ANUP K. THAKUR 1. Under challenge in this Revision Petition No. 3825 of 2013 is the impugned order of the State Consumer Disputes Redressal Commission, West Bengal, Kolkata (‘State Commission’, hereafter) in FA/50/2012 dated 12.07.2013. Vide this order, the State Commission had disposed off the appeal by modifying the order of the District Consumer Disputes Redressal Commission, Jalpaiguri (‘District Forum’, hereafter) in CC/2011/25 dated 28.11.2011. Whereas the District Forum had allowed the consumer complaint, directing the OP to pay a sum of Rs.7,00,000/- (Rs. 7 Lakh) with interest at 6% p.a. from the date of filing till realization, and Rs.25,000/- compensation, and Rs.1,000/- towards costs, the State Commission modified this order and directed the respondent/OP to pay a sum of Rs.2,91,666.66 (Rs. Two Lakh Ninety One Thousand Six Hundred Sixty Six and Sixty Six paise only) with interest at 6% p.a., leaving the rest of the order unchanged. It is this order of the State Commission that is now under challenge in this revision petition. 2. It is the case of the petitioner/complainant (complainant hereafter) that he had insured his two-storey house with the respondent/OP-Bajaj Allianz General Insurance Co. Ltd. (OP hereafter) for a sum insured of Rs.24,00,000/- (Rs.24 Lakh), from 17.4.2007 to 16.4.2012, vide standard fire special peril policy No.OG-08-2404-4025-00000001. On the night of 24/25.10.2010, the front portion of the house was totally gutted in a fire. Upon intimation by his wife, who had also taken an insurance policy for her automobile spare parts being carried out in the same building, OP deputed an investigator/surveyor. On 19.1.2011, the complainant formally informed the OP and filed a claim for loss suffered to the building due to the fire. The OP, however, repudiated the claim on the ground that it had been intimated after a delay of over 15 days, and also on the ground that a portion of the building was being used for business, a fact not disclosed in the proposal form. The contention of the OP was that the building was being used illegally for commercial purpose and that therefore the complainant became a non-consumer under the Consumer Protection Act, 1986, and therefore, the claim became non-payable for suppression of material facts. The complainant filed a consumer complaint with the District Forum which, as noted earlier, was allowed. On appeal, the State Commission modified the order reducing the amount payable, from Rs.7 lakh to Rs.2,91,666.66. Hence, this revision petition. 3. This was heard on 26.2.2020. Counsel for the complainant and proxy counsel for the respondent, upon instruction, agreed that final order may be passed based on written submissions already made. 4. Admitted facts are that the complainant had taken out an insurance policy for his building for five years and that a fire took place on the night 24/25.10.10 in which the front portion of the house was totally gutted. His wife had a business of automobile spare parts which was being conducted from the first floor of the same building. Intimation to the insurance company was given by his wife who had also insured her business separately with them. The point to note however is that both the insurance policies related to the same building. Whereas the building had been insured for Rs.7 lakh, wife of the business had been insured separately for Rs.15 lakh. 5. The District Forum reasoned that there was no specific clause in the insurance policy which stated that no portion of the said insured house could be used for business purpose. As such, it found no merit in the argument of the OP that the house was being used for commercial purpose, and that this violated the terms and conditions of the policy. Further, the District Forum considered the other ground taken by the OP viz. that the intimation of fire and loss to the building was given after a delay of more than 15 days which was another violation of the terms and conditions of the policy, and reasoned that this objection also deserved to be overruled: It could not be forgotten that the wife of the complainant had informed the OP in respect of her own insurance policy for stock in trade; it was therefore clear that the investigator appointed by the OP had visited the building and therefore it was well within the knowledge of the OP that the fire had gutted the building. The District Forum did not see any reason for a separate intimation about the same incident in the same building to the OP. Based on this reasoning, the District Forum allowed the complaint and directed the OP to pay Rs.7 lakh, the sum insured. The State Commission agreed with the reasoning of the District Forum. It noted that there was no specific stipulation in the policy that any part of the dwelling could not be used as a shop, either by himself or by his wife. The fact that the same insurance company had also insured the small business being run by his wife in the same building clearly showed that the argument that the OP had used for repudiating the claim could not withstand scrutiny. Regarding delay in intimation, State Commission reasoned that the complainant’s wife had informed the OP after the incident and the same had not been denied by the OP in its written version. As such, there was no prejudice caused to the OP-insurance company on this ground. The State Commission however noted that the surveyor had found the shop to have been totally gutted while there was no damage to the insured residential premises. Further, it observed that the surveyor had noted in his report that there were two shops, one for spare parts of two wheeler and three wheeler and the other for the purpose of dealership of M/s Bajaj Auto Limited, and both the shops had been damaged. As such, the surveyor had concluded, taking into account the fire report, physical inspection of the damaged goods of building, local statements about the fire, that the fire had indeed occurred and caused damage to the shop premises situated within the insured building. As only 1/3rd of the building was damaged, the surveyor calculated the payable amount for damage to the building to be Rs.2,91,666.66, also taking into account depreciation of the building. The State Commission agreed with the surveyor’s report and modified the claim amount payable to the complainant to Rs.2,91,666.66, leaving the rest of the order of the District Forum unchanged. 6. From the narration above, it is clear that the only issue for consideration in this revision petition is whether the State Commission had erred in relying upon the report of the surveyor. 7. In my considered view, since the finding of this surveyor was clear viz. it was only the front portion of the building where the shops were situated which had been badly gutted and the residential part of the building were unharmed, the District Forum had obviously erred in yet allowing the total sum insured to the complainant. The surveyor’s report, as per established law, is an important document and cannot be brushed aside without cogent reasons. In the revision petition, apart from bland averments that the State Commission had erred in modifying the District Forum’s order and so on, no cogent reason as to why the surveyor’s report should not be accepted, was furnished. In fact, the State Commission only followed established law in taking note of the surveyor’s report and correctly based it’s order on it. 8. As such, there is no error apparent in the impugned order of the State Commission which was as per law. Therefore, this revision petition, after consideration, is dismissed. No order as to costs. |
