West Bengal

Siliguri

CC/2012/130

SANTOSH KUMAR AGARWAL & SONS, - Complainant(s)

Versus

1) THE NEW INDIA ASSURANCE COMPANY LTD., - Opp.Party(s)

15 Oct 2015

ORDER

IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.

CONSUMER CASE NO.   : 130/S/2012.                       DATED: 15.10.2015.                 

BEFORE PRESIDENT                   : SRI BISWANATH DE,

                                                       President, D.C.D.R.F., Siliguri.

 

 

                      MEMBERS                 : SMT. PRATITI BHATTACHARJEE &

                                                              SRI PABITRA MAJUMDAR.

 

COMPLAINANT                : SANTOSH KUMAR AGARWAL & SONS,

                                                              HUF represented by its Karta Shri Santosh

              Kumar Agarwal (Killa),

                                                              Killa Bhawan,(Syndicate Bank Building),

                                                              Station Feeder Road, Siliguri- 734 005, W.B.

 

O.Ps.               1.                   : THE NEW INDIA ASSURANCE COMPANY LTD.,

 Siliguri branch Office 512301,

 Malhotra Towers, 2^nd Floor, Hill Cart Road,

 Siliguri – 734003, W.B.

 

                                    2.                   :  SHRI ADHIR CHOUDHURY

                                                             Insurance Surveyor,

                                                             Near Margret School, Pradhan Nagar,

                                                            P.O.- Pradhan Nagar, Siliguri-734003.

                        

                                   

                                                                                                                                                                          

FOR THE COMPLAINANT         : Sri P.D. Dalmia, Advocate.

FOR THE OPs                                  : Sri Sampita Sanyal Sarkar, Advocate.

 

                                                    J U D G E M E N T

The case of the complainant is that he owns a house within Siliguri Municipal Corporation. The building was insured for Rs. 22, 00,000/- on 18.9.2011. The building and its boundary was damaged. The complainant lodged claim. The claim of the complainant was not settled by insured company. On multiple occasion building was surveyed by surveyors but the claim was not settled. The OP offered small quantity amounting Rs.26, 708/- for settlement of the claim. Same was not accepted by the complainant. Hence the case, claiming Rs.6, 41,783/-.

The OPs have contested the case denying inter-alia the entire material allegation raised by the complainant. The positive version is that there is clause no 10 regarding appointment of arbitrator in case of any dispute between insurers and insured. The OP further submitted that OP calculated the loss as per express condition of the policy is Rs. 26,708/-. It is also case of OP that the dispute cannot be settled in a summery fashion.

Contd.....P/2

 

 

-:2:-

 

On the basis of the submission of the parties following issues are farmed:-

 

      a. Is the case maintainable in the present form?

b. Has the Forum got the jurisdiction to entertain the case?

c. Was there any deficiency of service on the part of the OPs?

d. Is the complainant entitled to the award prayed for?

e. Is the complainant entitled to get the other relief?

 

      The complainant has filed the following documents:-

 

1. Policy for the period 10.9.2010 to 9.10.2011.

2. Policy for the period 9.9.2011 to 8.09.2012.

3. Estimate for boundary damaged wall repairing for Rs. 1,90,400/-

4. Estimate for damaged building repairing for Rs.1,76,150/-

5. Intimation letter dated 19.09.2011. Regarding earthquake damages.

6. Letter dated 28.9.2011 revisits for first surveyor and video photos.

7. Claim for building and boundary wall damages.

8. Letter dated 29.09.2011 first surveyor and submission of photos.

9. Reminders dated 24.11.2011, & 04.02.2012.

10. Letter dated 16.02.2012 intimation for starting repairing work.

11. Letter dated 12.3.2012 regarding meeting and discussion.

12. Letter dated 16.5.2012 for completion of part repairing work.

13. Letter dated 29.06.2012 from insurer for submission of certain documents.

14. Insure letter dated 2.07.2012 submitting required documents.

15. Remainder dated 16.07.2012 for not settling the claim.

16. Claim form for household goods damaged in earthquake.

17. Letter dated 28.09.2011 and 29.09.2011.

18. Letter dated 24.11.2011 and 16.02.2012. re. non-settlement of claim.

19. Report of engineer regarding repairing in the Syndicate premises damage due to   earthquake.

20. Repairing Paid voucher the damage building amounting Rs.2, 16,817/-.

21. Repairing paid voucher of damages boundary wall amounting Rs.71, 866/-.

 

Contd.....P/3

 

 

 

-:3:-

 

 The OPs have filed the following documents:-

1. Survey Report of Jayanta Kumar Kar preliminary (Original).

2. Proposal Form.

3. Terms and conditions.

4. Video photography.

5. Photos taken by the complainant.

6. 30 original colour photographs.

