West Bengal

Siliguri

CC/2012/125

PUSKAR CHAND AGARWAL & SONS, - Complainant(s)

Versus

BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD., - Opp.Party(s)

21 May 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. : 125/S/2012.                DATED : 21.05.2015.

              

BEFORE  PRESIDENT           : SRI BISWANATH DE,

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

 

 

MEMBERS              : SMT. PRATITI BHATTACHARJEE AND          

                              SRI PABITRA MAJUMDAR.

 

COMPLAINANT                 : PUSKAR CHAND AGARWAL & SONS,

                                                              A Hindu Undivided Family, represented by

                                                              its Karta Shri Raj Kumar Agarwal,

                                                              57/41, Agrasen Road,

  Behind Agrasen Bhawan,

  SILIGURI – 734 005. 

                                                           

O.Ps.           1.                 BAJAJ ALLIANZ GENERAL INSURANCE

 COMPANY LTD.,  

                                                             4^th Floor, City Plaza, (Opposite Payel Cinema),

                                                             2^nd Mile, Sevoke Road, SILIGURI – 734 001.

 

Proforma O.Ps.    2)                      SHRI SOUMENDRA CHAKRABORTY,

 Surveyor & Loss Assessor,

 Mousami Apartment,

 Girish Bose Sarani Byelane,

 Hakimpara, SILIGURI – 734 001.

 

3)                      SHRI INDRANIL BHATTACHARJEE,        

 Surveyor & Loss Assessor,

                                                             25, D.L. Roy Sarani, Mahananda Para,

                                                             SILIGURI – 734 001.

 

                                    4)                      SMT. SUMITRA CHOUDHURY,

                                                             W/O Shri Shrawan Choudhury,

                                                              Agent of Insurance Companies,

                                                             P.O.- Rajganj - 735 134, Dist.- Jalpaiguri. 

                                                                                                                                                

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

 

FOR THE OP No.1                         : Sri Kanak Lal Kundu, Advocate.

 

 

J U D G E M E N T

 

 

The case of the complainant is that the complainant owns a pucca multi-storey building being holding No.57/41, Khalpara, Siliguri- 5.  The

 

Contd…….P/2

-:2:-

 

OP is engaged in general insurance business.  Proforma OP Nos.2 & 3 are licenced surveyor.  Proposal form for insuring the premises was submitted before the OP who issued a Standard Fire and Special Perils Policy in the past.  The policy is renewed every year.  The current policy is valid from 28.02.2011 to 27.02.2012 on realization of final premium amount of Rs.1,324/-.  The current policy is for the sum of Rs.20,000,00/-.  There is renewal of the policy on same terms and conditions on the said proposal form.  During the continuance of the policy, there was heavy Earth Quake effecting Siliguri and other parts of the state and Sikkim.  The insured building was damaged.  Claim was submitted before the OP.  The OP appointed surveyor, but the claim was not settled for the reason best known to the OP.  On 25.10.2011 fire broke in the ground floor of the insured building and building was damaged.  Claim was lodged, but the insurance company repudiated the claim.  The common ground was taken for repudiation runs follows :-

“the surveyor in his report has confirmed that the ground floor of the said building has been let out as Godown for Storage of goods for Carrying & Forwarding (C & F) Agents.  The nature of the goods which were stored in the ground floor of the insured building falls under Category I of the All India Fire Tariff, which attracts higher rate of premium to be charged, as the risk becomes more hazardous.  The proposal had not accepted by the OP because keeping of hazardous article were not within the knowledge of OP”. 

The complainant fails to understand how the risk became more hazardous.  The complainant stated earth quake effected the building on 18.09.2011, and surveyor submitted a report, but the policy was not cancelled.  It remains continued for the whole period.  It is also stated that there is no deviation of building plan as there is remarkable extension in all floors of the building.  The claim has been wrongly repudiated under Clause 3(a) of the General Condition of Standard Fire

 

Contd…….P/3

-:3:-

 

and Special Perils Policy on the alleged plea that alleged condition has not been complied by the insured.

Further the case of the complainant with respect of fire is that complainant immediate steps on noticing fire in the ground floor and called fire brigade.  The complainant also submits that whole building was not godown building.  As such in a dwelling house in all stores several items are stored, those are not for resale.  It is contended that insured building was not godown.  It is also submitted that proposal form, claim form, letters, surveyor’s report, fire brigade report, and other reports are lying with OP.  OP is required to file all those documents with Xerox copies to the complainant.  It is also case of the complainant that no terms and conditions nor any printed details of any policy is available along with the proposal form which has been supplied by an agent of OP.  No terms and conditions have been supplied by the policy schedule in force.  Such terms and conditions are also not available in a book form in the market for the public information and use. 

It is also case of the complainant that two repudiation letters dated 27.12.2011, the complainant’s advocate sent replied vide letter dated 02.02.2012, 04.02.2012 both received by the OP on 07.02.2012 with a request to review the matter, but there is no response from the OP. 

