hariram Goenka Street and fled away . The employee tried to chase the said unknown persons but in vain. A Police complaint, dated 1st December, 2009 was lodged by the Director of the Complainant company with the Posta Police Station. The FIR was received by the Police Station on 02.12.2009. The jewellery shops from whom jewelleries were collected , demanded for reimbursement of their gold . The Complainant reimbursed 397.550 grams to Kanta Jewelleries Pvt Ltd. with acknowledgement of receipt . The Complainant also reimbursed to M.P. Jewellers a total amount of 97.090 grms of gold worth of Rs.1,71,205/ - along with the amount of Rs.27,288/ - for emerald. No reimbursement has been made to Madanji Meghraj and Co. for 919.67 grms of gold . The loss incurred by the Complainant was intimated by a letter dated 2nd December 2009 addressed to the Senior Divisional Manager NIC . No action being taken by the concerned Police Officer , the Complainant filed an application under Section 156 (3) of the Code of Criminal Procedure before the Ld. Additional Chief Metropolitan Magistrate, Calcutta. By an order dated 01.12.2009 the application was allowed with direction upon the Officer -in -Charge of Posta Police Station to register the case and to make an investigation of the same. During the pendency of the investigation by Police authorities, the Complainant submitted a claim form for a sum of Rs. 25,98,600/ - . Copy of the final Police Report was received by the Complainant on 18th January 2012 . From the said Police report it appeared that the lost goods could not be detected and the case has been closed. A Surveyor was appointed by the OP. As per requirement of the Surveyor , the Complainant submitted the relevant documents. Inspite of written representations , no positive steps were taken by the OP Insurance Company . On 30th November 2012 a letter was delivered by the O.P. to one of the employees of the Complainant and the said letter conveyed rejection of the claim of the Complainant. Hence the consumer complaint was filed. Keeping in view , the fact that valuation of gold increases day by day, the loss sustained by the Complainant has been estimated at Rs. 42,86,293/ - together with interest @18% as the claimed amount apart from prayer for compensation of Rs.30,00,000/ - for damages of goodwill suffered for wrongful action of the OP , Rs.20,00,000/ - as compensation for harassment and mental agony and litigation cost of Rs. 1,00,000/ -.
(3.) THE complaint has been contested by the OP Insurance Company by filing of W.V. contending therein that the Company is not be liable for reimbursement of the loss as per clause No. 8 of the policy . It has also been contended that as per IRDA norms a Surveyor was appointed for investigation , but, in this case, ' the question of Surveyor's report does not arise at all as the repudiation of the claim has been made as per Exclusion Clause of the policy.' ( Paragraph 16 of W.V) Ld. Advocate appearing for the Complainant submitted that the Insurance Company rejected the genuine claim of the Complainant in a very illegal manner . The exclusion clause as pointed out by the OPs is not at all applicable in the present case as the employee from whose custody the jewelleries were snatched by the miscreants never attempted in any manner , the loss or damage of the jewelleries. Nothing adverse has been proved against him either by the Surveyor appointed by the OPs or the Police who interrogated the employee in connection with the theft of the jewelleries from his custody. The same insurance company entertained a claim of similar mature in respect of an incident that happened on 06.10.2009. Ld. Advocate cited the judgment of the Hon'ble Supreme Court as reported in 2004 AIR(SC) 1700 , Civil Appeal No. 391 of 1999 D / 25.02.2004 and the judgment as reported in Air 1994 Supreme Court 787 in Civil Appeal No. 6237 of 1990 with SLP ( C ) Nos. 659 of 1991 and 16842 of 1992 .;