7. Original surveyor report.

 

Issue Nos. a. and b.

 

Policy for the period from 10.09.2010 to 09.10.2011 and policy for the period from 09.09.2011 to 08.09.2012 filed by the complainant shows that the House Holder Insurance Policy has been issued in the name of the complainant and there is no denial in this regard on the part of the OPs. So, the complainant is a consumer under the provision of the Consumer Protection Act 1986. It is also seen that both the addresses of the parties to the case are within the jurisdiction of the Forum and the claim of the complainant is within the pecuniary jurisdiction of this Forum and cause of action also arose within the territorial jurisdiction of this Forum. Hence, clearly the case is maintainable in this Forum.

 

Issue Nos. c, d and e.

Complainant claims that he obtained a House Holder Policy being policy number- 51230148110500000037 from the OP No. 1, the New India Assurance Company Ltd., Siliguri of Rs. 22, 00,000/- for his multi-storey building known as “Killa Bhawan”, S.F. Road, Siliguri, for the period from 09.09.2011 to 08.09.2012 and on 18.09.2011 building was damaged due to impact of heavy earthquake . Immediately on 19.09.2011 the complainant wrote a letter to the OP  No. 1 to give intimation about the damages of his building due to earthquake and requested them to depute a surveyor for accessing the loss, Accordingly, on 28.09.2011 The OP No 1 deputed Sri Jayanta Kar as first surveyor and on 11.11.2011 deputed 2^nd surveyor Mr. Adhir Choudhury i.e. Op no. 2 to visit policy spot and to inspect repairing work of the building. The complainant claims that Sri Adhir Choudhury did not submit his report within reasonable time. The complainant claims that he submitted two estimates dated 21.09.2011 repaired by E.r.

 

Contd.....P/4

 

-:4:-

 

Apurba Kulcharya, SMC, License No.A17 for his damage building and boundary wall

repairing expenses amounting to Rs.1,76,150/- and Rs1,90,400/- respectively in total Rs,3.66,550/-. Apart from this the complainant claims for Rs.8, 300/- for damages for house hold goods.

 

       The complainant finally claims that total cost of repairing so far done comes to Rs.

2, 16,617/- for the building and Rs.71, 866/- for boundary wall totalling Rs.2, 88,483/- . Further repairing to be done for boundary wall which will be about Rs.1, 20,000/- and to the building about Rs.2, 25,000/-. The Ops also liable to pay for damage to the house hold goods amounting to Rs.8,300/-.Accordingly, total claim complainant makes for a sum of Rs.6,41,783/- .

On the other hand, On the basis of the report of their surveyor the OP no 1 has made full and final settlement of the complainant’s claim of Rs.26,708/-.

            If that be so the complainant is to prove by cogent, oral and documentary evidence. It is clear from the policy certificate and the terms and conditions filed by the complainant and the Ops E.r that the complainant obtained a House Holder Policy from the OP no 1 to insured his building – Banglow and compound wall of Rs.22,00000/-.

 

            The complainant claims that on 18.09.2011 the building in question is damaged by heavy earthquake. From preliminary report of deputed surveyor of OP no. 1 Sri Jayanta Kumar Paul and original Surveyor report (photographs) of Adhir Kumar Choudhury – OP no.2 it reveals that the building was affected due to recent earthquake. Crake was found several parts of the building and boundary wall.

            Complainant files two estimates of Apurba Kulcharya SMC, License no.A17 for his damaged building but it remains unshakened as he is not a party to the present case.

Complainant submitted some Xerox copies of voucher those vouchers are not proved by the complainant. That being so we are unable to place in reliance of those documents regarding the calculated loss of those documents. On the other hand those alleged surveyors who have stated in their report regarding some loss of the building but those surveyors have not been produced before this Forum regarding the report; even those reports have not been proved by the complainant. On scrap of paper issued by insurance company to the complainant regarding calculation of loss also shows that the P.S. and fire brigade station are situated at a certain distance of the building but they have not been informed regarding the incident. The complainant files some

Contd.....P/5

 

-:5:-

 

photographs without negative those photographs do not show that building was

damaged by earthquake. There is no mention of bank in the complaint. The bank also has not been made party to ascertain their loss. It is also established fact that surveyor’s report cannot be accepted in any way as a gospel truth that incident damaged the building as per version of the Complainant.

As a result the complainant’s claim for Rs. 6, 41,783/- is suffering from insufficient evidence.

From the above discussion we are of the view that the complainant fails to prove his case due to insufficient documents. Accordingly, it is the case is dismissed on contest.

Hence, it is

                                                               O R D E R E D

 

That the Consumer Case No.130/S/2012 is dismissed on contest, but without cost.

Copies of this judgment be supplied to the parties free of cost.