As per estimate loss of fire is Rs.3,14,700/-, and loss due to earth quake is Rs.3,25,000/-. 

The cause of action arose for the first time on 18.09.2011 (earth quake) and 25.10.2011 (fire), and lastly on 27.12.2011 when the claims were repudiated.  Hence, the claim for compensation for mental worries and damage of the building as per prayer in para – 21.

The OP has contested the case by filing written version denying inter-alia all the material allegations raised by the complainant.  The OP has submitted that the proposal forms were filled in by the complainant and submitted before the OPs and as per proposal form for simple risks,

 

Contd…….P/4

-:4:-

 

the Standard Fire and Special Perils Policy bearing No.OG-09-2404-4001-00001366 for the period from 28.02.2009 to 27.02.2010 was issued to Mr. Puskar Chand Agarwal for covering residential building of the complainant only subject to the terms, conditions, exceptions and limitations thereof.  The complainant renewed his policy for the period from 28.02.2011 to 27.02.2012.  The insured was duly provided with Standard Fire and Special Perils Policy which contains the terms and conditions etc. at the time of subscribing to the policy.  The surveyor submitted a report to the OP No.1 assessing a loss of Rs.64,265/-.  The surveyor also reported that building has been extended beyond sanctioned plan and further that various goods were kept in the godown.  The goods which were kept in the godown are cosmetics and stationary.  It is also reported that part of the building was given in rent to M/s Prabhat Marketing Co. Ltd. and M/s Sarod Industries Ltd.  Fire was spread rapidly as the some items stored on the rear portion used as godown contained sprit which helped in spread of the fire over the entire area of closed godown.  There was a large number deodorant and after save lotion.  In those items one major ingredient is alcohol.  Alcohol is inflammable and volatile.  The fire lasted for three hours.  The fire damaged the RCC slabs in between place of the ground floor and first floor along with others.  It is also submitted that on perusal of both survey reports, and other available documents, the OP No.1 found that claim was not maintainable for repudiation, mis-representation and violation of No.3 of the General condition of Standard Fire and Special Perils Policy and the policy becomes void for which the amount assessed by the surveyor is not allowed. 

It is also case of the OP that contract of insurance is fully based on and founded upon the principles of UBERRIMA FIDES which means the most perfect good faith.  There is some misrepresentation in the proposal form.  There was incorrect information to the OP/insurer.  So, no claim

 

Contd…….P/5

-:5:-

 

is admissible under the said policy and non-discloser of material fact and giving incorrect declaration in the said proposal form at the time of taking policy make the contract void.  So, the insurer is not liable to pay any compensation under the concerned General Standard Fire and Special Perils Policy. 

So, from the above utter travelling vast plaint i.e., complaint and written version, it is the case under discussion that complainant claimed Rs.3,14,700/- for fire damage and Rs.3,25,000/- for earth quake totalling Rs.6,39,700/- for damaged by earth quake and fire along with compensation for mental worries and other amounting to Rs.2,50,000/- and interest. 

The fire was due to electric circuit and keeping of inflammable articles in the godown. 

From the above complaint and written version of the OP it is percolated that the complainant’s building was damaged due to earth quake and there was fire for which building was damaged as per report of the surveyor appointed by the OP/Insurance Company.

Complainant has filed the following documents :-

1.       Proposal form submitted on 28.02.2009.

2.       Premium paid receipt for Rs.927.00 dated 27.02.2010.

3.       Endorsement Schedule from 28.02.2009 to 27.02.2010. 

4.       Policy Schedule of Current Policy from 28.02.11 to 27.02.12.

5.       Repudiation letter for earthquake claim dated 27.12.2011.

6.       Repudiation letter for fire dated 27.12.2011.

7.       Advocate’s letter dated 02.02.2012.

8.       Advocate’s notice dated 04.12.2012. 

 

OP No.1 has filed the following documents :-

1.       Proposal form of Standard Fire and Special Perils Policy.

2.       Standard Fire and Special Perils Policy schedule from 28.02.09 to 27.02.10.

Contd…….P/6

-:6:-

 

3.       Endorsement schedule of Standard Fire and Special Perils Policy.

4.       Standard Fire and Special Perils Policy schedule from 28.02.11 to 27.02.12.

5.       Report of Station officer, Siliguri Fire Station. 

6.       Fire Survey report dated 12.11.2011.

7.       Earthquake Survey report dated 09.11.2011.

8.       Repudiation letter dated 27.12.2011 for fire.

9.       Repudiation letter dated 27.12.2011 for earthquake. 

 

Complainant has filed evidence-in-chief.

OP No.1 has filed evidence-in-chief. 

 

Points for consideration

 

1. Whether the complainant is entitled to get relief as prayed for.

 

Decision with reason

 

It is admitted position that complainant suffered injury loss in building by earthquake and fire.  But OP refused to pay the claim amount.  The OP took the plea of defect in the proposal form and OP also took the plea that such kind of damages cannot be determined by the Consumer Forum.

