CONSUMER CASE NO.- 19/2019
JUDGMENT AND ORDER
The case of complainant Sri Samir Das , in brief, is that he is the sole proprietor of a shop running in the name and style ‘Good Luck Mobile Solution’ situated at Hailakandi Road, Silchar. He availed a business loan from Opposite Party No.-3 UNITED bank of INDIA, Meherpur Branch, Silchar by hypothecating the said shop and at the same time for the protection of shop from any eventualities he had availed a General Insurance Policy under Shopkeepers Package vide Policy No.-OG-18-2438-4092-00000302 from Opposite Party No.-1, Bajaj Allianz General Insurance Company Ltd. The complainant also since then has been paying premium of the policy regularly. That on 19/08/2018 at around 0300 hours fire broke out at the aforementioned shop of the complainant and it was completely gutted causing complete destruction of goods including documents and cash amount. A case was registered vide GDE No. 491 dated 19/08/2018 at Rangirkhari Police Out Post and a loss of Rs.5,00,000/- only has been estimated and accordingly a claim was submitted to O.P. No.-1 Insurance Company. Thereafter the Surveyor and Loss Assessor of O.P. No.-1 visited the shop premises and asked to submit relevant documents. Although most of the documents were burnt in the incident the complainant could manage some of the relevant documents and submitted the same to the said surveyor and loss assessor. Subsequently, the O.P. No.-1 Insurance company had transferred an amount of Rs.77,162/- only to the Savings account of the complainant lying with the UBI, Meherpur branch against the claim. Thereafter the O.P. Bank blocked the said savings account and also without any intimation deducted some amount from the account. It has been alleged by the complainant that the O.Ps. have deprived him from getting the actual claim amount and thereby caused disservice towards him. Under the circumstances the complainant has prayed for passing an award of Rs. 1,22,604/- more as compensation in addition of the amount already paid by O.P. No-1, an amount of Rs.5,000/- towards money insurance, an amount of Rs.50,000/- for mental pain, agony & harassment and for passing an award of Rs. 10,000/- towards litigation costs.
The Opposite Party Nos.-1 &2 jointly filed written statement stating, interalia, that there is no cause of action for filing this complaint, that the complaint is not maintainable in its present form and manner, that the complaint is barred by limitation etc. The O.Ps. have denied the allegations that there was any negligence or deficiency in service towards the complainant . Facts put forward by the answering O.Ps. are that immediately after getting the information of fire accident on 19/08/2018 they appointed a competent and independent Surveyor & Loss Assessor namely Samiran Ghosh who visited the spot of occurrence on 20/08/2018. Subsequently after verification of the documents submitted by the complainant and considering the nature of damage an amount of Rs.77,162/- only was paid as full and final settlement of the claim and also the complainant received the said amount by signing the Claim Discharge Voucher. Under the circumstances it is prayed for dismissal of the case.
The Opposite Party No.-3 by submitting written objection took the pleas that there is no cause of action, that the complaint petition is not maintainable etc. etc. It is stated that the answering O.P. has not caused any disservice to the complainant. As per rules some amount was realized from the account of the complainant and as such the answering O.P. bank is not in fault in any way. Accordingly it is prayed for exoneration. It may be mentioned here that the O.P. No.-4 did not contest and the case proceeded ex-parte against him.
In support of the case complainant Sri Samir Das submitted his evidence on affidavit as sole prosecution witness (PW) and exhibited some documents. He was also cross-examined by the opposite party. On the other hand, from the side of Opposite Party nos. 1&2 evidence on affidavit of one Sri Nayan Choudhury has been submitted as DW-1 and also some documents have been exhibited. Thereafter both sides have also submitted written argument in addition of oral argument put forward by the learned counsels of the respective parties. Perused the entire evidence on record. Let us now appreciate the evidence below
In his evidence PW Samir Das has deposed that he is the sole proprietor of a shop running in the name and style ‘ Good Luck Mobile Solution’ situated at Hailakandi Road, Silchar. He had availed a business loan from Opposite Party No.-3 UBI, Meherpur Branch, Silchar by hypothecating the said shop and also for protection of shop from any eventualities he had availed a General Insurance Policy under Shopkeepers Package vide Policy No.-OG-18-2438-4092-00000302 from Bajaj Allianz General Insurance Company Ltd. The sum insured of the policy was Rs. 2,00,000/- and he had paid premium of the policy. Further version of the PW is that on 19/08/2018 at around 0300 hours fire broke out in which his said shop house was gutted causing complete destruction of goods and stationary items including documents and cash amount of Rs.5,000/-. In connection with the incident a case was registered vide GDE No. 491 dated 19/08/2018 at Rangirkhari Police Out Post and a loss of Rs.5,00,000/- only had been estimated and accordingly a claim was submitted to O.P. No.-1 Insurance Company. The evidence on record further goes to show that Samiran Ghosh, the Surveyor and Loss Assessor of O.P. No.-1, visited the shop premises of PW-1 on 20/08/2018 and asked the complainant to submit the copies of all relevant documents to settle the claim. According to the PW, though most of the documents were burnt in the alleged incident he could manage some of the relevant documents and submitted the same to the said surveyor and loss assessor and subsequently on 31/12/2018 the O.P. No.-1 Insurance company had transferred an amount of Rs.77,162/- only to his ( PW ) Savings account maintained with the UBI, Meherpur branch . Thereafter the O.P. Bank blocked the said savings account and also without any intimation deducted some amount from the account. In support of his evidence the PW has submitted Ext.-1 to Ext.-13 documents including copies of trade licence of the shop, I.T. Return, Insurance policy of the shop premises, some photos of damaged articles . On the other hand in his evidence Sri Nayan Choudhury (DW) of the Insurance Company has not disputed the facts that the complainant insured his shop premises with the O.P. Insurance Company and the said shop premises was gutted by fire causing destruction of articles, that the complainant filed claim petition and the shop premises was visited by the Surveyor and Loss Assessor of the Insurance Company and thereafter an amount of Rs. 77,162/- was paid to the complainant against his claim. But the averment of the DW is that the said amount of Rs.77,162/- was paid to the complainant as full and final settlement of the claim and the amount was received by the complainant by signing the Claim Discharge Voucher on 27/12/2018 and also the complainant discharged the Insurance Company from all liabilities. It has been alleged by the DW that the complainant by suppressing the material facts has filed this case to reap wrongful gain. The DW has exhibited Ext.-A Survey Report, Ext.B Release Order dated 17/12/2018, Ext.-C Claim Discharge Voucher dated 27/12/2018 and Ext.-D Mandate form for electronic transfer of Claim/Refund Payment. It also has been denied by the DW that any disservice or negligence was caused towards the complainant.
Thus in the written statement of O.P. Nos. 1&2 and also in the evidence of the DW it has been contended that as at the time of receiving the sanctioned claim amount of Rs.77,162/- the complainant signed the CLAIM DISCHARGE VOUCHER on 27/12/2018 i.e., Ext.- C discharging the Insurance Company i.e., Opposite Party Nos. 1 & 2 from all liabilities so the complainant can not again take the legal recourse pertaining to the claim. On the other hand though during cross-examination the complainant admitted the fact that he signed aforesaid Ext.-C but in his evidence he has taken the plea that the O.Ps. cleverly took his signature in the CLAIM DISCHARGE VOUCHER i.e., Ext.-C. During argument also the learned counsel for the O.P. has raised this matter of signing the Claim Discharge Voucher by the complainant . But the fact remains that the Hon’ble Apex Court in the case law “United India Insurance Company Ltd. Vs. Ajmer Singh Cotton & General Mills & Ors “ reported in (1999) 6 SCC 400 and also the Hon’ble National Commission in New India Assurance Co. Ltd. Vs. Kohinoor Sizing Factory, II (2006) CPJ 237 have clearly held that mere execution of discharge voucher and acceptance of Insurance claim would not estop the insured from making further claim from the Insurance Company.
The DW has exhibited the Final Survey Report Submitted by the Surveyor & Loss Assessor as Ext. A . On perusal of the survey report it reveals that during visit at the place of incident it was found that buildings and furniture were burnt partially but the stock of electronic goods and mobile accessories were totally damaged/burnt. In his evidence the complainant has also submitted some photocopies vide Ext.-5 which also show the images of damage articles of the shop including good number of damaged mobiles. The O.P. has not disputed Ext.-5 anywhere specifically. In the Survey report the Surveyor has also stated that on enquiry he came to know from the neighbouring people that there was good volume of stock in the shop house of the complainant. The Survey Report shows that the Surveyor assessed the net loss at Rs.87,227/-. But considering the nature and extent of damage of valuable articles and after going through the exhibited papers of both sides including the survey repot we feel that the amount paid by the Insurance Company is not appropriate and it requires to be enhanced.
Considering all aspects we are of the opinion and direct the O.P. No.-1 &2 Insurance Company to pay to the complainant an award of further amount of lumpsum Rs.40,000/- ( Rs. Forty thousand) only towards claim in addition of the amount already paid. The O.P. Nos. 1& 2 are directed further to pay to the complainant an amount of Rs.5,000/- ( Rs. Five thousand) only for mental agony, pain & harassment and another amount of Rs.5,000/- ( Rs. Five thousand) only towards cost of litigation. The entire amount shall be payable within a period of 90 ( ninety) days failing which interest @ 9 % per annum would accrue on the amount from the date of this judgment till realization.
With the above relief awarded the case stands allowed on contest against O.P. Nos. 1,2 & 3 and exparte against O.P. No. 4. The judgment is pronounced with our seal and signature on this 21st day of January’2023.