It is reflected in the record that it is an admitted position that the complainant house was insured for earth quake.  It is also admitted position that the house was insured for fire.  Damages of the building are also admitted.  The surveyor was appointed by the OPs and consequently the surveyor was requested to survey on 30.09.2011 (Annexure-VIII dated 09.11.2011).  The surveyor being appointed visited the complainant’s premises in connection with the survey and assessment of the captioned loss.  After completion of assessment report was submitted vividly.  The OP repudiated the claim of the complainant (annexure-X).

 

Contd…….P/7

-:7:-

 

Ld advocate of the complainant firmly argued that the said premises was insured as per Act for Earthquake and fire and claim form was submitted.  Surveyor was appointed by the OPs.  The surveyor completed his task (admitted by the written letter of surveyor addressed to OP/Insurance Company).  But this claim was not granted by the Insurance Company.  Accordingly, ld advocate of the complainant prays before this Forum to invoke the law laid down in Section 14 of the Consumer Protection Act, 1986 and amolerate the sufferings of consumer complaint by allowing the sum assured in the insurance policy.                      

Ld advocate of the OP argued that there had been misrepresentation in the proposal form that there was deviation from the term of contract i.e., insurance regarding construction of the building deviating from the original plan, using the building for other purposes, i.e., for godown and also for renting purpose.  Ld advocate of the OP also submitted before this Forum that such kind of claim can be obtained from the Civil Court as there had been enough scope for taking the evidence and those evidence be complex in nature, broad evidence is necessary.  He also argued that by this Forum such kind of allegation cannot be substantiated by adducing cogent credible evidence.  As such ld advocate of the OP concluded to pass order for dismissal. 

The two submissions came before this Forum for consideration as per provision laid down in Act, and spirit of the Act and procedure laid down in our Act. 

We have gone through every line of complaint and written averments.  We have gone through every documents filed by the complainant and filed by the OP marked as annexure. 

We have gone through the evidence-in-chief filed by affidavit of both sides. 

We have also gone through the documents of OPs and complainant very carefully. 

Contd…….P/8

-:8:-

 

It appears before us that the OP did not provide the calculated amount of damages by surveyor as per report of surveyor (Annexure-VIII & X).  The complainant is entitled to get that loss amount and calculated amount as per report of surveyor. 

We also find that the complainant has suffered loss and damages for which the insurance was made between the complainant and the OP.  The OP must keep his words i.e., must enforce his contract between the complainant and the OP.  The complainant is obviously entitled to get award as per speaking law in Section 14 of the Consumer Protection Act.

The complainant is entitled to get the amount as calculated by the Surveyor i.e., as per report of surveyor. 

The insurance was made between complainant and the OP.  The OP repudiated the claim for which the complainant approached before this Forum.  In lieu of his carrier life, the complainant has approached her and waited for fulfillment of his claim after day by day.  He has suffered mentally, physically and economically by the act of the OP and OP must fill up the loss suffered by the complainant. 

The complainant is entitled get compensation to the tune of Rs.10,000/- for mental pain, agony and harassment. 

The complainant is also entitled to get Rs.5,000/- for cost of litigation. 

The complainant is also entitled to get interest @12% per annum on the amount as calculated by the Surveyor i.e., Rs.2,45,213/- from the date of filing of this complaint till realization. 

In the result, the case succeeds.

Hence, it is,

                    O R D E R E D

that the Consumer Case No.125/S/2012 be, and the same is hereby allowed on contest with cost.

The complainant is entitled to get Rs.2,45,213/- as calculated by the Surveyor i.e., as per report of surveyor from the OP No.1.

Contd…….P/9

-:9:-

 

The complainant is entitled to get Rs. Rs.10,000/- for mental pain, agony and harassment from the OP No.1.

The complainant is further entitled to get Rs.5,000/- for cost of litigation from the OP No.1.

The complainant is also entitled to get interest @12% per annum on the amount of Rs.2,45,213/- as calculated by the Surveyor from the OP No.1 from the date of filing of this complaint till realization.

The OP No.1 is directed to pay Rs.2,45,213/- by issuing an account payee cheque in the name of the complainant, for his insured building, within 45 days of this order.

The OP No.1 is also directed to pay Rs.10,000/- by issuing an account payee cheque, in the name of the complainant, for his mental pain, agony and harassment, within 45 days of this order.

The OP No.1 is further directed to pay Rs.5,000/- by issuing an account payee cheque in the name of the complainant for his cost of litigation, within 45 days of this order.

The OP No.1 is further directed to pay interest @ 12% per annum on Rs.2,45,213/- as calculated by the surveyor by issuing an account payee cheque in the name of the complainant, within 45 days of this order. 

Failing which the amount will carry interest @ 9 % per annum from the date of this order till realization.

In case of default of payment as ordered above, the complainant is at liberty to execute this order through this Forum as per law. 

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

 

 

-Member-                          -Member-                        -President-